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Decision No. 14,454

Appeal of KATRINA BRATGE from action of the Board of Education of the Stockbridge Valley Central School District and Charles Stratton, Superintendent of Schools, regarding placement on preferred eligibility list.

Decision No. 14,454

(September 1, 2000)

Hancock & Estabrook, LLP, attorneys for respondents, Renee L. James, Esq., of counsel.

MILLS, Commissioner.--Petitioner appeals the denial by the Board of Education of the Stockbridge Valley Central School District ("respondent board") and Charles Stratton, its Superintendent of Schools ("respondent Stratton"), of her request to be placed on the preferred eligibility list for appointment to a guidance or administrative position with the district. The appeal must be dismissed.

On June 21, 1998, petitioner accepted a three-year probationary appointment with the Stockbridge Valley Central School District ("Stockbridge" or "the district") as the K-12 Assistant Building Principal/Guidance Counselor. The record indicates that petitioner had both administrative and guidance functions in this position. Petitioner contends that she never received a written job description, but was told that her major responsibility was to take care of the "guidance piece," as well as any administrative duties delegated to her. Respondents deny this contention, but did not produce a job description or provide additional details about the scope of petitioner's duties.

Respondents contend that, during the course of the 1998-99 school year, respondent Stratton and the school principal had discussions with petitioner regarding her failure to perform the administrative and guidance functions of her job adequately, such as evaluating teachers, holding regular faculty meetings and communicating effectively with staff. Petitioner asserts, however, that respondents’ contention that her work was inadequate is inconsistent with the objective documentation regarding her performance. She states that she never received a single unsatisfactory evaluation, that she had been instructed to develop and lead a Child Study Team while the principal was in charge of faculty meetings, and that the principal had assigned additional teacher evaluations to her in June 1999 after she had completed the evaluations already assigned.

Both parties agree that, on or about March 11, 1999, respondent Stratton met with petitioner and indicated that he had concerns about her job performance. The content of that conversation, and the actions taken by respondents subsequent to the conversation, are in contention. Petitioner states that respondent Stratton told her that she was avoiding the "administrative piece" of her position, and when she asked for a written evaluation outlining the areas in which he sought improvement, respondent stated that he did not like "things in writing." Petitioner further states that respondent Stratton met with her again on March 26, 1999. He told her that he intended to eliminate the position she currently held, create a new full-time guidance counselor position, and increase a half-time business administrator position to full time. Petitioner expressed an interest in the full-time guidance position.

Petitioner denies that she was ever told orally or in writing that she should resign in lieu of termination. She contends that, when respondent Stratton talked to her during the week of June 28, 1999 to ask her what reason she would give students and colleagues about leaving, she answered that she would tell the truth, that her position was being eliminated. Respondent Stratton allegedly answered "that's the truth."

Respondents deny the allegation that the district intended to eliminate the position held by petitioner. Respondents assert that, at the time of the conversation between respondent Stratton and petitioner in March 1999 about her job performance, Mr. Stratton advised petitioner that he intended to terminate her probationary employment but would allow her to resign rather than be terminated. It was respondent Stratton's understanding at that meeting that petitioner agreed to resign prior to the 1999-2000 school year in lieu of termination, and he reiterated this belief to petitioner in July 1999.

On August 29, 1999, petitioner sent a letter to respondent board, declining respondent Stratton's request that she submit a resignation letter, and stating that she was entitled to appointment to the new full-time guidance position. However, she did not seek the appointment but only requested that her name be placed on the preferred eligibility list ("PEL") for appointment to a guidance or administrative position with Stockbridge should one become available in the next 7 years, pursuant to Education Law ""2510(3) and 3013(3). Respondent Stratton responded by letter dated September 22, 1999, stating that, because petitioner had voluntarily resigned from her position and had returned to a position with the Rome City School District ("Rome"), she had no recall rights. Petitioner sent respondents another letter on October 3, 1999, to clarify the events that had led to her request to be placed on the PEL, and repeating her request to be placed on the PEL. The record does not reflect any response by respondents to this last letter.

Petitioner contends that, if respondents intended to terminate her probationary employment, they failed to give her the 30-day written notice required by Education Law "3019-a. Petitioner further contends that her position was eliminated and she was entitled to be appointed to the new full-time guidance counselor position that was created for the 1999-2000 school year, citing Education Law ""2510(1), 2585(2) and 3013(1), but the district never offered her such appointment. Petitioner does not seek appointment to the position, but requests that I direct respondents to place her name on the PEL for appointment to a guidance or administrative position with Stockbridge should one become available in the next 7 years, pursuant to Education Law ""2510(3) and 3013(3).

Respondents deny that petitioner is entitled to placement on the PEL, or that she was entitled to appointment to the new full-time guidance position. Respondents contend that petitioner voluntarily resigned her position prior to the 1999-2000 school year in lieu of termination, and that the position she vacated at Stockbridge was never filled. Respondents also raise a number of procedural objections. Respondents claim that this appeal is untimely, that it fails to state a cause of action, that the appeal is moot, that petitioner seeks an advisory opinion, that the appeal is premature because she has not requested reinstatement and is thus not an aggrieved party, and that accepting a guidance position at Stockbridge would violate the terms of her unpaid leave from Rome. I will address these procedural objections first.

I find that the petition is untimely and must be dismissed. As relief, petitioner specifically seeks an order that overturns respondents' September 22, 1999 written notification to petitioner that she is not entitled to be placed on the PEL. This notification was respondents' official response to petitioner's August 29, 1999 letter to respondent board, seeking to have her name placed on the PEL. Petitioner admits that she received this notification on September 27, 1999, and the 30-day period for commencing an appeal therefore expired on October 27, 1999 (Appeal of Student with a Disability, 39 Ed Dept Rep ___, Decision No. 14,278). However, this appeal was not commenced until service upon the respondents on November 1, 1999.

Petitioner's October 3, 1999 letter to respondent board represented only a request for reconsideration of the September 22, 1999 decision, and did not serve to extend the 30-day limitation period. Numerous decisions have held that an attempt to gain reconsideration of a final determination does not stop the running of the limitation period (Appeal of Decker, 39 Ed Dept Rep 62, Decision No. 14,173; Appeal of Johnson, 38 id. 524, Decision No. 14,086; Appeal of Ytuarte, 36 id. 238, Decision No. 13,712), and petitioner does not provide any explanation that constitutes good cause for the untimeliness of the appeal. In view of this disposition, I need not address the parties' remaining contentions.

Although I am dismissing this appeal as untimely, I am compelled to comment on the merits. The misunderstanding in this case resulted squarely from respondents' failure to give clear and unambiguous notice to petitioner as to their intentions. Respondents contend that petitioner agreed to resign from her position in lieu of termination in the spring of 1999, and that in July and August 1999 respondent superintendent "reiterated" to petitioner her agreement to resign and asked for a letter of resignation. However, respondents never in fact obtained a written resignation from petitioner, even at the point at which respondents had hired a full-time guidance counselor who apparently assumed a portion of the duties previously performed by petitioner. Despite not receiving a resignation letter from petitioner, respondents did not take the procedural steps required to terminate her probationary employment. This left petitioner unsure of her exact status, and left the school district believing that there was no incumbent in petitioner's position as of the beginning of the 1999-2000 school year so it could recruit an appointee for the newly created full-time guidance position.

I caution respondents that personnel decisions must comply with all applicable legal and contractual requirements. Respondents must ensure in the future that timely and proper resignations are obtained from employees if the district provides an option to resign in lieu of termination, and ensure that any requisite statutory or contractual notification is given to probationary employees if respondents seek to terminate their services in the event that the employees do not voluntarily resign.