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Decision No. 15,836

Appeal of RALF EMBRO from action of the Rockland Board of Cooperative Educational Services and Dr. James Ryan, District Superintendent, regarding a teaching assignment.

Decision No. 15,836

(October 1, 2008)

James R. Sandner, Esq., attorney for petitioner, Maria Elena Gonzalez, Esq., of counsel

Greenberg, Wanderman & Fromson, Esqs., attorneys for respondents, Stephen M. Fromson, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges the legality of his teaching assignment at the Rockland Board of Cooperative Educational Services (“BOCES”) for the 2007-2008 school year.  The appeal must be dismissed.

Petitioner is a teacher who holds certificates in the areas of Special Education K-12 and Social Studies 7-12.  Petitioner has tenure in the area of Special Education K-12.

Beginning September 4, 2007, petitioner was assigned to teach at the “BOCES Freshman Center.”  Together with one other teacher, two teaching assistants, and a social worker, petitioner was assigned to teach nine students in grades eight and nine within a self-contained classroom.  The students in the class have IQ’s ranging from 52 to 89.  The students are not mainstreamed at all because of significant academic, psychiatric, behavioral, and learning disabilities.

Petitioner’s particular assignment was to teach three periods each day in the area of Mathematics (one of which is designated remedial) and three periods of Global Studies.  According to respondents, the students in this program received credit for “electives (art, music, physical education) and, where appropriate in Global I and Earth Science.”  According to respondents:  “In his capacity as a Special Education teacher, Petitioner provides special education support for basic Mathematics and Global Studies.  The other teacher provides for English and Science.”  Respondents state specifically that students did not receive academic credit in Mathematics.

Petitioner claims that the Mathematics portion of his teaching assignment violated Commissioner’s regulation §80-5.3, because he was being assigned to teach Mathematics, an area in which he does not have certification, 15 periods per week, and without the approval of the Commissioner.  He also claims that this assignment violated Education Law §3009, because he was being paid to teach in the subject area of Mathematics, in which he has no qualifications or certification.  He asks that I order respondents to reassign him to an assignment that he is certified to teach and that is within his tenure area.

Respondents deny that petitioner has been assigned in violation of statute or regulation, because he is a fully certified special education teacher, and has been assigned as such.  Respondents emphasize that this classroom “is designed as an intensive therapeutic support model for students with significant psychiatric, behavioral and learning disabilities” and that the purpose “is to provide students with a self-contained basic skills program to focus on remediation of deficits in reading, writing, and mathematics.”  They point out the Mathematics curriculum did not provide academic credit, but focused on basic skills, as well as review and remediation of eighth grade curricula.  They further point out that petitioner was receiving support in the content area of Mathematics from a veteran special education teacher who is also certified in Mathematics.  They further note that petitioner was assigned to teach a self-contained class of students, and argue that such an assignment is squarely within his certification area of special education.

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 exist or which subsequent events have laid to rest (Appeal of C.A., Sr., 45 Ed Dept Rep 388, Decision No. 15,360; Appeal of the New York Charter Schools Assn., Inc., et al., 45 id. 376, Decision No. 15,355; Appeal of the Bd. of Trustees of the N. Merrick Public Library, et al., 45 id. 363, Decision No. 15,350).  During the pendency of the appeal, respondents’ attorneys notified my Office of Counsel that petitioner’s teaching assignment for the 2008-2009 school year would involve the teaching of Social Studies, but not Mathematics.  At the request of my Office of Counsel for further information, respondents submitted an affidavit from counsel and an additional affidavit from Mary Jean Marsico, the Assistant Superintendent for Special Student Services, to the same effect.  These affidavits state unequivocally that petitioner’s assignment for the upcoming school year involves the teaching of Social Studies “and nothing more.”

As a result, the validity of petitioner’s teaching assignment is no longer at issue and petitioner has already received the relief sought in this appeal.

In view of this disposition, I need not consider the parties’ other claims.