Appeal of UNITED FEDERATION OF TEACHERS, LOCAL 2, AMERICAN FEDERATION OF TEACHERS, AFL-CIO, from action of the New York City Department of Education and Dennis M. Walcott, Chancellor, regarding staffing.

Decision No. 16,668

(September 15, 2014)

Richard E. Casagrande, Esq., New York State United Teachers, attorneys for petitioner, Damon S. Levenstien, Esq., of counsel

Zachary W. Carter, Esq., Corporation Counsel, attorney for respondents, Benjamin Traverse, Esq., of counsel

KING, JR., Commissioner.--Petitioner, the exclusive collective bargaining representative for library media specialists (“LMSs”) and assistant library media specialists (“ALMSs”) in New York City, appeals from the alleged failure of the New York City Department of Education (“NYCDOE”) and Chancellor Dennis M. Walcott[1] (“respondents”) to comply with the staffing requirements set forth in §91.2 of the Commissioner’s regulations.  The appeal must be dismissed.

During the 2009-2010 school year, petitioner and one of its members initiated an appeal pursuant to Education Law §310 alleging that respondents failed to comply with §91.2 of the Commissioner’s regulations (“regulation”) by failing to staff certain secondary schools with the required minimum number of LMSs and ALMSs in that school year (see Appeal of Kennedy—Frost, et al., 50 Ed Dept Rep, Decision No. 16,130).  The appeal was ultimately dismissed, since the 2009-2010 school year had ended and issues concerning staffing were moot.  However, since respondents had admitted in their answer to only “substantial compliance with the regulation,” respondents were advised to “either staff their schools appropriately or obtain the Commissioner’s approval for an alternate arrangement as provided in §91.2 of the Commissioner’s regulations (Appeal of Kennedy—Frost, et al., 50 Ed Dept Rep, Decision No. 16,130).  This appeal ensued.

In the present appeal, petitioner alleges that respondents continue to violate the regulation by failing to employ the required minimum number of LMSs and ALMSs in a number of secondary schools in the 2011-2012 school year.  Petitioner contends that respondents’ failure to conform to the regulation negatively impacts all of its members “possessing LMS certificates who cannot now seek placement in the schools” listed on a table it provided, as well as “those schools not known to [petitioner], but which are also below the minimum staffing requirement.”  Petitioner further asserts that “each student being deprived of an LMS in his or her school is being denied education that §91.2 of the Commissioner’s regulations was designed to protect.”  Petitioner requests that I direct respondents to comply with the staffing requirements of the regulation.

Respondents allege that petitioner’s claims are moot, that petitioner has failed to join necessary parties, and that the petition fails to state a cause of action.  Respondents maintain that they “continue to work towards full compliance with §91.2,” and that their actions were legal, proper, and reasonable.  

As an initial matter, the appeal must be dismissed to the extent petitioner attempts to assert claims on behalf of students.  Standing is a jurisdictional prerequisite to maintaining an appeal pursuant to Education Law §310 (see Education Law §311[3]).  An individual may not maintain an appeal pursuant to Education Law §310 unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal or property rights (Appeal of Waechter, 48 Ed Dept Rep 261, Decision No. 15,853; Appeal of Erickson, 47 id. 261, Decision No. 15,689).  Only persons who are directly affected by the action being appealed have standing to bring an appeal (Appeal of Waechter, 48 Ed Dept Rep 261, Decision No. 15,853; Appeal of Erickson, 47 id. 261, Decision No. 15,689).  Petitioner asserts that “each student being deprived of an LMS in his or her school is being denied education that §91.2 [of the Commissioner’s regulations] was designed to protect.”  While petitioner may, under certain circumstances, have standing to assert claims on behalf of its members, petitioner lacks standing to assert the rights of others (Appeal of Walker, et al., 53 Ed Dept Rep, Decision No. 16,609; Appeals of Giardina and Carbone, 43 id. 395, Decision No. 15,030; Appeal of Gilmore and Jordon-Thompson, 42 id. 334, Decision No. 14,874).

Petitioner has also failed to demonstrate that it meets the three-part test for organizational standing required to assert claims on behalf of its members.  In order to establish organizational standing, petitioner must demonstrate that one or more of its members has standing to sue, that the interests advanced in the matter are sufficiently germane to the individual members’ purposes such that the organization is an appropriate representative of those interests, and that the participation of the individual members is not required to assert this claim (Society of Plastics Indus. v. County of Suffolk, 77 NY2d 761, 775; Appeal of James, et al., 54 Ed Dept Rep, Decision No. 16,646).  With respect to the first part of the test for organizational standing, petitioner alleges that respondents’ “failure to conform to the mandatory minimum staffing requirements impacts all UFT members possessing LMS certificates who cannot now seek placement in the schools listed” on a table it provided, “and those schools not known to the UFT, but which are also below the minimum staffing requirement.”  While petitioner asserts that it represents LMSs and ALMSs, it fails to allege that any of its individual members have in fact suffered harm (cf. Appeal of Kennedy-Frost, et al., 50 Ed Dept Rep, Decision No. 16,130); rather, it alleges only that such members cannot “seek placement” in certain schools.  As petitioner fails to establish that it has members who are directly affected by the alleged failure to comply with the minimum staffing requirement, it does not meet the first part of the test for organizational standing.  Accordingly, it lacks standing and the appeal must be dismissed (see Appeal of James, et al., 54 Ed Dept Rep, Decision No. 16,646). 

Further, to the extent petitioner challenges respondents’ compliance with the regulation in the 2011-2012 school year, the appeal must also be dismissed as moot.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836).  Since the 2011-2012 school year has ended, issues concerning staffing for that school year are moot (see Appeal of Kennedy—Frost, et al., 50 Ed Dept Rep, Decision No. 16,130).  Petitioner asserts that respondents’ violation of §91.2 is ongoing and constitutes an exception to the mootness doctrine.  However, the record does not compel an exception to the mootness doctrine, as the determination of issues involving respondents’ compliance with the regulation’s staffing requirements are necessarily fact-specific and can be addressed in a subsequent appeal that presents a live controversy (see Appeal of N.C., 40 Ed Dept Rep 445, Decision No. 14,522).

Although I am constrained to dismiss the appeal for the reasons discussed above, I am troubled by respondents’ admitted noncompliance with the regulation, especially in light of Appeal of Kennedy-Frost, et al., 50 Ed Dept Rep, Decision No. 16,130.  I note that in their answer, respondents again admit to only “substantial” compliance with the regulation and assert that they are “in the midst of developing a waiver process through which” its schools “could request the Commissioner to approve an ‘alternate arrangement,’ pursuant to §91.2.”  However, the record reflects that respondents have failed to staff certain secondary schools with the required number of LMSs or ALMSs or to provide an alternative arrangement approved by the Commissioner.  Indeed, pursuant to §276.6 of the Commissioner’s regulations, I take administrative notice that, subsequent to the commencement of this appeal, respondents submitted a request to the State Education Department (“Department”) for a waiver and that the request was thereafter withdrawn based upon respondents’ assurances that they would be submitting a comprehensive strategic plan for libraries that would address the need to properly staff schools with LMSs and ALMs.  To date, no such comprehensive plan has been submitted.  

Accordingly, respondents are directed to comply with the requirements of 8 NYCRR §91.2 in the 2014-2015 school year and thereafter.  I am directing my Office of Curriculum and Instruction to provide guidance and technical assistance to respondents in doing so.

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

THE APPEAL IS DISMISSED.

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