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Decision No. 13,927

Appeal of ALBERT ALLORO from action of the Board of Education of the City School District of the City of New York regarding removal from an ineligible list for employment as a teacher.

Decision No. 13,927

(April 22, 1998)

Michael D. Hess, Corporation Counsel, attorney for respondent, Steven A. Friedman, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges the refusal of the Board of Education of the City School District of the City of New York ("respondent") to remove his name from a list deeming him ineligible for employment as a teacher within respondent’s district. Petitioner requests that I remove his name from the list and award him restitution for lost wages and pension credits. The appeal must be dismissed.

In 1970, petitioner was a tenured social studies teacher in respondent’s Junior High School 296 in Brooklyn. By letter dated April 17, 1970, respondent’s superintendent of schools charged petitioner with conduct unbecoming a teacher, apparently on the ground that petitioner had submitted falsified medical forms to justify his absences. That letter further advised petitioner that he would be suspended as of the close of business that day. However, that same day, petitioner resigned from his position, and, based upon his submission, respondent voted to accept his resignation, effective April 17, 1970. Petitioner alleges that he resigned because he "desire[d] to remove himself from the harassment that he received as a teacher" in respondent’s school. He also claims that, prior to his resignation, his union representative and respondent had orally agreed that, if petitioner resigned, all charges against him would be dismissed, he "could continue to teach *** with a new substitute license and [he] could later apply for his regular license and regain his tenure."

Later that year, petitioner was reissued a substitute license and worked as a substitute teacher in respondent’s schools from 1970 to 1975. Evidently, in 1975, petitioner applied for reinstatement but, by letter dated March 11, 1975, respondent denied his application. Respondent based its denial on section 250 of its by-laws, which provided: "A person who has been dismissed from a position by the Board of Education, or who has resigned while charges against him were pending, shall not be eligible for re-employment under any licenses held by him at such time of severance from service; and no substitute certificate shall be issued by virtue of licenses held by such employee." Thereafter, on May 13, 1975, respondent, reportedly, placed petitioner on its "Invalid List" (hereafter "ineligible list").

Twenty years later, on October 3, 1995, respondent’s Office of Personnel Investigation cleared petitioner for employment and requested that he be removed from the ineligible list. Respondent’s Office of Appeals and Review denied this request and, by letter dated October 31, 1995, notified petitioner: "Your request to have your name removed from the N.Y.C. Board of Education Ineligible/Inquiry List has been reviewed. You are aware that you resigned with charges pending because of allegations that you falsified medical forms submitted for absences. In light of the serious violations you committed, your name will not be removed from the Ineligible/Inquiry List."

Petitioner commenced this appeal on June 27, 1997. He contends that the April 17, 1970 suspension letter did not conform to the requirements of Education Law "2590-j(7)(c) because it was vague and failed to specify the charges against him. Moreover, petitioner maintains that the letter contained false allegations which constituted a scheme, by respondent, to terminate petitioner’s services. Furthermore, petitioner contends that the board erred when it suspended him without pay in violation of the statute.

Petitioner also challenges respondent’s 1975 denial of his application for reinstatement. He contends that section 250 of the by-laws, on which respondent relied, conflicts with unspecified provisions of the Education Law. Finally, petitioner challenges, as arbitrary and capricious, respondent’s refusal to remove his name from the ineligible list. He claims, "upon information and belief," that respondent consistently deferred to the recommendations of its investigators to determine whether a name should be removed from the list and, by refusing to remove his name and deem him eligible for reinstatement, respondent, in effect, violated the oral agreement with petitioner’s union representative.

Respondent has not submitted an answer to the petition despite personal service and a letter from my Office of Counsel informing respondent that its answer was late and advising of the consequences of failing to submit an answer. Accordingly, all factual allegations set forth in the petition will be deemed to be true statements (8 NYCRR "275.11).

Before reviewing the merits of this appeal, it is necessary to address the timeliness of petitioner’s claims. Petitioner challenges the legality of the April 17, 1970 letter and his suspension without pay. He also disputes the validity of the charges stated in that letter and questions the reasonableness of respondent’s May 13, 1975 denial of his application for reinstatement. To the extent that petitioner raises these issues for my review, the appeal must be dismissed as untimely. Section 275.16 of the Commissioner’s regulations requires that an appeal to the Commissioner of Education be instituted within thirty days from the making of the decision or the performance of the act complained of, unless excused by the Commissioner for good cause shown. Petitioner has not explained the reasons for the delay, and, in any event, there can be no reasonable explanation for a delay of more than twenty years. Furthermore, these issues are not properly before me. Petitioner could have contested the charges and challenged respondent’s actions at a hearing, by appealing to the board of education, by commencing an appeal to the Commissioner of Education or by invoking any procedure available to him under the school district’s contract with its teachers. Instead, petitioner resigned the position immediately and, apparently, did not initiate any of these proceedings in a timely manner. Accordingly, he may not now raise these issues on this appeal (see, e.g., Appeal of Pilato, 26 Ed Dept Rep 376).

However, to the extent petitioner seeks an order declaring that respondent’s continued retention of his name on the ineligible list is unlawful, that portion of the appeal relates to a continuing practice which, if unlawful, would constitute a continuing wrong subject to complaint at any time (Appeal of Nettles, 31 Ed Dept Rep 437).

Petitioner’s request that I remove his name from the ineligible list and award him lost wages and benefits is, essentially, a request that I deem him eligible for reinstatement with back pay. Petitioner, however, has not demonstrated any legal or equitable right to this relief. A teacher who resigns a tenured position has no right to compel a board of education subsequently to reemploy him (Matter of Cedar v. Commissioner, 53 Misc 2d 702, aff’d 30 AD2d 882, lvdenied 22 NY2d 646; Matter of Sherman v. Board of Educ., 88 Misc 2d 661; Appeal of Pilato, supra; Matter of Archer, 21 Ed Dept Rep 175; Matter of Burket, 13 id. 99). There is no question in this case that petitioner submitted a resignation and that respondent accepted this resignation effective April 17, 1970. Once accepted, petitioner’s resignation constituted a complete break in service and the absolute termination of any employment relationship with the school district. Petitioner has no further reemployment rights against the board (Matter of Girard v. Board of Educ., 168 AD2d 183; Matter of Sherman v. Board of Educ., supra; Matter of Cedar v. Commissioner of Educ., supra; Appeal of Pilato, supra; Matter of Archer, supra) and the board is not mandated to remove his name from the list and to deem him eligible for reinstatement or reappointment. Reappointment or reinstatement is never mandatory but rests within the discretion of the board (Matter of Saken, 8 Ed Dept Rep 88), and the board can make rules and regulations to outline the circumstances under which it will reinstate employees who merit such consideration (Matter of Saken, id.; Matter of Padlon, 52 St Dept Rep 517). That is exactly what was done here and, under the circumstances of this case, I cannot find that respondent’s refusal to remove petitioner’s name from its ineligible list was arbitrary or capricious.

Petitioner suggests that respondent coerced his resignation. However, the record does not support that contention. The superintendent simply notified petitioner of the pending charge and suspension. By petitioner’s own admission, he resigned in order to "remove himself from the harassment he received as a teacher". The incidents of harassment are unspecified and, without more, I am constrained to find that petitioner’s actions were voluntary and deliberate, submitted in response to the notification of suspension.

Neither is there any merit to petitioner’s claim that respondent breached an oral agreement, which influenced petitioner’s decision to resign. Contrary to petitioner’s claim, in my view, nothing in the oral agreement, which petitioner describes, represents a guarantee or a promise, by respondent, that petitioner would be deemed eligible for reemployment or that his application for reemployment would be approved.

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