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Decision No. 13,456

Appeal of YVONNE MCCALL from action of the Board of Education of the City School District of the City of Albany, regarding her dismissal.

Decision No. 13,456

(July 17, 1995)

Ruberti, Girvin & Ferlazzo, P.C., attorneys for respondent, Jeffrey Honeywell, Esq., of counsel

SHELDON, Acting Commissioner.--Petitioner seeks an order annulling her dismissal from employment as a tenured teacher by the Board of Education of the City School District of the City of Albany ("respondent"). The appeal must be dismissed.

Respondent employed petitioner beginning in 1980 and, in 1985, she was tenured as a health education teacher. In February 1993, respondent suspended petitioner. In Appeal of McCall, 33 Ed Dept Rep 148, the Commissioner annulled that suspension because respondent failed to comply with Education Law '3020-a, and ordered that any reference to the suspension be stricken from petitioner's records. The Commissioner further noted that, subsequent to an examination of petitioner pursuant to Education Law '913, respondent could file charges against petitioner, if appropriate, in accordance with Education Law '3020-a.

On September 14, 1993, respondent filed 28 charges against petitioner pursuant to Education Law '3020-a. By letter dated February 1, 1994, respondent informed petitioner that it had found her guilty of 25 of the 28 charges and terminated her employment. In Appeal of McCall, 34 Ed Dept Rep 29, the Commissioner annulled petitioner's termination because respondent failed to comply with the Commissioner's previous decision requiring respondent to examine petitioner pursuant to '913, prior to the filing of charges. The Commissioner further held that respondent's findings of guilt must be annulled because they were devoid of analysis. The Commissioner awarded petitioner back pay and directed that she remain suspended with pay pending the filing of new charges. The Commissioner further directed that new charges could not contain any reference to the illegal February 1993 suspension.

On October 4, 1994, respondent found probable cause to file charges against petitioner pursuant to Education Law '3020-a. On October 6, 1994, these charges containing fourteen specifications including conduct unbecoming a teacher, insubordination, incompetency and neglect of duty, were forwarded to petitioner.

On October 26, 1994, the Commissioner denied petitioner's October 13, 1994 request for a stay precluding respondent from proceeding against them. On January 10, 1995, respondent considered the charges against petitioner, found her guilty and fixed a penalty of dismissal. Petitioner did not request a hearing from respondent on the October 6, 1994 charges. Petitioner spoke to respondent board of education at that time. On February 7, 1995, respondent approved and adopted a written determination terminating petitioner from employment. On February 13, 1995, petitioner was formally notified of respondent's decision. On March 7, 1995, petitioner was terminated from employment. This appeal followed.

Petitioner seeks an order invalidating her dismissal. She claims her termination was not in compliance with Education Law '3020-a. Respondent contends that the appeal is untimely, that the Commissioner lacks jurisdiction to review '3020-a determinations and that, in any event, petitioner was dismissed in accordance with Education Law '3020-a.

Petitioner's appeal must be dismissed on procedural grounds. Petitioner's assertion that her dismissal was not in compliance with Education Law '3020-a is no longer a matter within my jurisdiction. As the Commissioner stated in Application of McCall, 34 Ed Dept Rep 484, pursuant to an amendment to Education Law '3020-a, effective September 1, 1994, review of '3020-a determinations does not lie with the Commissioner of Education. Accordingly, there is no legal basis for me to review this appeal.

In any event, the appeal is untimely. An appeal to the Commissioner of Education must be instituted within 30 days from the making of the decision or performance of the act complained of, unless excused by the Commissioner for good cause shown (8 NYCRR 275.16). Respondent voted to terminate petitioner on January 10, 1995. She was ultimately dismissed on March 7, 1995. Petitioner commenced this appeal on April 27, 1995. All actions relating to petitioner's dismissal occurred more than 30 days prior to the filing of this appeal. Petitioner offers no excuse for the delay. Accordingly, the appeal must be dismissed as untimely.

THE APPEAL IS DISMISSED.

END OF FILE