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Decision No. 17,285

Appeal of ALISON CALVI from action of the Board of Education of the Central Islip Union Free School District and Diane Arnold regarding preferred eligibility rights.

Decision No. 17,285

(December 18, 2017)

Robert T. Reilly, Esq., attorney for petitioner, Stephen A. Friedman, Esq., of counsel

Kevin A. Seaman, Esq., attorney for respondents

ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the Central Islip Union Free School District (“respondent board”) not to offer or appoint her to a substitute teacher position.  The appeal must be dismissed.

Petitioner is a certified teacher who was employed by respondent board on September 1, 2007 in the special education tenure area until she was excessed on or about June 30, 2011 and placed on a preferred eligibility list (“PEL”).  Diane Arnold (“respondent Arnold”) was employed by respondent board on September 10, 2007 in the special education tenure area until she was excessed on June 30, 2010 and placed on the PEL.  On or about November 14, 2011, petitioner was appointed to a regular substitute teacher position (“November position”) in the district through April 17, 2012.  The record indicates that, on or about January 30, 2012, petitioner became aware that the district had offered a five-month substitute teacher position through the end of the 2011-2012 school year (“subject position”) to respondent Arnold, who was also on the PEL and had less seniority than petitioner.  This appeal ensued.

Petitioner contends that respondent board should have offered her the subject position as she has more seniority than respondent Arnold and that its failure to do so was in violation of Education Law §2510.  As relief, petitioner seeks an order directing respondent board “to immediately offer Petitioner the subject Position and commence her employment in the subject Position.”

Respondent board contends that, as petitioner was currently serving in a permanent/regular substitute teacher position at the time that the subject position became available, petitioner was not on the PEL at the time that it was canvasing to fill the subject position.  As petitioner was not on the PEL, respondent board maintains that it properly appointed respondent Arnold to the subject position and such action was not in violation of Education Law §2510.  Furthermore, respondent board contends that, absent any clear statutory or decisional directive otherwise, its determination to maintain respondent Arnold in the properly appointed substitute teacher position in special education – rather than further disrupting the special education students with another substitute teacher appointment – was neither in violation of law nor arbitrary and capricious.

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 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 sole relief requested by petitioner in this appeal is the issuance of an order directing respondent board to appoint petitioner to the five-month substitute teacher position held by respondent Arnold through the end of the 2011-2012 school year.  I note that the 2011-2012 school year ended shortly after the instant appeal was commenced and fully submitted and petitioner did not seek interim relief.  As such, no meaningful relief may be awarded and the appeal must be dismissed.

Further, to the extent that petitioner seeks an advisory opinion as to whether respondent board should have placed her in the substitute teacher position occupied by respondent Arnold, 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).

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

THE APPEAL IS DISMISSED.

END OF FILE