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Decision No. 15,574

Appeal of JOHN BOYLE from action of the Otsego-Northern Catskills Board of Cooperative Educational Services and Jody A. Albano regarding a teaching assignment.

Decision No. 15,574

(April 20, 2007)

Janet Axelrod, Esq., attorney for petitioner, Susan Whiteley Fuller, Esq., of counsel

Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C., attorneys for respondent board, Norman H. Gross, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals his teaching assignment at the Otsego-Northern Catskills Board of Cooperative Educational Services (“BOCES”) for the 2005-2006 school year.  The appeal must be dismissed.

Petitioner, a tenured culinary arts teacher, commenced teaching at the BOCES in October 1995.  He taught continuously until shortly after the commencement of the 2003-2004 school year when he left for medical reasons.  He did not return for the 2004-2005 school year and was granted medical leave without pay for that time period.  During petitioner’s absence, BOCES assigned Jody Albano (“Albano”) to teach petitioner’s culinary arts classes.

In April 2005, petitioner informed BOCES that he would return to work for the 2005-2006 school year.  By letter dated July 22, 2005, the district superintendent notified petitioner of his assignment for the upcoming school year as ‘Teacher on Special Assignment – Culinary Arts’ and provided a job description.  BOCES again assigned Albano to teach the culinary arts classes formerly taught by petitioner.  This appeal ensued.

Petitioner contends that his 2005-2006 assignment was improperly outside his tenure area.  He asserts that he is not properly certified to teach students with disabilities and that Albano lacks appropriate certification to teach culinary arts.  He also claims that, based on seniority, he was entitled to Albano’s assignment.  He seeks an order nullifying Albano’s assignment and directing BOCES to restore him to that position.

BOCES maintains that the appeal is untimely and that petitioner improperly seeks an advisory opinion regarding seniority status.  BOCES further contends that Albano is properly certified to teach culinary arts.  BOCES maintains that petitioner’s 2005-2006 teaching assignment was within his tenure area and was in all respects proper.

I will first address several procedural issues.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of E.R., 45 Ed Dept Rep 487, Decision No. 15,389; Appeal of Ramroop, 45 id. 473, Decision No. 15,385; Appeal of C.R., 45 id. 303, Decision No 15,330).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

I have also not considered portions of the parties’ memoranda of law.  A memorandum of law should consist of arguments of law (8 NYCRR §276.4).  It may not be used to add belated assertions or exhibits that are not part of the pleadings (Appeal of a Student Suspected of Having a Disability, 45 Ed Dept Rep 483, Decision No. 15,388; Application of Jo, 45 id. 374. Decision No. 15,354; Appeal of a Student with a Disability, 45 id. 327, Decision No. 15,337).  Therefore, the new allegations and exhibits submitted for the first time in the parties’ memoranda have not been considered.

An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of O’Brien, 44 Ed Dept Rep 43, Decision No. 15,092; Appeal of Spina, 43 id. 354, Decision No. 15,016).  Petitioner’s teaching assignment was effective upon commencement of the 2005-2006 school year.  Since petitioner commenced his appeal within 30 days of the start of the school year, it is timely (seeAppeal of Colaiaco, 34 Ed Dept Rep 334, Decision No. 13,331; Appeal of Laforty, 33 id. 161, Decision No. 13,010).  In addition, to the extent petitioner challenges the appropriateness of his and Albano’s certification for their respective assignments, a district’s employment of an uncertified teacher, if unlawful, is a continuing wrong, subject to complaint at any time (Appeal of Dankleman, 37 Ed Dept Rep 415, Decision No. 13,892; Appeal of Folsom, 37 id. 347, Decision No. 13,876).

I must also address a threshold jurisdictional issue.  With respect to petitioner’s challenge to his assignment as being outside his tenure area, respondent submits a response to a grievance filed by the BOCES Teachers’ Association on behalf of petitioner in which the district superintendent addresses the tenure area in which the position lies.  A school employee who elects to submit an issue for resolution through a contractual grievance procedure may not elect to bring an appeal to the Commissioner of Education for review of the same matter unless the employee can show that the union breached its duty of fair representation (Matter of Bd. of Educ., Commack UFSD v. Ambach, 7O NY2d 501; Appeal of Cerilli, 33 Ed Dept Rep 385, Decision No. 13,087; Appeals of Gross and Forsyth, 33 id. 222, Decision No. 13,031).  A decision by a union not to further pursue a grievance, by itself, does not constitute unfair representation (seeMatter of Bd. of Educ., Commack UFSD v. Ambach, 7O NY2d 501; Matter of Margolin v. Newman, 130 AD2d 312, cert denied 71 NY2d 844; Appeals of Gross and Forsyth, 33 Ed Dept Rep 222, Decision No. 13,031).  To the extent that that part of the appeal challenging petitioner’s assignment as outside his tenure area duplicates his earlier-filed grievance, it must be dismissed (Appeal of Romano, 43 Ed Dept Rep 466, Decision No. 15,052).

To the extent that the appeal does not duplicate the earlier filed grievance, petitioner’s claim must be dismissed on the merits.  In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Hoey and Kosowski, 45 Ed Dept Rep 501, Decision No. 15,394; Application of Bliss, 45 id. 308, Decision No. 15,331; Appeal of Rubinstein, 45 id. 299, Decision No. 15,329).

A board of education has broad discretion in assigning members of its professional staff, so long as the employee’s tenure rights are not infringed upon (Matter of Van Heusen v. Bd. of Ed., City School Dist. of the City of Schenectady, et al., 26 AD2d 721; Appeal of Dillon, 43 Ed Dept Rep 333, Decision No. 15,010).  Moreover, there is no general requirement that a school district assign a teacher to a particular classroom or school (Appeal of Dillon, 43 Ed Dept Rep 333, Decision No. 15,010; Appeal of Ginnane, 43 id. 239, Decision No. 14,983).

Petitioner asserts in a conclusory manner that “a ‘substantial portion’” of his duties are outside his tenure area, that “a ‘substantial portion’ of time is spent ... doing administrative duties” and that he “is assigned more than 40% of his duties outside his tenure area.”  Petitioner sets forth no evidence establishing those assertions other than submitting a copy of the job description.  However, the job description indicates that four of the five components of the assignment require petitioner to provide instruction, develop lesson plans and curriculum.  All of those duties are appropriate duties of a teacher and, thus, do not fall outside petitioner’s tenure area (seeAdlerstein v. Bd. of Educ., 64 NY2d 90; Smith v. Bd. of Educ. of the East Ramapo Cent. School Dist., et al., 97 AD2d 795; McElroy v. Bd. of Educ., Bellmore-Merrick Cent. High School Dist., 5 Misc 3d 321; Matter of Anderson, v. Cortland City School Dist., 147 Misc 2d 7, aff’d 171 AD2d 1017).  Petitioner provides no information disaggregating the time spent in each component of his assignment.  In contrast, respondent submits evidence indicating that over 80% of the assignment is comprised of those teaching duties.  Moreover, as noted below, petitioner failed to establish that the fifth component of the job description – Food Service COSER development – was administrative in nature.  On this record, I cannot conclude that petitioner was improperly assigned outside his tenure area.

Petitioner’s claim that Albano was not properly certified to teach culinary arts is also unsupported by the record.  Albano held a Transitional-E Certificate in Food Preparation (Cook/Chef), effective September 1, 2003. Pursuant to §80-5.16 of the Commissioner’s regulations, a Transitional-E certificate authorizes the holder to teach in a specific school district or BOCES and is valid for three years (8 NYCRR §80-5.16[a]).  Therefore, during the 2005-2006 school year, Albano was appropriately certified to teach culinary arts at the BOCES.

Moreover, petitioner has failed to establish that his certification was inappropriate for his assignment.  Petitioner notes that he does not hold certification in special education and claims, therefore, that he was unqualified to teach culinary arts to students with disabilities.  Petitioner alleges that he was required to provide direct instruction in culinary arts to the students.  BOCES denies that and submits an affidavit from its district superintendent stating that petitioner’s culinary arts program was implemented as “push in” instruction, working directly with the special education teachers.  The job description provided petitioner in July 2005 indicates that the position involves instructing students with disabilities in culinary arts but does not detail the manner of delivery.  Petitioner provides no evidence of who the “teacher of record” was for each student enrolled in the culinary arts classes.  Consequently, it is unclear whether the culinary arts instruction was regular instruction provided to students with disabilities or specially designed instruction provided to students with disabilities in occupational areas.  Petitioner provides no other evidence, such as redacted student individualized education programs, on which to make a finding.  As noted, petitioner has the burden of proof.  On this record, petitioner fails to establish his claim.

Petitioner also contends that that portion of his assignment requiring him to develop a Food Service COSER (Cooperative Service) requires administrative certification which he does not hold.  He claims, therefore, that such assignment is improper.  The petition sets forth only conclusory allegations along with a copy of the job description which merely states that a component of the assignment is to “[d]evelop a plan for a Food Service COSER...”  Petitioner submits no information regarding the details of his involvement with the development of the plan.  Improperly submitted with the reply are additional exhibits which, even if considered, are not applicable to developing plans for COSERs but, instead, relate generally to State aid claims and to grant budgeting.

Although petitioner’s original job description includes grant writing to support the COSER, I note that in August 2005, BOCES informed petitioner that he need not engage in any grant writing activities as part of his assignment.  The record is unclear regarding whether petitioner was required to actually prepare the proposed COSER documents for submission to this Department – an administrative duty – or to work on the plan by giving input regarding the provision of food service – a matter not requiring administrative certification.  The pleadings are entirely devoid of factual evidence necessary to reach a conclusion, although I note that, in its brief, respondent argues that petitioner was not asked to prepare the COSER documents, but was merely to provide input into the plan as a veteran food service teacher.  In the absence of sufficient factual evidence on which to base a conclusion, petitioner’s claim on that point fails.

Absent a finding that petitioner was assigned outside his tenure area, petitioner’s remaining claim requires a determination that his seniority over Albano entitles him to her class assignments.  As noted above, generally, a teacher may not demand assignment to a particular classroom or school (Appeal of Dillon, 43 Ed Dept Rep 333, Decision No. 15,010; Appeal of Ginnane, 43 id. 239, Decision No. 14,983).  Petitioner has not provided a collective bargaining agreement establishing such a right in this instance.  Moreover, to the extent one existed, as noted above petitioner apparently accessed the grievance process thereunder and may not raise the same claim here.

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