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Decision No. 12,722

Appeal of ALAN H. GAROD from action of the Islip Union Free School District relating to compensation.

Decision No. 12,722

(June 26,1992)

Hollenberg, Levin, Solomon, Ross & Belsky, Esqs., attorneys for petitioner, Jack E. Hollenberg, Esq., of counsel

Ingerman, Smith, Greenberg, Gross, Richmond, Heidelberger & Reich, Esqs., attorneys for respondent, Warren H. Richmond, Esq., of counsel

SOBOL, Commissioner.—Petitioner appeals from respondent’s computation of his final salary. The appeal must be dismissed.

Petitioner was employed by respondent Islip Union Free School District as Director of Physical Education, Health and Athletics from February 1, 1978 to December 7, 1990. The collective bargaining agreement between respondent’s board of education and Islip Association of School Administrators lists petitioner’s position as a 10" month position with additional days paid on a per diem basis. On November 2, 1990, petitioner advised respondent that he was resigning effective December 7, 1990. Respondent paid petitioner through November 15, 1990 and advised him that he had been overpaid $2,035.92. Petitioner disagreed and filed a grievance pursuant to the collective bargaining agreement. In his letter to the superintendent dated December 19, 1990, which constituted stage II of the grievance process, petitioner also sought reimbursement for unpaid salary, mileage reimbursement and vacation pay amounting to $6,449.91. On January 8, 1991, the superintendent declined to grant petitioner the reimbursement he requested and indicated, once again, that petitioner had been overpaid. Rather than pursuing the next stage of the grievance process to respondent’s board of education, petitioner initiated this appeal.

Petitioner asserts that he is entitled to an additional $4,275.34 for his last three weeks of employment, $198.45 for unpaid mileage reimbursement and $1,976.12 in unused vacation pay. In calculating his pay, he asserts that he is a 12-month employee.

Respondent argues that petitioner’s salary was properly calculated on a 10 " month basis, arguing that petitioner was overpaid by $2,035.76. Respondent also contends that petitioner’s appeal to me is improper because petitioner elected to use the contractual grievance procedures before commencing this appeal.

A school employee who elects to submit an issue for resolution through a contractual grievance procedure may not elect to bring an appeal to the Commissioner of Education for review of the same matter (Matter of Board of Education of Commack UFSD v. Ambach, 70 NY2d501, 522 NYS2d 831; Appeal of Kassenbrock, 31 Ed Dept. Rep 324; Appeal of Almeter, 30 id. 439; Appeal of Perri, 30 id. 277; Appeal of Reynolds, 29 id. 288). Although petitioner asserts that this appeal is proper because it does not involve the collective bargaining agreement but instead a violation of Article 63 of the Education Law, I find his argument lacks merit. Petitioner was employed pursuant to a collective bargaining agreement and, therefore, any dispute regarding the terms and conditions of his employment necessarily would be resolved in a manner consistent with such agreement. Petitioner readily admits in his petition that he initially pursued his grievance under the collective bargaining agreement. He asserts, however, that he only used the grievance process to address his underpayment and not to challenge respondent’s determination that he had received an overpayment. The record reflects that petitioner raised his claim regarding his alleged underpayment, including his claim to reimbursement for accrued vacation and unreimbursed travel, in his letter to respondent’s superintendent in which he grieved respondent’s determination that he had been issued an overpayment. The superintendent’s response not only rejected his request for additional compensation but also addressed the overpayment. This letter constituted the completion of stage II of the grievance process. Based on the foregoing, I find that the issues involving petitioner’s final paycheck, whether an overpayment or underpayment, were the subject of his grievance. Accordingly, I must decline to review the petitioner’s claim.