By Abel Feldhamer, Esq.
I have had the privilege to serve on the Lawrence School Board for the past four years, and while I am not a candidate in the upcoming election, I am grateful for the opportunity to offer my perspective and hopefully some clarity regarding the issues surrounding this election.
As a school board trustee, I was one of the two members of the board who voted against the proposed sale of the Number Six School property to Simone Development at the School Board meeting on January 14, 2013. (At the meeting, the board ultimately voted 4-2 in favor of the sale, with the seventh trustee absent.)
Immediately prior to the vote, I had made a motion to postpone the vote until the following monthly meeting, so that considerations surrounding the board’s decision could be presented to the community with greater depth and clarity. But despite my opposition at that meeting, and my personal belief that the proposed Simone Development would have a negative impact in the Cedarhurst-Woodmere neighborhood (where I reside as well), I understood that the school board had no choice but to award the contract to Simone Development, since it was the highest bidder.
As an attorney, I naturally make every effort to analyze the legal issues presented to the school board, and I frequently find myself researching NYS Education Law, the Commissioner of Education’s decisions, as well as published case law. At the same time, the school board is guided by the advice of the school district’s attorneys which include both a local and a national law firm.
Of course when it comes to challenging decisions like the sale of a school property, the school board will always seek the advice of its attorneys, and in this case, we relied on their guidance throughout the entire process; from the closing of the Number Six School in 2009, to the subsequent selection of a broker which marketed the property over the past two years, to the negotiation of contract terms with potential purchasers, and ultimately to the selection of the high bidder, and the final negotiation of contract terms.
The Anatomy Of A Sale
In considering the various bids for the property, the guidance that we received from the school board’s attorneys at every step of the process was unambiguous and consistent. A school board’s rights and responsibilities with respect to the sale of school district property are governed by New York State Education Law, Section 1709(11). This law has been interpreted and clarified by many courts, as well as in decisions by the Commissioner of Education, and the standard they apply is that “a school board has a fiduciary duty to secure the best price obtainable—in the board’s judgment—for any lawful use of the premises.” Stated differently, the school board must select the bidder or offer that conveys the “highest financial benefit” for the school district in all circumstances. The courts and commissioner’s decisions have further clarified that this analysis may take into account certain ancillary financial considerations such as tax consequences from a proposed sale (i.e., the anticipated property tax revenue from a for-profit purchaser compared to the absence of property tax revenue from a not-for-profit purchaser), but clearly a board’s choice may not account at all for non-monetary factors, such as the best interests of the community. I will admit that I was not willing to accept our attorneys’ guidance at first, but after reviewing case after case in the hope of identifying a more discretionary standard, I could still find no legal basis to justify selecting anyone but the highest lawful bidder.
Of course, throughout this process, we have heard from some people who feel that the school board should not have “favored” the highest bidder over a lower bid from a community organization or yeshiva that would be better suited for the community. But as much as I might have a preference that the Number Six School property be sold to any one of a number of community institutions that would benefit the entire community, our fiduciary duty as trustees is to set aside our personal preferences, and to act in accordance with the law.
A District In Conflict
To clarify this point, I would like to share the saga of another school district, located approximately 50 miles north of Lawrence, with a demographic composition that is uniquely similar to ours. Like Lawrence, the East Ramapo School District includes a large Orthodox community (a.k.a. Monsey and Spring Valley), whose representation on the school board has increased over the years, and is now the majority.
While many similarities can be drawn between East Ramapo and Lawrence, the state of affairs in the two districts today is starkly different. Like Lawrence, the East Ramapo’s public school population has seen a steady decrease, warranting the closure of several public school properties. In 2010, East Ramapo closed an elementary school building and conducted a somewhat hasty sale process. Although the East Ramapo board selected the highest bidder at the time, questions were raised about the legitimacy of the sale process and whether the board’s selection maximized the financial benefit for the district. Several months later, the NYS Commissioner of Education annulled the sale. Then, the district sold another elementary school building to a different yeshiva, amid allegations of preferential treatment and failure to maximize the value of the property. The State initially halted this transaction as well, but following an 18-month review, the NYS Commissioner of Education finally upheld the sale in that case, because there was no evidence that the school board could have obtained a higher price for the property. Nevertheless, there is an ongoing investigation into both transactions by the NYS Attorney General.
While I have no desire to pass judgment on the actions of another school board, we would be remiss not to learn some obvious lessons from what some may aptly refer to as our “sister school district.” With all of the distrust and allegations of impropriety, East Ramapo’s school board meetings have become a hotbed of hateful rancor and anti-Semitism. Over the past few months, three out of nine board members have resigned from the East Ramapo school board. Several months ago, the NYS Education Commissioner asserted that he is “looking closely” at the East Ramapo district. Local newspapers are calling for Governor Cuomo and the NYS Legislature to intervene in the district’s issues. A local state assemblyman is advocating that the school district be split in half.
Good Judgment Above All
While my personal preference was for the Simone project not to succeed (and your can rest assured that I voted against the proposed sale in the March 20 referendum), I am proud that our school board made the right decision in selecting the highest bidder and resisted any pressure from community members or local community institutions to favor a lower bid in contravention with the law. Although there certainly are some flaws in the state-mandated process for the sale of school property, the board’s fiduciary duty to select the highest bidder sensibly ensures that the selection of a purchaser is not tainted by any conflict of interest that could exist among board members. The community referendum likewise ensures that the highest bidder does not offend the interests of the community. In this respect, it can be said that the process has worked quite effectively.
Some in the community have suggested that the school district conspiratorially sought to reduce the number of voting locations to discourage voter turnout, or tried to prevent voters from obtaining absentee ballots. But these contentions could not be farther from the truth. While it’s easy to suggest there was difficulty obtaining absentee ballots, the reality is that there were hundreds more absentee voters in this election than in any previous election. Although past referendums have been held in only one polling place, this vote was held in four different locations in order to maximize accessibility for voters. Finally, there are those who have suggested that the contract of sale for the Number Six School was deliberately concealed from the public, but a simple read of the notice in local newspapers indicated that the contract was available to the public in the office of the district clerk at Lawrence Middle School.
I am proud of the good judgment that this school board has exercised over the past several years, and of all of the things that have been accomplished through the support of the community. I am proud of the great initiative and the grassroots efforts by so many members of our community who have helped elect each of our school board trustees and can look proudly upon the kiddush Hashem that has resulted from their efforts.
While I admired the efforts of the coalition organizers in publicizing the Number Six School referendum, and I stood shoulder to shoulder with them in opposition to the sale, I strongly disagree with their contentions regarding the school board’s selection of the high bidder, and I cannot accept the notion that the board should favor a lower bidder when NYS law clearly dictates otherwise.
There is much to be said for the virtue of independent thinking on a school board, and we have all benefited from some of the independent thinking and innovative ideas implemented by our school board trustees and the district’s administration in curriculum, operations, budgeting, special education, transportation, etc. But the greatest misstep our school board could make is to allow independent thinking or personal preferences to influence the exercise of our fiduciary duties; it would be nothing short of a tragedy for the Lawrence School District to invite the scrutiny and discord that has unfortunately become commonplace in East Ramapo.
The School Board Candidates That Our Community Needs
Our community has always supported candidates who value the importance of carrying out their fiduciary duties in a manner beyond reproach. School board representatives must hold the law in the highest regard, and it is critical that we continue to elect individuals whom we are confident will exercise only the best judgment on our behalf.
In the upcoming election, I am proud to support three school board candidates who have the integrity, experience, and determination to best represent our community on the board. Each of these individuals, whom I have had the privilege to work closely with, exhibits the character to exercise good judgment even in the face of conflicting personal interests and outside influences.
Tova Plaut is the administrator of a large preschool program (outside the district), and has lived in our community for 16 years. Her dedication and concern for the community is evident from all of the work that she has done for Achiezer, HAFTR, Rambam, Chai Lifeline, Bikur Cholim, NCSY, and the list goes on. Through her attendance at school board meetings for many years, she has shown an active interest and appreciation for our district’s issues, and I have seen her integrity firsthand in all of the efforts she has invested in school board elections for the past eight years. It also goes without saying that a woman’s perspective is long overdue on what has historically been a male-dominated board.
Michael Hatten has already served on the school board for three years (from 2006-2009), and has shown himself to be a unifying voice and a vocal advocate for the needs of our community. As an educator and the CEO of a large vocational school, he provides a valuable perspective that cuts to the core on educational and operational issues in the district. In addition, the integrity and sound judgment that he has exhibited in the past will undoubtedly be a valuable addition to the school board.
None of our school board’s accomplishments over the past seven years would have been possible without the foundation laid by Dr. David Sussman, a dear friend of the community and veteran member of the school board. David’s reputation for fiscal prudence, fairness, and elevating educational standards is well earned, and he has proven himself an invaluable asset to this community.
On Tuesday, May 21, I urge you to join me in Voting “Row B” for Tova Plaut, Michael Hatten, and David Sussman. Each of these individuals has a proven record of dedication and advocacy for our community, and above all, the integrity and good judgment that our community can count on. The polls will be open May 21 from 7:00 a.m. to 10:00 p.m. For more information or to vote by absentee ballot, please contact the district clerk at 516-295-7032. v