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Decision No. 16,510


 Appeal of KEVIN REIS from action of the Taconic Hills Central School District and the Board of Education of the Taconic Hills Central School District regarding a personnel matter.

Decision No. 16,510

(July 25, 2013)

Richard E. Casagrande, Esq., New York State United Teachers, attorneys for petitioner, Susan W. Fuller, Esq., of counsel

Girvin & Ferlazzo, PC, attorneys for respondents, Kristine Amodeo Lanchantin, Esq., of counsel

KING, JR., Commissioner.--Petitioner appeals the action of the Board of Education of the Taconic Hills Central School District (“respondent” or “respondent board”) issuing petitioner a teacher improvement plan (“TIP”). The appeal must be dismissed.

Petitioner is a school psychologist employed by respondent. As a result of alleged professional deficiencies and following an investigation, petitioner received a counseling letter dated September 6, 2011, documenting concerns with his performance. On September 9,2011, petitioner was provided a draft TIP. After subsequent discussions regarding the plan, a final TIP was signed by the high school principal, the middle school principal and, on October 4, 2011, by petitioner. This appeal ensued and petitioner’s request for interim relief was denied.

Petitioner alleges that although he was not rated “unsatisfactory” pursuant to an evaluation, respondent implemented a TIP for him without his consent, and in violation of §100.2(o) of the Commissioner’s regulations. He also asserts that he was not consulted in developing the TIP, as is required under that regulation.1 As relief, petitioner requests that the TIP be withdrawn. Petitioner also alleges that respondent failed to raise any affirmative defenses in the answer and, consequently, no reply is necessary.

Although petitioner’s memorandum of law refers to a supporting affidavit purportedly submitted by petitioner, no such affidavit was submitted as part of the record in this appeal.

1 Respondent asserts that the development of a TIP for petitioner was in all respects proper. Respondent maintains that §100.2(o) is inapplicable in this case because petitioner’s TIP was not implemented as a result of an unsatisfactory rating pursuant to that provision. Respondent also maintains that §100.2(o) of the Commissioner’s regulations does not preclude the issuance of a TIP in circumstances other than as a result of an unsatisfactory evaluation. Respondent also disputes petitioner’s assertion that he was not consulted in developing the TIP and argues that petitioner was consulted on several occasions.

I must first address a procedural matter. Although petitioner asserts that a reply was not required in this proceeding, he submitted one nevertheless. However, 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 Caswell,48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson,48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No. 15,901). Therefore, while I have considered 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.

Turning to the merits, in an appeal to the Commissioner, a petitioner has the burden of demonstrating 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 Aversa, 48 Ed Dept Rep523, Decision No. 15,936; Appeal of Hansen, 48 id. 354,Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).

Section 100.2(o) of the Commissioner’s regulations requires an annual evaluation of certain teachers, including pupil personnel service providers, such as “school psychologists.” At the time the TIP herein was issued, §100.2(o) provided as follows:

Teacher improvement. The plan shall

describe how the school district or

BOCES addresses the performance of

teachers whose performance is evaluated

as unsatisfactory, and shall require

the development of a teacher

improvement plan for teachers so evaluated,

which shall be developed by the district ... in consultation with such teacher.

It is undisputed that petitioner was not evaluated during the 2010-2011 school year. However, on September 6,2011, petitioner’s supervisors – the high school and middle school principals - issued him a counseling memo based on certain professional deficiencies in his performance and setting forth expectations going forward. By letter dated September 13, 2011, petitioner responded to the counseling memo.

According to an affidavit by the high school principal, she also formatted a TIP to “help Petitioner improve his organizational skills, create thorough and satisfactory work and demonstrate his compliance with proper high school and Committee on Special Education procedures.” On September 9, 2011, the draft TIP was presented to petitioner. In her affidavit, the high school principal avers that she met with petitioner regarding the TIP on September 15 and 21, 2011. A September 27, 2011email to petitioner indicates that petitioner’s suggestions were taken into consideration and that adjustments to the TIP were made. Petitioner’s submissions, while indicating that petitioner did dispute the need for the TIP and compliance with §100.2(o) of the regulations, do not refute respondent’s evidence that consultation regarding the TIP took place.

As noted above, §100.2(o) of the Commissioner’s regulations requires a school district to issue a TIP upon an unsatisfactory evaluation. However, nowhere in the regulation, or any other statute or regulation, is the use of a TIP specifically precluded where professional deficiencies are noted by means other than an evaluation. Therefore, petitioner has failed to demonstrate that requiring a TIP pursuant to §100.2(o) of the Commissioner’s regulations precludes the use of a TIP in other circumstances. Petitioner’s claim that he was not consulted in the development of the TIP is also not supported by the record, which demonstrates that petitioner was consulted on several occasions regarding the issuance of the TIP.

Finally, petitioner alleges that the decision to permit a TIP outside of the evaluation process set forth in§100.2(o) of the Commissioner’s regulations must be collectively bargained. However, Civil Service Law vests exclusive jurisdiction over complaints involving collective bargaining in the Public Employment Relations Board (Civil Service Law §205(5)(d); see New York City Transit Authority v. New York State Public Employment Relations Board, etal., 19 NY3d 876). Therefore, I lack jurisdiction to address the collective bargaining allegations raised by petitioner in this appeal.

In light of the foregoing disposition, I need not address any remaining contentions raised by the parties.