Appeal of JOHN T. SIWULA from action of the Board of Education of the City School District of the City of Jamestown, relating to the assignment of classrooms and alleged health and safety violations.

Decision No. 14,718

(April 19, 2002)

Phillips, Lytle, Hitchcock, Blaine and Huber LLP, attorneys for respondent, Michael C. Foley, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals respondent's refusal to permit him to remain in a particular science classroom and challenges respondent"s alleged failure to lawfully store chemicals and comply with other health and safety requirements. The appeal must be dismissed.

Petitioner is a seventh grade science teacher in the Jefferson Middle School in respondent's district (the "district"). For a number of years, he occupied a particular classroom in the school. That classroom had a door to an outside garden that petitioner developed as an educational tool, as well as an adjacent storage room. In May 2001, the principal, Jill Sherman, advised petitioner of his reassignment to a new classroom for the 2001-2002 school year. She explained that she wanted his seventh grade students to be closer to other seventh grade students in the school. Petitioner's former classroom was located on the opposite side of the school from the rest of the seventh grade team. Petitioner raised concerns with the principal regarding the ventilation system in the new classroom. Petitioner also alleges that he asked to remain in his former classroom, and that the principal denied this request.

Subsequently, petitioner wrote to respondent"s superintendent asking to remain in his classroom. On September 27, 2001, respondent's Director of Middle and Secondary Education, Vicki Wright, issued a memo to petitioner that attempted to respond to his concerns regarding his new classroom assignment. In that memo Ms. Wright indicated that the district had conducted two smoke tests in his new classroom and found that the exhaust system was more than ample, but agreed to install a new power vent unit to provide an even greater rate of air exchange. She also indicated that the district was making provision to store permissible amounts of chemicals in the new classroom. She asked petitioner to provide a complete current inventory of chemicals, material and supplies associated with science experiments in his classroom. Finally, she denied petitioner's request to remain in his former classroom, advising him that the district was taking every precaution to comply with State chemical storage guidelines. This appeal ensued.

Petitioner contends that respondent is violating Education Law "305(19) and the recommendations of the Council of State Science Supervisors governing the safe storage of chemicals for science classes. He also contends that the new classroom contains other health and safety problems, including fire code violations. Petitioner requests that: he be returned to his former classroom; all materials stored by other teachers in the storeroom adjacent to his former classroom be removed; respondent be directed to check all science classrooms for adequate ventilation; the Commissioner review the district's data and methodology; the Commissioner direct an investigation to ensure that the district did not receive State or federal funding for the construction of an allegedly planned but never constructed science room; the Commissioner direct the repair of fire code violations; and the Commissioner issue an order protecting petitioner from reprisals by respondent or district employees. Petitioner also requests monetary damages to cover the cost of this appeal.

Respondent contends that all of the chemicals reasonably necessary and appropriate for petitioner's seventh grade science laboratories can safely be stored in lockable cabinets located within his new classroom, that the cabinets comply with the requirements of Education Law "305(19) and the Chemical Storage Guidelines promulgated thereunder, and that petitioner's new classroom contains no health and safety violations. Respondent also contends that the appeal should be dismissed as untimely.

The appeal is not untimely. Respondent contends that petitioner is appealing the decision to relocate him to another classroom, which was made and relayed to him more than 30 days before the commencement of this appeal. However, the record reveals that petitioner is essentially challenging the September 27, 2002 determination of the district"s Director of Middle and Secondary Education, denying his request to remain in his old classroom and advising him that the district anticipated storing chemicals in his new classroom. In view of these circumstances and the fact that petitioner commenced this appeal on October 9, 2002, I will not dismiss the appeal as untimely.

I note that petitioner has submitted a reply which attempts to add new information and allegations to the effect that the cabinets in his new classroom do not meet the requirements of Education Law "305(19) and the guidelines promulgated thereunder. A reply is not meant to buttress allegations in the petition or to add belatedly assertions that should have been in the petition (Appeal of Karpen, 40 Ed Dept Rep 199, Decision No. 14,460; Appeal of Crowley, 39 id. 665, Decision No. 14,345; Appeal of Hollister, 39 id. 109, Decision No. 14,188). Therefore, while I have reviewed petitioner"s reply, I have not considered those portions that contain new allegations that are not responsive to new material or affirmative defenses in respondent"s answer.

Petitioner requests that I accept for consideration three additional submissions, all made after his reply: "Addendum to the Petitioner's Reply to Respondent's Answer to the Petition," "Information Update Regarding Pending Petition," and "Final Information Update Regarding Pending Petition." Pursuant to "276.5 of the Commissioner's regulations, the Commissioner may permit the filing of additional exhibits or papers. However, the party seeking inclusion must serve the papers on the opposing party. In this case, on January 9, 2002, my Office of Counsel advised petitioner that he must provide proof of service of his reply papers and the additional information submitted on respondent. In response, petitioner provided an affidavit of service indicating service on January 11, 2002 on attorneys for respondent of "Petitioner's Reply to Respondent's Answer to the Petition" and "Information Update Regarding Pending Petition." There is no mention in this affidavit of service of the two other documents, "Addendum to the Petitioner's Reply to Respondent's Answer to the Petition" and "Final Information Update Regarding Pending Petition." There is no evidence in the record before me that petitioner served these documents on respondent or that respondent was ever given the opportunity to respond to them. Therefore, I will not consider them. I will consider petitioner's "Information Update Regarding Pending Petition."

In his petition, petitioner claims that the ventilation in the new classroom is inadequate. However, subsequent to the commencement of this appeal, the district installed a new forced air ventilation system in petitioner's classroom. Petitioner states in his reply that the new forced ventilation system works well. It is well settled that the Commissioner will only consider matters in actual controversy and will not render a decision on a state of facts which no longer exists or which subsequent events have laid to rest (Appeal of Meyer and Mittelstaedt, 40 Ed Dept Rep 34, Decision No. 14,413) Accordingly, this issue is now moot.

Turning to the merits, Education Law "305(19) provides in pertinent part:

The commissioner is authorized and directed to require all elementary and secondary schools to store all chemicals present in their science facilities in locked and secure storage rooms and cabinets. The schools shall provide for the placement, spacing, arrangement, ventilation and fire protection of such stored chemicals in accordance with guidelines promulgated by the commissioner of education.

Petitioner does not specify in his petition how respondent is violating the requirements of this provision of the Education Law. The petition does not include a copy of the Chemical Storage Guidelines promulgated by the State Education Department and does not describe how the standards in that Guideline are being violated. Petitioner submits an exhibit entitled "School Science Laboratories, A Guide to Some Hazardous Substances," a 1984 publication of the U.S Consumer Product Safety Commission, prepared by the Council of State Science Supervisors. While petitioner identifies two standards in the document, he does not adequately explain how respondent is violating them.

In the document, "Information Update Regarding Pending Petition," petitioner describes how respondent rearranged his classroom on November 15, 2001, to accommodate the storage of chemicals and specifies six standards in the Commissioner's Chemical Storage Guidelines that he believes are being violated. However, five of the six standards identified by petitioner are inapplicable. They are standards for "Storage/Prep Rooms," not standards for "Science Classrooms/Laboratories" that would apply to petitioner's classroom. The sixth standard provides that science classrooms/laboratories shall not be used to store bulk quantities of chemicals. However, petitioner does not adequately identify the chemicals that respondent allegedly requires him to store in bulk in his classroom nor adequately explain how this standard is being violated.

Respondent maintains that petitioner is only required to store in his classroom the chemicals reasonable and appropriate to his seventh grade science instruction, and that such chemicals may be safely stored in locked cabinets in his classroom under the Commissioner's Guidelines. Respondent asserts that it has fully responded to petitioner's concerns: it has installed a new forced ventilation system in petitioner's classroom and purchased lockable cabinets for the storage of chemicals in petitioner's classroom.

In an appeal to the Commissioner, petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which petitioner seeks relief (8 NYCRR "275.10, Appeal of L.S., 41 Ed Dept Rep Decision , Decision No. 14,683; Appeal of Schonfeld, 38 id. 306, Decision No. 14,040). Petitioner has failed to establish, in the record before me, that respondent is violating Education Law "305(19) or the Commissioner's guidelines established thereunder.

In his petition, petitioner claims that a teacher work station blocks a rescue window in violation of the fire code. Respondent answered that students can use an adjacent window as a rescue window and that another rescue window exists in the classroom. In petitioner's subsequent information update he states, "The District has now cleared the obstruction from the rescue window in Room B-22 and marked it clearly." Because this issue is now moot, I will not address it further (Appeal of Meyer and Mittelstaedt, supra). Petitioner makes additional general allegations as to violations of the fire code, but does not specify the code provisions that are purportedly being violated in his classroom. I find that petitioner has failed to establish in the record before me that respondent is violating any applicable fire code.

Petitioner also requests that I conduct an investigation to ensure that the district did not receive any State or federal funding for the construction of an allegedly planned but never constructed science room, and asks that I review the adequacy of ventilation in all of the district's science classrooms. Petitioner provides only general allegations with respect to the receipt of funding for the construction of a science classroom that was not built and inadequate ventilation of other science classrooms. The burden is on petitioner to allege and prove facts upon which relief may be granted, not on respondent to rebut conclusory allegations (Appeal of L.S., supra; Appeal of Keiling, 25 Ed Dept Rep 122, Decision No. 11,517, Matter of Lawson, 24 id. 132, Decision No. 11,343). In addition, an appeal to the Commissioner is appellate in nature and does not provide for investigations (Appeal of Van Zile and Crowell, 37 Ed Dept Rep 213, Decision No. 13,846; Appeal of Distefano, 36 id. 217, Decision No. 13,705). Petitioner has failed to establish that respondent engaged in any wrongdoing with respect to the receipt of State or federal funds for building projects or the ventilation of the district"s science classrooms.

Finally, respondent has the authority to manage and control the education affairs of the district (Education Law "2503[3]). Respondent's principal assigned petitioner to another science classroom so his students could be closer to other seventh grade students. This was not unreasonable and the decision to assign petitioner to another classroom is well within respondent"s proper discretion.

I have reviewed petitioner's remaining contentions and find them to be without merit.

THE APPEAL IS DISMISSED.

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