Decision No. 13,744

(February 28, 1997)

Hon. Paul A. Crotty, Corporation Counsel, attorney for respondent, Randi M. Liss, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the termination of his position as a teacher of technology by the Board of Education of the City School District of the City of New York ("respondent"). The appeal must be dismissed.

On June 26, 1992, petitioner was excessed from his position at Manhattan High School due to the consolidation of classes. On or about September 12, 1994, petitioner worked as a substitute teacher at the High School of Graphic Communication, but was excessed as a "certified provisional teacher" effective September 23, 1994. Petitioner appealed this determination through the grievance process provided in the collective bargaining agreement between respondent and the United Federation of Teachers. On February 28, 1995, a Step II grievance was denied by a hearing officer on the basis that it was untimely. Petitioner appeals the termination of his employment.

Petitioner also seeks to reopen Appeal of Moore, 33 Ed Dept Rep 703, which concerned his failing grade on an oral examination for licensure as a teacher of technology education administered by respondent's Office of Recruitment, Personnel Assessment and Licensing (ORPAL). Petitioner's claims have been the subject of numerous proceedings, including the appeal before the Commissioner, the grievance proceedings and Article 78 proceedings in State Supreme Court. Petitioner commenced this appeal on June 17, 1996.

Petitioner alleges that he was improperly excessed by respondent. Petitioner also raises allegations concerning the failed examination. Petitioner requests that I use my judicial powers to intervene in this matter, asserts that he has lost income and professional reputation by respondent's actions and seeks to be made whole. Respondent raises a number of procedural defenses, including untimeliness of the current appeal, untimeliness in the application to reopen the Commissioner's prior decision, that the petition fails to state a cause of action, that the petition should be barred on the grounds of res judicata and collateral estoppel and lack of subject matter jurisdiction.

The appeal must be dismissed as untimely. The record indicates that petitioner was excessed on September 23, 1994, and did not commence this appeal until June 17, 1996. An appeal to the Commissioner of Education must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless excused by the Commissioner for good cause shown (8 NYCRR 275.16; Appeal of Turner, 35 Ed Dept Rep 369; Appeal of McCall, 35 id. 38). Although in his reply, petitioner argues that his 30 day time limit has not expired since respondent refuses to provide him with pertinent information, I find that excuse does not serve to extend the time in which an appeal can be commenced.

To the extent that petitioner seeks to reopen the decision in Appeal of Moore, supra, that application must also be denied. Section 276.8 of the Regulations of the Commissioner of Education governs applications to reopen. It provides that an application to reopen is addressed solely to the discretion of the Commissioner and will not be granted in the absence of a showing that the decision which is the subject of such application was rendered under a misapprehension as to the facts or that there is new and material evidence which was not available at the time the original decision was made. Furthermore, an application to reopen a prior decision must be made within 30 days of the date of the original decision [8 NYCRR 276.8(a)]. The record indicates that the decision in Appeal of Moore, supra, was made on June 10, 1994, and petitioner commenced this appeal two years later. Since the application to reopen is untimely, it must be dismissed.

The appeal must also be dismissed on the merits. Petitioner cites statutes and regulations (Education Law ''206, 207, 2569, 2590-j, 3006; 8 NYCRR 80.17 and 80.18; New York State Constitution, Article 5, subsection 6) which he believes are applicable to his case and form the basis for me to reinstate him to his former position. However, these statutes and regulations do not form a basis for petitioner's reinstatement, and there is no other basis in the record for me to grant the relief petitioner seeks.

I have reviewed petitioner's remaining claims and find them without merit.

THE APPEAL IS DISMISSED AND THE APPLICATION TO REOPEN IS DENIED.

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