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Decision No. 13,319

Appeal of MICHAEL CARDO from action of the Board of Education of the Brewster Central School District and Package Auto School, Inc. regarding employment.

Decision No. 13,319

(December 20, 1994)

Anderson, Banks, Curran & Donoghue, Esqs., attorneys for respondent board of education, John M. Donoghue, Esq., of counsel

Jeffrey K. Hass, Esq., attorney for respondent Package Auto School, Inc.

SOBOL, Commissioner.--Petitioner challenges the termination of his services in connection with a driver education program. The appeal must be dismissed.

Petitioner's allegations are not entirely clear. However, it appears that in June 1993, the Board of Education of the Brewster Central School District ("Brewster") and Package Auto School, Inc. ("Package") entered into a contract to conduct a driver education program at the Brewster High School. The contract required Package to provide the "behind the wheel training" component of the driver education program (See Vehicle and Traffic Law '507[1]). Petitioner was apparently employed by Package to provide this training which, for the spring semester of 1994, commenced on February 8, 1994. In response to parental complaints, Package terminated petitioner's services on March 21, 1994. This appeal ensued.

Petitioner maintains that he was improperly terminated and inadequately paid. Petitioner also contends that the training offered by Package was inadequate. Respondents deny those allegations. Respondents also maintain that the appeal must be dismissed as untimely.

An appeal to the Commissioner of Education must be instituted pursuant to 8 NYCRR 275.16 within 30 days from the making of the decision or the performance of the act complained of. However, the Commissioner may excuse a failure to commence an appeal for good cause shown in the petition. The record before me indicates that Package terminated petitioner's employment on March 21, 1994, but petitioner did not commence this appeal until July 14, 1994, almost four months later. Since petitioner offers no excuse for the late commencement of his appeal, it must be dismissed as untimely.

The petition must also be dismissed on jurisdictional grounds. While petitioner claims he was employed by Brewster and, as such, was entitled to payment in accordance with the collective bargaining agreement between Brewster and its teachers' union, the record demonstrates that Package, not Brewster, employed petitioner. Pursuant to Education Law '310, the Commissioner of Education is authorized to determine appeals in consequence of any action:

1. By any school district meeting.

2. By any district superintendent and other officers, in forming or altering, or refusing to form or alter, any school district, or in refusing to apportion any school moneys to any such district or part of a district.

3. By a county treasurer or other distributing agent in refusing to pay any such moneys to any such district.

4. By the trustees of any district in paying or refusing to pay any teacher, or in refusing to admit any scholar gratuitously into any school or on any other matter upon which they may or do officially act.

5. By any trustees of any school library concerning such library, or the books therein, or the use of such books.

6. By any district meeting in relation to the library or any other matter pertaining to the affairs of the district.

6-a. By a principal, teacher, owner or other person in charge of any school in denying a child admission to, or continued attendance at, such school for lack of proof of required immunizations in accordance with section twenty-one hundred sixty-four of the public health law.

7. By any other official act or decision of any officer, school authorities, or meetings concerning any other matter under this chapter, or any other act pertaining to common schools.

Based upon a plain reading of '310, the Commissioner of Education lacks jurisdiction to review disputes, such as the instant matter, between private employees and their employers. The fact that the employer provides services to a board of education does not, by itself, confer jurisdiction upon the Commissioner to resolve a dispute between that private employer and one of its employees (Appeal of Peters, 33 Ed Dept Rep 559).

Moreover, petitioner offers no evidence to support the assertion that the instruction offered by Package was inadequate, other than his own conclusory statements on the issue. In an appeal to the Commissioner of Education, the petitioner has the burden of establishing the facts to support his or her claim (8 NYCRR 275.10; Appeal of Dloniak, 33 Ed Dept Rep 717; Appeal of Gloria C., 32 id. 664; Appeal of Negrin, 29 id. 484). Based upon the record before me, I find that petitioner has failed to meet that burden.