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Decision No. 13,271

Appeal of ELAINE COMPITELLO from action of the Board of Education of the Queensbury Union Free School District, regarding employee dismissal.

Decision No. 13,271

(October 4, 1994)

Galvin & Morgan, Esqs., attorneys for petitioner, James E. Morgan, Esq., of counsel

Bartlett, Pontiff, Stewart & Rhodes, P.C., Esqs., attorneys for respondent, Martin D. Auffredou, Esq., of counsel

SOBOL, Commissioner.--Petitioner, a teacher's aide at the Queensbury Middle School, appeals her dismissal by the Board of Education of the Queensbury Union Free School District ("respondent"). The appeal must be dismissed.

On September 1, 1989, respondent employed petitioner as a typist in its elementary school. This typist position is in the competitive class of the classified civil service under the New York State Civil Service Law. In 1989-90 and 1990-91, petitioner's job performance was evaluated in many categories to be unsatisfactory and in other categories to be fair. Because of petitioner's low performance, respondent offered her a full-time teacher's aide position in its middle school, commencing September 1, 1991. On September 25, 1991, respondent filed a change of employment status form with the Warren County Department of Personnel, which indicated that petitioner had accepted this non-competitive position as a teacher's aide.

On February 17, 1994, petitioner was informed she was to be terminated and could request a hearing pursuant to Civil Service Law '75. She requested a hearing which was scheduled for April 12, 1994. On March 23, 1994, however, respondent informed petitioner that she was in a non-competitive class position and was, therefore, not entitled to a Civil Service hearing. This appeal followed.

Petitioner asserts that she is still functioning as a competitive class typist and is entitled to a pretermination hearing pursuant to Civil Service Law '75. Respondent contends the appeal is untimely and that the issue is outside the jurisdiction of the Commissioner. Respondent further contends that petitioner is serving in a non-competitive teacher's aide position and is not entitled to a pretermination hearing pursuant to Civil Service Law '75.

I will first address the procedural issues. The Commissioner's regulations require that an appeal be brought within thirty days after the making of the decision or the performance of the act complained of, provided that the Commissioner may excuse a delay in commencing an appeal for good cause (8 NYCRR 275.16). Petitioner's allegations involve her dismissal which occurred on March 22, 1994. This appeal was commenced on May 4, 1994, more than thirty days from the date she was informed there would be no hearing. No excuse is offered for the delay. Accordingly, this appeal must be dismissed as untimely.

Furthermore, this appeal is outside the jurisdiction of the Commissioner of Education. Any dispute between the parties as to whether petitioner's position is classified or unclassified must be brought to the attention of the local or the State Civil Service Commission and to the Supreme Court pursuant to Article 78 of the Civil Practice Law and Rules. The termination of classified employees is not the appropriate subject of a '310 appeal (Appeal of Johnson, 30 Ed Dept Rep 485; Appeal of Cohen, 30 id. 252; Appeal of Varian, 25 id. 290).