Appeal of HANNAH HILL from action of the Board of Education of the Roosevelt Union Free School District regarding teacher tenure.

Decision No. 16,551

(September 16, 2013)

New York State United Teachers, attorneys for petitioner,Antonio M. Cavallaro, Esq., of counsel

Guercio & Guercio, LLP, attorneys for respondents, Nancy Hark, Esq., of counsel

KING, JR., Commissioner.--Petitioner appeals the decision of the Board of Education of the Roosevelt Union Free School District (“respondent” or “board”) to assign her to a position in the English tenure area without her written consent. The appeal must be dismissed.

Petitioner has been employed as a teacher in respondent’s district since the 1983-1984 school year. She acquired tenure in the tenure area of English (7-12) in or about 1986. Petitioner holds permanent certificates to teach in English (7-12) and Reading. By memorandum dated September 15, 1997, petitioner requested a leave of absence from her position as a tenured English teacher for the1997-1998 school year and requested that respondent provide her with a probationary appointment as a reading teacher with the district for that same school year. On October 10, 1997, petitioner’s leave of absence from her English position was granted so that she could accept a reading position. However, petitioner alleges that on or about September 5, 2012, petitioner was informed that she was to be assigned teaching duties within the English tenure area for the 2012-2013 school year. This appeal ensued.

Petitioner argues that the district assigned of her to spend 40% or more of her time in the 2012-2013 year in the English tenure area without her written consent, and that this constitutes a violation of her rights under the Education Law and the Rules of the Board of Regents. Petitioner requests that I annul respondent’s decision to assign her to the English tenure area and that I direct respondent to assign her to a position within the reading tenure area and grant her seniority in the reading tenure area for the time served outside of that tenure area without her consent. Petitioner also asks that I order

respondent to refrain from reassigning her outside of the reading tenure area absent her prior written consent.

Respondent counters that petitioner has failed to meet her burden of establishing a clear right to the relief requested and to state a claim upon which relief may be granted. Specifically, respondent asserts that petitioner is not entitled to the relief requested because, upon receipt of this appeal in October 2012, respondent immediately offered petitioner a position in the reading tenure area in another school, but petitioner declined the position. Respondent alleges that petitioner therefore consented to serving in the English tenure area. Respondent also alleges that the appeal is moot because petitioner has been assigned duties in the reading tenure area since the spring 2013 semester.

The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14). A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No. 15,901). 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). Therefore, while I have reviewed petitioner’s reply and the parties’ memoranda of law, I have not considered those portions containing new allegations or exhibits that are not responsive to the new material or affirmative defenses set forth in the answer or belated assertions or exhibits that are not part of the pleadings.

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). In its verified answer, respondent maintains that petitioner was assigned only reading classes for the spring 2013 semester and there is nothing in the record that suggests that petitioner is not assigned to reading classes in the 2013-2014 school year. Therefore, to the extent petitioner requests that I reassign her to a reading position, the appeal must be dismissed as moot. The

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remainder of this appeal must be dismissed as premature. The Commissioner will not render an advisory opinion on an issue before it becomes justiciable (Appeal of B.R. and M.R., 48 Ed Dept Rep 291, Decision No. 15,861; Appeal of Lachler, 47 id. 455, Decision No. 15,752). It is undisputed that respondent assigned petitioner to teach two English classes and one reading class in the fall 2012semester. However, after the commencement of this appeal, respondent admitted its mistake in assigning petitioner to teach English classes in her former tenure area without her consent and offered her a reading position at another school for the remainder of the fall 2012 semester, but petitioner declined the position. While petitioner asserts that she was assigned to perform a substantial portion of her duties outside of her tenure area without her written consent in violation of section 30-1.9 of the Rules of the Board of Regents, she makes no claim and submits no evidence that respondent has actually improperly denied her seniority credit in the reading tenure area.

A similar situation occurred in Appeal of Vuoto, 44 Ed Dept Rep 251, Decision No. 15,163. In that appeal, petitioner claimed that he had been assigned to an incorrect tenure area without his consent. As in this appeal, there was no claim that petitioner’s duties had been altered in any way, that his salary had been reduced, that he was excessed from his position, or that he otherwise suffered economic harm. As Commissioner Mills stated in that decision:

Seniority rights, however, do not exist in the

abstract. There must be an impact upon the

individual to cause him to be aggrieved, and a

party may not maintain an appeal solely to obtain

a declaration of his tenure rights or relative

seniority ....

In essence, petitioner seeks an advisory opinion

concerning his seniority status, relief that is

unavailable in an Education Law §310 appeal ....Petitioner seeks that same relief in this appeal, which must therefore be dismissed (see also, Appeal of Lachler,47 Ed Dept Rep 455, Decision No. 15,752).

Such dismissal, however, is without prejudice to any future application for similar relief should petitioner hereafter become actually aggrieved within the purview of Education Law §310 (Appeal of Vuoto, 44 Ed Dept Rep 251,Decision No. 15,163).

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

THE APPEAL IS DISMISSED. END OF FILE