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Decision No. 12,703

Appeal of the BOARD OF EDUCATION OF THE ARLINGTON CENTRAL SCHOOL DISTRICT from an order of a hearing officer pursuant to Education Law "3020-a concerning charges against Anonymous, a tenured teacher.

Decision No. 12,703

(May 26, 1992)

Raymond G. Kuntz, P.C., attorneys for petitioner, Raymond G. Kuntz, Esq., of counsel

Bernard F. Ashe, Esq., attorney for respondent, Gerard John DeWolf, Esq., of counsel

SOBOL, Commissioner.--During the pendency of a disciplinary proceeding pursuant to Education Law "3020-a, petitioner Board of Education of the Arlington Central School District appeals from an order made by the hearing officer on July 11, 1991, with respect to a subpoena duces tecum issued by respondent's attorney on February 27, 1991. The appeal must be dismissed.

On January 2, 1991, petitioner board voted disciplinary charges against respondent. On March 4, 1991, a subpoena duces tecum dated February 27, 1991, was served on the school district. On March 14, the district provided some, but not all of the materials requested. On June 25, a pre-hearing conference was held by the hearing officer, at which time it became clear that the school district would not turn over certain other materials covered by the subpoena, most importantly, prior written statements by potential witnesses on behalf of the school district. On June 28, respondent made a formal motion before the hearing officer for the production of such prior written statements, among other things. By letter dated July 11, 1991, the hearing officer issued the following order: "The Board is directed to provide the Respondent copies of statements of witnesses at least six calendar days prior to the date the Board expects to have those witnesses testify."

Thereafter, hearing sessions were held on July 18 and October 8, 1991, but the witnesses who testified at those sessions had not made prior written statements to the school district. Prior to the next scheduled hearing date on November 21, petitioner commenced this appeal and requested a stay of the hearing officer's order, which application was denied on November 18, 1991.

Petitioner claims that the hearing officer had no jurisdiction to enforce the subpoena duces tecum. Petitioner argues that some or all of the materials demanded by the subpoena are materials prepared for litigation, and are therefore shielded from disclosure.

Respondent raises several defenses, including untimeliness, the alleged failure of petitioner board to authorize this appeal, and failure to state a claim. He further argues that this is an attempt to appeal an interlocutory ruling within the context of a disciplinary proceeding.

The appeal is untimely. The copy of the panel chairman's order submitted by petitioner indicates that it was made on July 11, 1991, and received by facsimile by petitioner's attorney on that same date. Pursuant to 8 NYCRR "275.16, an appeal must be instituted within thirty days from the making of the decision or the performance of the act complained of. The Commissioner may excuse a failure to commence an appeal where good cause is shown in the petition. The petition contains no reason why the appeal was not commenced within thirty days after July 11, but suggests that the district was not prepared to present a witness who had made a prior written statement before the November 21, 1991 hearing date. Petitioner asserts in its reply that "the petition was brought within thirty days of the effect of the panel chairman's decision." I am not persuaded that such a procedure is timely. The panel chairman's order of July 11, 1991 was clearly intended to be effective immediately and not at some future date.

Even if I were not to dismiss for untimeliness, I would dismiss on the ground that this appeal is an impermissible attempt to appeal an interlocutory ruling. Such applications have consistently been denied, even where a panel chairman has suggested the taking of an interlocutory appeal. Appeal of Anonymous, 30 Ed Dept Rep 321; Appeal of Blumenblatt, 29 id. 16; Appeal of St. Cyr, 27 id. 351; Matter of McFerran, 14 id. 390.

In view of the disposition of this matter, the other contentions of the parties will not be discussed. It appears that the parties have adequate remedies under Article 23 of the Civil Practice Law and Rules with respect to the subpoena duces tecum.