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Decision No. 17,066

Appeal of PATRICIA SMITH-BABCOCK and PAMELA HOUSE from action of the Board of Education of the City School District of the City of Middletown and Dr. Kenneth Eastwood, Superintendent, regarding home and career skills positions and services.

Decision No. 17,066

(March 22, 2017)

Richard E. Casagrande, Esq., attorney for petitioners, Deborah A. Milham, Esq., of counsel

Shaw, Perelson, May & Lambert, LLP, attorneys for respondents, David S. Shaw and Mark C. Rushfield, Esqs., of counsel

ELIA, Commissioner.--Petitioners appeal the decision of the Board of Education of the City School District of the City of Middletown (“board”) and Dr. Kenneth Eastwood (“superintendent”) (collectively “respondents”) abolishing their Home and Career Skills teaching positions.  The appeal must be dismissed.

During the 2013-2014 school year, petitioners were Home and Career Skills (“HACS”) teachers in respondents’ district.  By resolutions adopted May 21, 2014 and June 19, 2014, both effective June 30, 2014, respondent board abolished four HACS teaching positions in the district,including petitioners’ positions.[1]  By letters dated May 22, 2014, the superintendent advised petitioners that, due to budgetary constraints, it was necessary to reduce the number of teaching positions in the district; that their positions within the tenure area of Home Economics had been abolished; that their employment in the district as HACS teachers would be terminated; and that they would be placed on a preferred eligibility list for seven years.  According to respondents, the district ceased employing teachers in the HACS tenure area for the 2014-2015 school year, and redistributed the New York State Learning Standards from HACS classes into Health, Physical Education, and Guidance instruction across the middle school grade levels.  This appeal ensued.

Petitioners claim that respondents violated the requirements set forth in §§100.4(a)(2), 100.4(b)(1)(viii), and 100.4(c)(1)(vi) of the Commissioner’s regulations, which require students in grades five through eight to receive certain instruction in HACS.  Specifically, petitioners assert that respondents acted unlawfully when they “abolish[ed] the four positions within the HACS program; thereby dissolving the HACS program”; that there are no district employees certified to teach HACS courses; that students in the district “will not be able to complete their intermediate State learning standards for family and consumer sciences by the end of eighth grade”; and that the violation jeopardizes the district’s State funding.  Petitioners also assert that they are aggrieved by the abolition of their positions.  They seek a determination that respondent board’s elimination of the HACS program was in violation of 8 NYCRR §100.4; reinstatement of the HACS program; and reinstatement with back pay for petitioners.   

Respondents assert that the appeal must be dismissed as untimely and maintain that they are providing the required instruction in full compliance with the Commissioner’s regulations. 

I must first address the procedural issues.  Petitioners assert that respondents’ answer was not properly verified in accordance with §275.5(a) of the Commissioner’s regulations.  Respondents contend that their answer was properly verified.  Section 275.5(a) of the Commissioner's regulations requires that all pleadings in an appeal to the Commissioner be verified.  A defect in the verification of the copy of a pleading served upon a party is insufficient to bar filing of a pleading, provided that the original pleading submitted to the Department for filing includes a proper verification (Appeal of Prusak, 54 Ed Dept Rep, Decision No. 16,659; Appeal of Johnson, 46 id. 67, Decision No. 15,443; Appeal of O.W., 43 id. 150, Decision No. 14,949; Appeal of Goldin, 43 id. 20, Decision No. 14,904).  The answer submitted to my Office of Counsel contains the requisite verification.  Therefore, under these circumstances, I will not disregard the answer.

Respondents argue that the appeal must be dismissed as 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).  The record indicates that, by resolutions adopted on May 21, 2014 and June 19, 2014, both effective June 30, 2014, respondent board abolished four HACS teaching positions in the district, including petitioners’ positions.  I note that, while the instant appeal involves the abolition of petitioners’ positions, petitioners do not allege any violation of their seniority or tenure rights; nor do they allege that respondent has created new positions to which they are entitled or that they are eligible for reinstatement to any position from a preferred eligible list.  Rather, the central allegation raised by petitioners is that respondent board acted unlawfully when it effectively discontinued the HACS program in violation of Commissioner’s regulation §100.4 (cf. Appeal of Gordon, 53 Ed Dept Rep, Decision No. 16,582).[2]  Although the petition is not entirely clear, petitioners appear to argue that their claims accrued, commencing with start of school in September 2014, when the district “fail[ed] to provide a HACS program” in violation of 8 NYCRR §100.4.  However, to the extent petitioners assert that the abolition of the positions of all teachers certified to teach HACS was unlawful, petitioners were aggrieved by the abolition of their positions effective June 30, 2014.  Even if I agreed that their claims accrued in September 2014, according to the affidavits of service, the appeal was not commenced until December 10, 2014, and is therefore untimely with respect to respondent board’s abolishment of petitioners’ positions (see Appeal of McCarthy, 54 Ed Dept Rep, Decision No. 16,631).

The continuing wrong doctrine applies when the ongoing action is itself an unlawful action, such as the unlawful employment of an unqualified individual (Appeal of Kippen, 48 Ed Dept Rep 469, Decision No. 15,919), unlawful appointments to a district’s shared decision-making team (Appeal of Sadue-Sokolow, 39 Ed Dept Rep 6, Decision No. 14,155), an improperly constituted professional development team (Appeal of Copenhagen Teachers’ Association, et al., 45 Ed Dept Rep 459, Decision No. 15,381) or certain ongoing expenditures under an austerity budget that did not comply with the law (Appeal of Aarseth, 32 Ed Dept Rep 506, Decision No. 12,901).  The doctrine does not apply where the specific action being challenged is a single action, inaction or decision and the resulting effects are not intrinsically unlawful (Application of Ayers, 48 Ed Dept Rep 350, Decision No. 15,883; Appeal of a Student with a Disability, 48 id. 146, Decision No. 15,821, judgment granted dismissing petition to review, April 8, 2009, Sup.Ct., Albany Co. [Zwack, J.]). 

In their reply, petitioners assert that their appeal is timely because respondents are continuing to violate §100.4 by failing to use certified HACS teachers for HACS instruction.  Section 100.4(c)(1)(vi) of the Commissioner’s regulations requires all students to complete three-quarters of a unit of study in HACS by the end of grade eight.  Further, HACS “shall be taught by persons certified to teach” the subject (8 NYCRR §100.4[c][2][ii] and [3]).  Petitioners’ claim that respondent board is unlawfully employing unqualified individuals to teach HACS involves a continuing wrong (see Appeal of Destino, 52 Ed Dept Rep, Decision No. 16,461).  Further, the continuing failure to provide students with HACS instruction is inherently unlawful and thus a continuing wrong subject to complaint at any time (see e.g., Appeal of McCarthy, 54 Ed Dept Rep, Decision No. 16,631 [school library services]; Appeal of Doyle, et al., 52 id., Decision No. 16,429 [health education]).  However, to the extent petitioners assert that they are aggrieved by the abolition of their own positions, such claims are dismissed as untimely. 

To the extent petitioners attempt to assert that respondents have failed to provide a HACS program in compliance with §100.4 of the Commissioner’s regulations, they lack standing to do so.  An individual may not maintain an appeal pursuant to Education Law §310 unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal or property rights (Appeal of Waechter, 48 Ed Dept Rep 261, Decision No. 15,853; Appeal of Erickson, 47 id. 261, Decision No. 15,689).  Only persons who are directly affected by the action being appealed have standing to bring an appeal (Appeal of Waechter, 48 Ed Dept Rep 261, Decision No. 15,853; Appeal of Erickson, 47 id. 261, Decision No. 15,689).  While petitioners have standing to bring this appeal on their own behalves to the extent they have been aggrieved by the abolition of their own positions, they lack standing to assert the rights of others, including the students in respondents’ district (Appeal of McCarthy, 54 Ed Dept Rep, Decision No. 16,631; Appeal of Walker, et al., 53 id., Decision No. 16,609; Appeals of Giardina and Carbone, 43 id. 395, Decision No. 15,030; Appeal of Gilmore and Jordon-Thompson, 42 id. 334, Decision No. 14,874).  Petitioners’ claims that the abolition of their positions was unlawful have been dismissed as untimely, and they lack standing to independently challenge respondents’ compliance with §100.4.

Although I am constrained to dismiss the instant appeal on procedural grounds, I am directing my Office of Curriculum and Instruction to provide guidance and technical assistance to the district in order to ensure that respondents are in fact in compliance with §100.4 of the Commissioner’s regulations.

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



[1] According to petitioners, the other two HACS teachers, Virginia Petricek and Victoria Ingrassia, are not necessary parties to the appeal and respondents do not dispute such claim.  Petitioners assert that Ms. Petricek resigned from the district pursuant to a retirement incentive that contains a waiver and release which prevents her from joining in the instant appeal.  The record indicates that Ms. Ingrassia was an uncertified teacher and cannot seek reinstatement to a position for which she is not qualified.


[2] In Appeal of Gordon, I noted that “confusion exists” regarding the calculation of the 30-day time period in abolition cases and held that, in cases in which a teacher claims that his or her services have been discontinued in violation of Education Law §§2510(2) and 3013(2) because he or she is not the least senior teacher in the tenure area of the position, the 30-day time period for commencing an appeal under Education Law §310 begins on the effective date of the abolition (Appeal of Gordon, 53 Ed Dept Rep, Decision No. 16,582).  Where, on the other hand, the wrong alleged by the teacher is not that he or she should have been retained because another less senior teacher should have been excessed, but rather is that the appointment of another teacher was in violation of law and the excessed teacher’s tenure rights, such a claim would be timely if commenced within 30 days of the date on which another teacher commenced service in a position to which the petitioner alleges he or she is entitled (Appeal of Gordon, 53 Ed Dept Rep, Decision No. 16,582).  This would apply, for example, to a claim under Education Law §§2510(1) or 3013(3) that a school district has created a new position to which the excessed teacher is entitled or that the excessed teacher is entitled to reinstatement to the position from a preferred eligible list pursuant to Education Law §§2510(3) or 3013(3).