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Decision No. 13,441

Appeal of ARTHUR JAFFE, individually and as president of the Abbott School Teachers Association from action of the Board of Education of the Abbott Union Free School District and Superintendent Seabrew A. Ford regarding shared decisionmaking.

Decision No. 13,441

(June 29, 1995)

James R. Sandner, Esq., attorney for petitioner, Katherine A. Levine, Esq., of counsel

Plunkett & Jaffe, P.C., attorneys for respondents, Phyllis S. Jaffe, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals respondents' action concerning a shared decisionmaking plan. The appeal must be dismissed.

Petitioner is the president of the collective bargaining association representing 37 employees of the Abbott Union Free School District. The Abbott Union Free School District is a special act school district established under Education Law '1110, primarily to serve the children of Abbott House, a private child care agency. The children served by the agency are primarily neglected, deprived or abused children placed in Abbott House either by court order or voluntarily.

In April 1993, respondent board formed a district-wide planning committee to develop a shared decisionmaking plan. In September 1993, respondent board adopted its shared decisionmaking plan. The plan calls for the creation of a nine member building team consisting of: a board member, a parent/surrogate/guardian, a school administrator, two teachers, a unified arts teacher, a teaching assistant, a clerical/maintenance person and a pupil personnel support teacher. The plan first seeks volunteers to fill open positions on the building team. In the alternative, the bargaining unit nominates and selects its representatives to the building team. Likewise, the superintendent, acting as a liaison with respondent board, Abbott House and school administrators, selects the non-bargaining unit representatives of the building team. At a training session held on June 1, 1994, petitioner met with the superintendent to discuss the association's position that the term "pupil personnel support" includes all pupil personnel staff, including reading and speech teachers, school psychologists, the Diagnostic Reception Class teacher and the guidance counselor. By memo dated April 29, 1994, petitioner informed respondent of its selection of representatives to the building team, including Dr. Ella Hall, a school psychologist, chosen for the pupil personnel support teacher spot. By memo dated June 2, 1994, the superintendent informed petitioner that he would not accept Dr. Hall in the pupil personnel support teacher position since she was a school psychologist and not a teacher. The superintendent further stated that since the association had failed to fill the spot, he would appoint someone. This appeal ensued. Petitioner's request for interim relief pending a determination on the merits of the appeal was denied on August 18, 1994.

Petitioner alleges that respondents violated the shared decisionmaking regulation by unilaterally altering the plan without the approval of the designated representatives. Petitioner also alleges that this action was taken due to respondents' longstanding animosity toward school psychologists. Respondents contend that as a procedural matter, the appeal fails to state a cause of action, that petitioner has failed to exhaust his administrative remedies and that the appeal is moot. Respondents also contend that petitioner has failed to work constructively with the district to resolve fiscal problems.

Respondents contend that the matter is now moot. The Commissioner of Education will determine only matters in actual controversy and will not ordinarily render a decision upon a statement of facts which no longer exists or which subsequent events have laid to rest (Appeal of Cataldo, 34 Ed Dept Rep 433; Appeal of Stopka, 34 id. 157; Appeal of Winkler, 33 id. 334). Because the record indicates that Dr. Hall resigned from the building team and the teachers' association appointed a speech teacher to that position, the controversy is now moot. Accordingly, the appeal is dismissed.

In light of the foregoing disposition, I will not address the merits of petitioner's appeal.