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Decision No. 14,080

Appeal of ANTHONY P. GUADAGNINO from action of the Board of Education of the Lancaster Central School District in terminating his employment as a custodian.

Decision No. 14,080

(February 18, 1999)

Noemi Fernandez, Esq., attorney for petitioner

Hodgson, Russ, Andrews, Woods & Goodyear, LLP, attorneys for respondent, David A. Farmelo and Kimberly M. Sebastian, Esqs., of counsel

MILLS, Commissioner.--Petitioner appeals respondent's decision to terminate his employment as a custodian. The appeal must be dismissed.

Petitioner alleges that on September 6, 1995 he filed an informal complaint with respondent's assistant superintendent relating to certain alleged improper conduct by administrative staff, including the elementary school building principal and the president of the board of education. Petitioner alleges that respondent has violated federal and State laws protecting "whistle blowers" by terminating his employment in retaliation for his filing and pursuit of the allegations of the complaint. Petitioner requests that he be reinstated to his former position with the back pay and employee benefits which he would have received had his employment not been terminated.

Respondent denies petitioner's allegations and alleges that petitioner was called to the assistant superintendent's office on September 6, 1995 to discuss a report that petitioner had made false, baseless and damaging statements to the building principal and the building and grounds supervisor concerning alleged inappropriate conduct by the building principal, the board president and others. On April 9, 1996, respondent's superintendent filed a disciplinary charge against petitioner pursuant to Civil Service Law "75. The charge consisted of 19 specifications of misconduct, including numerous specifications concerning the allegedly false, baseless and damaging statements petitioner was alleged to have made and repeated to various district officials and staff.

A hearing was held on June 7, 1996 pursuant to "75 of the Civil Service Law. In a report dated August 15, 1996, the hearing officer recommended that petitioner be found guilty of all charges and specifications, except a specification which had been withdrawn by the district at the hearing, and that petitioner's employment be terminated. On August 26, 1996, respondent adopted the hearing officer's recommendation and terminated petitioner's employment effective that date.

On September 22, 1996, petitioner filed an appeal pursuant to Civil Service Law "76 with the Erie County Civil Service Commissioner. By decision dated May 5, 1998, the County Civil Service Commissioner affirmed respondent's decision to terminate petitioner's employment. Petitioner commenced this appeal by serving a copy of his petition on respondent on July 31, 1998.

Respondent contends that the appeal should be dismissed on grounds of untimeliness; lack of subject matter jurisdiction; and resjudicata, to the extent that respondent's action to terminate his employment has been fully litigated.

This appeal must be dismissed for lack of subject matter jurisdiction. Civil Service Law Article 5 governs the discipline of school employees in the classified service. With respect to petitioner's claim regarding State law protecting "whistle blowers", Civil Service Law "75-b(3) provides that such claim may be asserted as a defense at the "75 disciplinary hearing and the merits of such defense shall be considered and determined as part of the hearing officer's decision. There is no indication in the record that petitioner raised such claim at the hearing. Petitioner contends that "75-b(3) does not preclude a jurisdictional basis for an appeal to the Commissioner under Education Law "310 because the statute contains permissive ("may assert"), rather than mandatory, language. However, there is nothing in Education Law "310 which specifically authorizes an appeal to the Commissioner from disciplinary action taken under Civil Service Law "75. To the contrary, it is well established in previous Commissioner's decisions that the suspension or termination of classified employees is not an appropriate subject of an appeal brought pursuant to Education Law "310 (Appeal of McGregor, 35 Ed Dept Rep 363; Appeal of Compitello, 34 id. 169; Appeal of Johnson, 30 id. 485; Appeal of Varian, 25 id. 290). Civil Service Law "76 provides that an employee may seek review of disciplinary action either by application to the State or municipal civil service commission having jurisdiction, or to the Supreme Court pursuant to Article 78 of the Civil Practice Law and Rules. Pursuant to such statute, petitioner appealed respondent's determination to the Erie County Civil Service Commissioner. There is nothing in Education Law "310 which authorizes an appeal to the Commissioner of the decision of a county civil service commissioner issued pursuant to Civil Service Law "76. In view of the specific statutory provisions in the Civil Service Law for the review of disciplinary action and the assertion of the "whistle blower" defense, I find that I lack jurisdiction to determine issues relating to "whistle blower" protection under Civil Service Law "75-b.

Petitioner's reliance on the provisions of 5 USCA "1213, relating to Federal "whistle blower" protection, is also without merit. The provisions of Title 5 are generally applicable to Federal employees or those in Federally-related employment. There is no proof or claim in the record that petitioner is an "employee" within the definition of such term for purposes of Title 5 of the United States Code (see 5 U.S.C. "2105). Moreover, "1213, cited by petitioner, sets forth the procedures to be followed by the Special Counsel when an employee reports a violation of law or gross mismanagement, waste, or abuse of authority by a government agency and itself contains no provisions regarding retaliation against any such reporting employees, other than to keep their identities confidential in most cases (Hooks v. Army and Air Force Exchange Service, 944 F.Supp. 503). While the substantive provisions of the Federal Whistleblower Protection Act are set forth in 5 USC "2302, an employee aggrieved by a violation of such statue may enforce his or her rights by seeking an investigation by the Special Counsel and corrective action from the Federal Merit Systems Protection Board pursuant to 5 USC ""1214 and 1221, and may obtain judicial review of such Board's decision in the Court of Appeals for the Federal Circuit (Hooks, supra). Accordingly, inasmuch as Title 5 relates to Federal or Federally-related employment, I lack jurisdiction to determine issues related thereto.

Even if subject matter jurisdiction was not lacking, the appeal must be dismissed for untimeliness. Section 275.16 of the Commissioner's Regulations requires that an appeal be brought within 30 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. Petitioner claims that he was terminated by respondent in a retaliatory and unlawful manner. Even if I were to accept petitioner's apparent position that the 30 days is to be measured from May 5, 1998 when petitioner was informed of the Erie County Civil Service Commissioner's decision, rather than August 26, 1996 when respondent terminated petitioner's employment, petitioner commenced this appeal on July 31, 1998, which was more than 30 days from May 5, 1998. Petitioner has failed to submit any excuse for the delay and the appeal must therefore be dismissed as untimely (Appeal of Compitello, supra).