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Decision No. 12,733

Appeal of ELIZABETH SIMA-EICHLER from action of the Board of Education of the Geneseo Central School District regarding a salary dispute.

Decision No. 12,733

(June 29, 1992)

Harris, Beach & Wilcox, Esqs., attorneys for respondent, Peter J. Spinelli, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals from respondent's actions regarding her salary for the 1991-92 school year. The appeal must be dismissed.

Petitioner was employed as Director of Pupil Personnel Services and Compensatory Education by the Geneseo Central School District ("respondent") commencing in August 1990. Following a dispute over her salary, petitioner tendered her resignation on June 20, 1991 and withdrew it the following day. Petitioner resubmitted her resignation on July 3, 1991, which respondent accepted on July 15, 1991. This appeal ensued.

The circumstances surrounding petitioner's resignation are in dispute. Petitioner alleges that she tendered her resignation because the superintendent of schools misled her concerning the terms and conditions of her employment. In particular, petitioner contends that although she was hired in August 1990, for a ten month administrative position at a salary of $42,500, she was informed in April 1991 of a pay increase to be applied over a twelve month period rather than ten. After confronting respondent's superintendent on the apparent discrepancy in the terms of her employment, the superintendent confirmed that petitioner's ten-month appointment applied only to her first year of employment which then became a twelve month position. Petitioner resigned in protest and withdrew her resignation the next day in the hope that the matter would be resolved. However, on July 3, 1991, she submitted her resignation, once again, when the superintendent notified her that the board confirmed her salary based on a twelve month position. Petitioner seeks back pay and reinstatement to her previous position or one substantially similar at her original salary based on ten month employment. Petitioner also seeks removal of the superintendent on grounds of misconduct, fraudulent inducement and poor management.

Respondent contends that the position of Director of Pupil Personnel Services and Compensatory Education was advertised as a twelve month position and that petitioner was so advised during the interview process. Respondent further alleges that petitioner and all other candidates received a copy of the job description listing it as a twelve-month, full-time administrative position. Respondent explains, however, that because of a significant backlog of work that needed completion in the first year, he offered petitioner a full year's salary for a ten month position from August 1990 to June 1991. Respondent contends that the appeal must be dismissed as untimely, and raises other affirmative defenses as well.

An appeal to the Commissioner of Education must be commenced within 30 days from the making of the decision or the performance of the act complained of (8 NYCRR "275.16). Petitioner commenced this appeal on August 16, 1991, more than 30 days after she was notified of respondent's final decision regarding her 1991-92 salary on July 3, 1991. Petitioner argues that the 30 day period to appeal began to run on July 17, 1992, with receipt of the superintendent's letter confirming the board's acceptance of her resignation. However, petitioner is not appealing from the board's acceptance of her resignation but from the board's salary determination, which led to her resignation on July 3, 1992. Petitioner also asks that I excuse the delay in commencing the appeal because she was unaware of the appeal process. It is well settled that ignorance of the appeal process does not excuse a delay in commencing an appeal (Appeal of Reynolds, 29 Ed Dept Rep 288; Appeal of Schwartz, 28 id. 258; Appeal of Microcraft Computer Services, 28 id. 80). Accordingly, the appeal must be dismissed as untimely.

Even if I accepted July 17, 1992 as the date from which to calculate petitioner's time to appeal and this appeal were timely, I would nevertheless dismiss it on the merits. Absent evidence of coercion, a teacher's resignation, once accepted, cannot be withdrawn without consent by the board of education (Appeal of Samuels, 31 Ed Dept Rep _____, Decision No. 12711, June 8, 1992; Matter of Schwartz v. Board of Educ. of Central School District No. 1, 45 AD2d 1011; Girard v. Board of Educ., 168 AD2d 183, 572 NYS2d 185 [1991]; Matter of Sherman v. Board of Educ. of Hendrick Hudson Cent. School Dist., 88 Misc. 2d 661, 389 NYS2d 515 [1976]; Matter of Cedar v. Commissioner of Educ. of State of N.Y., 53 Misc. 2d 702, 279 NYS2d 661 [1967], aff'd 30 AD2d 882, 291 NYS2d 719 [1968], appeal den. 22 NY2d 646, 295 NYS2d 1028 [1968]; Matter of Zarada v. Bd. of Ed., 42 Misc. 2d 509, 248 NYS2d 619 [1963]; Appeals of Bodnar and Degiglio, 29 Ed Dept Rep 516; Appeal of Pilato, 26 id. 376). Petitioner states that she submitted her resignation on July 3, 1991, after considering several options. The record also indicates that petitioner conferred with a member of the school board before she withdrew her first resignation on June 21, 1991. Therefore, I must conclude that petitioner had the opportunity to reflect on the consequences of her action and that she voluntarily submitted her resignation. Since I find no evidence of coercion and the record indicates that petitioner's resignation has been accepted, there is no basis for granting petitioner's request for reinstatement or backpay.

I have reviewed petitioner's other contentions and find them to be without merit.