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Decision No. 15,133


Appeal of STEVE FRATELLO from action of the Board of Education of the Bay Shore Union Free School District regarding substitute teaching services.


Decision No. 15,133


(November 5, 2004)


Ingerman Smith, L.L.P., attorneys for respondent, Anna M. Scricca, Esq., of counsel


MILLS, Commissioner.--Petitioner challenges the decision of the Board of Education of the Bay Shore Union Free School District (�respondent�) to remove him from the district�s per diem substitute teaching roll.  The appeal must be dismissed.

Petitioner served as a per diem substitute teacher for respondent from November 2002 until January 2003.  On December 16, 2002, petitioner accepted a half-day work assignment and was compensated at half the daily rate in accordance with the applicable collective bargaining agreement.  Petitioner believed that he was entitled to a whole day�s pay for his services.  He made his position known to district personnel in what he admits was a confrontational and unprofessional manner.

     In February 2003, respondent�s president informed petitioner that he had been removed from the approved per diem substitute roll because of his unprofessional behavior toward district staff members.  By letter dated February 4, 2003 to the superintendent of schools, petitioner requested that he be reinstated to the district�s per diem substitute teaching roll.  By letter dated March 19, 2003, the superintendent declined petitioner�s request.  This appeal ensued.

Petitioner alleges that the district did not provide him with a copy of the applicable collective bargaining agreement.  He contends that the only document which he received relating to pay was the substitute teacher handbook which did not contain information regarding half-day pay.

Petitioner requests that he be reinstated to respondent�s per diem substitute teaching roll.  He also requests that certain district employees be reprimanded for what he characterizes as unethical behavior.  Finally, he asks that I investigate certain matters relating to the justification for payment of union dues.

     Respondent asserts that petitioner�s appeal is untimely and fails to state a claim upon which relief may be granted.  It also alleges that petitioner failed to exhaust his administrative remedies both by not appealing the superintendent�s decision to the board of education and by not invoking the grievance procedure under the applicable collective bargaining agreement.  Finally, it argues that its actions were proper.

An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless excused by the Commissioner for good cause shown (8 NYCRR �275.16; Appeals of Villien, 44 Ed Dept Rep __, Decision No. 15,101; Appeal of O�Brien, 44 id. __, Decision No. 15,092).  Petitioner was informed of his removal from the per diem substitute teaching roll in February 2003 and of the superintendent�s denial of his reinstatement by letter dated March 19, 2003.  The petition was served on May 4, 2004, more than one year later.  The only reasons petitioner offers for his delay is ignorance of the appeal process and personal reasons.  Under these circumstances, I find no basis to excuse petitioner�s lengthy delay.  Accordingly, the appeal must be dismissed as untimely.

Even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits.  In an appeal to the Commissioner, petitioner has the burden of demonstrating a clear legal right to the relief requested (8 NYCRR 275.10; Appeal of Sloley-Raymond, 44 Ed Dept Rep ___, Decision No. 15,085; Appeal of Holder, 44 id. ___, Decision No. 15,088).  Petitioner has neither alleged nor established that respondent acted for a constitutionally impermissible reason or in violation of a statutory or contractual proscription.  On the record before me petitioner, by his own admission, acted in a confrontational and unprofessional manner when interacting with district employees and that, in and of itself, is sufficient justification for respondent�s action.

In light of this disposition, I need not address the parties� remaining contentions.