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Decision No. 14,070

Appeal of MARILYN J. GIGLIA from action of the Board of Education of the Hawthorne Cedar Knolls Union Free School District regarding retirement service credit.

Decision No. 14,070

(January 13, 1999)

Meighan & Necarsulmer, Esqs., attorneys for petitioner, Garrison R. Corwin, Jr., Esq., of counsel

Plunkett & Jaffe, P.C., attorneys for respondent, Robert L. Byrne, Esq., of counsel

MILLS, Commissioner.--Petitioner seeks employment credit for retirement purposes from respondent Board of Education of the Hawthorne Cedar Knolls Union Free School District for the period December 1, 1977 through June 30, 1983. The appeal must be dismissed.

Petitioner, a former teacher, retired on August 31, 1996 and applied for retirement benefits from the New York State Teachers Retirement System ("TRS"). After reviewing employment information provided by petitioner, TRS requested, by letter dated September 9, 1996, additional information from respondent relating to petitioner's employment status during the period December 1, 1977 through June 30, 1983. The Hawthorne Cedar Knolls Union Free School District is a special act school district created by the Legislature in 1939 and is affiliated with the Jewish Board of Family and Children's Services, formerly known as the Jewish Board of Guardians. In response to TRS' request for information, respondent's assistant superintendent of finance sent a letter dated October 22, 1996 to TRS indicating that the district had employed petitioner only during the summer sessions for the years 1978-79 through 1982-83. Based upon the information provided by respondent, TRS denied petitioner's request for retirement service credit for the five and one-half years in question.

Petitioner wrote to respondent on November 22, 1996 and March 11, 1997 challenging the information respondent had provided to TRS. In a subsequent letter of clarification dated April 18, 1997, respondent informed TRS that, "[A]lthough Ms. Giglia was not employed by the school district during the school years in question, she was employed by the Jewish Board of Family and Children's Services (JBFCS)." The record in the instant appeal shows that during the years in question, petitioner was assigned to teach at the Linden Hill School within respondent's special act school district. Attached to respondent's April 18, 1997 letter to TRS was a memorandum from respondent's former superintendent of schools explaining the circumstances of petitioner's employment and assignment to the Linden Hill School. This appeal ensued.

Petitioner seeks an order determining that she was, in fact, employed by respondent from December 1977 through June 1983 for purposes of calculating retirement service credit. Respondent asserts two procedural defenses to the appeal. First, respondent claims that the appeal is jurisdictionally defective, contending that petitioner's cause of action is against TRS regarding its denial of her claim for additional retirement service credit. Respondent also claims that the appeal is untimely.

Respondent is correct with respect to both procedural allegations. The appeal is jurisdictionally defective. Petitioner seeks an order reversing ". . . the determination by the Hawthorne Cedar Knolls Union Free School District … that she was not employed for periods set forth below between December 1, 1977 and June 30, 1983." As set forth in the memorandum of respondent's former superintendent, for organizational and fiscal reasons, petitioner was on the payroll of the JBFCS for the periods in question and not on the payroll of the special act school district. The determination not to count those years toward her retirement was made by TRS. Petitioner's complaint is with TRS from whom she seeks an additional five and one-half years of membership credit. Respondent cannot order the TRS to provide such credit. Education Law "509(9) provides, "No final determination made by [TRS] with respect to benefits provided by the system or matters related thereto, shall be subject to review in any court of the State of New York, except as provided in article seventy-eight of the civil practice law and rules." (emphasis supplied). Education Law "509(9) is clear and unambiguous and provides the exclusive remedy here. Its provisions preclude the Commissioner of Education from considering and deciding this claim because jurisdiction is with the New York State Supreme Court pursuant to an Article 78 proceeding (Heslop v. New York State Teachers' Retirement System, 195 AD2d 851; see, also, Dimiero, et al. v. BOCES, et al., 199 AD2d 875). Moreover, TRS is not subject to the jurisdiction of the Commissioner of Education pursuant to Education Law "310. Therefore, I am precluded from considering petitioner's claims.

Even if the appeal were properly brought before me, it is untimely. An appeal to the Commissioner of Education must be initiated within thirty days of the action or decision complained of (8 NYCRR "275.16). Respondent asserts that all of petitioner's paychecks for December 1977 through June 1983 were paid by the JBFCS. Thus, petitioner should have been aware at that time that her salary was being paid by JBFCS and not by the special act school district. Furthermore, TRS sends annual statements to each of its members indicating their years of service credited to date for the purpose of the calculation of retirement benefits. Thus, petitioner was informed each year of her cumulative retirement service credit. Likewise, as retirement system members approach age 55, TRS provides them with monthly estimates of benefits based upon accrued service credit. Petitioner has submitted no reply in response to respondent's allegations. The record indicates, therefore, that petitioner was aware, prior to her retirement, of the calculation of her retirement service credit. Moreover, petitioner's letter to respondent dated November 22, 1996, indicates that after obtaining the additional information – but prior to petitioner's November 22 letter – TRS rendered a final decision denying petitioner the additional retirement credit she seeks. Petitioner, therefore, was aware at the time of her November 22, 1996 letter of both respondent's determination and TRS' decision denying her claim for credit. The petition initiating this appeal was not served upon respondent until May 21, 1997 – more than thirty days after the decision complained of herein. The appeal, therefore, is untimely.

To the extent that petitioner relies on respondent's letter to TRS dated April 18, 1997 as commencing the 30-day period in which to initiate an appeal, such reliance is erroneous. Petitioner's letters of November 27, 1996 and March 11, 1997 are, in essence, requests that respondent reconsider its position regarding petitioner's employment status. Respondent's subsequent letter of April 18, 1997 merely affirmed its earlier determination that petitioner was not employed by respondent during the period in question. It is well settled that requests for reconsideration do not extend the time in which to commence an appeal (Appeal of Blaske, 37 Ed Dept Rep 277; Appeal of Yuarte, 36 id. 238; Appeal of Goodman, 35 id. 93).

Because the appeal is jurisdictionally defective and untimely, it must be dismissed.