Appeal of MICHAEL ROMANO from action of the Board of Education of the Central Islip Union Free School District and Mark Schlissler, Interim Superintendent, relating to teacher workload.

Decision No. 15,052

(May 26, 2004)

James R. Sandner, Esq., attorney for petitioner, Antonio M. Cavallaro, Esq., of counsel 

Kevin A. Seaman, Esq., attorney for respondents

MILLS, Commissioner.--Petitioner is a secondary school teacher in the Central Islip Union Free School District, an officer of the Central Islip Teachers’ Association (“Association”) and chair of its Negotiations Committee.  He challenges teaching assignments made by Interim Superintendent Mark Schlissler (“respondent superintendent”) pursuant to a plan approved by the Board of Education of the Central Islip Union Free School District (“respondent board”) for secondary level teachers for the 2003-2004 school year.  The appeal must be dismissed.

On June 3, 2003, a proposed budget of approximately $115 million was defeated by district voters.  Thereafter, respondent board approved a plan of teaching assignments which resulted in 164 secondary teachers being assigned to teach six classroom periods per day, 34 of whom have a daily teaching load of more than 150 pupils.   Petitioner claims that these assignments violate Commissioner’s regulation §100.2(i), which provides:

The number of daily periods of classroom instruction for a teacher should not exceed five.  A school requiring of any teacher more than six teaching periods a day, or a daily teaching load of more than 150 pupils, should be able to justify the deviation from this policy.

Petitioner asks that I nullify the current schedule of teaching assignments for teachers assigned more than five daily periods of classroom instruction or a daily teaching load in excess of 150 pupils, and direct that respondents be stayed from implementing such teaching schedules.

Respondents maintain that they properly exercised their discretion under the regulation.  Respondents further maintain that the appeal should be dismissed on procedural grounds.

Before the commencement of this appeal, the Central Islip Teachers’ Association filed a Notice and Statement of Grievance pursuant to Article VII, Section E.1, Article XXXVII, Section F, and all other applicable provisions of the Collective Bargaining Agreement between the association and the school district.  Respondents argue that the grievance involves the same dispute raised in this appeal, and will ultimately reach binding arbitration under the terms of the Collective Bargaining Agreement.  Petitioner purports to bring this appeal individually and as an officer of the Association on behalf of its members.

To the extent this appeal duplicates the earlier-filed grievance, it must be dismissed.  It is well settled that the prior commencement of an action or proceeding in another forum, based on the same or similar facts, involving the same parties, and seeking the same or similar relief, constitutes an election of remedies which precludes the initiation of an appeal to the Commissioner (Appeal of Smolen, 43 Ed Dept Rep ______, Decision No. 15,000; Appeal of Coughlin, 41 id. 484, Decision No. 14,751; Appeal of Jacobson, 37 id. 75, Decision No. 13,808).

To the extent that this appeal does not duplicate the earlier-filed grievance, it must be dismissed on the merits.  The regulation provides that where a school requires of any teacher more than six teaching periods per day, it should be able to justify deviation from the rule set forth in the regulation.  Here, petitioner does not even allege that any teacher was required to teach more than six periods per day, and therefore does not allege any violation of that part of the regulation.

The regulation also provides that where a daily teaching load of more than 150 pupils is required of a teacher, the school should be able to justify the deviation.  In Appeal of Kleinman (34 Ed Dept Rep 1, Decision No. 13,212), it was held that the “intent of §100.2(i) is to maintain quality instruction for pupils      . . . the issue . . . is whether petitioner’s work load precludes effective teaching.”  (See also Appeal of Laforty, 33 Ed Dept Rep 161, Decision No. 13,010; Appeal of McGann-Masucci, 29 id. 106, Decision No. 12,236; Appeal of Borden, 26 id. 237, Decision No. 11,740).

In this appeal, petitioner has provided no information about the specific work loads of the 34 teachers who are assigned a daily teaching load of more than 150 pupils.  No information is provided as to their other duties, preparatory time, or any other important matters.

As stated in Appeal of Borden, supra, “it does not follow that petitioner is entitled to relief upon showing that his assignment has exceeded the criteria set forth in the regulation. . . .  The facts of each case must be evaluated to determine whether a particular assignment which does not coincide with the express provisions of the regulation precludes effective teaching.”  Because petitioner has not provided any specific information as to the teaching loads of any of the 34 teachers who are assigned more than 150 pupils per day, it is not possible to determine whether any teacher’s work load precludes effective teaching.  Petitioner has failed to carry his burden of proof as to this issue. 

I have considered the parties’ remaining contentions, and find them without merit.  

THE APPEAL IS DISMISSED.

END OF FILE