Decision No. 14,071

(January 13, 1999)

MILLS, Commissioner.--Petitioner challenges the determination of the Board of Education of the Warsaw Central School District ("respondent") to reinstate him as of March 22, 1997 following a two-year suspension without pay imposed pursuant to Education Law "3020-a. Petitioner seeks reinstatement nuncprotunc as of November 22, 1996 with backpay and benefits. The appeal must be dismissed.

In 1991 respondent preferred disciplinary charges against petitioner, a tenured teacher, pursuant to Education Law "3020-a. The charges were based, in part, on violations of the New York State Vehicle and Traffic Law relating to operating a motor vehicle while under the influence of alcohol. After a "3020-a hearing, the hearing panel issued a decision finding petitioner guilty of certain of the disciplinary charges and dismissing other charges. The panel imposed a penalty of reprimand.

Respondent appealed the panel's decision to the Commissioner of Education and, on November 22, 1994, former Commissioner Sobol issued a decision which reversed the panel with respect to its dismissal of certain charges and, based on the panel's findings of guilt on the charges proved, imposed a penalty of suspension without pay for two years. When the November 22, 1994 decision was issued, petitioner was incarcerated at Wyoming County Jail, having been placed there on July 19, 1994 for probation violations.

At the time of his incarceration, petitioner had been suspended with pay during the pendency of the "3020-a disciplinary proceedings. However, because petitioner's incarceration on July 19, 1994 rendered him unavailable to work for the school district in any assignment at the beginning of the 1994-95 school year, respondent's superintendent of schools wrote to petitioner on September 2, 1994 advising him that he would be deemed on unpaid leave of absence during the period of his incarceration and, accordingly, would not receive compensation during that time.

While petitioner was in prison, the Commissioner of Education issued the November 22, 1994 decision suspending him without pay for a period of two years pursuant to Education Law "3020-a. That decision was subsequently upheld by the New York State Supreme Court, Albany County (Manning v. Sobol, Supreme Court, Albany County; Special Term, Torraca, J.; dated August 7, 1995; n.o.r.). By letter dated January 31, 1995 respondent's superintendent of schools notified petitioner that, because of petitioner's incarceration, the district would commence the two-year period of suspension without pay upon petitioner's release from prison. The superintendent requested that petitioner notify respondent of the date of his release. Petitioner was released from prison on March 22, 1995 and thereafter, petitioner's parole officer so advised respondent. Upon receipt of that information, respondent commenced the two-year suspension without pay imposed pursuant to Education Law "3020-a.

Respondent had no further communications with petitioner concerning his employment status until July 15, 1996. On that date, respondent's superintendent wrote petitioner a letter stating that respondent had been informed that petitioner intended to return to work in the fall of 1996. The superintendent indicated that, as had been stated in his letter of January 31, 1995, petitioner's suspension without pay would not terminate until March 21, 1997 – two years after petitioner's release from incarceration.

Petitioner did not respond to the superintendent's letter until shortly before November 22, 1996 - the date two years subsequent to the issuance of the Commissioner's decision. At that time, petitioner's union representative contacted respondent's administrators and advised them that petitioner intended to return to work on November 22, 1996. On November 20, 1996, respondent's superintendent advised petitioner's union representative that petitioner was not to return to his duties until March 21, 1997. Respondent also advised petitioner's union representative that, if petitioner were to attempt to report to work on November 22, 1996, he would be directed by the superintendent to leave the premises because he had not yet completed the two-year suspension without pay that had been imposed upon him. This appeal ensued.

Petitioner claims respondent should have commenced his two-year period of suspension without pay on November 22, 1994 – the date of Commissioner Sobol's decision. Petitioner argues, therefore, that he was entitled to reinstatement as of November 22, 1996. Respondent challenges the appeal on procedural grounds, alleging it is untimely. Respondent also asserts that it properly commenced petitioner's suspension without pay upon his release from incarceration on March 21, 1995, and that petitioner is entitled to reinstatement as of March 21, 1997.

Respondent's assertion that the appeal is untimely is correct. Section 275.16 of the Regulations of the Commissioner of Education requires that an appeal be initiated within thirty days of the decision or act complained of. Respondent first informed petitioner by letter dated January 31, 1995 that it would not implement the November 22, 1994 decision of the Commissioner of Education until petitioner's release from prison. Thereafter, on July 15, 1996, upon receipt of information that petitioner intended to return to his teaching duties that fall, respondent's superintendent wrote to petitioner reiterating that petitioner's two-year suspension without pay was not commenced until March 21, 1995 and would not end until March 21, 1997. Respondent received no response from petitioner to either of those letters. Petitioner did not initiate this appeal until December 18, 1996 – more than thirty days after either of the January 31, 1995 and July 15, 1996 letters in which respondent notified petitioner of its determination of the period of suspension. Petitioner has submitted no reply to respondent's procedural claims.

By respondent's letter of January 31, 1995, petitioner received clear notice of respondent's determination not to commence the two-year period of suspension imposed pursuant to Education Law "3020-a until petitioner's release from prison. Thus, he was apprised of the fact that the "3020-a suspension had not been imposed on November 22, 1994 – the date of the decision of the Commissioner of Education, and that it was not running concurrently with the period of his incarceration. The appeal – commenced on December 18, 1996 – is, therefore, not timely to challenge respondent's determination (Appeal of Guttilla, 33 Ed Dept Rep 354). Moreover, even if the thirty-day period in which to commence an appeal were to run from respondent's July 15, 1996 letter informing petitioner that respondent was imposing his period of suspension from March 21, 1995 to March 21, 1997, the appeal is untimely, and dismissal is warranted.

The appeal must also be dismissed on the merits. Petitioner claims that the two-year suspension without pay imposed as a penalty pursuant to Education Law "3020-a must be commenced as of the date of the Commissioner of Education's November 22, 1994 decision and run concurrently with his incarceration. Respondent asserts that its determination to impose the suspension subsequent to petitioner's release from prison is supported both by precedent and policy. Respondent is correct.

Respondent's position is supported by the decision of the Supreme Court, Oswego County in Kelly v. Oswego City School District (110 Misc 2d 1009, modifiedonothergroundsandremanded, 81 AD2d 1005). In that case, an administrator who was the subject of "3020-a proceedings was in prison at the time the hearing panel issued its decision imposing a suspension without pay for a period of six months. The Oswego City School District determined to impose the suspension after he was released from prison. In court, the administrator claimed, interalia, that the suspension should have begun to run when the decision was handed down. In deciding this issue, the court observed:

The determination in Kelly is directly applicable to the circumstances presented here. As the court noted, to impose a suspension while the employee is still incarcerated in effect nullifies a portion of the suspension, since the employee could not work during that period in any event. Commencing the suspension while incarcerated, as petitioner would have it, only reduces the penalty determined by the Commissioner to be appropriate for the offenses of which petitioner was found guilty.

In this instance, as a result of repeated alcohol-related misconduct by petitioner, the Commissioner of Education determined that "a penalty sufficient to impress upon respondent the serious nature of his misconduct and his need to address his alcohol-related problem is necessary . . . Imposition of a penalty of suspension without pay for a period of two years is appropriate to impress upon respondent that his behavior is unacceptable and to constitute a warning of the consequences of continued misconduct." The Commissioner's determination concluded with the following sentence:

The terms of the determination are clear: petitioner was to be suspended from his job without pay for a period of two years. In this proceeding, petitioner effectively seeks to alter the terms of that decision by asserting that his suspension was intended to run for a two-year period immediately following the issuance of former Commissioner Sobol's decision. To impose the suspension as petitioner now asserts would, as a practical matter, shorten the term of the suspension, since it would then include a period of five months when petitioner was in prison and unable to report to work. Such result would abrogate the degree of discipline deemed appropriate by former Commissioner Sobol upon review of petitioner's conduct.

Therefore, for the reasons set forth above, the appeal must also be dismissed on the merits.

THE APPEAL IS DISMISSED.

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