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Decision No. 15,381

Appeal of COPENHAGEN TEACHERS’ ASSOCIATION, NANCY HENRY, LORI GRIFFIN, DONNA ZEHR, MICHAEL THOMSON, CAMILLE MASTASCUSA, CAROL FROST, NADINE O’SHAUGHNESSY and ADAM STAAB from action of the Board of Education of the Copenhagen Central School District, Lisa A. Parsons, Superintendent, Patricia Gibbons, Margaret Nevills and Jaye Worden regarding a professional development team.

Decision No. 15,381

(March 21, 2006)

James R. Sandner, Esq., attorney for petitioners, Frederick K. Reich, Esq., of counsel

O’Hara & O’Connell, P.C., attorneys for respondents, Stephen Ciotoli, Esq., of counsel

MILLS, Commissioner.--Petitioners appeal the composition of a professional development team appointed by the Board of Education of the Copenhagen Central School District (“respondent board”).  The appeal must be sustained in part.

Petitioners Henry, Griffin, Zehr, Thomson, Mastascusa, Frost, O’Shaughnessy and Staab, and respondents Nevills and Worden, are tenured teachers employed by respondent board.  The Copenhagen Teachers’ Association (“CTA”) is the collective bargaining organization representing teachers employed by respondent board and petitioner Henry is the CTA’s president.  All of the above named teachers are members of the CTA.

On September 27, 2004, respondent board appointed the above named teachers, Superintendent Lisa A. Parsons and respondent Patricia Gibbons to the school district’s professional development team (“team”).  The board also appointed three other teachers and a school counselor.[1]  The CTA nominated most of the named teachers for appointment to the team.  However, the superintendent nominated petitioner Staab and respondents Nevills and Worden.

On September 28, 2004, petitioner Henry met with the superintendent and expressed concerns over the composition of the team.  By memorandum dated November 19, 2004, the superintendent affirmed the composition.  By letter dated November 22, 2004, petitioner Henry again expressed her concerns about the team composition and the eligibility of the teachers nominated by the superintendent.  By memorandum dated December 15, 2004, the superintendent affirmed her decision to nominate the teachers as team members.  This appeal ensued.  Petitioners’ request for interim relief was denied on January 11, 2005. 

By letter dated January 30, 2006, pursuant to §276.5 of the Commissioner’s regulations, my Office of Counsel requested from respondents’ attorney confirmation that Staab, Nevills and Worden are still members of the team.  By affidavit dated February 13, 2006, the superintendent confirmed that they are still team members.  The superintendent’s affidavit, however, also included several assertions beyond the scope of the inquiry, concerning parent and higher education representatives.  Petitioners, by letter dated February 24, 2006, objected to the additional information in the affidavit.  In rendering this decision, I have not considered the additional assertions and allegations beyond the scope of the inquiry from my Office of Counsel.

Petitioners assert that the team is illegally constituted because only teachers designated by the CTA may be appointed to the team and the school district administration may only designate teachers if they are curriculum specialists.  Petitioners contend that the teachers designated by the superintendent are not eligible for membership on the committee because they are not curriculum specialists.  Petitioners also allege that the team is required to have a parent representative and a representative from the higher education community, unless a determination is made that a qualified higher education representative is unavailable.  Petitioners request that the appointments of petitioner Staab and respondents Nevills and Worden be annulled and that eligible members be appointed to the team.

Respondents allege that the appeal is untimely and fails to state a claim upon which relief may be granted.  Respondents assert that they have acted in good faith and in compliance with applicable regulation.  Respondents also cross-claim in an effort to remove petitioner Henry from the team because she is allegedly disruptive, obstructionist, uncooperative and intimidating to other team members, undermining the effectiveness of the team.  Respondents argue that petitioner Henry seeks veto power over appointments to the team.

Initially, I must address several procedural issues. Petitioners submitted a “reply letter memorandum” dated April 7, 2005 countering arguments and objecting to new matters raised in respondents’ memorandum of law.  By letter dated April 14, 2005, respondents acknowledged the new matters in its memorandum of law, and objected to petitioners’ attempts to raise new arguments and bolster arguments made in previous pleadings.  By letter dated April 26, 2005, petitioners continued to argue points already raised in the pleadings.

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 N.L., 44 Ed Dept Rep 216, Decision No. 15,153; Appeal of Smolen, 43 id. 296, Decision No. 15,000; Appeal of George, 40 id. 509, Decision No. 14,540).  Furthermore, additional affidavits, exhibits and other supporting papers may only be submitted with the prior permission of the Commissioner (8 NYCRR §276.5).  While this provision permits the submission of additional evidence, it cannot be used to add new claims against a respondent for which notice has not been provided (Appeal of N.L., 44 Ed Dept Rep 216, Decision No. 15,153;  Appeal of Gehl, et al., 42 id. 287, Decision No. 14,857; Appeal of Johnson, 38 id. 524, Decision No. 14,086).  I will not accept materials that raise new issues and introduce new exhibits that are not relevant to the claims originally raised in the appeal (Appeal of Gehl, et al., 42 Ed Dept Rep 287, Decision No. 14,857; Appeal of Johnson, 38 id. 524, Decision No. 14,086).  Since the above-noted documents raise new arguments, I have not considered their contents in reaching a decision in this appeal.

Respondents contend the appeal is untimely because it was commenced more than 30 days from the September 27, 2004 action by respondent board.  Petitioners claim that an illegally constituted professional development team is a continuing wrong and that the appeal was filed within 30 days of the superintendent’s December 15, 2004 memorandum.  The continuing wrong doctrine applies when the ongoing action is itself an unlawful action, such as unlawful appointments to a district’s shared decision-making team (Appeal of Sadue-Sokolow, 39 Ed Dept Rep 6, Decision No. 14,155) or certain ongoing expenditures under an austerity budget that did not comply with the law (Appeal of Aarseth, 32 Ed Dept Rep 506, Decision No. 12,901).  The doctrine does not apply where the specific action being challenged is a single action, inaction or decision and the resulting effects are not intrinsically unlawful (Appeal of Rizzo, 44 Ed Dept Rep 173, Decision No. 15,138; Appeals of American Quality Beverages, LLC, et al., 42 id. 144, Decision No. 14,804).  In this case, I find that an improperly constituted professional development team is similar to an improperly constituted shared-decision making team and is a continuing wrong.  I therefore decline to dismiss the appeal as untimely.

The CTA, as an unincorporated association, lacks standing to bring this appeal (Application of Simmons, 43 Ed Rep 7, Decision No. 14,899; Appeal of D’Oronzio, et al., 41 id. 457, Decision No. 14,745).  To the extent Henry purports to bring this appeal as a representative of the CTA, she also lacks standing to maintain the appeal (Application of Simmons, 43 Ed Dept Rep 7, Decision No. 14,899; Appeal of D’Oronzio, et al., 41 id. 457, Decision No. 14,745).  However, I find that petitioner Henry, as well as the other individual petitioners, have standing as district teachers and members of the professional development team.

Generally, the makeup of a professional development team for all school districts, except the City School District of the City of New York, is governed by §100.2(dd)(3)(i)(a) of the Commissioner’s regulations, which reads in pertinent part:

The board of education ... shall appoint the members of the team, a majority of which shall be teachers, which shall include the superintendent of schools or his or her designee in the case of school districts ...; school administrators upon designation by the administrators' collective bargaining organization; teachers upon designation by the teachers' collective bargaining organization; at least one parent upon designation by the teacher's collective bargaining organization; at least one parent upon designation by the established parent groups in the district or in their absence, by the superintendent in the case of a school district ...; and one or more curriculum specialists, meaning a teacher or administrator whose primary job responsibility involves the development or evaluation of curricula, upon designation by the district or teachers' collective bargaining organization or both.  In addition, the team shall include at least one representative of a higher education institution, provided that the board of education ... determines that a qualified candidate is available to serve after conducting a reasonable search.  The team may include other individuals, such as representatives of professional development organizations or the community at large.  In school districts ... in which teachers or administrators are not represented by a collective bargaining organization, teachers or administrators shall be designated by their peers in a manner prescribed by the Board of Education ....[2]

Respondent board failed to constitute a team in compliance with the regulation in several respects.  At the time of its answer, respondent board did not dispute that there were no parent representatives on the team.  Similarly, at the time of its answer, respondent board did not dispute that it had not undertaken a reasonable search for any qualified candidates from a higher education institution.  Thus, it appears that respondent board failed to appoint a full team in accordance with the regulation.

As for the teachers designated by the superintendent, respondents offer two arguments in support of their membership on the team.  The superintendent asserts that the teachers she designated for appointment to the team qualify as curriculum specialists because their job responsibilities include curriculum development.  The regulation, however, states that a curriculum specialist is “a teacher or administrator whose primary job responsibility involves the development or evaluation of curricula” (emphasis added).  In her affidavit, petitioner Henry states that she asked petitioner Staab if his job fit this description and that he replied that the development or evaluation of curricula was not his primary job responsibility.  Petitioner Staab confirmed this statement in an email to the superintendent.  Similarly, respondent Worden did not answer affirmatively when asked if the development or evaluation of curricula was a primary responsibility of her job.  Respondents do not affirmatively assert that any of the teachers designated by the superintendent have primary job responsibilities for the development or evaluation of curricula.  Thus, I cannot conclude that either Staab, Nevills or Worden meet the regulatory definition of curriculum specialist.

Respondents, in the alternative, argue that the administration could designate these teachers as “other members” as defined by the regulation and assert that each of these teachers are valuable to the team because they have specific knowledge of technology integration, reading instruction and math content and instruction which would be valuable to the team.  I also find this argument to be without merit.  The regulation provides that teachers constitute the majority of the team.  The regulation is specific as to the appointment and qualifications of teachers to the team.  The examples given in the regulation of other possible members of the team –- representatives of professional development organizations or the community at large -- recognize that members of the wider community beyond the school building may add value to the team.  This provision, however, was not intended to permit a bypass of the regular teacher appointment process.

Finally, I find no merit to respondents’ cross-claim that petitioner Henry be removed from the team.  The record indicates that petitioner Henry was attempting to correct the constitution of the team and that led to difficult conversations with members of her own organization and the superintendent.  I urge all parties to work toward healing the divisions that exist and collaborate to form a properly constituted and highly effective team.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the appointment of Adam Staab, Margaret Nevills and Jaye Worden to respondents’ professional development team be annulled.

IT IS FURTHER ORDERED that respondent board designate a professional development team in accordance with this decision and §100.2(dd)(3)(i)(a) of the Commissioner’s regulations.

END OF FILE

 

[1]Initially, these individuals were also petitioners, but they later withdrew from the appeal.

 

[2] Members of the professional development team employed in or representing a school under registration review shall instead be recommended by the superintendent for appointment by the board (8 NYCRR §100.2[dd][3][i][b]).