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Decision No. 16,631

Appeal of VERONICA L. MCCARTHY, on behalf of all elementary school students in the Levittown Union Free School District and excessed elementary library media specialists VERONICA L. MCCARTHY, HOPE RUBINSTEIN, ANN FIDDLER, DONNA FIFE, KIM MULLINS, and LAUREN FAZIO, from action of the Board of Education of the Levittown Union Free School District regarding library services.

Decision No. 16,631

(July 24, 2014)

 

Lamb & Barnosky, LLP, attorneys for respondent, Lauren Schnitzer, Robert H. Cohen, and Robert E. Waters, Esqs., of counsel

KING, JR., Commissioner.--Petitioner appeals the decision of the Board of Education of the Levittown Union Free School District (“respondent”) abolishing six library media specialist positions.  The appeal must be dismissed.

During the 2010-2011 school year, petitioner was a library media specialist in respondent’s district.  By resolution adopted June 8, 2011, effective June 30, 2011, respondent abolished six library media specialist positions in the district, including petitioner’s position.  According to respondent, commencing with the 2011-2012 school year, it no longer employs library media specialists at its six elementary schools.  However, its elementary schools still contain the same library facilities and resources, to which elementary students have regular access.  In addition, respondent has created literacy centers at each of its elementary schools, at which each elementary school class receives one reading class per week taught by newly-employed reading teachers and teaching assistants.   This appeal ensued.

Petitioner claims that respondent is in violation of 8 NYCRR §91.1, which requires districts to establish and maintain a library in each school.  Specifically, she alleges that when it abolished the six elementary school library media specialist positions in the district, respondent effectively closed every elementary school library and discontinued the provision of library services, in violation of 8 NYCRR §91.1.  She seeks reinstatement with back pay for herself as well as for the other five excessed library media specialists.  Petitioner brought this proceeding on behalf of herself, the five other excessed library media specialists, and all elementary students in the district.

Respondent maintains that it is providing school libraries in full compliance with §91.1 of the Commissioner’s regulations.  It also raises several affirmative defenses: that the appeal must be dismissed as untimely; for failure to join necessary parties; and for lack of standing.  Additionally, respondent asserts that the appeal cannot be maintained as a class action.   

I must first address the procedural issues.  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).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

Respondent argues that the appeal must be dismissed as 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).  I note that, while the instant appeal involves the abolition of petitioner’s position, petitioner does not allege any violation of her seniority or tenure rights, nor does she allege that she is eligible for reinstatement to the position from a preferred eligible list.  Rather, the central allegation raised by petitioner is that her position was excessed “in violation of 8 NYCRR 91.1,” which relates to school libraries (cf. Appeal of Gordon, 53 Ed Dept Rep, Decision No. 16,582).[1]  Although the petition is not entirely clear, petitioner appears to argue that, commencing with start of school in September 2011, respondent’s decision to employ reading teachers to work and teach in its literacy centers – rather than continuing petitioner’s position as library media specialist – is inadequate under 8 NYCRR §91.1.  Petitioner appears to reason that the abolition of her position was therefore improper because “NYS education law authorizes a school board to abolish positions when they are no longer necessary to a school system.  However, the Board must have a bona fide reason and act in good faith.”

In this case, the record indicates that, by resolution adopted June 8, 2011, respondent abolished six library media specialist positions in the district, including petitioner’s position, effective June 30, 2011.  In her reply, petitioner asserts that her appeal is timely because the gravamen of her complaint is that the “district is not providing adequate library services” and her appeal was commenced on October 7, 2011, which was within 30 days of the district’s failure to provide such services beginning on the first day of school in September.  As noted above, the record indicates that, also commencing with the start of school in September 2011, six new reading teachers commenced service in the district to provide reading classes for elementary school students in respondent’s literacy centers.

Although petitioner does not allege any violation of her tenure, seniority, or preferred eligibility rights, she does attempt to challenge the abolition of her position.  Because she is not represented by counsel and this appeal was pending at the time of the decision in Appeal of Gordon, I will excuse any delay by petitioner in commencing the instant appeal.

I also decline to dismiss the appeal as untimely because petitioner’s claim that the “district is not providing adequate library services” in violation of 8 NYCRR §91.1 would constitute a continuing wrong (see Appeal of Destino, 52 Ed Dept Rep, Decision No. 16,461).  The continuing wrong doctrine applies when the ongoing action is itself an unlawful action, such as the unlawful employment of an unqualified individual (Appeal of Kippen, 48 Ed Dept Rep 469, Decision No. 15,919), unlawful appointments to a district’s shared decision-making team (Appeal of Sadue-Sokolow, 39 Ed Dept Rep 6, Decision No. 14,155), an improperly constituted professional development team (Appeal of Copenhagen Teachers’ Association, et al., 45 Ed Dept Rep 459, Decision No. 15,381) 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 (Application of Ayers, 48 Ed Dept Rep 350, Decision No. 15,883; Appeal of a Student with a Disability, 48 id. 146, Decision No. 15,821, judgment granted dismissing petition to review, April 8, 2009, Sup.Ct., Albany Co. [Zwack, J.]).  Section 91.1 of the Commissioner’s regulations specifically requires boards of education to provide students with a school library in each school (8 NYCRR §91.1).  The continuing failure to provide students with school libraries is inherently unlawful and thus a continuing wrong subject to complaint at any time (see e.g., Appeal of Doyle, et al., 52 Ed Dept Rep, Decision No. 16,429 [health education]). 

In any event, the appeal must be dismissed on other procedural grounds.  To the extent petitioner attempts to assert claims on behalf of “all elementary students” in respondent’s district, she lacks standing to do so.  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).  While petitioner has standing to bring this appeal on her own behalf to the extent she has been aggrieved by the abolition of her position, she lacks standing to assert the rights of others both with respect to the abolition of the library media specialist positions and to the alleged inadequacy of respondent’s provision of school library services (Appeal of Walker, et al., 53 Ed Dept Rep, Decision No. 16,609; Appeals of Giardina and Carbone, 43 id. 395, Decision No. 15,030; Appeal of Gilmore and Jordon-Thompson, 42 id. 334, Decision No. 14,874).  In that regard, although petitioner initially sought to maintain the appeal as a representative of a class of “all elementary students” in the district, petitioner stated in her reply that “class status is no longer sought” as to the elementary students and that she “does not represent anyone other than herself.”  Therefore, the appeal is dismissed as to the claims asserted on behalf of “all elementary students” in respondent’s district.

The appeal must also be dismissed to the extent petitioner attempts to assert claims on behalf of excessed elementary library media specialists Hope Rubinstein, Ann Fiddler, Donna Fife, Kim Mullis, and Lauren Fazio.  While petitioner has submitted affidavits of service indicating that each of the five individuals have been personally served with a copy of the petition, they are not named as petitioners in this appeal.  In response to respondent’s contention that petitioner “lacks standing to bring an appeal before the Commissioner on behalf of all excessed ‘Elementary Library Media Specialists,’” petitioner states that she “was merely trying to name all interested parties as required by the commissioner’s regulations.”  Although, as noted above, petitioner states in her reply that she “does not represent anyone other than herself,” it is unclear whether she intended that statement to withdraw her claims on behalf of the five excessed elementary library media specialists as well as those related to “all elementary students.”  In any event, for the reasons discussed above, petitioner lacks standing to assert the rights of others (Appeal of Walker, et al., 53 Ed Dept Rep, Decision No. 16,609; Appeals of Giardina and Carbone, 43 id. 395, Decision No. 15,030; Appeal of Gilmore and Jordon-Thompson, 42 id. 334, Decision No. 14,874).  The appeal is therefore dismissed to the extent petitioner seeks to assert claims on behalf of excessed elementary library media specialists Hope Rubinstein, Ann Fiddler, Donna Fife, Kim Mullis, and Lauren Fazio.

Moreover, the appeal must be dismissed for failure to join necessary parties.  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 Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879).  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 Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879).  According to respondent, it has hired new reading teachers to teach reading classes at the literacy centers in each elementary school.  Respondent claims that, should petitioner and the five other library media specialists be reinstated, the district would likely eliminate the newly-created literacy centers and terminate the six least senior reading teachers.[2]  Since they may be adversely affected by a determination of this appeal in petitioner’s favor, these individuals should have been joined in this appeal.  Therefore, the appeal must be dismissed for failure to join necessary parties.

Even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits.  Section 91.1 of the Commissioner’s regulations provides, in pertinent part, that “[a] school library shall be established and maintained in each school.  The library in each elementary and secondary school shall meet the needs of the pupils, and shall provide an adequate complement to the instructional program in the various areas of the curriculum” (8 NYCRR §91.1).  In addition, §91.2 requires each district to employ a certified library media specialist in its secondary schools (see 8 NYCRR §91.2).  The record indicates that, even though it abolished the six elementary school library media specialist positions, respondent still employs library media specialists in its middle schools and high school.  Moreover, respondent maintains a library in each of its six elementary schools, which, according to respondent, compliments the instructional program in the various areas of the curriculum.  Finally, the record indicates that elementary students are provided with weekly visits to the library facilities and access to the same books and resources that were available prior to June 2011. 

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).  Petitioner has not established that respondent’s abolition of her position violated §91.1 or was otherwise improper or illegal, or that respondent is in violation of §91.1 by failing to provide adequate library services.  Based on the record before me, I cannot find that petitioner met her burden of establishing a clear legal right to the relief requested and the facts upon which she seeks relief.

Although the appeal must be dismissed, I note that such result should not be construed as diminishing the importance of certified school library media specialists in our elementary schools. Certified school library media specialists have a significant impact on student performance and achievement at the elementary level and play a major role in the development of literacy skills for early learners by motivating, engaging, and providing access to early learners as they develop the necessary skills to read at grade level.

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

 

THE APPEAL IS DISMISSED.

END OF FILE

 

[1] In Appeal of Gordon, I noted that “confusion exists” regarding the calculation of the 30-day time period in abolition cases and held that, in cases in which a teacher claims that his or her services have been discontinued in violation of Education Law §§2510(2) and 3013(2) because he or she is not the least senior teacher in the tenure area of the position, the 30-day time period for commencing an appeal under Education Law §310 begins on the effective date of the abolition (Appeal of Gordon, 53 Ed Dept Rep, Decision No. 16,582).  Where, on the other hand, the wrong alleged by the teacher is not that he or she should have been retained because another less senior teacher should have been excessed, but rather is that the appointment of another teacher was in violation of law and the excessed teacher’s tenure rights, such a claim would be timely if commenced within 30 days of the date on which another teacher commenced service in a position to which the petitioner alleges he or she is entitled (Appeal of Gordon, 53 Ed Dept Rep, Decision No. 16,582).  This would apply, for example, to a claim under Education Law §§2510(1) or 3013(3) that a school district has created a new position to which the excessed teacher is entitled or that the excessed teacher is entitled to reinstatement to the position from a preferred eligible list pursuant to Education Law §§2510(3) or 3013(3).

[2] By letter dated December 6, 2011, respondent requested leave pursuant to 8 NYCRR §276.5 to file and serve additional documents, including an amended verified answer.  Respondent’s request was denied, except with respect to new information contained within five paragraphs of respondent’s amended verified answer, which clarified that, in addition to six reading teachers, six teaching assistants would also be potentially affected by a determination in petitioner’s favor.