Friday, November 25, 2011

The Commissioner of Education will not render an advisory opinion on an issue before it becomes justiciable

The Commissioner of Education will not render an advisory opinion on an issue before it becomes justiciable
Decisions of the Commissioner of Education # 16,313.

Pursuant to the authority set out in Education Law §2568,* a employee of the New York City Department of Education [H.C.A.] was directed to report for a medical examination.

Contending that, among other things, the order directing H.C.A. to report for the medical examination constituted retaliation against H.C.A as the result of the filing an EEOC complaint against the Department alleging sexual harassment and retaliation, the employee appealed to the Commissioner of Education. 

The Department, however, asked the Commissioner to dismiss H.C.A’s appeal as moot “ because it had canceled and had removed the request for the examination from H.C.A’s personnel file.

The Commissioner, commenting that only matters in actual controversy will be considered and no decision will be promulgated involving a situation that longer exist or which subsequent events “have laid to rest,” granted the Department’s motion to dismiss.

As the only relief H.C.A requested “was interim relief and removal of the medical evaluation request from her personnel files,” which the Department represented it had already done in its answer to H.C.A ‘s appeal, the Commissioner dismissed H.C.A‘s appeal as moot but commented that H.C.A. has the right to commence an appeal with a request for interim relief in the event Department took such action in the future.

* §2568, which authorizes the Superintendent of schools to require medical examination of certain employees of certain boards of education, provides, in pertinent part: The superintendent of schools of a city having a population of one million or more shall be empowered to require any person employed by the board of education of such city to submit to a medical examination by a physician or school medical inspector of the board, in order to determine the mental or physical capacity of such person to perform his duties, whenever it has been recommended in a report in writing that such examination should be made.



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Challenging Adverse Personnel Decisions at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

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