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Decision No. 12,589

Application to reopen the appeal of LORAINE S. FUSCO from action of the Board of Education of the East Quogue Union Free School District regarding her dismissal as a probationary teacher.

Decision No. 12,589

(September 27, 1991)

Kaplovitz & Galinson, Esqs., attorneys for petitioner, Daniel Galinson, Esq., of counsel

Smith, Finkelstein, Lundberg, Isler and Yakaboski, Esqs., attorneys for respondent, Francis J. Yakaboski, Esq., of counsel

SOBOL, Commissioner.--Petitioner applies for reopening of Decision No. 12495, dated May 6, 1991, dismissing her appeal that sought an order annulling respondent's determination to deny her tenure. That decision was based on a finding that since petitioner had already commenced a proceeding for similar relief in another forum, she had made an election of remedies that precludes the initiation of an appeal to the Commissioner of Education. The application must be granted, and, on reopening, I adhere to the previous decision that the appeal must be dismissed.

Section 276.7 of the Regulations of the Commissioner of Education provides that any party to an appeal may apply for reopening of a decision of the Commissioner. An application for reopening is addressed solely to the discretion of the Commissioner and will not be granted except upon a showing that the decision was rendered under a misapprehension of the facts or that there is new and material evidence that was not available at the time the original decision was made.

In her previous appeal, petitioner alleged that respondent had unlawfully terminated her probationary appointment despite a court order prohibiting such action. In that appeal, petitioner also maintained that the termination of the probationary appointment was unlawful because respondent had not provided her with an annual review.

The appeal was dismissed pursuant to the doctrine of election of remedies because petitioner had previously sought enforcement of the court order in question in a motion to the Appellate Division, Second Department. When petitioner's appeal was dismissed, it was also assumed that she had previously raised the issue of respondent's alleged failure to conduct an annual evaluation before the court. Consequently, that claim was not reviewed in the prior appeal. As the basis for her request to reopen her prior appeal, petitioner has clarified that respondent's failure to conduct an annual review was not before the court in her original Article 78 petition that sought to compel respondent, pursuant to Education Law '3031, to supply her with the specific reasons she was not recommended for tenure. She did not seek in that court proceeding an order to compel the district to reinstate her to her position. Since the previous decision was issued under a misapprehension of the facts, petitioner's application for the reopening of her previous appeal is granted and the issue of the district's alleged failure to evaluate petitioner will be reviewed.

In the underlying appeal, petitioner contends that respondent's denial of tenure is invalid because the district failed to perform an annual evaluation, pursuant to '100.2(o) of the Regulations of the Commissioner of Education. That section requires, in pertinent part, that boards of education annually review the performance of its professional staff in accordance with formal procedures approved by the board. Petitioner argues that because respondent failed to comply with '100.2(o) of the Commissioner's Regulations, its decision to deny her tenure and terminate her employment was arbitrary and unreasonable.

In an appeal to the Commissioner of Education, the petitioner bears the burden of demonstrating a clear legal right to the relief requested (Appeal of Singh, 30 Ed Dept Rep 284; Appeal of Di Micelli, 28 id. 327; Appeal of Amoia, 28 id. 150). Petitioner offers no legal basis to support her claim that she may not be denied tenure because respondent has not complied with the regulation in question. At least two courts have held that a board's failure to evaluate a probationary teacher as required by a collective bargaining agreement is not a basis for annulling the decision of the board to deny tenure (Hauppauge Classroom Teachers Assn. v. Millman, 35 AD2d 844, app. dsmd. 28 NY2d 483; Anderson v. Bd. of Educ., 77 Misc. 2d 904, rev'd. on other grounds 46 AD2d 360, aff'd. 38 NY2d 897). In any event, even though respondent may not have complied fully with '100.2(o) of the Regulations, the record indicates that during petitioner's three-year probationary period, her classroom was formally observed on at least nine occasions, she received a formal performance review and she participated in follow-up meetings and correspondence with the superintendent concerning her work performance. At worst, the facts of this appeal present an irregularity with the formal procedures which is insufficient to nullify respondent's decision to deny petitioner tenure (See Anderson v. Bd. of Educ., supra; Matter of Stiebel, 21 Ed Dept Rep 717).