STATE UNIVERSITY OF NEW YORK Minutes of Meetings of the Board of Trustees of State University of New York March 29, 2010 (Subject-to-Correction) The Board of Trustees of State University of New York met on March 29, 2010 at 2:00 p.m. via video location from the following locations pursuant to calls sent by the Office of the Secretary of the University on March 26, 2010. March 29, 2010 2:00 p.m. Trustee present via video in Elmira: Chairman Hayden Trustee present via video in Albany: Dr. Ehrenberg Trustee present via video in Brockport: Dr. O�Brien Trustee present via video in Buffalo: Mrs. Lewin Trustee present via video in Purchase: Mr. Hunt Trustees present via video in Syracuse: Mrs. Audi, Mr. Murad Trustee present via video at NYU: Dr. Noguera Trustees present via video in NYC: Mr. McCall, Mr. Spielvogel, Ms. Warren- Merrick Trustees absent: Mr. Bellafiore, Ms. Mercedes, Ms. Sanford, Mr. Staller, Dr. Wachsman Also present: Mr. O�Connor; Mr. Morgan March 29, 2010 1. CONVENING OF PUBLIC MEETING Chairman Hayden called the meeting to order at 2:00 p.m. He called upon Michael Morgan from the University�s Counsel�s office to explain the reason for reconvening today to take up the resolution with respect to the New Covenant Charter School. Mr. Morgan began by saying when the Board met on March 23, 2010, one of the resolutions considered related to the New Covenant Charter School. He said the resolution by its terms would deny the renewal application of the New Covenant Charter School and the effect if it had passed would mean the closing of the school at the end of the current school year. Mr. Morgan said a vote was taken, and it was announced that the resolution had been approved by a margin of four (4) to one (1) with six (6) members abstaining. He said that announcement was in error, as there were insufficient affirmative votes to pass the resolution. Mr. Morgan explained that under the University�s statute and the Board�s bylaws, in order to pass a resolution, a majority of the members present must vote in favor of the resolution. He said last week there were 11 members present, thus, there was a need for six (6) affirmative votes in order to carry the resolution and that only four (4) were cast. Mr. Morgan said no other action was taken at that meeting with respect to the pending application of the New Covenant Charter School for renewal. He explained that while we have 11 Trustees present today, there are 10 voting members in attendance, as the Faculty Senate President, Trustee Ken O�Brien, is a non-voting member of the Board. Mr. Morgan said for purposes of voting today, we have 10 members present and in order for the resolution to be approved it will need the affirmative vote of at least six (6) Trustees. Mr. Hayden said essentially what Counsels office has informed us that the abstentions were treated as �no� votes for the purpose of the resolution and therefore we did not act when we last took up this matter. Mr. Morgan confirmed that. Mr. McCall then called for an explanation, stating he specifically asked at the March 23rd meeting following the end of the vote whether, given the fact that there were six abstentions, if it did carry and was informed by Counsel that it had. Mr. Hayden acknowledged that he distinctly recalled Mr. McCall asking that question and Counsel�s response at that time. The Chairman stated on March 24, 2010 we received a letter from Kevin Quinn, an attorney from Whiteman, Osterman and Hanna, protesting the legality of the vote and upon receipt of that letter, the issue was raised again with Counsel. We were then informed by our Counsel that he believed himself to be in error. Mr. Morgan then conducted a great deal of research and confirmed the need for the Board to reconvene for the purpose of taking up anew the issue of the resolution relating to New Covenant. Mr. McCall questioned if that meant future abstentions will be considered as �no� votes. Mr. Hayden responded he does not believe that to be the case, in fact, after speaking with some Trustees following the March 23rd meeting, it was evident to him that it was not their intent to vote �no� on the resolution; instead, and some had reasons for abstentions such as a conflict of interest; some have historically abstained from Charter School matters. Chairman Hayden said in order to eliminate any ambiguity that may exist it was felt that the most transparent and fairest way was to reconvene today in order to give the school community and parents advice upon which they can act. Mr. Hayden then called for a motion to waive the traditional seven-day notice for convening today�s meeting. Upon motion of Dr. Noguera, seconded by Mrs. Lewin, it was unanimously agreed to waive the seven-day meeting notice. Mr. Hayden then called upon Secretary O�Connor to take count for the purpose of confirming a quorum was present for today�s vote. Mr. O�Connor confirmed a quorum was present with 10 Trustees present, and the presence of an eleventh member, non voting member, Trustee O�Brien. Mr. Hayden then reiterated that Mr. Morgan has said it would take 6 affirmative votes on any resolution in order for us to act today and an abstention would not be counted as an affirmative vote for this purpose. Mr. Morgan clarified stating an abstention is not counted as any type of a vote. Mr. McCall then inquired if our bylaws, as Counsel has indicated, suggest that abstentions are not counted, should the Board consider a remedy for future votes. Mr. Hunt said he feels the distinction is in our bylaws, which presently read �a majority of those present� and that in the absence of that phrase, it would be clearer. Mr. Morgan maintained that the best view is that an abstention is neither a positive or negative vote rather; it is no vote at all. He said our statute and bylaws are silent as to the effectiveness of an abstention and because of this, he is governed by the result of his research. Chairman Hayden said the correct legal ruling in response to the question raised by Trustee McCall at our last meeting was that in order for the resolution to pass it would have required at least a majority of those attending which would be the majority of the 11 Trustees present. Mr. Morgan confirmed that we indeed would need six (6) affirmative votes to carry the vote. Mr. Hayden said although the previous vote carried by a 4-1 margin, it was insufficient to constitute an action of the Board. Mr. Hunt suggested a revision to the bylaws to clarify the issue, which Chairman Hayden said is a broader question that we will take up at a later time. Chairman Hayden then called upon Jonas Chartock, Executive Director of the Charter Schools Institute to set forth the background to today�s vote. Mr. Chartock began by saying New Covenant came to renewal this year having been previously been renewed twice by the Trustees. He said in 2004, there was a five-year conditional renewal which required the school to end its instructions in grades 7 and 8, due to persistently poor academic performance at those levels, and there was limited enrollment in grades 5 and 6. Mr. Chartock said evidence of an improving elementary program led the Board to renew the school�s charter at that time. He said a second renewal came in 2009, when the Charter School Institute made a recommendation of non-renewal based on the fact that the school, even with the elimination of grades 7 and 8, still had not met its academic accountability plan goals. He noted that the Institute�s recommendation was based on evidence gathered over the entire five year term, which included two years of management by Edison Schools, Inc., and three years by Victory Schools, Inc., management that continues today. Mr. Chartock said SUNY renewal practices provides for only two renewal outcomes for New Covenant; one, a five year renewal, or, secondly, non-renewal. He said the Charter Schools Committee and the Board considered the Institute�s recommendation, and after requesting additional evidence beginning with the school�s inception and hearing from the school, voted in March 2009, to grant New Covenant an approximate one-year renewal through July 31, 2010. Mr. Chartock said this particular renewal set forth specific academic, legal and fiscal conditions that the school would have to meet before being considered for subsequent renewal. He said it also provided that New Covenant would be eligible for two renewal outcomes only � either a five year renewal, or non-renewal. Mr. Chartock said today as we near the end of that one year renewal, the issue is to determine whether or not New Covenant should continue operations beyond the end of this current school year. He said the resolution before the Board today is for non-renewal, that is, to close the school at the end of the current school year. Mr. Chartock said on February 23, 2010 the Charter Schools Committee recommended a resolution to close New Covenant by a vote of 3 to 1. He said per the Board�s delegation to the Committee, all closure decisions must be made by the full Board of Trustees. Mr. Chartock said the Institute�s non-renewal recommendation is based on its findings that while New Covenant has made progress, it still did not meet the academic conditions of its one-year renewal; additionally, even in its eleventh year of operation it still has not met the goals of its academic accountability plan. Mr. Chartock then summarized the steps taken by the Institute that led to its recommendation of non-renewal. He said the school�s application for renewal beginning in August 2009 was carefully reviewed and a site visit was conducted on September 21, 2009. He said following that visit an in-depth analysis of New Covenant�s performance as compared to the academic, legal and fiscal conditions of renewal was done. Mr. Chartock said the Institute issued a draft report in December 2009 to the school in which it made a preliminary recommendation on non-renewal. He said because the preliminary recommendation was non-renewal, the Institute also attended a school-wide meeting at New Covenant on December 22, 2009 which was an opportunity for the school leadership, board and community to present additional evidence as to why the school should remain open. Mr. Chartock said the school�s factual corrections to the report were incorporated as appropriate and it considered verbal and written testimony from the school-wide meeting and letters from the school thereafter. He said after careful deliberation, the Institute determined that insufficient evidence was provided in order to change the recommendation of non-renewal. He reported the Institute�s final report was issued in January 2010 which reaffirmed its preliminary recommendation of non-renewal. Pursuant to the SUNY Renewal Practices, Mr. Chartock said New Covenant was invited to submit written and verbal petitions of the Institute�s non-renewal recommendation to the Charter Schools Committee at its meeting on January 15, 2010. He said the Institute analyzed the school�s written petition and issued a comprehensive report in which both the Institute�s and New Covenant�s reviews were shared with all Trustees. He reported the Committee then charged the Institute with providing specific information as to what would happen to the students of New Covenant should the school close. Mr. Chartock said those findings were presented at a subsequent Committee meeting held February 23, 2010 at which New Covenant was given another opportunity to present its renewal case. He said at that meeting, the Committee voted 3-1 to forward a recommendation of non-renewal to the full Board. Mr. Chartock said the Institute has worked diligently to keep New Covenant parents informed throughout the process, and, because there was a possibility of closure, information regarding admissions deadlines for magnet, charter and private parochial schools was also shared. In closing, Mr. Chartock said making a recommendation to close a school is by far the most difficult responsibility of the Institute and it stands behind its recommendation to close New Covenant. Mr. Hayden then called upon Secretary O�Connor to read the resolution. Denial of Application for Charter Renewal of the New Covenant Charter School (Albany) Resolved that the subsequent charter renewal application of New Covenant Charter School (the �School�), dated July 27, 2009, be, and hereby is, denied inter alia for the reasons set forth in the Charter Schools Institute�s renewal report that was provided to the Board of Trustees (copies on file in the Office of the Vice Chancellor and Secretary of the University and in the Albany office of the Charter Schools Institute); and be it further Resolved that the Board of Trustees finds that the School did not meet all of the academic conditions of renewal set forth in the Board�s Resolution No. 2009-041, dated March 24, 2009; and be it further Resolved that based on the totality of the evidence presented to the Charter Schools Committee and the Board of Trustees by both the Charter Schools Institute and the School, the Board does not find that granting the School�s renewal application is likely to improve student learning and achievement and materially further the purposes of the Charter Schools Act within the meaning of Education Law subdivision 2852(2)(c); and be it further Resolved that the Charter Schools Institute, acting for the Board of Trustees, be, and hereby is, directed to take steps necessary and appropriate to close the School and terminate the charter effective as of July 31, 2010, and to assist the School and the Board of Regents in the dissolution of the School corporation and/or the revocation of its certificate of incorporation. (2010-040) Chairman Hayden then asked Dr. Noguera, Chairman of the Charter Schools Committee if he wished to move the resolution. In response, Dr. Noguera indicated he moved the resolution, which was then seconded by Mr. Hunt. Mr. Hayden said for the record, correspondence was received late this morning from Whiteman, Osterman and Hanna, the attorneys for New Covenant outlining additional arguments with respect to their reasons for supporting the continuation and renewal of the charter. The Chairman said every effort was made to distribute that letter immediately, but given its lateness, he was unsure if it reached all Trustees in time for today�s meeting. With that said and the motion before the body, Mr. Hayden solicited final comments from colleagues. Dr. Noguera said previously in both Committee and at the Board meeting he voted against this resolution as he felt the school had made progress. He then said today he will change his vote to support the resolution as he feels prolonging the issue is not in the best interest of the school. Mr. Hayden called upon Mrs. Audi who said she has been a member of the Charter Schools Committee for over 9 years and during this time we had a very rigorous renewal process during which the Committee has renewed several schools for full term, others for short term renewal and on occasion have voted to close a school. Mrs. Audi said, as the members will recall, last year she stated she believes in granting second chances and therefore voted not to deny the renewal, and she does not regret that vote. However, Mrs. Audi said, she has reviewed all relevant documentation, including the latest appeal that arrived today and has concluded that the only option the Board has is to honor the pledge made last year that unless the school met all conditions, no renewal would be granted. Mrs. Audi said having gone through the entire process she believes that we should vote in favor of closure while remaining strongly committed to Charter Schools and the role they play in educating our youth. Mr. Hayden then called for a vote and in doing so, encouraged as many Trustees as possible to vote yea or nay. He said it is clear that abstentions are very personal matters and Trustees may abstain for whatever reason they choose and it will be respected. He then asked Mr. O�Connor to call the role stating a �yes� is a vote not to renew the charter and that a �no� is a vote not to deny the renewal. Trustee Audi�s response was yes. Trustee Ehrenberg stated when the Charter School principal presented to the Board at the last meeting he indicated some of the displaced students were residents in the school district where his spouse currently serves as School Superintendent. For this reason, Dr. Ehrenberg indicated he has a conflict of interest and would need to abstain from the vote. Trustee Hunt�s response was yes. Trustee Lewin abstained. Trustee McCall abstained. Trustee Murad�s response was yes. Trustee Noguera�s response was yes. Trustee Spielvogel�s response was yes. Trustee Warren-Merrick responded that she currently sits on a board that may come before this Committee to ask that a Charter School come forth and for that reason she is abstaining from the vote. Trustee Hayden�s response was yes. Mr. O�Connor said there were six votes approving the resolution, four votes in abstention and no negative votes. Hearing this, Chairman Hayden stated the resolution has passed and constitutes an action of the Board in denying the application of charter renewal of the New Covenant Charter School in Albany. He asked Counsel to confirm that this was a valid vote. Mr. Morgan responded that it indeed was a valid vote. Mr. Hayden expressed his appreciation to the Trustees for their response and willingness to participate in today�s vote on such late notice. 2. ADJOURNMENT There being no further business, upon motion of Dr. Noguera, seconded by Mr. Spielvogel, the meeting was adjourned at 2:30 p.m. 18 -2- Board Minutes March 29, 2010