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Decision No. 14,959

Appeal of JOSEPH P. GIARDINA from action of the Board of Education of the Bedford Central School District, Bruce L. Dennis, Superintendent, James Alloy, Assistant Superintendent and Robyn Lane regarding an administrative appointment.


Decision No. 14,959


(September 17, 2003)


Ingerman, Smith, L.L.P., attorneys for respondent, Lawrence W. Reich, Esq., of counsel

 MILLS, Commissioner.--Petitioner appeals the decision of the Board of Education of the Bedford Central School District ("board"), Superintendent Bruce L. Dennis, ("Dennis") and Assistant Superintendent James Alloy ("Alloy") to appoint Robyn Lane ("Lane") as Teacher in Charge at its West Patent Elementary School ("West Patent").  The appeal must be dismissed.

On July 1, 2002, the board voted to accept the resignation of the West Patent principal effective July 31, 2002.  On July 12, 2002, the board named Lane as Teacher in Charge of West Patent to continue during satisfactory service but not later than June 30, 2003, at a salary of $97,500.  On August 28, 2002, the board designated Dennis to serve as the West Patent principal until a successor could be appointed.  Petitioner commenced this appeal on August 22, 2002 and his request for interim relief was denied on September 3, 2002.

Petitioner contends that Lane"s appointment as Teacher in Charge is a defacto appointment to the principal"s position at West Patent.  Petitioner argues that the appointment is illegal because Lane lacks the necessary certification to serve as principal.  Petitioner asserts that the salary that Lane is to be paid is equivalent to that of a principal, and is over $30,000 more than her previous teacher"s salary.  Petitioner alleges that the board fraudulently renamed the position to circumvent the law.  Petitioner asks that Dennis and Alloy be removed from their positions pursuant to Education Law "306, that Lane"s appointment be rescinded and that I order the board to comply with the law and regulations regarding administrative and supervisory appointments.

Respondents contend that the appeal is untimely, that petitioner failed to personally serve several of the respondents, that Dennis and Alloy cannot be removed pursuant to Education Law "306 and that the petition does not contain the notice required by "277.1(b) of the Commissioner"s regulations.  Respondents assert that Dennis is the principal of West Patent and that Lane is the Teacher in Charge under his supervision.  Respondents also assert that the additional salary paid to Lane represents a stipend beyond her teacher"s salary for additional duties and responsibilities and for services rendered during July and August when teachers ordinarily have no duties.  Respondents argue that there has been no willful violation of the law or neglect of duty and that Lane"s appointment does not violate any law or regulation.  Respondents further argue that the former principal"s resignation left little time to conduct an adequate search to fill the position before the beginning of the school year.

Initially, I must address the procedural issues.  To the extent that the appeal seeks the removal of Dennis and Alloy, it must be dismissed.  Petitioner failed to provide the notice required by "277.1 of the Commissioner"s regulations, which advises the school officers that their removal is sought, with the petition.  Such a failure is a jurisdictional defect that requires dismissal (Appeal of Parisi, 42 Ed Dept Rep __, Decision No. 14,893; Application of Knapp, 41 id. 41, Decision No. 14,608). 

The appeal must also be dismissed as moot.  It is well settled that the Commissioner of Education will only consider 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 G.D., 43 Ed Dept Rep __, Decision No. 14,905; Appeal of J.F., 42 id. __, Decision No. 14,800; Appeal of Bazemore, 41 id. 449, Decision No. 14,742).  Lane"s Teacher in Charge appointment expired on June 30, 2003.  Therefore, the appointment cannot be rescinded and the appeal is moot.

Although I am compelled to dismiss this appeal, I must comment on the board"s decision to appoint Dennis to the position of principal, while he maintained his position as superintendent.  The board of education must employ and assign to each school "a full-time principal holding the appropriate certification" and alternative forms of administration may be employed only with the approval of the Commissioner (8 NYCRR "100.2[a]).  Obviously, Dennis cannot simultaneously serve as superintendent and a full-time principal. 

Respondents also submitted an additional affidavit with exhibits pursuant to "276.5 of the Commissioner"s regulations stating that Lane has now completed the requirements for certification as a school district administrator and school administrator and supervisor, has applied to the State Education Department for those certifications and has been appointed principal of West Patent by the board.  I must remind the board that a principal must possess the requisite certification at the time of appointment (8 NYCRR "100.2[a]).  Subsequent completion of academic requirements and an application for certification, while rendering the issues here moot, do not comply with law.

In light of the foregoing procedural disposition, I need not address the parties" remaining contentions.