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Decision No. 12,994

Appeal of DAN RONEN from action of the Board of Cooperative Educational Services of the Second Supervisory District of the County of Suffolk relating to the Excellence in Teaching apportionments.

Decision No. 12,994

(August 30, 1993)

Pelletreau & Pelletreau, Esqs., attorneys for respondent, Kevin A. Seaman, Esq., of counsel

SOBOL, Commissioner.--Petitioner, a school social worker formerly employed by respondent board of cooperative educational services (BOCES), appeals from respondent's refusal to pay him a salary increase from the 1990-91 Excellence in Teaching (EIT) apportionment. The appeal must be dismissed.

On March 5, 1991, respondent BOCES, in accordance with Education Law '1950(15), entered into a separately negotiated collective bargaining agreement with its BOCES Teachers' Association concerning the salary increases to be paid eligible teachers from the 1990-91 EIT apportionment. Among other things, the agreement provides that teachers who will not be employed after July 1, except retirees, special appointments or excessed personnel, shall be excluded from receiving EIT funds.

By letter dated July 8, 1991, the district superintendent of schools notified petitioner pursuant to Education Law '3031 that he would recommend to the BOCES the termination of petitioner's probationary appointment effective August 21, 1991. The 1990-91 EIT apportionments were paid to teachers in July 1991, and no payment was made to petitioner. On August 29, 1991, petitioner was informed that the BOCES had officially terminated his employment effective August 28, 1991. In a letter dated September 13, 1991, respondent's director of personnel notified petitioner that he was not entitled to a share of the 1990-91 EIT funds because the collective bargaining agreement provides that no EIT funds are to be distributed to teachers who are not rehired.

Thereafter, petitioner wrote to the Bureau of State Aided Programs of the State Education Department concerning the denial of EIT funds. In a letter dated December 11, 1991, the Chief of the Bureau of State Aided Programs expressed the opinion that the contract provision requiring employment in the following school year appeared to be inconsistent with 8 NYCRR '175.35(e)(6). On January 31, 1992, petitioner commenced this appeal by serving the petition on respondent.

Petitioner contends that the contract provision denying EIT funds to those eligible teachers who will not be employed after July 1 violates 8 NYCRR '175.35(e)(6) by requiring the performance of additional services as a condition of receipt of EIT funds. In the alternative, petitioner argues that he is entitled to $337.19 in 1990-91 EIT funds under the contract provision, since his employment was not terminated until August 1991. In addition, petitioner alleges in his verified reply that respondent violated Education Law '3019-a by failing to give him 30 days' notice of termination and requests that respondent be ordered to pay him 30 days' salary.

Respondent contends that this appeal must be dismissed as untimely. On the merits, respondent argues that the denial of EIT funds to teachers whose services have been discontinued is consistent with the intent of the EIT apportionment statutes and does not violate the prohibition of 8 NYCRR '175.35(e)(6) against requiring the performance of additional services. Respondent alleges that the Bureau of State Aided Programs subsequently reconsidered and retracted the opinion expressed in the December 11, 1991 letter.

An appeal to the Commissioner must be commenced within 30 days of the making of the decision or the act complained of, provided that the Commissioner, in his discretion, may excuse a delay for good cause shown (8 NYCRR '275.16). This appeal was not commenced until January 31, 1992, more than four months after petitioner was first notified that he was denied the EIT funds. Petitioner argues that his delay in commencing the appeal should be excused because he did not learn of his right to appeal to the Commissioner until January 7, 1992, when he was so advised by the Bureau of State Aided Programs. However, ignorance of the appeals process is not a sufficient basis to excuse a delay in commencing an appeal except in unusual circumstances (Appeal of Savastano, 32 Ed Dept Rep 326; Appeal of Eisikowitz, 32 id. 160; Appeal of Saeger, 31 id. 528). I find no unusual circumstances that would justify the delay in this case. When petitioner was advised by the Bureau of State Aided Programs of a possible violation of the Regulations of the Commissioner, the appeal was already untimely. Petitioner then further delayed commencement of the appeal for more than 45 additional days as he attempted to get the BOCES to reconsider its position. A request for reconsideration does not extend the time within which an appeal must be commenced (Appeal of Eastman Kodak Company, 32 Ed Dept Rep 575). Because petitioner has failed to offer a sufficient excuse for a delay of this magnitude, the appeal is dismissed as untimely.

Petitioner's attempt to raise a new issue in his reply concerning respondent's compliance with Education Law '3019-a must also be rejected. Under 8 NYCRR ''275.3 and 275.14, the scope of a reply is limited to a response to any affirmative defenses and new material raised in an answer. A reply may not be used to raise new grounds for relief (Appeal of Eastman Kodak Company, supra; Appeal of Alexandreena D., 30 Ed Dept Rep 203). Accordingly, this issue is not properly before me in this appeal and will not be considered.

Even if the appeal had been timely, I would dismiss it on the merits. Under 8 NYCRR '175.35(e)(6), a school district or BOCES may not require a teacher to perform additional services as a condition of receipt of EIT funds. The intent of this regulation is to prohibit a school district or BOCES from conditioning EIT salary increases on the performance of services above and beyond those services ordinarily required of teachers in the district in a given school year. It does not apply to a contract provision which denies EIT funds based on the status of the employee as an employee who will not be employed by the district in the next school year. Such a provision is consistent with the essential goal of the EIT apportionment statutes, which is to promote the recruitment and retention of quality teachers (Schneider v Sobol, 76 NY2d 309, 313 [1990]), since it denies EIT funds to teachers whose services are not being retained.

Finally, I reject petitioner's argument that he is entitled to EIT funds under the terms of the May 5, 1991 collective bargaining agreement because as a technical matter his employment continued after July 1. The contract language is ambiguous and respondent has established to my satisfaction that the intent of the provision in question is to deny eligibility to those teachers who will not be employed in the following school year, either because they have declared their intention to terminate their employment voluntarily or because their services are being terminated by the BOCES.