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Decision No. 14,324

Appeal of WILLIAM LILLY from action of the Board of Education of the Fairport Central School District, and Linda Pearles, Paul Earnst, William Tiberio, Michael Magee and Timothy Slisz regarding an intervention and support program.

Decision No. 14,324

(March 13, 2000)

Fitzsimmons, DesMarteau, Beale & Nunn, attorneys for petitioner, George DesMarteau, Esq., of counsel

Harris Beach & Wilcox, LLP, attorneys for respondents, James A. Spitz, Jr., Esq., of counsel

MILLS, Commissioner.--Petitioner alleges that the Fairport Central School District ("respondent district" or "district") and the individually named respondents unreasonably interpreted and implemented the district’s Intervention and Support Program ("ISP"). The appeal must be dismissed.

Petitioner is a tenured mathematics teacher and member of the Fairport Educators Association ("FEA") who has been employed in respondent district for twenty-nine years. On September 19, 1995, the district and the FEA entered into a Professional Negotiation Agreement ("Agreement" or "collective bargaining agreement"), governing the terms and conditions of employment for all certified professional personnel working in the district, including petitioner. Section 6.4(C) of the Agreement establishes the Intervention and Support Program ("ISP"), an evaluation/remediation procedure designed to identify and improve the performance of teachers who are having difficulties in the performance of their professional duties. An Intervention and Support Team ("IST") consisting of four teachers, elected by FEA members, and one administrator, mutually selected by the FEA and the district, administers the ISP. Respondents Linda Pearles, Paul Earnst, William Tiberio, Michael Magee and Timothy Slisz were IST members at the time petitioner commenced this appeal.

Under the terms of the Agreement, a teacher may volunteer for intervention or be referred in writing by a teacher, administrator or the IST. The Agreement provides that the written referral must be made to the IST and must request either a Phase I or Phase II plan. The IST developed procedures to govern the Phase I and Phase II processes, which the FEA Executive Board and the Administrative Cabinet approved.

For Phase I, if the IST decides that the referral is appropriate, a first hearing is convened to determine whether support is necessary. If support is deemed necessary, a second hearing is scheduled to develop an Improvement Plan. Under both the Agreement and the IST procedures, if the person being referred does not enter into the intervention plan voluntarily the next general salary increase is withheld permanently. If the Phase I Improvement Plan is successfully completed, the IST sends a written recommendation to the superintendent to terminate the intervention. If the IST determines that the Improvement Plan was not successful, a Phase II intervention plan is developed. Under the IST procedures, "the person referred for a Phase II Improvement Plan does not receive the next general salary increase."

On or about August 11, 1997, two administrators in petitioner’s building filed a "Referral Form" against him. A Phase I hearing was held on September 24, 1997, at which petitioner argued that the IST should find the referral inappropriate. By memorandum dated September 30, 1997, the IST notified petitioner that it had determined that an intervention plan was appropriate. A Phase I second hearing was scheduled for December 1, 1997, to develop an intervention plan. This appeal ensued on October 28, 1997, prior to the Phase I second hearing. Petitioner’s request for interim relief was denied on November 12, 1997.

Petitioner contends that the actions of the IST and the district deprived him of his property rights without due process by causing the permanent withholding of his next salary increase. Petitioner further contends that the procedures adopted by the IST to implement the ISP are an unreasonable interpretation and implementation of the Agreement because they disregard whether any strategies for remediation have previously been employed at the building level. He also asserts that the required "hearings" fail to provide for adequate due process. Petitioner requests that the ISP procedures be amended to afford due process to him and to others similarly situated and to reflect the intent underlying the Agreement.

Respondents contend that the petition must be dismissed because it is untimely, premature and involves constitutional claims and interpretation of the Agreement over which the Commissioner lacks jurisdiction. In addition, respondents state that petitioner failed to join the FEA as a necessary party and lacks standing to challenge a procedure approved by the FEA. Respondents also maintain that sustaining petitioner’s claim would allow petitioner to unilaterally veto a program established through the joint efforts of the district and the FEA.

I must first address several procedural issues. Petitioner may not maintain this appeal for "others similarly situated." A class appeal is permitted "only where the class is so numerous that joinder of all members is impracticable and where all questions of fact and law are common to all members of the class" (8 NYCRR "275.2[a]). The individual respondents are teacher members of the IST, and as respondents, clearly are not parties in petitioner’s class. Additionally, the record does not reflect any other teachers who are subject to the ISP procedures. Thus, it appears that all questions of fact and law are not necessarily common to all members of the potential class (Appeal of Tudor, 38 Ed Dept Rep 591, Decision No. 14,100; Appeal of Donnelly, 33 id. 362, Decision No. 13,079). Class status is, therefore, denied.

Respondents contend that the appeal is untimely. An appeal to the Commissioner must be commenced within 30 days from the performance of the act complained of, unless excused by the Commissioner for good cause shown (8 NYCRR "275.16). Respondents first argue that petitioner should have appealed within 30 days of February 11, 1997, when respondents Pearles and Earnst presented the Phase I and II procedures to the teachers in petitioner’s building, since it is those procedures to which petitioner objects. However, since petitioner could not have known at that time that he would be referred to the IST and subject to its procedures, it is unreasonable to commence the 30-day appeal period on February 11. Respondents then argue that the 30-day appeal period should have commenced on September 17, 1997, when petitioner received a copy of the procedures with the memorandum advising him of the September 24, 1997, Phase I first hearing. Finally, respondents argue that the petition is untimely because it was not filed until October 28, more than 30 days after the September 24, 1997 Phase I hearing. However, petitioner did not receive notice that he was required to participate in a Phase I second hearing until September 30, 1997. Since the petition was filed within 30 days of that memorandum, the petition is timely.

However, the Commissioner will not render advisory opinions or decide issues that have not yet become justiciable (Appeal of Instone-Noonan, 39 Ed Dept Rep ___, Decision No. 14,275). Under the Agreement, "a teacher assigned to an intervention plan will have the next general salary increase withheld permanently. A teacher volunteering to participate in Phase I intervention will receive the general salary increase." Since a Phase I second hearing had not yet been held at the time this appeal was commenced, petitioner had no salary increase withheld, nor would he if he voluntarily participated in the intervention plan. Accordingly, petitioner’s claim regarding the deprivation of property is premature.

The appeal, however, must be dismissed on the merits. In an appeal to the Commissioner, petitioner bears the burden of establishing all the facts upon which he seeks relief (8 NYCRR "275.10; Appeal of Alexander, 39 Ed Dept Rep ___, Decision No. 14,232; Appeal of Trombley, 39 id. 115, Decision No. 14,189) and demonstrating a clear legal right to the relief requested (Appeal of Logan, 38 id. 694, Decision No. 14,120). While petitioner contends that the hearings required under the ISP fail to provide for adequate due process, he did not object to the Phase I procedures or request an opportunity to call or cross-examine witnesses at the hearing. Moreover, he was allowed to present both written and oral arguments in opposition to the referral. Thus, I find that petitioner has failed to meet his burden on this issue.

Petitioner also seeks to have the ISP procedures altered to reflect what he claims was the intent underlying the Agreement, namely, that the ISP would augment, rather than replace, building level efforts to identify teaching deficiencies and to remediate such deficiencies as appropriate. However, petitioner fails to present evidence substantiating the claimed intent other than his recollection. Additionally, the provision permitting the withholding of a teacher’s salary is contained in the Agreement itself, and both the district and the FEA agreed on the ISP and reviewed and accepted the procedures developed by the IST to implement it. Thus, the relief sought by petitioner is not an interpretation of the Agreement, but an amendment of it. The Commissioner lacks authority to amend a collective bargaining agreement (Appeal of Beres, 24 Ed Dept Rep 86, Decision No. 11,325) or to direct a board of education to violate a collective bargaining agreement (Appeal of Capozza, 33 id. 622, Decision No. 13,169). Even if the relief sought by petitioner could be construed as an interpretation of the Agreement, the appropriate standard of review for appeals brought pursuant to Education Law "310 under such circumstances is not whether a particular clause is susceptible to a different interpretation, but whether the school board’s interpretation is unreasonable or otherwise arbitrary or capricious (Appeal of Bodnar and Degiglio, 29 Ed Dept Rep 516, Decision No. 12,369). Upon my review of the record, I cannot conclude that the adopted procedures were an unreasonable, arbitrary or capricious interpretation of the Agreement.

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