Appeal of JEAN ROMANO 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. 16,679

(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 her 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 Romano taught physical education at respondent’s Osborn Elementary School.  The parties’ allegations regarding the precise numbers of students assigned to petitioner daily differ by only one student on each of four days.  However, according to petitioner’s class schedule, submitted by respondent and not refuted by petitioner, her daily teaching workload consisted of 160 students on Monday and Friday, 183 students on Tuesday, 178 students on Wednesday, and 161 students on Thursday.

Petitioner asserts that respondent assigned her a daily teaching load in excess of 150 students without justification in violation of §100.2(i) of the Commissioner’s regulations.  Petitioner contends that the assignment precludes effective instruction.  Specifically, petitioner alleges that she is unable to assign tasks that require deliberative evaluation or substantial interaction with individual students.  Petitioner further alleges that her workload allows for less time per student for differentiated instruction, preparation and reflection, and less time for break down and set up of equipment.  She asserts a lack of continuity in her schedule (kindergarten through fifth grade each day) that effects instruction and does not give students an optimum learning experience.  She also contends that her consecutive periods of class each day are inequitable.  Finally, she claims that respondent is not in compliance with §135.4 of the Commissioner’s regulations relating to required physical education instruction.  Petitioner seeks an order requiring respondent board to provide a written justification for deviating from §100.2(i) of the Commissioner’s regulations.  If such deviation is not justified, petitioner further seeks either a reduction of her 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 §100.2(i) because petitioner’s daily teaching assignment is justified and does not preclude effective teaching.  Respondent also asserts that petitioner has failed to state a claim, 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 is untimely and 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]).  Additionally, §275.14 requires the reply to be served within 10 days after service of the answer to which it responds.  Petitioner, who is represented by counsel, failed to comply with both requirements.  Petitioner’s reply was served upon the district clerk rather than on respondent’s attorney on November 7, 2013.  Respondent’s answer was served by express mail on October 23, 2013, for second day delivery on October 25, 2013.  Petitioner’s reply, therefore, was required to be served no later than November 4, 2013.[2]  Accordingly, because petitioner erred by untimely serving the reply upon the district clerk, I have not considered such reply.  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 has not been 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 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 9, 2013.  The first day of school for students of the Rye City School District was September 9, 2013.  Respondent contends that the appeal is untimely because petitioner had access to her schedule and student roster through an electronic data portal sometime in mid-August 2013 and, therefore, service of the petition on October 9, 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 daily as proscribed by Commissioner’s regulation §100.2(i).  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 her appeal within 30 days of the start of the school year, it is timely.

To the extent that petitioner asserts that Osborn 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 rights of elementary students to receive a specific amount of physical education instruction 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 her 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 circumstances may exist which would permit deviation from the daily 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).

Section 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, as noted, the facts of each case must be evaluated, as here, to determine whether a particular assignment which does not comply with the express provisions of the regulation precludes effective teaching in a manner that diminishes quality instruction for students (Appeal of Kleinman, 34 Ed Dept Rep 1, Decision No. 13,212).  Here, the petition consists primarily of conclusory statements and lacks allegations of specific facts or documentation sufficient to establish petitioner’s claims.  Respondent claims that petitioner’s assignment is justified, in part, because of the nature of physical education instruction at its elementary level.  Respondent maintains, and petitioner has not refuted, that petitioner’s physical education classes do not require similar grading and homework review responsibilities as other elementary classes.  In addition, according to the record, physical education instruction is also provided to Osborn Elementary School students by classroom teachers, as permitted pursuant to §135.4 of the Commissioner’s regulations.

Respondent further contends that petitioner’s teaching assignments do not preclude effective instruction because she is provided significant preparation and planning time.  According to petitioner’s daily class schedule, on Monday and Friday, petitioner was assigned 240 instructional minutes and 140 minutes of preparation or other unassigned time, exclusive of lunch.  On Tuesday through Thursday, she was assigned 270 instructional minutes and 110 minutes of preparation or unassigned time, exclusive of lunch.  Petitioner, therefore, was afforded 610 minutes each week of preparation and unassigned time.  Petitioner fails to prove this is inadequate to ensure effective teaching.  Indeed, other than her conclusory allegations in the petition, petitioner provides no evidence substantiating her claims or demonstrating that her students were adversely affected by her daily teaching workload.

Based on the totality of the record before me, I find that petitioner has not met her 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.

 

THE APPEAL IS DISMISSED.

END OF FILE