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Decision No. 14,725

Appeal of BF from a determination pursuant to Education Law "3020-a concerning charges brought by the Acting Superintendent of Community School District No. 7 of the City School District of the City of New York.


Decision No. 14,725

(May 20, 2002)

James R. Sandner, Esq., attorney for petitioner, Antonio M. Cavallaro, Esq., of counsel


Michael D. Hess, Corporation Counsel, attorney for respondent, Blanche Greenfield, Esq., Assistant Corporation Counsel, of counsel


MILLS, Commissioner.--Petitioner, formerly a tenured teacher employed by the City School District of the City of New York, appeals his termination as a result of a determination made by Myrta Rivera, the Acting Superintendent of Community School District No. 7 ("respondent") pursuant to Education Law "3020-a. The appeal must be dismissed.

Petitioner has been employed by the City School District of the City of New York since 1985. In February 2000, he was reassigned from his classroom duties to the office of Community School District No. 7. Both parties agree that, on May 18, 2001, petitioner was personally served with a statement of disciplinary charges alleging incompetence, insubordination, neglect, failure to provide instructional services, and conduct unbecoming a teacher, among other things, set forth in forty-six (46) specifications. On that same day, respondent mailed a second copy of the aforementioned disciplinary charges by certified mail, return receipt requested, which petitioner received on May 25. On or about May 31, 2001, petitioner sought the advice of his teachers" union, which, on May 31, sent a written request for a hearing on his behalf via facsimile pursuant to Education Law "3020-a(2)(c).

On June 8, respondent notified petitioner that she determined that he had not requested a hearing in a timely manner, and advised that rather than a hearing, she would hold an "inquest" to determine the case and fix the penalty, if any, on June 11, 2001. That same day, petitioner"s attorney requested a postponement of the June 11 inquest, which request was granted, and the inquest was rescheduled for June 21.

On June 21, petitioner and his attorney appeared, and petitioner claimed that he had made an earlier request for a hearing by sending a letter to the Office of the Acting Superintendent by ordinary mail on May 21, 2001, and therefore had not waived his right to a hearing. He further stated that he had been caring for his mother, who was ill, during the ten-day period in which he was required to request a hearing. After noting that petitioner had been working regular hours at the office of Community School District No. 7 during that period, respondent determined that no such letter had been received from petitioner, that petitioner was not entitled to a hearing, and that she would continue the inquest. At that point, it appears that petitioner and his attorney left, and petitioner"s counsel requested that any decision made by respondent together with a record of the proposed inquest be forwarded to him. The inquest continued, with respondent hearing sworn testimony from several witnesses.

On August 1, respondent rendered the following decision:

You were served with charges on May 18, 2001. You were to notify this office with [sic] ten days of being served with the same. You did not notify this office within ten days. As a result, I held an inquest to determine the case and to fix the penalty, if any, against you.

My findings are as follows: Guilty and I substantiate all of the specifications. Therefore, you are hereby-terminated [sic] effective August 1, 2001.

Respondent"s determination was rendered pursuant to Education Law "3020-a and pursuant to "2590-h(38)(added by L.1998, c. 385, "5). This determination was communicated to petitioner"s attorney on August 14, and this appeal was commenced September 10, 2001.

Petitioner challenges respondent"s determination that he did not mail a demand for a hearing on May 21, 2001, as he claims. Petitioner also claims that he argued on June 21 that respondent was acting beyond her legal authority in denying him a hearing, and in proceeding with an inquest. Petitioner asks that I dismiss the charges against him with prejudice, or, in the alternative, grant him the right to a hearing on those charges together with full back salary and benefits retroactive to August 1, 2001.

The appeal must be dismissed. The Commissioner of Education has no authority to review this matter, or to grant the relief requested.

Education Law "3020-a was substantially amended by L.1994, c. 691, "3, which, among other things, amended "3020-a(5) to remove the Commissioner"s previous concurrent jurisdiction to review determinations made pursuant to "3020-a. Under the amended statute, petitioner"s only recourse is to make an application to the Supreme Court to vacate or modify this determination. Respondent"s determination that petitioner waived his right to a hearing is in the nature of a non-final judgment or order which necessarily affects the final determination, and which is reviewable by the Supreme Court upon timely application (cf., New York Civil Practice Law and Rules "5501[a][1]). Petitioner"s claim that respondent exceeded her legal authority in proceeding with the inquest would appear to be reviewable pursuant to Civil Practice Law and Rules "7511(b)(1)(iii).

In view of this determination, the parties" other claims need not be discussed, and are without merit.