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Decision No. 15,399

Appeal of BEPTY A. LAURENCON from action of the Board of Education of the Roosevelt Union Free School District regarding termination.

Decision No. 15,399

(April 21, 2006)

Jaspan Schlesinger Hoffman LLP, attorneys for respondent, Lawrence J. Tenenbaum an d Michael D. Raniere, Esqs., of counsel

MILLS, Commissioner.--Petitioner challenges the termination of her employment by the Board of Education of the Roosevelt Union Free School District ("respondent") while she was serving a probationary appointment. The appeal must be dismissed.

Petitioner holds a teaching certificate in French, grades 7-12. She taught in respondent's middle school in November and December 2004, and in respondent's high school from January to June 2005, as a substitute. At the end of the school year, petitioner was informed that she would be given a probationary appointment, and respondent made the appointment at its meeting on July 28, 2005. Petitioner's probationary appointment was to run from September 1, 2005 to August 31, 2008.

On September 6 and 7, 2005, petitioner attended meetings at the high school and prepared her classroom for the upcoming year. On September 8, she was informed of the assignment of a different teacher to her classroom, and was advised that there was a lack of enrollment in the area of French. On September 9, she received a letter (which is not in the record) from respondent's Assistant Superintendent for Human Resources and Professional Development advising her that respondent would meet on September 22 and would terminate her services. Respondent met on September 22 and terminated petitioner's employment by abolishing a position.

Petitioner contends that respondent improperly terminated her probationary appointment because it failed to comply with the procedures set forth in Education Law �3031 for the termination of a probationary appointee. Respondent contends that it did not terminate petitioner's probationary appointment, but that on September 22, 2005, it abolished one full-time French teaching position in the tenure area of foreign languages for reasons of economy because of low enrollment of students in French, and that petitioner was the least senior person in the tenure area. Respondent further contends that the petition fails to state a cause of action, that the appeal was untimely commenced, and that its actions complied with the law in all respects.

The appeal was commenced on November 8, 2005, more than 30 days after either September 8 or September 22, 2005, in violation of �275.16 of the Commissioner's regulations. An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR �275.16; Appeal of O'Brien, 44 Ed Dept Rep 43, Decision No. 15,092; Appeal of Spina, 43 id. 354, Decision No. 15,016). Except in unusual circumstances, ignorance of the appeal process does not afford a sufficient basis to excuse a delay in commencing an appeal (Appeal of E.M. , 44 Ed Dept Rep 156, Decision No. 15,130; Appeal of R.A. and D.A., 43 id. 281, Decision No. 14,995). In addition, �275.16 provides: "The reasons for such failure shall be set forth in the petition."

In this appeal, the only reason set forth in the petition is petitioner's ignorance of the 30-day time limitation. I find no exceptional or unusual circumstances, and I therefore will not excuse the untimely commencement of this appeal. Furthermore, I will not consider the additional claims improperly made in petitioner's reply.

Even if I were not dismissing this appeal on procedural grounds, I would dismiss it on the merits. The affidavit of respondent's Assistant Superintendent for Human Resources and Professional Development and other documents submitted by respondent clarify that petitioner's probationary appointment was not terminated. The minutes of the September 22, 2005, board meeting indicate the abolition of a teaching position, not the termination of a probationary appointment. Where a teaching position is properly abolished, neither Education Law �3031 nor �3019-a is applicable (Appeal of Lessing, 34 Ed Dept Rep 451, Decision No. 13,379; Appeal of Baker, et al., 32 id. 645, Decision No. 12,943; Appeal of Sroka, 31 id. 513, Decision No. 12,718). Petitioner has properly been placed on a preferred eligibility list, and has no further recourse on these facts.

In view of this disposition, I will not discuss the parties' additional claims, which I find without merit.

THE APPEAL IS DISMISSED.

END OF FILE