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Decision No. 16,677

Appeal of ANDREW PEASE from action of the Board of Education of the City School District of the City of Rye and the Rye Teachers’ Association regarding teaching assignments.

Decision No. 16,677

(October 7, 2014)

Harold, Salant, Strassfield & Spielberg, attorneys for petitioner, Christopher Harold, Esq., of counsel

Ingerman Smith, L.L.P., attorneys for respondent Rye City School District, Emily J. Lucas, Esq., of counsel

KING, JR., Commissioner.--Petitioner, an elementary school music teacher, appeals the teaching assignment given him by the Board of Education of the Rye City School District (“respondent board” or “respondent”).  The appeal must be dismissed.

Commissioner’s regulation §100.2(i), relating to teaching assignments, provides:

  1. Teaching staff in public schools.  The number of daily periods of classroom instruction for a teacher should not exceed five.  A school requiring of any teacher more than six teaching periods a day, or a daily teaching load of more than 150 pupils, should be able to justify the deviation from this policy.

During the 2013-2004 school year, petitioner taught music at both respondent’s Milton Elementary School and Midland Elementary School.  The parties agree that, at Milton Elementary School, he was assigned 163 students on Tuesdays and Wednesdays, in excess of the 150-student daily teaching load established by the regulation.

Petitioner asserts that the teaching load assigned him on Tuesday and Wednesday was without justification and violates §100.2(i).  Petitioner contends that the assignment precludes effective teaching.  Specifically, petitioner alleges that he teaches four back-to-back periods in the morning and five back-to-back periods in the afternoon.  Petitioner claims that, as a result of the volume of students assigned, he is unable to assign tasks that require deliberative evaluation or substantial interaction with individual students.  Petitioner argues that he has no time to attend to administrative tasks, organize his physical space, or alter instructional materials as necessary between classes.  Petitioner further alleges that his knowledge of students is compromised and that he has no time to reflect on his teaching, maintain accurate records, or communicate with students’ families.  Petitioner seeks an order requiring respondent board to provide a written justification for deviating from the 150-student daily teaching load set forth in §100.2(i) of the Commissioner’s regulations. If such deviation is not justified, petitioner further seeks either a reduction of his daily teaching load on Tuesday and Wednesday to comply with the regulation or monetary compensation for the increased teaching load.

Respondent board[1] contends there is no violation of Commissioner’s regulation §100.2(i) because petitioner’s teaching assignment is justified, in part, due to the nature of general music classes at the elementary level and also because petitioner requested that his general music classes be scheduled together on the same day, rather than on days on which band and instrumental lessons were scheduled.  Respondent asserts that petitioner’s teaching assignment does not preclude effective teaching.

Respondent also asserts that the appeal is untimely and that I lack jurisdiction to award petitioner monetary compensation.

I must first address several procedural matters.  Respondent objects to petitioner’s reply, alleging that it was not properly served.  Section 275.8(b) of the Commissioner’s regulations requires that “all subsequent pleadings and papers shall be served upon the adverse party or, if the adverse party is represented by counsel, upon such party’s attorney” (8 NYCRR §275.8[b]).  Petitioner, who is represented by counsel, served his reply upon the district clerk rather than on respondent’s attorney, as required.  Because the reply was not properly served, it has not been considered.[2]

Respondent also asserts that the appeal is untimely. 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 Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879).

Petitioner commenced this appeal on October 9, 2013.  The first day of school for students of the Rye City School District was September 9, 2013.  Respondent contends that the appeal is untimely because petitioner had access to his schedule through an electronic data portal sometime in mid-August 2013 and, therefore, service of the petition on October 9, 2013 exceeds the required 30 day period to initiate an appeal.  While teachers may be aware of their scheduled teaching load prior to the commencement of the school year, such teachers are not actually aggrieved until they are required to teach in excess of 150-students as proscribed by §100.2(i) of the Commissioner’s regulations.  Petitioner’s teaching assignment was effective upon commencement of the 2013-2014 school year on September 9, 2013  (Appeal of Koenig, 50 Ed Dept Rep, Decision No. 16,145; Appeal of LaForty, 33 id. 161, Decision No. 13,010).  Therefore, because petitioner commenced his appeal within 30 days of the start of the school year, it is timely.

However, 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 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).  Petitioner’s claim regarding respondent’s alleged non-compliance with the requirements of §100.2(i) of the Commissioner’s regulations is based on his daily teaching load assigned during the 2013-2014 school year.  As that school year has ended, the matter is academic, warranting dismissal of the appeal.

     Even if the appeal was not moot, it would 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 Aversa, 48 Ed Dept Rep 523, 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(i) of the Commissioner’s regulations limits the daily teaching load to 150 students.  However, the regulation contemplates that situations may arise which would permit deviation from the daily student limit.  A district may exceed daily teaching assignments of 150 students upon sufficient justification (Appeal of Koenig, 50 Ed Dept Rep, Decision No. 16,145; Appeal of Borden, 26 id. 237, Decision No. 11,740; Appeal of Ames, et al., 26 id. 266, Decision No. 11,752).  Furthermore, “... it does not follow that petitioner is entitled to relief upon showing that his assignment has exceeded the criteria set forth in the regulation” (Appeal of Borden, 26 Ed Dept Rep 237, Decision No. 11,740).  While determinations regarding the sufficiency of a justification must be made on a case-by-case basis, the intent of the regulation is to ensure quality instruction and the central inquiry in any case is whether, on each record, a particular assignment precludes effective teaching in a manner that diminishes quality instruction for students (compare Appeal of Kleinman, 34 Ed Dept Rep 1, Decision No. 13,212 with Appeal of Baker, et al., 33 id. 395, Decision No. 13,091).

Upon my review of the record, I am unable to conclude that petitioner’s teaching assignment precludes effective teaching (Appeal of Wassman, 27 Ed Dept Rep 401, Decision No. 11,989).  The record indicates that on Tuesday and Wednesday, the days on which petitioner’s daily teaching load exceeds 150 students, petitioner engages in 270 minutes of teaching, with 100 minutes of preparation time and 30 minutes for lunch.  Over the course of a week, he has a total of 560 minutes of preparation time and 50 additional minutes of unassigned time, exclusive of lunch.  Because he teaches band and instructional lessons on three days each week, he has significantly fewer students on those days, ranging from 65 to 78.  It is noteworthy that, on Tuesday and Wednesday, petitioner’s preparation and unassigned time – exclusive of lunch – accounts for almost one-third of his day.

Respondent points out that general music classes at the elementary level do not require the same amount of homework or assessments similar to other courses, and that 95% of students’ grades are based on class participation, skills and performance assessed during class.

Petitioner claims that he has little time in between his back-to-back classes each morning and afternoon to take care of administrative procedures, such as changing instructional materials for each class, or completing administrative responsibilities, including attendance.  However, petitioner has failed to establish any negative impact on student instruction.  Moreover, the situation petitioner describes appears to be a function of the scheduling of classes in relation to preparation time, rather than as a result of his daily teaching load of students.  In addition, as noted by respondent and not refuted by petitioner, his schedule was arranged in response to his request to teach band and instructional lessons together, without general music classes, on certain days.

Petitioner’s claim that he is unable to reflect on his teaching, maintain accurate records or communicate with students’ families is unpersuasive in view of the significant preparation time available to him each week, particularly on Tuesday and Wednesday.

Here, the petition consists of conclusory allegations with insufficient factual details and no documentary evidence to establish petitioner’s claims.  On this record, I find that petitioner has not met his burden of proof.  However, I remind respondent of its obligation to continue to monitor teachers' workloads and make good faith efforts to come into compliance with §100.2(i) of the Commissioner’s regulations as expeditiously as possible.

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





[1] Respondent Rye Teachers’ Association has not submitted an answer to the petition.



[2] Moreover, 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).  Even had it been properly served, petitioner’s reply impermissibly exceeds the permitted scope of such pleading and largely would not have been considered in any event.