Appeal of JASON FRIESEN from action of the Board of Education of the City School District of the City of Rye and the Rye Teachers’ Association regarding teaching assignments.

Decision No. 16,675

(October 7, 2014)

Harold, Salant, Strassfield & Spielberg, attorneys for petitioner, Christopher Harold, Esq., of counsel

Ingerman Smith, L.L.P., attorneys for respondent Rye City School District, Emily J. Lucas, Esq., of counsel

KING, JR., Commissioner.--Petitioner, a high school physical education teacher, appeals the teaching assignment given him by the Board of Education of the Rye City School District (“respondent board” or “respondent”).  The appeal must be dismissed.

Commissioner’s regulation §100.2(i), relating to teaching assignments, provides:

1. Teaching staff in public schools.  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.

During the fall 2013 semester, petitioner taught physical education at Rye High School.  Petitioner asserts that he is assigned a daily teaching load in excess of 150 students on Tuesdays and Thursdays without justification, in violation of Commissioner’s regulation §100.2(i).  Petitioner asserts that such assignment precludes effective instruction and creates a risk to student safety.  Petitioner seeks an order requiring respondent board to provide a written justification for deviating from  the 150-student daily teaching load set forth in §100.2(i) of the Commissioner’s regulations.  If such deviation is not justified, petitioner further seeks a reduction of his daily teaching load to comply with the regulation or monetary compensation for the increased teaching load.

Respondent board[1] disputes petitioner’s allegations regarding his daily teaching workload.  Respondent contends that, due to district policy which permits students participating in athletics during a particular semester to earn credit in that manner and “opt-out” of physical education class, petitioner is not assigned more than 150 students on any given day.  Respondent maintains that petitioner’s daily teaching load does not preclude effective instruction, nor does it present any safety risk.  Respondent also contends that the appeal is untimely and that I lack jurisdiction to award petitioner monetary compensation.

I must first address several procedural matters.     Respondent asserts that the petition should be dismissed as 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).

Petitioner commenced this appeal on October 8, 2013.  The first day of school for students in the Rye City School District for the 2013-2014 school year was September 9, 2013.  Respondent contends that the appeal is untimely because its athletic director emailed petitioner on August 7, 2013, informing him of his teaching schedule.  Respondent further asserts that petitioner had access to his schedule through an electronic data portal sometime in mid-August 2013 and, therefore, service of the petition on October 8, 2013 exceeds the required 30-day period.  However, the August 7, 2013 email states only that petitioner would teach six physical education classes and does not include any information about the number of students that he would teach.  Moreover,  while teachers may be aware of their scheduled teaching load prior to the commencement of the school year, such teachers are not actually aggrieved until they are required to teach in excess of 150 students, in violation of Commissioner’s regulation §100.2(i). Petitioner’s teaching assignment, through which he alleges that he was required to teach in excess of 150 students, was effective upon commencement of the 2013-2014 school year on September 9, 2013 (Appeal of Koenig, 50 Ed Dept Rep, Decision No. 16,145; Appeal of LaForty, 33 id. 161, Decision No. 13,010).  Therefore, because petitioner commenced his appeal within 30 days of the start of the school year, it is timely.

However, the appeal must 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).

Petitioner’s claim that respondent is in violation of Commissioner’s regulation §100.2(i) is based only on his teaching assignment for the fall semester of the 2013-2014 school year.  Respondent asserts that the fall semester concluded in January 2014 and petitioner does not dispute that assertion.  Consequently, issues concerning class size for that semester are academic, which warrants dismissal of the appeal as moot.

Even if the appeal was not moot, it would be dismissed on the merits.  In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).  Respondent disputes petitioner’s claims regarding his daily teaching load and submits a chart displaying petitioner’s initial student count and the resultant student count after some students opted out pursuant to district policy.  According to respondent, subsequent to the opt-out, petitioner’s daily teaching load did not exceed 150 students on any day.  Petitioner submits no reply or other evidence, such as a class roster, refuting respondent’s assertion.  Therefore, on this record, petitioner fails to meet his burden and has not established facts demonstrating a violation of §100.2(i) of the Commissioner’s regulations.

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

THE APPEAL IS DISMISSED.

END OF FILE