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Decision No. 16,099

Application of V.B. for the removal of Joel I. Klein as Chancellor of the New York City Department of Education and appeal from action of the New York City Department of Education.

Decision No. 16,099

(July 27, 2010)

Michael A. Cardozo, Esq., Corporation Counsel, attorney for respondents, Daniel Gomez-Sanchez, Esq., of counsel

STEINER, Commissioner.--Petitioner seeks the removal of Joel I. Klein, as Chancellor of the New York City Department of Education (“Chancellor Klein”), and challenges actions of the New York City Department of Education (“NYCDOE”, collectively “respondents”) with regard to the reassignment of teachers and the use of the New York City Special Commissioner of Investigation (“NYCSCI”).  The application must be denied and the appeal must be dismissed.

Petitioner was employed at I.S. 90 in respondents’ district from September 1996 until the school closed in June 2006.  While there, petitioner expressed concerns that the school was reporting the attendance of phantom students and subsequently reported her concerns to NYCSCI.  In June 2006, petitioner was assigned to M.S. 326 to provide substitute coverage.  In September 2006, a parent filed a complaint against petitioner for verbally abusing students and petitioner was assigned to a temporary reassignment center.  She was subsequently restored to service effective June 19, 2008.

In May 2008, petitioner was informed that NYCSCI’s investigation concerning the alleged attendance discrepancies was closed.  Petitioner requested NYCSCI’s report, but the request was denied since the claim was determined to be unfounded.  By letter dated April 1, 2009, petitioner requested that Chancellor Klein investigate the attendance discrepancies, her removal from M.S. 326 and the refusal of NYCSCI to release its report.  Petitioner received no response and made the same request by letter dated June 1, 2009.  This appeal ensued.

Petitioner asserts that the charges issued against her at M.S. 326 were retaliatory in nature for reporting attendance discrepancies at I.S. 90.  She claims that Chancellor Klein’s failure to initiate disciplinary proceedings against the M.S. 326 administrators for making false accusations against petitioner and continued alleged misuse of temporary reassignment centers amounts to neglect of duty.  Petitioner seeks the removal of Chancellor Klein and requests that I “guide and advise” NYCDOE with regard to the reassignment of petitioner and other teachers and with regard to NYCSCI. 

Respondents argue that the Commissioner lacks subject matter jurisdiction over petitioner’s claims, that the petition is time-barred, that petitioner lacks standing and  seeks an advisory opinion.  Further, respondents assert that Chancellor Klein did not act arbitrarily or abuse his discretion in the performance of his duties.

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 any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Proctor, 46 Ed Dept Rep 575, Decision No. 15,599; Appeal of Henley, 46 id. 556, Decision No. 15,594).  The 30-day limitation period also applies to a removal application made pursuant to Education Law §306 (8 NYCRR §277.1; Application of Berman, 46 Ed Dept Rep 378, Decision No. 15,537; Appeal of Berman, 46 id. 64, Decision No. 15,442).  In addition, a removal application may be timely commenced within 30 days of the petitioner’s good faith discovery of the alleged conduct even though the actual conduct occurred more than 30 days before the application was instituted (Application of Nett and Raby, 45 Ed Dept Rep 259, Decision No. 15,315; Application of Bean, 42 id. 171, Decision No. 14,810).  This appeal and application were commenced on July 21, 2009.  None of the actions that petitioner challenges occurred within 30 days of that date and petitioner has provided no reason for her delay.  Furthermore, petitioner does not allege that there was any delay in her discovery of the alleged conduct at issue.  Consequently, the application must be denied and the appeal dismissed.

In light of this disposition, I need not address petitioner’s remaining contentions.