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Decision No. 15,118


Appeal of S.Y. from action of the Board of Cooperative Educational Services for Ulster County relating to a personnel matter.



(September 22, 2004)


Jerold S. Slate, Esq., attorney for petitioner


Kuntz, Spagnuolo, Scapoli & Schiro, P.C., attorneys for respondent, Vanessa M. Gronbach, Esq., of counsel


MILLS, Commissioner.--Petitioner challenges actions of the Board of Cooperative Educational Services for Ulster County (�respondent�) regarding a personnel memorandum.  The appeal must be dismissed.

Petitioner is a culinary arts instructor employed by respondent.  By memorandum dated May 9, 2002, petitioner and two other culinary arts teachers expressed concerns about the return of a suspended student, from the Onteora Central School District (�Onteora�), to respondent�s culinary arts program.  The memorandum was addressed to respondent�s Director of Career Technical Education and Adult Services (�Director�) and was faxed to Onteora�s superintendent. 

By memorandum dated May 10, 2002, respondent�s school principal addressed their concerns.  Thereafter, petitioner received a formal �memo of correction� dated May 21, 2002, from the Director stating that the instructors violated board policy and protocol by directly contacting the Onteora superintendent instead of going through respondent�s administrative channels.  This memo was placed in petitioner�s personnel file.

More than one year later, by letter dated June 4, 2003, petitioner�s attorney requested that the �memo of correction� be removed from petitioner�s personnel file.   The Director agreed to remove the �memo of correction� and replaced it with a memorandum dated June 25, 2003 that stated: 

In May of 2002, you sent a letter to Dr. Hal Rowe, Superintendent of Onteora Schools.  Although you were concerned about the potential threat imposed by the behavior of your student and although your intentions were sincere, your direct communication with the superintendent was inappropriate.


Communication with administration from our component districts must flow from you to your Principal and follow an appropriate chain of command.


I appreciate your following these guidelines in the future.


By letter dated July 1, 2003, petitioner�s attorney requested an opportunity to meet with respondent, which was denied.  A series of correspondence between respondent�s attorney and petitioner�s attorney ensued, the last of which was dated August 26, 2003.  Petitioner commenced this appeal on December 1, 2003.

Petitioner contends that he did not violate any known policy or protocol by directly contacting the Onteora superintendent and that the June 25, 2003 memorandum violated his rights as a teacher and threatened his ability to communicate issues of public safety.  Petitioner requests that the memorandum and any other materials connected to the incident be removed from his file and from the records of any educational institutions that might contain copies.

Respondent argues that the appeal is untimely and that petitioner failed to exhaust administrative remedies pursuant to the terms of the collective bargaining agreement.  Respondent further maintains that the June 25, 2003 memorandum was a proper exercise of administrative authority, and that the memorandum was not written to forbid petitioner�s speech, but to remind petitioner to comply with school policy.    Respondent states that the memorandum will be removed from petitioner�s file after one year if no similar activity occurs.

The appeal must be dismissed as moot.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exists or which subsequent events have laid to rest (Appeal of D.W., 43 Ed Dept Rep ___, Decision No. 14,965; Appeal of L.B., 43 id. ___, Decision No. 14,952; Appeal of N.S., 42 id. 190, Decision No. 14,817).  In response to a request from my Office of Counsel pursuant to �275.6 of the Commissioner�s regulations, respondent submitted an affirmation from its attorney dated July 16, 2004 that confirms that the memorandum and letter were removed from petitioner�s personnel file on June 25, 2004 and that no other documents pertaining to the incident remain in the file or other administrative files.  No additional meaningful relief, therefore, can be granted.  Accordingly, the appeal is moot.

In light of this disposition, I need not address the parties� remaining contentions or submissions.