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Decision No. 12,857

Appeal of YVONNE MCCALL from action of the Board of Education of the Albany City School District, imposing a suspension without pay.

Decision No. 12,857

(December 22, 1992)

Stephen W. Herrick, Esq., attorney for respondent

SOBOL, Commissioner.--Petitioner, a tenured health education teacher at Albany High School, challenges her suspension without pay by respondent for the 1989-90 school year. Petitioner requests back pay plus interest and restoration of all fringe benefits for September 1989 through June 1990. The appeal is dismissed.

Petitioner was given a probationary appointment as a health education teacher in respondent's district in December 1982. She received tenure as a health education teacher in December 1985. On February 10, 1989, petitioner received a letter from respondent's director of personnel, notifying her that her provisional certification would expire September 1, 1989 and that she must submit evidence to the State Education Department ("SED") and to respondent that she had received her master's degree and was eligible for permanent certification.

Petitioner applied to SED for an extension of her provisional certificate. Her request was denied by letter dated June 27, 1989. She thereupon obtained an application for a temporary teacher's license and gave it to her director of personnel. The application was never submitted to SED. In September 1989 petitioner met with union officials and counsel for respondent to ascertain her status and the options available to her. However, no resolution was reached. Although respondent brought no proceedings pursuant to Education Law '3020-a to remove petitioner, respondent did not allow petitioner to return to work for the 1989-90 school year.

Petitioner eventually received permanent certification from SED, effective February 1, 1990, and was retroactively granted provisional certification beginning September 1, 1989. She made a demand for a hearing before respondent in a letter dated April 1, 1991. Respondent denied the request by letter dated April 25, 1991, stating it was already in litigation with petitioner in two forums with an arbitration hearing scheduled for June 5, 1991. Petitioner had sought relief through the collective bargaining grievance procedure and made a demand for arbitration which she subsequently withdrew on July 24, 1991. She filed her appeal with the Commissioner on May 28, 1991.

Petitioner contends that respondent's refusal to allow petitioner to continue teaching during the 1989-90 school year amounted to a discharge without providing her with formal charges or affording her the opportunity for a hearing pursuant to Education Law '3020-a. Petitioner further asserts that respondent and the union officials failed to provide proper assistance to petitioner to ascertain her status. Petitioner further maintains that since she was never lawfully discharged or suspended, she remained a teacher employed by respondent, eligible for full wage and fringe benefits.

Respondent contends that district officials were advised by SED that petitioner's provisional certification lapsed effective August 31, 1989. Further, respondent contends that petitioner did not dispute that she would be unable to finish her academic requirements for a master's degree and/or permanent certification by September 1, 1989. Respondent maintains that district officials advised petitioner that under State law, it would not be possible for her to teach without a license or to be paid from public funds. Respondent further contends that the retroactivity of the September 5, 1990 grant of certification does not entitle petitioner to back pay, since petitioner was not eligible to teach from September 1, 1989 through September 4, 1990. Respondent asserts that no written charges were required pursuant to Education Law '3020-a unless respondent sought to terminate petitioner's tenure status, which it did not.

Respondent also asserts that the petition is barred because the issues in this case were litigated in another forum. Petitioner does not dispute that she filed a grievance under the teachers' collective bargaining agreement. She maintains, however, that she is raising the due process issue for the first time denovo in this appeal. I disagree. 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 NY2d 501, NYS2d 831; Appeal of Garod, 31 Ed Dept Rep 526; Appeal of Kassenbrock, 31 id. 324; Appeal of Almeter, 30 id. 439). I find that the very issues that are the basis for the appeal before me were the subject of the grievance. Accordingly, I must decline to review petitioner's claim, even though petitioner subsequently terminated the grievance process before a final determination was rendered (SeeCommack UFSD v. Ambach, supra).

For the parties' benefit, I note that petitioner was not afforded the opportunity to offer proof concerning her certification status in the manner provided by Education Law '3020-a for the protection of tenured teachers (Lynch v. Nyquist, 34 NY2d 588; Appeal of Diana Grae, 24 Ed Dept Rep 333). To receive back pay, petitioner must demonstrate that she was certified for the period at issue (see Education Law ''3001 and 3010; Matter of Meliti v. Nyquist, 41 NY2d 183; Smith v. BOE Wallkill CSD, 102 AD2d 655, aff'd 65 NY2d 797).