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Decision No. 16,790

Appeal of BRYAN VAN VLIET from action of the Schodack Central School District and Superintendent Robert Horan regarding a personnel matter.

Decision No. 16,790

(July 13, 2015)

Tully Rinckey, PLLC, attorneys for petitioner, Graig F. Zappia, Esq., of counsel

Whiteman Osterman & Hanna, LLP, attorneys for respondents, Beth A. Bourassa, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the determination of the Schodack Central School District (“district” or “respondent”) and Robert Horan, the district’s superintendent of schools (“superintendent”), not to sign a form verifying petitioner’s substitute teaching employment for the purpose of satisfying the teaching experience requirement for obtaining his initial teacher certification.  The appeal must be dismissed.

Petitioner was employed as a substitute teacher in the district in the area of technology education from September 5, 2012 until January 23, 2013.[1]  The record indicates that in November 2012, after petitioner had worked in excess of 40 days in the assignment, petitioner asked the superintendent to complete a form permitting him to substitute this experience for college supervised student teaching (“form”), so that he could apply for a teaching certificate.  The superintendent declined to do so, but instead wrote a letter dated November 27, 2012 to the State Education Department’s (“Department”) Office of Teaching Initiatives in which he verified that petitioner had been “a substitute teacher in the area of technology education” since September 5, 2012.  However, the superintendent also stated that he could not verify that petitioner’s “performance is or is not satisfactory as he has never been formally or informally observed” and that the district “traditionally does not observe substitute teachers placed in a short term assignment.”

On January 28, 2013, petitioner again asked the superintendent to submit the form verifying his employment as a substitute technology teacher in the district.  Petitioner indicates that in response to his request, the superintendent “verbally indicated he was hesitant to sign the form because he had not evaluated my performance.”  The superintendent, in his affidavit, states that he told petitioner “in no uncertain terms,” that he “would not do so, for the same reason previously stated” that “[b]ecause substitute teachers are not observed or evaluated, I did not have a sufficient basis to conclude that [p]etitioner’s service was satisfactory.”  By letter dated March 11, 2013, petitioner inquired about the status of the form and included a discussion of the Commissioner’s regulations and Department forms relating to teacher certification.  The superintendent, by letter dated March 20, 2013, informed petitioner that he had “advised ... on several occasions” that he would not sign the form for petitioner and that he “will not reconsider” his “previous decisions.”  This appeal ensued.  

Petitioner contends that at no time during 2012-2013 was his performance as a teacher called into question, nor was he warned that his performance was less than satisfactory, although he indicates that he was never formally evaluated or observed first-hand in the classroom.  In support of his claim, petitioner submits a letter of reference from the middle school principal which describes him as “reliable” and “a valuable resource.”  Petitioner also states that the superintendent previously signed a form verifying petitioner’s substitute teaching employment in January 2012[2] indicating satisfactory performance as a substitute in the areas of art, English, science, special education, reading and math; although this form was subsequently rejected by the Department because it was not limited to one teaching subject area.  Petitioner states that the superintendent’s refusal to sign the form verifying his employment as a technology teacher, for the period September 5, 2012 through January 23, 2013, is arbitrary and capricious, and requests that I order the superintendent to sign the form.  Petitioner also requests “a hearing to have my claim heard and witnesses appear on my behalf.”  

Respondent contends that the appeal must be dismissed as untimely and for failure to state a claim upon which relief can be granted.  Respondent argues, inter alia, that petitioner was not observed or evaluated and that, as such, there was no sufficient basis upon which to conclude that his performance was satisfactory at the time of respondent’s determination.

I will first address the procedural issues.  A memorandum of law should consist of arguments of law (8 NYCRR §276.4).  It may not be used to add belated assertions or exhibits that are not part of the pleadings (Appeal of Bruning and Coburn-Bruning, 48 Ed Dept Rep 84, Decision No. 15,799; Appeal of Wright, 47 id. 202, Decision No. 15,668).  Therefore, I have not considered those portions of petitioner’s memorandum of law that consist of belated assertions or exhibits.

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).  I take administrative notice of the records of the Department, which indicate that petitioner was issued his initial teacher certification on December 16, 2013, having obtained his teaching experience at another school (see e.g. Appeal of Federman, 45 Ed Dept Rep 554, Decision No. 15,413).  As relief, petitioner requests that I order the superintendent to verify petitioner’s substitute teaching employment for the purpose of petitioner satisfying the teaching experience requirement to obtain his initial teacher certification.  Where, as here, it is impossible for the Commissioner to award any meaningful relief, the appeal will be dismissed as moot (see e.g. Appeal of Toback, 50 Ed Dept Rep, Decision No. 16,167; Appeal of Studley, 38 id. 258, Decision No. 14,028).

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




[1] The record also indicates that petitioner served as a per-diem or short-term substitute teacher in the district prior to the 2012-2013 school year. 


[2] Respondent includes a copy of this form dated January 24, 2012, which petitioner acknowledges in his reply occurred in January 2012, rather than May 2012, as he first stated in his petition.