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Decision No. 13,228

Appeal of BARBE MAXWELL from action of the Board of Cooperative Educational Services of the Second Supervisory District of Suffolk County regarding employment.

Decision No. 13,228

(July 22, 1994)

Pelletreau & Pelletreau, Esqs., attorneys for respondent, Vanessa M. Sheehan, Esq., of counsel

SOBOL, Commissioner.--Petitioner challenges certain decisions of respondent Board of Cooperative Educational Services of the Second Supervisory District of Suffolk County (BOCES) regarding her part-time employment as an adult education teacher. The appeal must be dismissed.

The petition is not clear. However, it appears that petitioner has been employed by respondent as a temporary, part-time, non-tenured teacher, who is paid at an hourly rate without benefits. Since 1989, she has received annual appointment notices setting forth her salary. During that time, she has taught English for Speakers of Other Languages ("ESOL") and a Citizen Preparation Course, when offered, during evening hours.

Some time in the fall of 1992, petitioner requested that she be assigned to teach 20 hours per week in the BOCES adult education daytime program. On or about February 25, 1992, respondent's assistant coordinator informed petitioner that she would not receive that assignment. On or about March 2, 1993, petitioner requested a meeting. On March 11, 1993, petitioner met with both respondent's assistant coordinator and program administrator. At that meeting, respondent's administrators felt that petitioner displayed open hostility towards her supervisor and asked petitioner if she could continue to be supervised by that person and if petitioner accepted and understood BOCES procedures regarding the assignment of teaching positions. Those questions were subsequently set forth in a memorandum to petitioner dated March 19, 1993. Petitioner apparently never directly answered those questions, but stated that she planned to continue to work at BOCES. Petitioner commenced this appeal on April 8, 1994.

In her appeal, petitioner seeks an order removing the March 19, 1993 memorandum from her personnel file. She also seeks an order directing respondent to employ her 20 hours per week in its daytime adult education program.

Respondent argues that the appeal must be dismissed as untimely. Under 8 NYCRR 275.16, an appeal to the Commissioner of Education must be brought within 30 days of the act or decision complained of (see, Appeal of McGann-Masucci, 29 Ed Dept Rep 106). This appeal was brought approximately 13 months after the memorandum in question was placed in petitioner's personnel file and approximately 14 months after she was notified that she would not receive the appointment she requested. Although unclear, petitioner seems to argue that her efforts to resolve this matter constitute an excuse for her delay in bringing this appeal. The record indicates that petitioner sought numerous reconsiderations of the decisions regarding the memorandum in her personnel file and her failure to receive the assignment she requested. Those repeated requests for reconsideration, however, do not extend the time within which the appeal should have been commenced (Appeal of Eastman Kodak, 32 Ed Dept Rep 575; Appeal of Stein, 25 id. 181; Appeal of Maskell, 25 id. 42). Accordingly, the appeal is dismissed as untimely.

The appeal must also be dismissed for failure to state a cause of action. In an appeal to the Commissioner of Education, the petitioner bears the burden of demonstrating a clear legal right to the relief requested (Appeal of Singh, 30 Ed Dept Rep 284; Appeal of DiMicelli, 28 id. 327; Appeal of Amoia, 28 id. 150). Petitioner offers no legal basis to support her claim that she is entitled to the position she requests or to have the memorandum in question removed from her file. She merely argues that she is entitled to such relief. Moreover, Education Law '1950(4)(e) authorizes a BOCES to employ the personnel that it needs to carry out its program. Nothing in the record indicates that respondent has abused that authority in this instance.

Regarding the March 19, 1994 memorandum cited by petitioner, it simply memorialized two unanswered questions posed by BOCES administrators to which petitioner was asked to respond. Besides offering no legal basis to support her request for an order removing the memorandum from her personnel file, petitioner has failed to show that it harms her in any way.

I have reviewed petitioner's remaining contentions and find them without merit.