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Decision No. 16,130

Appeal of SHARON KENNEDY-FROST and UNITED FEDERATION OF TEACHERS, LOCAL 2, AMERICAN FEDERATION OF TEACHERS, AFL-CIO, from action of the New York City Department of Education and Joel I. Klein, Chancellor, regarding staffing.

Decision No. 16,130

(August 20, 2010)

James R. Sandner, Esq. attorney for petitioners, Damon S. Levenstien, Esq., of counsel

Michael A. Cardozo, Esq., Corporation Counsel, attorney for respondents, Megan Carpenter, Esq., of counsel

STEINER, Commissioner.--Petitioners, who are a library media specialist (“LMS”) with the New York City Department of Education (“Department”) and the collective bargaining agent that represents her, appeal from what they contend is the failure of the Department and Chancellor Joel I. Klein (“respondents”) to comply with the staffing requirements set forth in §91.2 of the Commissioner’s regulations.  The appeal must be dismissed.

Petitioner Sharon Kennedy-Frost (“Kennedy-Frost”) has been employed as an LMS in Public School 328 (“PS 328”) for approximately five years.  By letter dated June 16, 2009, she was placed in excess status and advised to locate a new regular assignment at a different school.  She was further advised that she should report back to PS 328 at the start of the 2009-2010 school year if she could not find a regular appointment.  Kennedy-Frost reported to PS 328 on September 8, 2009 and was given the duties of a full time LMS. Because she was in excess status, she continued to look for a full-time position elsewhere as required by respondents.  This appeal ensued.

Petitioners allege that respondents violated §91.2 of the Commissioner’s regulations (“regulation”) by failing to staff certain secondary schools with the required minimum number of LMSs and assistant library media specialists (“ALMS”) in the 2009-2010 school year.  Petitioners contend that respondents’ failure to conform to the regulation negatively impacts Kennedy-Frost and other similarly situated LMSs.  Petitioners request that I direct respondents to comply with the staffing requirements of the regulation.

Respondents allege that the petition fails to state a cause of action, that they are in substantial compliance with the regulation and that their actions were legal, proper, and reasonable.  Respondents contend that, to the extent the petition seeks to challenge Kennedy-Frost’s placement in excess status, the Commissioner lacks jurisdiction, the claim is not ripe and is barred by her failure to exhaust administrative remedies.

Petitioners make no request for relief based on Kennedy-Frost’s placement in excess status.  Therefore, I need not address respondents’ affirmative defenses of lack of jurisdiction, ripeness and failure to exhaust administrative remedies.

To the extent petitioners challenge respondents’ compliance with the regulation in the 2009-2010 school year, 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 Tine, 46 Ed Dept Rep 579, Decision No. 15,600; Appeal of N.C., 46 id. 358, Decision No. 15,532; Appeal of Lombardo, 46 id. 282, Decision No. 15,508).  Since the 2009-2010 school year has ended, issues concerning staffing for that school year are moot.

However, I note that in their answer, respondents admit to only “substantial” compliance with the regulation and the record reflects that they have failed to staff certain secondary schools with the required number of LMSs or ALMSs or provide an alternative arrangement approved by the Commissioner.  Respondents are advised to either staff their schools appropriately or obtain the Commissioner’s approval for an alternate arrangement as provided in §91.2 of the Commissioner’s regulations.

Finally, an appeal to the Commissioner is not the proper place in which respondents may request the Commissioner’s approval of alternative arrangements.  It is well established that the Commissioner does not issue advisory opinions or declaratory rulings in an appeal pursuant to Education Law §310 (Appeal of L.A., et al., 46 Ed Dept Rep 450, Decision No. 15,561; Appeal of Vaught, 46 id. 398, Decision No. 15,544; Appeal of Pochat, 45 id. 343, Decision No. 15,342).

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