Decision No. 13,246

(August 22, 1994)

Fred L. Abrams, Esq., attorney for petitioner

SOBOL, Commissioner.--Petitioner appeals a determination of the chairman of a hearing panel convened pursuant to Education Law '3020-a, denying petitioner's motion to dismiss the charges. Petitioner also appeals the legality of a hearing held on March 2, 1993. The appeal must be dismissed.

On April 21, 1992, the superintendent of Community School District No. 10 sent petitioner, a tenured teacher employed by the district, a letter advising her that charges would be filed against her. By letter dated May 14, 1992, the superintendent notified petitioner that on May 12, 1992, the Board of Education of Community School District No. 10 ("board") found probable cause to prefer charges against her. For some reason, the specifications of the charges ("specifications") were not sent to petitioner with the May 14, 1992 letter. However, a copy of the specifications was subsequently faxed to petitioner's attorney on September 3, 1992.

Petitioner moved to dismiss the charges on the ground that she was not properly served with the specifications. Petitioner also demanded a bill of particulars and certain discovery. A hearing was held on these issues on October 16, 1992. In a decision dated November 19, 1992, the panel chairman denied petitioner's motion to dismiss the charges but granted petitioner's demand for a bill of particulars.

On December 18, 1992, petitioner moved by order to show cause in Supreme Court, New York County for an order staying the '3020-a proceeding as illegal and void for lack of personal jurisdiction. On that date, the Court issued a temporary restraining order enjoining any further proceedings pending a resolution of petitioner's request for injunctive relief. By order dated March 2, 1993, the Court denied the motion for a preliminary injunction and vacated the temporary restraining order. Petitioner then appealed to the Appellate Division, First Department. On June 17, 1993, the Appellate Division denied petitioner's request for an interim stay. By order entered July 29, 1993, the Appellate Division denied petitioner's motion for a stay of proceedings.

Petitioner commenced this appeal on June 16, 1993 and requested a stay of the proceedings. Petitioner's stay application was denied on June 21, 1993.

In this appeal, petitioner contests the panel chairman's decision dated November 19, 1992 which denied petitioner's motion to dismiss. Petitioner maintains that the proceeding should be dismissed as illegal and void for want of jurisdiction. Petitioner also contests the legality of a hearing conducted on March 2, 1993 in violation of the temporary restraining order.

Respondents raise several defenses including untimeliness and failure to state a cause of action. Respondents further argue that this is an attempt to appeal an interlocutory ruling within the context of a disciplinary proceeding. Respondents maintain that the panel chairman's decision was lawful and proper in all respects. Respondents concede that the March 2, 1993 hearing should not have been held and maintains that petitioner's claim regarding this hearing is moot because respondents have agreed to re-take the March 2 testimony or to allow petitioner the opportunity for cross-examination.

The appeal must be dismissed as untimely. Petitioner appeals the panel chairman's decision dated November 19, 1992 and the hearing held on March 2, 1993. An appeal to the Commissioner of Education pursuant to Education Law '310 must be commenced within 30 days from the making of the decision or the performance of the act complained of (8 NYCRR 275.16). However, as Commissioner of Education, I have the authority to excuse a failure to commence an appeal within the time specified for good cause shown (8 NYCRR 275.16). In this case, petitioner commenced her appeal on June 16, 1993, more than 30 days from the panel chairman's decision or the March 2, 1993 hearing. The petition contains no reason why the appeal was not timely commenced. Accordingly, the appeal must be dismissed as untimely.

Moreover, the Commissioner of Education will not entertain interlocutory appeals on rulings made prior to a hearing panel's final determination on charges brought pursuant to Education Law '3020-a (Appeal of O'Neill, 31 Ed Dept Rep 533; Appeal of Bd. of Educ. of the Arlington C.S.D., 31 id. 469; Appeal of Anonymous, 30 id. 321; Appeal of St. Cyr, 27 id. 351). Petitioner's appeal seeks review of the denial of her motion to dismiss the charges, made within the context of a pending '3020-a proceeding. Petitioner's appeal also contests the legality of a certain hearing during the proceeding. There has been no final determination on the charges by the hearing panel. If the charges are dismissed by the panel, the matter currently before me will be rendered moot. If the charges are sustained, petitioner may seek review of the panel decision either by an appeal to the Commissioner of Education or by a proceeding in State Supreme Court initiated pursuant to Article 78 of the New York Civil Practice Law and Rules (Education Law '3020-a[5]). At that time, petitioner has the right to contest the jurisdiction of the panel, the denial of her discovery demands and the legality of the March 2, 1993 hearing.

In view of the disposition of this matter, the parties' remaining contentions will not be discussed.

THE APPEAL IS DISMISSED.

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