Decision No. 17,007
Appeal of CHAD NEWTON from action of the Board of Education of the Homer Central School District regarding termination.
Decision No. 17,007
(December 6, 2016)
Harris Beach, PLLC, attorneys for respondent, Kate L. Hill, Esq., of counsel
ELIA, Commissioner.--Petitioner appeals the decision of the Board of Education of the Homer Central School District (“respondent” or “board”) to terminate him from his probationary appointment as a teaching assistant. The appeal must be dismissed.
According to the record, on or about August 26, 2014, petitioner received a probationary appointment as a teaching assistant commencing on September 1, 2014. In this appeal, I take administrative notice that, on September 16, 2014, a request for petitioner’s clearance for employment as a teaching assistant in the Homer Central School District was received by the New York State Education Department, Office of School Personnel Review and Accountability (“OSPRA”). On October 2, 2014, petitioner was placed on paid administrative leave from his position as a teaching assistant, pending submission of documentation of his fingerprint clearance issued by OSPRA.
By email dated October 14, 2014, petitioner sought to resign from his position with the district. It appears that OSPRA had not yet issued petitioner employment clearance at that time. The following day, respondent’s superintendent notified petitioner by email that respondent had rejected his resignation and terminated his services, effective October 14, 2014. This appeal ensued. On October 22, 2014, subsequent to the commencement of this appeal, petitioner was granted fingerprint clearance for employment in the Homer Central School District by OSPRA.
Education Law §§305(30), 3035, and Part 87 of the Commissioner's regulations require a fingerprint-supported criminal history background check for prospective employees of school districts, charter schools and boards of cooperative educational services (“BOCES”). Pursuant to Part 87 of the Commissioner’s regulations, a school district “shall not employ or utilize a prospective school employee, unless such prospective school employee has been granted clearance for employment by the department, or unless the covered school has made an emergency conditional appointment” (8 NYCRR §87.4[a]). Section 87.2(k)(1)(i) of the Commissioner’s regulations defines “prospective school employee,” in pertinent part, as any individual who is “seeking a compensated position with a covered school and is not currently employed by such covered school....”
Petitioner challenges respondent’s termination of his employment, claiming that respondent should not have employed him prior to obtaining his fingerprint clearance. Petitioner asserts that he did everything necessary to obtain clearance; Department records indicate that petitioner filed the necessary paperwork with OSPRA to receive such clearance. Petitioner seeks the review and invalidation of his termination, and asks that I compel the district to either rescind his appointment or, in the alternative, to accept petitioner’s previously offered letter of resignation.
I must first address a procedural matter. Section 275.13 of the Commissioner’s regulations requires each respondent to answer the petition within 20 days from the time of service. The record reflects that petitioner properly served his petition on respondent on October 16, 2014. Respondent, therefore, was required to serve an answer within 20 days, by November 5, 2014, but did not do so until November 7, 2014. However, petitioner does not object to the late submission and there is no demonstration of prejudice to petitioner for the two-day delay. Consequently, respondent’s answer is accepted for consideration (see e.g. Appeal of The Sea Cliff – North Shore Property Owners Committee, 54 Ed Dept Rep, Decision No. 16,730).
Turning to the merits, generally, a board of education has the unfettered right to terminate a probationary teacher or administrator’s employment for any reason, unless the employee establishes that he or she was terminated for a constitutionally impermissible reason or in violation of a statutory proscription or decisional law (Education Law §3012; Matter of Mahoney v. Mills, 29 AD3d 1043; Appeal of Washburn, 52 Ed Dept Rep, Decision No. 16,368; Appeal of Hodge, 49 id. 183, Decision No. 15,992; Appeal of Hinson, 48 id. 437, Decision No. 15,908).
In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882). Here, petitioner does not allege that termination of his probationary appointment was for any unconstitutional reason or in violation of any statute and consequently, has failed to meet his burden.
Although the appeal must be dismissed, I am compelled to comment on the district’s failure to ensure that petitioner, as a prospective school employee, had received appropriate employment clearance prior to his appointment to a probationary position in the district. I caution respondent to ensure compliance with Part 87 of the Commissioner’s regulations in the future to ensure that, prior to their appointment, all prospective school employees receive appropriate employment clearance as specified in the regulations.
In light of this disposition, I need not consider the parties’ remaining contentions.
THE APPEAL IS DISMISSED.
END OF FILE
 Although petitioner names the New York State Education Department as a respondent in the caption of his petition, petitioner sets forth no allegations against the Department in this appeal and, in any case, the Commissioner does not have jurisdiction to hear claims against the Department or its employees. It is well settled that Education Law §310 does not authorize an appeal to the Commissioner from actions taken by members of the staff of the State Education Department (Appeal of the School for Language and Communication Development, 46 Ed Dept Rep 536, Decision No. 15,586; Appeal of Friends to the Elderly, Youth & Family Ctr., Inc., 46 id. 227, Decision No. 15,489; Appeal of a Student with a Disability, 46 id. 23, Decision No. 15,429). Such actions can only be challenged in a proceeding brought in a court of competent jurisdiction pursuant to Article 78 of the Civil Practice Law and Rules.
 The State Education Department’s electronic TEACH system indicates that it was accessed on that date by respondent’s district clerk.