Decision No. 13,067

(December 17, 1993)

Pelletreau & Pelletreau, Esqs., attorneys for respondent, Kevin A. Seaman, Esq., of counsel

SOBOL, Commissioner.--Petitioner challenges the appointment on July 1, 1992 of one Calvin Wilson as interim superintendent. The appeal must be dismissed.

Petitioner was employed by respondent Board of Education of the Wyandanch Union Free School District ("respondent") between 1971 and October 30, 1992, when his services were terminated as Assistant Superintendent for Curriculum and Instruction. Petitioner's dismissal was the subject of a prior appeal (Appeal of Wint, 33 Ed Dept Rep 9).

During 1992, both petitioner and Calvin Wilson applied for the position of interim superintendent. On June 2, 1992, I issued a waiver of the certification requirements pursuant to 8 NYCRR '80.4 to allow Calvin Wilson, the district's school business administrator, to act as interim superintendent while the district conducted a search for a permanent superintendent. Thereafter, petitioner accepted the appointment as assistant superintendent and Calvin Wilson became interim superintendent, both effective July 1, 1992.

After his dismissal, petitioner claims to have read a newspaper article on March 10, 1993, indicating that certain waivers had been issued by the State Education Department allowing some superintendents to collect both retirement pension income and salary simultaneously. Petitioner, apparently confusing the retirement income waivers with the waiver of certification issued by me for Calvin Wilson, wrote to me on March 10, 1993. I referred his letter to my Office of Counsel. On April 6, 1993, an attorney in the Office of Counsel advised petitioner of the possibility of bringing an appeal pursuant to Education Law '310. This appeal was commenced on June 14, 1993.

Petitioner claims that the waiver allowing the temporary employment of Calvin Wilson was improper. Petitioner claims that his rights, including property rights, civil rights and constitutional rights, were violated by the hiring of Calvin Wilson and alleges a claim under 42 USC '1983. He further alleges that he was unable to commence this appeal until he received the April 6, 1993 letter from my Office of Counsel at some unspecified time in May 1993.

Respondent generally denies any wrongdoing and claims that this appeal is untimely pursuant to 8 NYCRR '275.16. Respondent claims that petitioner lacks standing to bring this appeal as a mere applicant for the interim superintendent position and that the waiver obtained for the temporary employment of Calvin Wilson was and is in all respects proper.

The appeal is clearly untimely. The employment of Calvin Wilson as interim superintendent was effective July 1, 1992. If petitioner wished to challenge that appointment, he had thirty days to do so pursuant to 8 NYCRR '275.16. Petitioner offers no credible excuse for his delay of approximately one year in bringing this appeal. Petitioner cannot claim to be unfamiliar with the appeal process since he commenced his previous appeal long before the commencement of this appeal. Moreover, petitioner offers no explanation as to why he was allegedly unable to commence this appeal until receipt of a letter from the Office of Counsel. Because the papers before me demonstrate no acceptable reason for petitioner's untimeliness, there is no basis for exercising my discretion to excuse his delay (Application of Steenrod, 32 Ed Dept Rep 490; Appeal of Nordin, 32 id. 17). Therefore, the appeal must be dismissed as untimely.

Even if the appeal were not dismissed for untimeliness, it would be dismissed on the merits. Pursuant to 8 NYCRR '80.4, an appropriate waiver of certification was issued, which permitted respondent to appoint Calvin Wilson as interim superintendent. Further, although the petition makes reference to what petitioner describes as "property rights to the job of Superintendent," it is clear that petitioner never held the position of superintendent and was only an applicant for that position. The other allegations in the petition do nothing to clarify this claim. As a result, the petition fails to state a claim upon which relief can be granted.

In any event, because petitioner demands that he be appointed as superintendent, an action which would necessarily require the dismissal of Calvin Wilson, the failure to name Calvin Wilson as a respondent and to make service of the petition upon him as a necessary party would also require dismissal (Appeal of Chaney, 33 id. 12; Appeal of Chesbrough, 32 id. 647; Appeal of Nordin, supra).

I have reviewed the other contentions of the parties and find them without merit.

THE APPEAL IS DISMISSED.

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