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Decision No. 13,178

Appeal of M. CHRISTINE NORKIN, on behalf of her son JOSHUA, from action of the Board of Education of the Somers Central School District regarding reinstatement of William Wienecke, a tenured teacher.

Decision No. 13,178

(May 10, 1994)

Steyer & Sirota, Esqs., attorneys for respondent board, Murry Steyer, Esq., of counsel

SOBOL, Commissioner.--Petitioner challenges the decision of the Board of Education of the Somers Central School District ("respondent board") to reinstate William Wienecke ("respondent Wienecke") as a 7th grade social studies teacher. The appeal must be dismissed.

On or about June 23, 1993 respondent board preferred disciplinary charges against Mr. Weinecke. At that time, Mr. Weinecke was relieved of his class assignments and assigned other educational duties. Pursuant to Education Law '3020-a, a hearing on this matter was scheduled. During the course of the hearing, Mr. Wienecke and respondent board agreed to settle the issue. The terms of the settlement provided, among other things, that Mr. Wienecke would pay a $7,000 fine and be restored to classroom duties no later than February 1, 1994. On January 25, 1994, respondent board notified parents that Mr. Wienecke would be returning to teach 7th grade on January 31, 1994, the start of the district's third marking period. On January 31, 1994, petitioner filed this appeal and requested a stay order preventing Mr. Wienecke's return to classroom duties. Petitioner's request for interim relief was denied.

Petitioner contends that it is improper for respondent board to return Mr. Wienecke to class at the mid-point of the year and that Mr. Wienecke's reinstatement should be delayed until the start of the 1994-95 school year "in order to limit the disruption that this return will inflict on the children." In an appeal to the Commissioner of Education, the petitioner bears the burden of demonstrating a clear legal right to the relief requested (Appeal of Singh, 30 Ed Dept Rep 284; Appeal of DiMicelli, 28 id. 327; Appeal of Amoia, 28 id. 150). Petitioner offers no legal basis to support her request that Mr. Wienecke not be restored to teaching duties until the 1994-95 school year. Moreover, a board of education through its superintendent clearly has the authority to determine the placement of teachers in class (Education Law '1711[5][c]).

In connection with petitioner's contention that Mr. Wienecke's mid-year return to teaching will adversely affect the students in his class, respondent board denies that contention. In an appeal before the Commissioner of Education, the petitioner has the burden of establishing the facts upon which he or she seeks relief (8 NYCRR 275.10; Appeal of Singh, supra; Appeal of Pickreign, 28 id. 163; Matter of Keiling, 25 id. 122). Petitioner offers no proof to support her assertion that students will be harmed by Mr. Weinecke mid-year return to class. In fact, the record indicates that during the first half of the 1993-94 school year, respondent board instituted measures to keep Mr. Wienecke informed of his students' progress to ensure that his return to class would be accomplished without any disruption to the students.