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Decision No. 16,901

Appeal of ALISON FLETCHER and KAREN FERGUSON from action of the Board of Education of City School District of the City of Glen Cove, Superintendent Maria Rianna, and Nelson Iocolano regarding shared decisionmaking.

Decision No. 16,901

(April 19, 2016)

Davis & Ferber, LLP, attorneys for petitioners, Christopher S. Rothemich, Esq., of counsel

Jaspan Schlesinger LLP, attorneys for respondents, Michael D. Raniere, Esq., of counsel

ELIA, Commissioner.--Petitioners appeal from action of the Board of Education of the Glen Cove City School District (“respondent board”) and its superintendent concerning shared decisionmaking.  The appeal must be dismissed.

Petitioner Alison Fletcher is a school district employee and member of the district’s shared decisionmaking screening committee.  Petitioner Karen Ferguson is president of the Glen Cove Teachers Association, the bargaining unit for teachers in the district, and a member of the District Steering Committee.  In May 2014, respondent board adopted a District Plan for Shared Decisionmaking (“the plan”), in accordance with Commissioner’s regulations.  The plan provides for screening committees as part of the hiring process for teachers, supervisors, and administrators.  The screening committees review and interview candidates for employment provided by the human resources department.  The plan states that the committee should recommend two or three candidates to the superintendent for additional interviews.  After considering the recommended candidates, the superintendent may either recommend a candidate to respondent board or reject all of the candidates.  The plan further states that, if the superintendent rejects all of the candidates, “the screening process would then be carried out again with a new pool of candidates.”

The record indicates that, on or about July 31, 2014, the screening committee was provided with a list of candidates for the position of Executive Director of Human Resources.  The list of candidates included respondent Nelson Iocolano.  From that list, the committee recommended three candidates to superintendent Rianna.  At that time, respondent Iocolano was not one of the three candidates recommended to the superintendent for consideration.  Superintendent Rianna rejected all three of the candidates recommended by the screening committee and the position remained vacant.

The position of Executive Director of Human Resources was re-posted in early 2015.  In or about April 2015, a new screening committee was convened, new applications were received, and a list of candidates was thereafter provided to the screening committee.  Respondent Iocolano submitted an application in response to the 2015 posting and was again included in the list provided to the committee.  The record is not completely clear as to whether respondent Iocolano was referred for consideration to the superintendent by the screening committee[1] and the record does not indicate that he was appointed to fill the position.  This appeal ensued.

Petitioners allege that the inclusion of respondent Iocolano in the list of candidates referred to the screening committee in April 2015 was in violation of the district plan because the plan requires a new pool of applicants to be considered.  Petitioners further contend that such action violated Commissioner’s regulations by not operating within the purpose and spirit of the regulations.  Petitioners ask that I vacate the screening committee’s consideration of respondent Iocolano for the position, declare respondents’ actions to be arbitrary and capricious, and order that respondents comply with the plan before hiring a new Executive Director of Human Resources.

Respondents assert that their actions were in compliance with Commissioner’s regulations and the district’s shared decisionmaking plan and, therefore, should not be disturbed.  Respondents contend that the “new pool of applicants” requirement does not require every candidate to be different and maintain that, as both the screening committee and the pool of candidates were substantially different, respondents’ actions complied with the district plan.  Further, respondents contend that the practice of recommending individuals to a screening committee for the same position a second time has occurred previously without any objection by petitioners.  Respondents also assert that petitioners improperly seek an advisory opinion.  Finally, respondents Rianna and Iocolano request a certificate of good faith pursuant to Education Law §3811.

I will first address a procedural matter.  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.

In March 1992, Regulations of the Commissioner of Education were promulgated establishing procedures for school-based planning and shared decisionmaking (8 NYCRR §100.11). The intent of the regulation was to foster a process of school-based planning and shared decisionmaking, involving parents and teachers, to improve the educational performance of all students.  The regulation requires every board of education and board of cooperative educational services (“BOCES”) to develop a district plan in collaboration with a planning committee composed of the school superintendent, administrators, teachers and parents.  The regulation further provides that every district must have its plan in place no later than February 1, 1994, and that each plan must be submitted to the Commissioner of Education for approval within 30 days of its adoption by the local board or BOCES (8 NYCRR §100.11[b],[d]).

Petitioners contend that the decision to submit respondent Iocolano to the screening committee for consideration a second time for the position of Executive Director of Human Resources should be vacated as it was in violation of the district’s shared decision-making plan.  They seek an order directing respondents to comply with the district plan in the future.

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).  The gravamen of petitioners’ claim is that respondent Iocolano should not have been considered for the position of Executive Director of Human Resources in April 2015 when it was re-posted.  Although not entirely clear, it appears that respondent Iocolano was not appointed to fill the Executive Director position.  Consequently, petitioners’ complaint regarding the propriety of respondent board considering him for the position is academic, warranting dismissal of the appeal.

Moreover, it is well established that the Commissioner does not issue advisory opinions or declaratory rulings in an appeal pursuant to Education Law §310 (Appeal of a Student with a Disability, 48 Ed Dept Rep 411, Decision No. 15,899; Appeal of Waechter, 48 id. 261, Decision No. 15,853).  Had respondent Iocolano been appointed to the position of Executive Director, a live controversy would be presented for review.[2]  Given that it appears he was not so appointed, any opinion at this juncture would be merely advisory.[3]  Accordingly, the appeal must be dismissed.

With respect to petitioners’ request for an award of costs, the Commissioner has no authority to award monetary damages, costs or reimbursements in an appeal pursuant to Education Law §310 (Application of Kolbmann, 48 Ed Dept Rep 370, Decision No. 15,888; Appeal of S.B., 48 id. 332, Decision No. 15,875).

Although the appeal must be dismissed, one final administrative matter remains. The individual respondents request that I issue a certificate of good faith pursuant to Education Law §3811(1).  Such certification is solely for the purpose of authorizing the board to indemnify individuals for legal fees and expenses incurred in defending a proceeding arising out of the exercise of powers or performance of duties as a board trustee.  It is appropriate to issue such certification unless it is established on the record that the requesting individual acted in bad faith (Application of Anderson, 54 Ed Dept Rep, Decision No. 16,613; Application of Lieberman, 54 id., Decision No. 16,483; Application of Wornum, 51 id., Decision No. 16,265).  In view of this decision, and the fact that there has been no finding that respondents Rianna and Iocolano acted in bad faith, they are entitled to receive the requested certificate.

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

THE APPEAL IS DISMISSED.

END OF FILE

 

[1] Respondents’ papers are internally inconsistent as to whether respondent Iocolano was referred to the superintendent for consideration.  The affidavit of respondent’s superintendent states that the other two candidates were referred to the superintendent, while the answer both admits petitioner’s allegation that respondent Iocolano was not referred to the superintendent and then alleges that he was.

 

[2] Consequently, this matter does not present a situation capable of repetition yet evading review.  Had respondent Iocolano been appointed as Executive Director, the issues presented would be ripe for review and such review would be conducted.

 

[3] Petitioners’ reliance on the continuing wrong doctrine, citing Appeals of Fitch and Tice (34 Ed Dept Rept 486, Decision No. 13,391) is misplaced, as that doctrine is applicable with respect to the timeliness of an appeal.  Here, timeliness is not at issue.