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Decision No. 16,523

Appeal of CYNTHIA YAGER from action of the Board of Education of the Massena attorneys for petitioner, Robert T. Fullem, Esq., of Central tenure. School District regarding

Decision No. 16,523

(August 26, 2013)

School Administrators Association of New York State, counsel

The Law Firm of Frank W. Miller, attorneys for respondent, Frank W. Miller, Esq., of counsel

KING, JR., Commissioner.--Petitioner challenges various actions of the Board of Education of the Massena Central School District (“respondent”) relating to tenure. The appeal must be dismissed.

Petitioner is a certified School District Administrator and School Business Administrator. Petitioner was originally appointed to a probationary appointment as Director of Business Administration in 1995.By resolution dated June 22, 1998, respondent granted petitioner tenure in the area of “Administration, “effective August 1998. Thereafter, her title was changed to an assistant superintendent title, and petitioner entered into an employment contract with respondent for the period from July 1, 2009 through August 31, 2012.

On or about December 9, 2011, respondent suspended petitioner from her position. At its December 12, 2011meeting, respondent declined to prefer charges against petitioner pursuant to Education Law §3020-a. On December 16, 2011, the School Administrators Association of New York State (“SAANYS”) wrote to respondent’s attorney, on petitioner’s behalf, asserting constitutional and due process violations based on petitioner’s continued suspension despite respondent’s failure to prefer charges pursuant to Education Law §3020-a. By letter dated December 27, 2011, respondent’s attorney responded that petitioner was not a tenured administrator and, therefore, respondent need not comply with Education Law §3020-a.This appeal ensued.

Petitioner alleges that she is a tenured administrator, that her duties as director of business administration and as assistant superintendent were substantially similar and that she never consented to an appointment outside of her tenure area. Petitioner requests an order that she is tenured in the administrative tenure area and is entitled to the protections of Education Law §3020-a.

Respondent alleges that the petition fails to state a cause of action and that any injuries sustained by petitioner were not due to improper conduct by respondent. Respondent further asserts that SAANYS may not represent petitioner, as she is not in a position represented by a bargaining unit. Respondent further asserts that I lack jurisdiction over this matter as petitioner’s employment contract provides an exclusive vehicle for the resolution of such disputes. Respondent maintains that I should decline to exercise jurisdiction in this matter and require petitioner to present her dispute to a panel of arbitrators, as required under the contract. Respondent also contends that the contract constitutes a waiver of any rights under Education Law §§3012, 3020 and 3020-a, and that petitioner is limited to her contractual remedies and may not seek remedies in another forum. Respondent further alleges that the appeal is untimely.

This 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 a Student with a Disability, 48 Ed Dept Rep 532,Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No.15,836). In addition, 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 a Student with a Disability, 48 Ed Dept Rep411, Decision No. 15,899; Appeal of Waechter, 48 id. 261,Decision No. 15,853).

Petitioner requests that I issue an order that she is tenured in the administrative tenure area in her “current employment capacity” and, therefore, is entitled to the protections of Education Law §3020-a. However, by letter dated July 15, 2013, respondent notified my Office of Counsel that at its May 3, 2012 meeting, respondent accepted petitioner’s retirement from the district on July6, 2012. Since disciplinary action under Education Law§3020-a may no longer be brought against petitioner because she is retired and no longer employed by respondent’s district, this claim is moot.

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