Appeal of KATHLEEN M. COUGHLIN from action of the Board of Education of the Webster Central School District regarding hiring practices.

 

Decision No. 14,751

(June 26, 2002)

 

Ferrara, Fiorenza, Larrison, Barrett & Reitz, PC, attorneys for respondent, Dennis T. Barrett and Norman H. Gross, Esqs., of counsel

 

MILLS, Commissioner.--Petitioner challenges the determination by the Board of Education of the Webster Central School District ("respondent") to hire a candidate other than herself for a position described as ".5 Teacher on Special Assignment." The appeal must be dismissed.

Petitioner has taught elementary music in respondent"s district for the past 18 years. She has permanent certification in several areas, including music and school district administration. On August 2, 2001, respondent posted a position for ".5 Teacher on Special Assignment." The posting indicated that the position would involve attendance, census, and residency issues; would have music and art responsibilities; and required administrative certification or a certificate of internship. Petitioner applied for this new position, as did Johanna Siebert, a teacher in the City School District of the City of Rochester. Ms. Siebert had served as an intern in respondent"s district during the summer of 2001, and had 19 years of teaching experience.

Both candidates were interviewed in mid-August, and on August 21, 2001, petitioner learned from respondent"s assistant superintendent for curriculum and instruction that Ms. Siebert would be hired. Petitioner met with the superintendent on August 22, to discuss various concerns, and on September 6, 2001, respondent approved the hiring of Ms. Siebert.

After respondent"s action, on October 4, 2001, petitioner met with the superintendent and initiated a "non-contractual grievance" pursuant to Article 6010 of the district"s collective bargaining agreement. This procedure allows an employee to, among other things, challenge any violation, misinterpretation or inequitable application of rules and policies, or to express dissatisfaction with the same. The procedure for filing such claims is known as the "Fair Treatment Procedure," and involves a three-stage process leading to a final decision by respondent. Thereafter, on October 5, 2001, petitioner commenced this appeal.

Petitioner"s primary claim is that she possessed permanent certification as a school district administrator, while Ms. Siebert lacked "appropriate certification" and that by hiring her, respondent violated Education Law ""3001, 3009(1) and 3010, and "80-5.10 of the Commissioner"s regulations (formerly "80.18). Petitioner also claims that certain discrepancies and irregularities occurred in the interview process, concluding that "the entire posting and interview process were only formalities."

Respondent generally denies any wrongdoing, and argues that Ms. Siebert is properly certified for the position in question. Respondent presents a copy of Ms. Siebert"s permanent certificate to teach music, effective September 1, 1989, and an internship certificate issued by the State Education Department pursuant to "80-5.9 of the Commissioner"s regulations, effective September 1, 2001, valid for two years in the area of school administrator and supervisor, in the Webster Central School District. Respondent also argues that the grievance filed by petitioner amounts to an election of remedies with respect to that part of the petition alleging unfairness or irregularity in the hiring process.

To the extent that petitioner claims unfairness, bias, or other irregularities in the hiring process, and to the extent that she seeks a directive from me to the school district to "utilize employment practices and processes that are fair, unbiased and congruent with all applicable laws, regulations and codes," I find that there has been an election of remedies. In her memorandum of law dated January 16, 2002, petitioner indicates that her grievance proceeded through all stages of the Fair Treatment Procedure to respondent, which found against her. As I indicated in Appeal of Soukey (38 Ed Dept Rep 626, Decision No. 14,106), at p. 630: "It is contrary to the orderly administration of justice to have multiple tribunals making determinations concerning the same controversy (Appeal of Phillips, 38 Ed Dept Rep 165; Appeal of Campbell, 33 id. 132)." The doctrine of res judicata also compels the dismissal of this portion of the appeal because the grievance process has been finally determined (Appeal of Phillips, supra, Decision No. 14,008), and the collective bargaining agreement cannot confer jurisdiction upon the Commissioner of Education to review that final grievance determination.

Petitioner"s claim with respect to certification is based on her argument that Ms. Siebert"s possession of an internship certificate issued pursuant to "80-5.9, rather than a permanent administrative certificate issued pursuant to "80-2.4, makes Ms. Siebert an "uncertified teacher" within the meaning of "80-5.10(a)(1). I disagree.

Petitioner"s belief seems to be based on incorrect information she has received from several sources. Contrary to petitioner"s allegations, internship certificates are, and have been for many years, issued by the Office of Teaching Initiatives of the State Education Department, not by institutions of higher learning. Again contrary to her information, the qualifications for issuance of an internship certificate do not vary from one institution of higher learning to another, but are set forth in "80-5.9 of the Commissioner"s regulations. As such, an internship certificate is recognized by the State Education Department as a valid credential authorizing the holder to act within the area of service for which the certificate is valid. With respect to Ms. Siebert, her internship certificate authorized her to act within the area of school administrator and supervisor, during the relevant time period in the Webster Central School District. To the extent that petitioner suggests that the internship certificate was not properly issued, respondent correctly points out that actions taken by members of the staff of the State Education Department cannot be reviewed in an appeal pursuant to "310 (Appeal of Hebrew Institute for the Deaf and Exceptional Children, 38 Ed Dept Rep 344, Decision No. 14,050; Appeal of Molloy College, 33 id. 361, Decision No. 13,078).

A person holding an internship certificate issued pursuant to "80-5.9 is not an "uncertified teacher" for purposes of "80-5.10, and that section has no application to this appeal.

In view of this disposition, I will not discuss petitioner"s remaining contentions which I find without merit.

 

THE APPEAL IS DISMISSED.

END OF FILE

 

 

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