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Decision No. 15,138


Appeal of LINDA RIZZO from action of the Board of Education of the Enlarged City School District of the City of Troy regarding an employment contract.



(November 24, 2004)


McCary & Huff, LLP, attorneys for petitioner, Kathryn McCary, Esq., of counsel


Girvin & Ferlazzo, P.C., attorneys for respondent, James A.P. McCarthy, Esq., of counsel


     MILLS, Commissioner.--Petitioner alleges that the Board of Education of the Enlarged City School District of the City of Troy (�respondent�) breached her employment contract.  The appeal must be dismissed.

     On January 31, 2001, respondent and petitioner executed an employment contract providing that petitioner�s employment as Associate Superintendent �shall commence on July 1, 2001 and expire on June 30, 2005.�  Under the heading, �Agreement Renewals,� the contract states:

1.  [Respondent] shall notify [petitioner], prior to January 1, 2004, whether it intends to offer her a new term commencing July 1, 2005.  Such notification shall be in writing and delivered to [petitioner] by certified or registered mail, or by personal delivery.

At a meeting on December 8, 2003, respondent discussed petitioner�s employment in executive session.  During that session, the school district�s attorney was directed to draft a letter to petitioner indicating that respondent did not intend to offer her a new term commencing July 1, 2005.  Respondent�s members did not vote concerning petitioner�s employment. 

On December 26, 2003, respondent�s attorney sent petitioner a letter by certified mail stating, in relevant part:

Please be advised that I have been directed by a majority of the Board of Education to advise you that pursuant to [the agreement renewals� section] of your employment agreement the Board hereby notifies you that the Board does not intend to offer you a new term of employment commencing July 1, 2005. 

This appeal ensued.

Petitioner alleges that respondent breached the agreement renewals� provision of her employment contract which required respondent to notify her prior to January 1, 2004 whether it intended to offer her a new term. She asserts that the attorney�s December 26, 2003 letter did not meet this contractual requirement because respondent�s members never voted to notify petitioner that it was not renewing her contract nor voted to authorize respondent�s attorney to do so.  She asks that I direct respondent to extend the term of her agreement by one year.

Respondent argues that the appeal is untimely, that the claims are not ripe because respondent might still decide to extend the term of her employment, and that petitioner has failed to exhaust administrative remedies.   Respondent also argues that the contract only required respondent to notify petitioner if it was going to renew her agreement, not if it decided not to renew her agreement.

The appeal must be dismissed as untimely.  An appeal to the Commissioner of Education pursuant to Education Law �310 must be commenced within 30 days of the action or decision complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR �275.16).

Petitioner alleges that her contract was breached because respondent failed to properly notify her before January 1, 2004 whether her contract would be renewed.  Respondent argues that it did not have to notify petitioner by that date if it had decided not to renew petitioner�s contract, only if it was going to renew it.  In either case, as of January 1, 2004, the issue of whether there had been a breach of contract on that date could have been decided, and no subsequent action by respondent would impact that determination.  Therefore, petitioner needed to commence the appeal within 30 days of January 1, 2004. Petitioner commenced this appeal on March 29, 2004, more than 30 days later, and provides no excuse for his delay.

Petitioner relies on Matter of Pine and Costello (18 Ed Dept Rep 207, Decision No. 9807) and Matter of Sammon (20 Ed Dept Rep 335, Decision No. 10,429) which both held that where a determination becomes effective at a later date, the time within which an appeal may be brought begins to run on the effective date.  These cases are not applicable in the present case.  Petitioner does not complain about a decision that will take effect at a later date, but rather respondent�s alleged failure to act prior to January 1, 2004, thus allegedly resulting in a breach of contract at that time.

Further, I find no merit to petitioner�s assertion that this constitutes a continuing wrong that may be appealed at any time.  The continuing wrong doctrine applies when the ongoing action is itself an unlawful action, such as unlawful appointments to a district�s shared decision-making team (Appeal of Sadue-Sokolow, 39 Ed Dept Rep 6, Decision No. 14,155) or certain ongoing expenditures under an austerity budget that did not comply with the law (Appeal of Aarseth, 32 Ed Dept Rep 506, Decision No. 12,901).  The doctrine does not apply where the specific action being challenged is a single action, inaction or decision and the resulting effects are not intrinsically unlawful (see, Appeals of Simpson, et al., 40 Ed Dept Rep 5, Decision No. 14,402).  Petitioner challenges respondent�s failure to notify her whether her contract was going to be renewed, which is not inherently unlawful, and therefore the continuing wrong doctrine does not apply (see, Appeals of Pascasi, 43 Ed Dept Rep ___, Decision No. 14,997; Appeals of American Quality Beverages, 42 id. 144, Decision No. 14,804).  Accordingly, the appeal must be dismissed as untimely.