Appeal of ISLIP TEACHERS ASSOCIATION from action of the Board of Education of the Islip Union Free School District regarding shared decisionmaking.

Decision No. 16,418

(October 5, 2012)

Davis & Hersh, LLP, attorneys for petitioner, Lloyd M. Berko, Esq., of counsel

Ingerman Smith, LLP, attorneys for respondent, Chad G. McAlvin, Esq., of counsel

KING, JR., Commissioner.--Petitioner challenges various actions of the Board of Education of the Islip Union Free School District ("respondent board” or “board”) relating to adherence to the district’s shared decisionmaking plan.  The appeal must be dismissed.

Petitioner is the collective bargaining organization representing teachers in respondent’s district.  Respondent refers to its shared decisionmaking plan as the Islip School District Compact for Learning (“the Plan”).

The Plan provides for shared decisionmaking teams comprised of “stakeholders” (board of education members, administrators, teachers, parents, students and/or community members) who are responsible for ensuring that basic principles of the shared decisionmaking process are enforced.  Stakeholders sit on building-level committees referred to as “Standards of Excellence Committees (SOEs).”  One of the responsibilities of the SOE under the Plan is “[t]o make recommendations to be submitted to the Superintendent or his designee in the area of building level personnel selection.”  SOEs are also responsible for deciding issues, resolving problems and making every effort to reach decisions by consensus.  The Plan provides that “when a building level committee decides it cannot come to an agreement on an issue and there is a strong objection by a member(s) of that committee, a conflict exists.”  At that point, the Plan lists a series of conflict resolution procedures that must be followed.

Petitioner alleges that respondent violated the shared decisionmaking requirements in §100.11 of the Commissioner’s regulations by refusing to invoke the conflict resolution procedures in the Plan.  Specifically, petitioner alleges that it made respondent aware that conflicts existed in the interview and selection process for the high school assistant principal, high school English Department Chairperson, and English teacher leave replacement positions, and that respondent failed to invoke the conflict resolution procedures in the Plan.

Respondent alleges that the petition is moot, untimely and that petitioner failed to join necessary parties.  Respondent further alleges that petitioner failed to state a claim for which relief can be granted and that petitioner is seeking a declaratory judgment and/or an advisory opinion over which the Commissioner does not have jurisdiction.  Respondent also requests that petitioner’s reply be rejected.

I must address respondent’s procedural concerns.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No. 15,901).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

Respondent also contends that the appeal is untimely.  An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879).

By letter dated October 4, 2010, petitioner challenged the interview and selection process for the assistant principal position and requested that the conflict resolution procedures under the Plan be invoked.  The Superintendent responded to petitioner’s concerns in a letter dated October 29, 2010, but noted that she could not respond on respondent’s behalf.

By letter dated November 22, 2010, petitioner reiterated its concerns in the October 4 letter and challenged the interview process for the English Department Chairperson position and the English teacher leave replacement, alleging a violation of §100.11 of the Commissioner’s regulations and requesting that the conflict resolution process be invoked.  By letter dated November 30, 2010, the board denied petitioner’s requests and indicated that the matter was closed.  Petitioner’s appeal was served on December 29, 2010.  Since petitioner’s appeal was filed and served within 30 days of respondent’s final determination regarding petitioner’s request to invoke the Plan’s conflict resolution process, I decline to dismiss the appeal as untimely.

To the extent that petitioner seeks a declaratory ruling, including an order directing the district to adhere to the conflict resolution procedures in the Plan in the future, the appeal must be dismissed for failure to state a claim upon which relief may be granted.  It is well established that the Commissioner does not issue advisory opinions or declaratory rulings in an appeal pursuant to Education Law §310 (Appeal of a Student with a Disability, 48 Ed Dept Rep 411, Decision No. 15,899; Appeal of Waechter, 48 id. 261, Decision No. 15,853).

To the extent that petitioner seeks relief other than a declaratory ruling based on allegations that respondent violated the shared decisionmaking requirements in §100.11 of the Commissioner’s regulations in the interview and selection process of the assistant principal, the English teacher and the English teacher leave replacement, the appeal must be dismissed for failure to join necessary parties.  A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879). 

Petitioner requests that I determine that the district violated §100.11 of the Commissioner’s regulations by failing to adhere to the conflict resolution procedures in the Plan regarding petitioner’s complaints about the interview and selection process for the high school assistant principal, high school English Teacher leave replacement and English Department chairperson positions.  Such a determination would make the process by which these individuals were appointed, hired or selected unlawful. While petitioners do not expressly ask me to nullify the appointment, hiring or selection of these individuals, that step is a necessary component of the relief requested (seeAppeal of McKenna, et al., 42 Ed Dept Rep 312, Decision No. 14,866).  Therefore, a determination in petitioner’s favor would adversely affect these positions and petitioner’s failure to join these individuals as parties requires dismissal of the appeal.

In light of this determination, I need not address the parties’ remaining contentions.

THE APPEAL IS DISMISSED.

END OF FILE.