Appeal of KELLEE KOENIG from action of the New York City Department of Education, Principal Rene Cassanova and Assistant Principal Charles Ogundimu regarding teacher workload.

Decision No. 16,145

(August 30, 2010)

Michael A. Cardozo, Corporation Counsel, attorney for respondent, Blanche Greenfield Esq., of counsel

STEINER, Commissioner.--Petitioner challenges the actions of the New York City Department of Education (“DOE”), Principal Rene Cassanova (“principal”) and Assistant Principal Charles Ogundimu (“assistant principal”) (collectively “respondents”) concerning her assigned teaching workload at the Alfred E. Smith Career and Technical Education (“CTE”) High School (“School”).  The appeal must be dismissed.

Petitioner is a tenured music teacher and was the only music teacher at the School during the 2008-2009 school year.  When she received her class lists at the beginning of that school year, petitioner states that she was assigned 46, 45, 40, 46 and 50 students, respectively, for a total of 227 students for five periods.[1]  In addition, within the total number of students in each respective class, there were 12, 10, 8, 4 and 3 special education students, and she had paraprofessional assistance in only one class.

On August 29, 2008, petitioner met with and gave a letter to the assistant principal requesting reconsideration of her teaching workload, citing Part 100 of the Commissioner’s regulations.  She also requested written justification of deviation from the daily teaching load referenced in the regulation.  In response, the assistant principal handwrote on the bottom of petitioner’s letter a reference to “Article 7M2g of the UFT/DOE Contract[2]” and stated “Let me know if you have any other issues/concerns.”

According to petitioner, she met again with the assistant principal on September 12, 2008 requesting that he reconsider her request to reduce the size of her classes.  On September 15, 2008, she met with and presented a letter to the principal requesting that a small number of students be removed from each of her classes.  According to petitioner, the principal verbally informed petitioner that the union contract permitted her to place 50 students in each of petitioner’s five music classes.  This appeal ensued.

Petitioner contends that the large number of students and special education students per class negatively impacts the quality of instruction, precludes effective teaching, and even creates safety issues.  She asserts that she was not able to avail herself of the 10 preparatory periods a week to which she is entitled because she is forced to spend many of them meeting with students whose needs she cannot address during class periods.  As a result, she alleges that she must spend excessive time outside the school day planning and preparing materials, grading, and reviewing homework.  In addition, she states that she was assigned as a substitute and as the School’s recycling coordinator in order to fulfill the Professional Circular 6R duties under the Collective Bargaining Agreement (“CBA”), which occupies three other preparatory periods a week.

Petitioner seeks a determination requiring DOE and the School to comply with the Commissioner’s regulation currently and in subsequent years.  She also seeks a determination that DOE’s contract with the United Federation of Teachers (“UFT”) cannot be construed to deny any employee their rights under the State Education Law or the right to a teaching workload that affords quality instruction to students.  Petitioner seeks a reduction in her workload to 180 students and the creation of a guideline for justifiable deviations from the Commissioner’s regulations.

Respondents assert that the appeal must be dismissed because the petition fails to state a cause of action upon which relief may be granted, is untimely, and, to the extent it seeks to represent other music teachers, it fails to meet the requirements for a class appeal.  Respondents contend that the Commissioner has no authority to amend a provision of the CBA between DOE and the UFT, and, to the extent petitioner challenges the CBA, she failed to join the UFT as a necessary party.  To the extent petitioner challenged safety conditions in her classroom, respondents assert that she failed to exhaust her administrative remedies according to the CBA.

Respondents assert that the determinations concerning petitioner’s workload complied with the CBA, which expressly permits a maximum of 50 pupils in required high school music classes, and contend that despite the number of students in petitioner’s classes, she was able to provide quality instruction.  Moreover, respondents contend that they are able to justify the deviation from the Commissioner’s regulation.

I must first address several procedural issues.  An appeal may only be maintained on behalf of a class where the class is so numerous that joinder of all members is impracticable and where all questions of fact and law are common to all members of the class (8 NYCRR §275.2; Appeal of Giardina, 46 Ed Dept Rep 524, Decision No. 15,583; Appeal of Manes, 46 id. 419, Decision No. 15,551; Appeal of Wallace, 46 id. 347, Decision No. 15,529).  A petitioner must set forth the number of individuals he or she seeks to represent and must show that all questions of law and fact would be common to all members of the class (Appeal of Giardina, 46 Ed Dept Rep 524, Decision No. 15,583; Appeal of Manes, 46 id. 419, Decision No. 15,551; Appeal of Wallace, 46 id. 347, Decision No. 15,529).

In the caption of the appeal, petitioner appeals on behalf of herself “and music teachers with oversized classes.”  Petitioner has failed to set forth the number of individuals she seeks to represent and has failed to show that all questions of law and fact would be common to all members of the class (Appeal of Pollicino, et al., 48 Ed Dept Rep 279, Decision No. 15,858; Appeal of Hempstead Parents/Community United, 45 id. 381, Decision No. 15,357; Appeal of Hempstead Parents/Community United, 45 id. 354, Decision No. 15,346).  Therefore, class status is denied.

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 Proctor, 46 Ed Dept Rep 575, Decision No. 15,599; Appeal of Henley, 46 id. 556, Decision No. 15,594).

Respondents contend that the appeal must be dismissed as untimely because petitioner commenced her appeal on October 2, 2008, more than 30 days after she received her class lists on August 29, 2008.  They assert that petitioner’s second meeting with the assistant principal on September 12, 2008 and with the principal on September 15, 2008, were mere requests for reconsideration which do not extend the time within which an appeal may be commenced.  They also contend that petitioner’s attempts to obtain clarification as to where to serve the petition do not excuse its untimely service.

Petitioner asserts that her appeal is timely because she did not receive her class lists until September 2, 2008 and that her daily workload only officially exceeded 150 students on that day, which was the first day of school.

I decline to dismiss the appeal as untimely.  Petitioner’s teaching assignment was effective upon commencement of the 2008-2009 school year on September 2, 2008.  Since she commencedher appealwithin 30 days of the start of the school year, it is timely (Appeal of Boyle, 46 Ed Dept Rep 496, Decision No. 15,574; Appeal of Laforty, 33 id. 161, Decision No. 13,010).

A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of G.H.L., 46 Ed Dept Rep 571, Decision No. 15,598; Appeal of Doe, 46 id. 483, Decision No. 15,571; Appeal of Johnson, 46 id. 432, Decision No. 15,555).  Joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense (Appeal of G.H.L., 46 Ed Dept Rep 571, Decision No. 15,598; Appeal of Doe, 46 id. 483, Decision No. 15,571; Appeal of Johnson, 46 id. 432, Decision No. 15,555).

Respondents contend that the appeal must be dismissed because petitioner failed to join the UFT as a party.  The gravaman of petitioner’s claim is an alleged violation of §100.2(i) of the Commissioner’s regulations.  However, to the extent petitioner seeks an order directing that the CBA not be construed to deny employees their right under the regulation to a teaching workload that affords quality instruction to students, the rights of the UFT, as the collective bargaining representative who negotiated the CBA, would be affected.  Accordingly, I find that the UFT is a necessary party and petitioner’s claim relating to the CBA must be dismissed for failure to join a necessary party.

To the extent petitioner challenges respondents’ compliance with the regulation in the 2008-2009 school year, 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 Tine, 46 Ed Dept Rep 579, Decision No. 15,600; Appeal of N.C., 46 id. 358, Decision No. 15,532; Appeal of Lombardo, 46 id. 282, Decision No. 15,508).  Since the 2008-2009 school year has ended, issues concerning class size for that school year are moot.

Even if this appeal were not dismissed on procedural grounds, it would be dismissed on the merits.  Petitioner contends that her teaching load violated §100.2(i) of the Commissioner’s regulations.  That section provides:

(i)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.

Petitioner does not dispute the first part of the regulation concerning the number of teaching periods per day.  However, as respondents concede, her daily teaching load exceeded 150 pupils.  Since “the intent of §100.2(i) is to maintain quality instruction for pupils . . . the issue is whether petitioner’s work load precludes effective teaching” (Appeal of Kleinman, 34 Ed Dept Rep 1, Decision No. 13,212).

Respondents maintain that petitioner was able to provide quality instruction and that she never informed the principal or assistant principal that the number of students in her class affected the quality or effectiveness of her teaching.  They dispute petitioner’s characterization of her duties and the School’s requirements.  They deny that School procedures require homework to be assigned every night and that petitioner was assigned as recycling coordinator.  They assert that petitioner had five preparatory periods and five unassigned periods each week, amounting to two preparatory periods a day.

Moreover, respondents maintain that circumstances justified a deviation from the policy.  Respondents explain that at a CTE school, all students must take between eight and 11 CTE classes in addition to an academic schedule comprised of four years of English, Social Studies, and Physical Education; three years of Math and Science; one year of a foreign language and art or music; and one-half year of health.  In her affidavit, the School principal states that at the School, the art or music requirement is usually completed during the senior year, and which course is taken depends on the CTE program of study:  those in Building Trades take one term of Construction Drawing and one of Music; those in Automotive Engineering take two terms of Music.

The principal states that at the end of the 2007-2008 school year, she learned that the budget for the 2008-2009 school year would be reduced by approximately $515,000.  Simultaneously, the senior enrollment during the 2008-2009 school year increased by 91 students.  Consequently, the principal informed staff that she had to discontinue a period of CTE classes, terminate an assistant principal position, and excess five teachers and one guidance counselor, and that the remaining guidance counselors would have heavier case loads and classes would be larger.

While the severe budget reduction precluded the hiring of an additional music teacher, the principal avers that in response to petitioner’s concerns, a paraprofessional was assigned in November 2008 to assist petitioner in each of her five classes.  In addition, the principal states that for the spring semester of the 2008-2009 school year, she intended to modify the curriculum to reduce the number of students required to take music.  Specifically, only those students in Automotive Engineering would take music; those seniors in Building Trades would take Construction Drawing instead, reducing the music classes by approximately 80 students to 144 students.  The principal states that barring unforeseen circumstances, she intended to maintain this curriculum change into the next school year, so that only Automotive Engineering students would take two terms of Music to fulfill their Arts requirement.

Based on the record, it appears that respondents took affirmative steps to address petitioner’s concerns.  To the extent petitioner’s workload exceeded 150 students, I find that respondents in this circumstance provided sufficient justification for the deviation.  As recognized in previous decisions, respondent DOE is in the unenviable position where it is unable to levy its own taxes and has no recourse against imposed severe budget cuts and fiscal constraints which alone demonstrate circumstances to justify deviation (see e.g. Appeal of Shulman, et al., 24 Ed Dept Rep 213, Decision No. 11,370; Appeal of Hollenback and Neff, 19 id. 326, Decision No. 10,150; Appeals of Simon, et al., 1 id. 562, Decision 6,817).  However, as also previously recognized, the requirements of the regulation are not merely “aspirational” (see Appeal of Lowell, 26 Ed Dept Rep 333, Decision No. 11,775).  Such circumstances also require continual monitoring and evaluation of the effects of the budget cuts in order to make good faith efforts to comply with it (see Appeal of Baker, 33 Ed Dept Rep 395, Decision No. 13,091).

The record does not contain any information about petitioner’s workload in the 2009-2010 school year or projected load in the 2010-2011 school year.  As such, I make no specific determination with respect to subsequent years.

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

THE APPEAL IS DISMISSED.

END OF FILE.

[1] In the petition, petitioner stated she had a teaching load of 229 students.  Respondents assert that 224 students are enrolled in petitioner’s music classes.  In her reply, petitioner states she has a classload of 222 students.

[2] Article 7M.2.g. states: The size of required music classes in the high schools shall be determined on the basis of a maximum of 50 pupils for each teacher, except as specified in 3 below.