Appeal of PETER PANAGOS 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. 16,678

(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, an elementary 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 2013-2014 school year, petitioner taught physical education at respondent’s Midland Elementary School.  Petitioner asserts that respondent assigned him a daily teaching load in excess of 150 students without justification, in violation of §100.2(i).  The parties dispute the precise numbers of students assigned to petitioner daily, however, the record indicates that the number exceeds 150 students on each school day, ranging from 165 to 182 students.

Petitioner contends that his daily teaching load assignment precludes effective teaching.  Specifically, petitioner alleges that he is unable to assign tasks that require deliberative evaluation or substantial interaction with individual students.  He claims that he has less time for differentiated instruction, preparation and reflection on lessons and assessments.  Petitioner further alleges that he has less time to break down and set up equipment between classes, which impacts the quality of instruction.  He asserts that he is required to teach a three-hour block of six 30-minute periods which precludes effective teaching.  Finally, petitioner claims that students are not receiving required weekly instructional time in violation of §135.4 of the Commissioner’s regulations.  Petitioner seeks an order requiring respondent board to provide a written justification for deviating from the 150-student teaching load set forth in §100.2(i) of the Commissioner’s regulations.  If such deviation is not justified, petitioner further seeks either a reduction of his daily teaching load to comply with the regulation or monetary compensation for the increased teaching load.

Respondent board[1] contends there is no violation of Commissioner’s regulation §100.2(i) because petitioner’s teaching assignment is justified and does not preclude effective teaching.  Respondent also asserts that the appeal is untimely and that I lack jurisdiction to award petitioner monetary compensation. Finally, to the extent that petitioner claims a violation of Commissioner’s regulation §135.4 pertaining to required instructional time, respondent denies such violation and, moreover, maintains that petitioner lacks standing to raise such claim.

I must first address several procedural matters.  Respondent objects to petitioner’s reply, alleging that it was not properly served.  Section 275.8(b) of the Commissioner’s regulations requires that “all subsequent pleadings and papers shall be served upon the adverse party or, if the adverse party is represented by counsel, upon such party’s attorney” (8 NYCRR §275.8[b]).  Petitioner, who is represented by counsel, served his reply upon the district clerk rather than on respondent’s attorney, as required by the regulation.  Because the reply was not properly served, it has not been considered.[2]

Finally, I note that petitioner submitted a reply memorandum of law with permission, pursuant to §276.4 of the Commissioner’s regulations.  To the extent that the reply memorandum of law relies on petitioner’s reply, it will not be considered.  In addition, a memorandum of law should consist of arguments of law (8 NYCRR §276.4).  It may not be used to add belated assertions or exhibits that are not part of the pleadings (Appeal of Bruning and Coburn-Bruning, 48 Ed Dept Rep 84, Decision No. 15,799; Appeal of Wright, 47 id. 202, Decision No. 15,668), and I have, therefore, not considered such portions of petitioner’s reply memorandum of law.

Respondent also asserts that the appeal is 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 was September 9, 2013.  Respondent contends that the appeal is untimely because 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 to initiate an appeal.  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 as proscribed by §100.2(i) of the Commissioner’s regulations.  Petitioner’s teaching assignment 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 this appeal within 30 days of the start of the school year, it is timely.

To the extent that petitioner raises claims that Midland Elementary school students receive inadequate physical education instruction, in violation of Commissioner’s regulation §135.4, petitioner lacks standing to maintain the appeal. 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).

Section 135.4 of the Commissioner’s regulations ensures the right of elementary students to receive a specific amount of physical education each week.  As a teacher, petitioner is not directly affected by an alleged violation of the regulation (see Appeal of McCarthy, 54 Ed Dept Rep, Decision No. 16,631).  Therefore, petitioner’s claim on that point is dismissed.

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 regarding respondent’s alleged non-compliance with the requirements of §100.2(i) of the Commissioner’s regulations is based on his daily assigned teaching load during the 2013-2014 school year.  As that school year has ended, the matter is academic, warranting dismissal of the appeal.

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).

Section 100.2(i) of the Commissioner’s regulations limits the daily teaching load to 150 students.  However, the regulation contemplates that situations may arise which would permit deviation from the daily 150 student limit.  A district may exceed daily teaching assignments of 150 students upon sufficient justification (Appeal of Koenig, 50 Ed Dept Rep, Decision No. 16,145; Appeal of Ames, et al., 26 id. 266, Decision No. 11,752; Appeal of Borden, 26 id. 237, Decision No. 11,740).  Furthermore, “... it does not follow that petitioner is entitled to relief upon showing that his assignment has exceeded the criteria set forth in the regulation” (Appeal of Borden, 26 Ed Dept Rep 237, Decision No. 11,740).  While determinations regarding the sufficiency of a justification must be made on a case-by-case basis, the intent of the regulation is to ensure quality instruction and the central inquiry in any case is whether, on each record, a particular assignment precludes effective teaching in a manner that diminishes quality instruction for students (compare Appeal of Kleinman, 34 Ed Dept Rep 1, Decision No. 13,212 with Appeal of Baker, et al., 33 id. 395, Decision No. 13,091).

Respondent explains that petitioner’s assignment is justified both because of the unique nature of physical education at the elementary level, and because of an unexpected influx of students enrolling in Midland Elementary school at the beginning of the 2013-2014 school year.  Respondent states that an unanticipated influx of 30 additional students at the commencement of the school year required increasing the number of students assigned to existing classes.  Petitioner does not refute that assertion.  I have previously held that an unanticipated increase in enrollment is sufficient to justify a deviation from the regulation in this regard (Appeal of Koenig, 50 Ed Dept Rep, Decision No. 16,145).  Moreover, respondent states that petitioner’s physical education classes do not require the same grading, homework review and projects commensurate with other classes at the elementary school, and there is nothing in the record to refute respondent’s explanation.  As noted above, it is well-settled that, since “the intent of §100.2(i) is to maintain quality instruction for pupils ... the issue is whether petitioner’s workload precludes effective teaching” Appeal of Koenig, 50 Ed Dept Rep, Decision No. 16,145, citing Appeal of Kleinman, 34 id. 1, Decision No. 13,212).  It must be noted that §100.2(i) makes no specific exemption for physical education teachers and, therefore, an excess teaching load for such teachers is not automatically justifiable and the facts of each case must be evaluated, as here, to determine whether a particular assignment that does not comply with the express provisions of the regulations precludes effective teaching in a manner that diminishes quality instruction for students (Appeal of Kleinman, 34 Ed Dept Rep 1, Decision No. 13,212).  I note that the petition consists primarily of conclusory statements and lacks allegations of specific facts or any documentary evidence sufficient to establish in support of petitioner’s claims regarding this issue.

Respondent maintains that petitioner’s teaching assignment does not preclude effective instruction because he is provided significant preparation and planning time.  According to petitioner’s 2013-2014 schedule, provided as an exhibit to respondent’s answer, petitioner was assigned 270 minutes of instructional time daily on Monday through Thursday and 240 minutes on Friday.  He had 60 minutes of daily preparation time on Monday through Thursday and 90 minutes on Friday, as well as 30 daily minutes for lunch and 50 additional daily minutes of unassigned time (a weekly total of 580 minutes of preparation and unassigned time, exclusive of lunch).  Petitioner’s recitation of his schedule does not match respondent’s exhibits; however, he attaches no documentary evidence in support of his allegations.  Consequently, I accept respondent’s schedule as demonstrating the time allotted to petitioner.  In any event, other than conclusory allegations in his petition, petitioner has not demonstrated that his students are adversely affected by his workload.  In addition to the adequate preparation and planning time provided petitioner, as noted above, the record indicates that petitioner’s physical education classes do not require the same amounts of grading or homework review as compared to most elementary classroom teachers.

Based on the totality of the record before me, I find that petitioner has not met his burden of proof.  However, I remind respondent of its obligation to continue to monitor teachers' workloads, and make good faith efforts to come into compliance with §100.2(i) of the Commissioner’s regulations as expeditiously as possible.

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

THE APPEAL IS DISMISSED.

END OF FILE