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Decision No. 17,271

Appeal of DANIEL BERGER, individually and as President of the Monticello Teachers’ Association, from action of the Board of Education of the Monticello Central School District regarding a professional development team.

Decision No. 17,271

(December 4, 2017)

Donoghue, Thomas, Auslander & Drohan, LLP, attorneys for respondent, Laura M. Del Gaudio, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the composition of a professional development team appointed by the Board of Education of the Monticello Central School District (“respondent”).  The appeal must be dismissed.

Petitioner is employed by respondent and is also the president of the Monticello Teachers’ Association (“MTA”).  The MTA is the collective bargaining organization representing teachers employed by respondent, and pursuant to Commissioner’s regulations §100.2(dd)(3)(i)(a), is responsible for designating the teacher members of the professional development team.[1]

At a planning meeting held in September 2011, a committee of district employees created a Professional Development Manual and Calendar (“Calendar”) for the school year.  In his affidavit, respondent’s assistant superintendent for student learning (“assistant superintendent”) states that the Calendar was “created collaboratively with a committee which included teachers ....”  In the petition, petitioner alleges that the MTA did not appoint any members to the committee that developed the Calendar.

After the Calendar was developed, the parties exchanged emails regarding the membership of the professional development team for the school year and the membership of the committee that created the Calendar.  In his emails, petitioner noted that the district had included the professional development team “under the umbrella” of the Comprehensive District Education Plan (“CDEP”)[2] group and requested information about the membership of the CDEP group.  He indicated that if the district continued to include the professional development team “under the umbrella” of the CDEP group, a majority of the CDEP group must be teachers designated by the MTA and he referenced the Commissioner’s regulations.  In addition, petitioner stated that the committee that developed the Calendar was not properly constituted and that the MTA had not designated any teachers to be members of the committee.

In response, respondent’s assistant superintendent provided petitioner with two documents, one listing the participants at the professional development calendar planning meeting held in September and the other listing members of the “CDEP-PD Team: 2011-2012.”  He also indicated that according to his count, the MTA could add two additional people to the CDEP-PD team “to have a majority based on the regulations” and inquired as to whether the MTA would be changing members.  This appeal ensued.

Petitioner asserts that the Calendar was created in violation of Commissioner’s regulations §100.2(dd) as it was not developed through a collaborative process with a professional development team.  He requests an order directing respondent to appoint a professional development team in compliance with Commissioner’s regulations §100.2(dd).  He also requests an order nullifying the Calendar and all other determinations, actions and policies issued by the professional development team appointed by respondent.

Respondent claims, among other things, that petitioner fails to state a claim upon which relief may be granted, and that petitioner’s claims are untimely and barred by equitable estoppel.  It asserts that the Calendar was not the district’s professional development plan and that the district’s professional development plan was approved as part of the CDEP in April 2011.  It also claims that the district “offered to allow the MTA to appoint members to the CDEP Committee,” but the MTA never did.

In his reply, petitioner states that the appeal solely concerns professional development for the 2011-2012 school year.

As noted above, petitioner challenges the composition of the professional development team appointed by respondent and its actions during the 2011-2012 school year.  There is no evidence in the record relating to the composition or method of appointment to the professional development team in any subsequent school year.  As the 2011-2012 school year has concluded and petitioner did not request interim relief in this proceeding, petitioner’s appeal is academic and must be dismissed.  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).

I note for the benefit of the parties, however, that, as described above, 8 NYCRR §100.2(dd)(3) provides that a professional development plan may be part of a comprehensive education plan provided that such plan meets all requirements of subdivision (dd), including the requirement of collaboration in the development of the plan with a professional development team as prescribed in paragraph (3) of the subdivision.  Paragraph (3) specifically requires that a majority of the professional development team be teachers and that teachers be appointed “upon designation by the teachers’ collective bargaining organization.”  There is an exception in §100.2(dd)(3)(d) for members of a professional development team employed or representing a school under registration review, who are recommended for appointment by the superintendent.  Unless that exception applies, however, there must be a collaboration with a duly constituted professional development team in the development of a professional development plan, or any amendments thereto.

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

THE APPEAL IS DISMISSED.

END OF FILE

 

[1] To the extent petitioner Berger purports to bring this appeal as a representative of the MTA, I note that an unincorporated association lacks standing to maintain an appeal under Education Law §310 (Appeal of Torres, 46 Ed Dept Rep 301, Decision No. 15,515; Appeal of Russo, 46 id. 266, Decision No. 15,504), and an individual representative of an unincorporated association has no greater standing to maintain such an appeal than the association itself (see e.g. Appeal of Barse, 54 Ed Dept Rep, Decision No. 16,753; Appeal of Beilman, 38 id. 644, Decision No. 14,109)However, petitioner Berger has standing as a district teacher and member of the professional development team (see Appeal of Copenhagen Teachers’ Association, et al., 45 Ed Dept Rep 459, Decision No. 15,381).

 

[2] Commissioner’s regulation §100.2(dd)(1)(ii) provides that the professional development plan may be a part of a comprehensive education plan of the district, provided that the professional development plan meets all of the requirements of subdivision (dd) including the requirements related to collaboration with the professional development team in the development of the plan as prescribed in paragraph (3) of subdivision (dd).