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Decision No. 12,601

Appeals of PETER J. MALLEY from action of Joseph A. Fernandez, Chancellor, City School District of the City of New York relating to an application for a license to teach.

Decision No. 12,601

(November 15, 1991)

Hon. Victor A. Kovner, Corporation Counsel, attorney for respondent, Steven M. Scotti, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals from determinations made by respondent on March 28 and May 9, 1990, denying his request for a recommendation to obtain a license to teach in the public schools of the New York City school district. Because the underlying facts and the relief sought in the two appeals are essentially the same, they are consolidated for decision. The appeals must be dismissed.

Petitioner, a former tenured teacher with the New York City school district, was discharged for cause based on the findings and recommendations of a hearing panel convened in 1987 pursuant to '3020-a of the Education Law. The hearing panel found petitioner guilty of fourteen of the seventeen charges preferred against him, including incompetence and insubordination, and one hundred nineteen of one hundred forty specifications. Based on its findings, the panel recommended that petitioner's services be terminated. Petitioner was dismissed from employment and his New York City teaching license was revoked in March, 1987. Petitioner did not appeal the hearing panel's determination.

By letter dated March 14, 1990, petitioner requested that respondent waive Chancellor's Regulation '251 to allow him to seek a new license to teach in the New York City school system. Section 251 provides:

New Candidacy of Dismissed Teacher. An application for license made by a member of the teaching and supervising staff who has been dismissed by the Board of Education, or who resigned while charges against him were pending, shall not be received or entertained by the Board of Examiners, except on the recommendation of the Superintendent of Schools approved by the Board of Education.

In a letter dated March 28, 1990, respondent denied petitioner's request. Respondent indicated that the denial was based on the hearing panel's findings and recommendation in 1987. Petitioner again wrote to respondent on May 9, 1990, reiterating his request that respondent waive Chancellor's Regulation '251 to allow him to seek a new license. Petitioner's request was virtually identical to that made previously in his letter of March 14, 1990. By letter dated May 21, 1990, respondent again denied the request.

On July 6, 1990, petitioner attempted to appeal respondent's determination of March 28, 1990. The petition did not comply with certain requirements of Part 275 of the Regulations of the Commissioner of Education and was returned to petitioner. On August 20, 1990, petitioner served a corrected petition which was filed with my Office of Counsel. Also, on August 20, 1990, petitioner initiated a second appeal challenging respondent's determination of May 21, 1990. The appeals are consolidated for decision herein.

Respondent raises several procedural defenses that I must address before reaching the merits. First, respondent alleges that the petitions must be dismissed because they were not properly served upon him in compliance with '275.8(a) of the Regulations of the Commissioner of Education. Respondent is correct. Section 275.8(a) requires personal service of a copy of the petition upon each named respondent. In this case, however, petitioner failed to serve the Chancellor personally. Instead, petitioner served the petitions on an individual identified as Annette Triola. Respondent indicates in his answer that Ms. Triola is a word processor in the Chancellor's correspondence office, and is not authorized or designated to accept service on his behalf. According to respondent, the only agent authorized to accept service on his behalf is the Office of Legal Services of the Board of Education of the City of New York. It is undisputed that petitioner failed to serve the Office of Legal Services with the petitions. Because petitioner failed to effect personal service as required, the appeals must be dismissed (Appeal of Gonzalez, 28 Ed Dept Rep 231).

In addition, respondent argues that, even if the petitions had been properly served, the appeals are time-barred. Section 275.16 of the Regulations of the Commissioner of Education requires that an appeal to the Commissioner be initiated "within thirty days from the making of the decision or the performance of the act complained of." Initially, petitioner appealed from respondent's March 28, 1990 determination that denied his request for recommendation to obtain a license to teach in the New York City school system. However, that appeal was not commenced until August 20, 1990, nearly five months after respondent's determination and well beyond the thirty day statute of limitations (8 NYCRR '275.16).

Petitioner also appeals from respondent's May 21, 1990 determination that once again denied his request for a recommendation to obtain a license to teach in the New York City school district. A request for reconsideration of a prior decision does not extend the time in which to commence an appeal (Appeal of Dandreano, 28 Ed Dept Rep 109; Appeal of Yip, 25 id. 296). Thus, petitioner's May 9, 1990 letter to respondent, that contained a request identical to the one made in his March 14, 1990 letter, did not operate to extend his time to appeal. Moreover, even if the time to appeal were measured from respondent's denial of May 21, 1990, the appeal would be untimely. Petitioner's second appeal was not commenced until August 20, 1990, nearly three months after respondent's May 21 determination and beyond the thirty day statute of limitations contained in '275.16. Accordingly, the appeals must be dismissed as untimely (Appeal of Gonzalez, 28 Ed Dept 231).

The appeals must also be dismissed on the merits. In denying petitioner's request, respondent advised petitioner that his decision was based on the 1987 decision of the '3020-a hearing panel that had found petitioner guilty of insubordination and incompetence and recommended that his services be terminated. The hearing panel found that petitioner "exhibited unprofessional, uncooperative, insubordinate behavior; failed to maintain classroom discipline; failed to provide adequate instruction to the students in his class; failed to follow supervisory plans for improvement; and failed to properly discharge his duties towards his students." The panel further found that such conduct constituted neglect of duty, inefficient service, conduct unbecoming a teacher's position, and substantial cause that rendered petitioner unfit to perform his duties.

Petitioner's contention that respondent's reliance on these findings was irrational, arbitrary and capricious is without merit. Petitioner asserts that respondent's reliance was in error because the panel's finding of guilt on a particular specification was not supported by the record evidence in the disciplinary hearing. However, petitioner's argument ignores the fact that the hearing panel also found him guilty of one hundred and nineteen other specifications. In any event, any challenge to the 1987 findings and recommendations of the hearing panel is clearly untimely. Petitioner never appealed from the hearing panel's decision and, consequently, is bound by it. Therefore, I find that respondent reasonably relied on the panel's findings in denying petitioner's request to apply for a new license to teach.

Petitioner also argues that Chancellor's Regulation '251 violates the equal protection clause of the United States and New York Constitutions. Petitioner contends that he was denied equal protection of the law because '251 requires those dismissed from the New York City schools to receive a recommendation from the Chancellor before an application for a new license will be entertained, whereas those dismissed from other school systems can apply directly for a license. An appeal to the Commissioner of Education is not the appropriate forum for litigating novel questions of constitutional law (Matter of DePold, 26 Ed Dept Rep 460; Matter of Sepinski, 25 id. 183; Matter of the Board of Education of the East Irondequoit Central School District, 20 id. 634). Moreover, the constitutionality of a statute or regulation will not be decided by the Commissioner of Education in a proceeding brought pursuant to Education Law '310 (Appeal of St. Cyr, 27 Ed Dept Rep 351; Matter of DePold, supra). Petitioner's novel question of constitutional law will not be decided here. Such issues, if pursued, must be presented in an appropriate judicial forum (Matter of Sepinski, 25 Ed Dept Rep 183; Matter of Murphy, et al., 18 id. 236).