Decision No. 17,964
Appeal of DARYA DONNELLY from action of the Board of Education of the Greenburgh-North Castle Union Free School District regarding a personnel matter.
Appeal of TONY CAMAJ from action of the Board of Education of the Greenburgh-North Castle Union Free School District regarding a personnel matter.
Decision No. 17,964
(February 22, 2021)
Robert T. Reilly, Esq., New York State United Teachers, attorney for petitioners, Jennifer A. Hogan, Esq., of counsel
Shaw, Perelson, May & Lambert, LLP, attorneys for respondent, Steven M. Latino and Julie M. Shaw, Esqs., of counsel
ROSA., Commissioner.--In two separate appeals, petitioners (individually, “Donnelly” and “Camaj”) challenge a determination of the Board of Education of the Greenburgh-North Castle Union Free School District (“respondent”) appointing each of them to a three-year probationary teaching appointment in a new tenure area. Because the appeals arise out of similar facts and circumstances and present the same issues of law, they are consolidated for decision. The appeals must be dismissed.
Respondent’s district is a special act public school district comprised of four alternative schools serving residential and day students in grades seven through twelve. As described by petitioners, students who attend respondent’s schools “are unable to complete their education in a traditional public school setting because of special academic, emotional, or social needs.” According to respondent, “approximately 98 [percent] of the [d]istrict’s students are classified as students with disabilities.”
With respect to petitioner Donnelly, on September 5, 2011, respondent granted Donnelly a probationary appointment as a mathematics teacher. In September 2012, the State Education Department (“SED”) issued Donnelly professional certificates in the certification areas of mathematics, grades 5-9, and mathematics, grades 7-12. In September 2014, respondent granted Donnelly tenure in the area of mathematics. In October 2018, SED issued Donnelly a professional certificate in the certification area of students with disabilities, grades 7-12, generalist. On November 13, 2018, respondent adopted a resolution appointing Donnelly “to a three-year probationary appointment as a teacher in the tenure area of [s]pecial [e]ducation-[g]eneral[,] effective September 5, 2011 with tenureable [sic] service in [s]pecial [e]ducation commencing on October 17, 2018 for a probationary term ending on October 16, 2021.”
With respect to petitioner Camaj, in September 2010, SED issued Camaj a professional certificate in the certification area of English language arts (“ELA”), grades 7-12. On November 18, 2013, respondent granted Camaj a probationary appointment as an ELA teacher. In November 2016, respondent granted Camaj tenure in the area of ELA. In September 2018, SED issued Camaj a professional certificate in the certification area of students with disabilities, grades 7-12, generalist. On November 13, 2018, respondent adopted a resolution appointing Camaj “to a three-year probationary appointment as a teacher in the tenure area of [s]pecial [e]ducation-[g]eneral[,] effective November 18, 2013 with tenureable [sic] service in [s]pecial [e]ducation commencing on October 17, 2018 for a probationary term ending on October 16, 2021.” These appeals ensued.
Petitioners contend that they devote a substantial portion of their time to teaching in their respective core academic subject areas – mathematics for Donnelly and ELA for Camaj – and, therefore, respondent violated section 30-1.7 of the Rules of the Board of Regents by appointing them to new probationary teaching appointments outside these tenure areas. For relief, petitioners seek orders directing respondent to withdraw and rescind its November 13, 2018 resolutions appointing them to the new probationary teaching appointments.
Respondent argues that petitioners have failed to meet their burden of establishing a clear legal right to the requested relief. Respondent further argues that its appointment of petitioners to new probationary teaching appointments was consistent with the rules of the Board of Regents and the Commissioner’s regulations.
I must first address a procedural matter. Petitioners each submitted a reply in their respective appeals. 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 Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of Caswell, 48 id. 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908). Therefore, while I have reviewed the replies, I have not considered those portions containing new assertions that are not responsive to new material or affirmative defenses set forth in the answer.
The appeal must be dismissed on the ground that petitioners are not aggrieved. 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 Abitbol, 57 Ed Dept Rep, Decision No. 17,333; Appeal of Waechter, 48 id. 261, Decision No. 15,853). Only persons who are directly affected by the action being appealed have standing to bring an appeal (Appeal of Abitbol, 57 Ed Dept Rep, Decision No. 17,333; Appeal of Waechter, 48 id. 261, Decision No. 15,853). While petitioners contend that they were erroneously appointed to new, probationary terms in the special education tenure area, they have not identified any concrete injury to which they have been subjected. Respondent continues to employ petitioners, and there is no indication in the record that respondent intends to impose discipline upon petitioners or otherwise alter the terms or conditions of their employment. Further, there is no indication in the record that respondent intends to abolish a position that might implicate petitioners’ seniority or tenure rights (cf. Appeal of Cooper, 33 Ed Dept Rep 95, Decision No. 12,989 [petitioner challenged probationary appointment to new tenure area where his prior, tenured position had been abolished]). Therefore, I decline to speculate as to any action respondent may take in the future and how such action might affect petitioners’ tenure or seniority rights. Based on the record before me, petitioners are not aggrieved by respondent’s November 13, 2018 resolutions appointing them to new probationary appointments in the special education tenure area, and the appeals must be dismissed.
However, I admonish respondent to ensure that its teachers possess appropriate certification. Respondent is responsible for determining the appropriate certification and tenure areas for its instructional personnel and admits, in memoranda of law submitted in these appeals, that petitioners were “disserved” by their appointments to “academic tenure area[s] when instructing solely special education classes.”
In light of this disposition, I need not address the parties’ remaining contentions.
THE APPEALS ARE DISMISSED.
END OF FILE
 Given respondent’s prior awards of tenure, which it admits were in error, it is my opinion that any disciplinary charges against petitioners during the probationary terms described herein should be subject to Education Law §3020-a.