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Decision No. 16,620

Appeal of HAZEL ADAMS-SHANGO from action of the New York City Department of Education regarding termination of employment.

Decision No. 16,620

(June 20, 2014)

Zachary W. Carter, Corporation Counsel, attorney for respondent, Leah S. Schmelzer, Esq., of counsel

KING, JR., Commissioner.--Petitioner appeals action of the New York City Department of Education (“respondent”) terminating her employment. The appeal must be dismissed.

On or about March 28, 2014, respondent terminated petitioner's services as an Education Analyst, a civil service position in respondent's Office of the Auditor General. Petitioner appeals her termination and seeks restoration to her former job status and title with full benefits. She also seeks a stay of respondent's action and a recommendation that respondent's Office of Special Investigation or the New York City or New York State Comptroller's Office conduct an investigation.

Respondent alleges that the appeal is untimely and must also be dismissed for lack of subject matter jurisdiction. Respondent contends that petitioner was a probationary employee appointed to a civil service position who failed to meet its expectations and was terminated from her position during her probationary period, and that its actions were legal, proper and reasonable.

The appeal must be dismissed for lack of subject matter jurisdiction. Civil Service Law §17 vests jurisdiction to administer the provisions of the Civil Service Law with respect to the offices and employments in the classified service in the applicable civil service commission, personnel officer or other form of civil service administration. In case of the City of New York, the city is empowered to administer the Civil Service Law through whatever form of administration it chooses to prescribe in its city charter (Civil Service Law §15(4); Matter of City of New York v. City Civil Service Commission, 60 NY2d 436, rearg. denied, 61 NY2d 759). Civil Service Law §102(3) authorizes actions in State Supreme Court to enjoin violations of the Civil Service Law.

Under Civil Service Law §35(g), the Commissioner of Education has jurisdiction over the qualifications for appointment and duties and responsibilities of titles in the teaching and supervisory staff of school districts. The position of Education Analyst, is not among the positions that have been certified by the Commissioner of Education pursuant to §35 (g) of the Civil Service Law as a position of the teaching and supervisory staff of a school district (see Appeal of Destino, 52 Ed Dept Rep, Decision No. 16,461; In the Matter of the Certifications of Classes of Positions of the Teaching and Supervisory Staffs of School Districts, Boards of Cooperative Educational Services and County Vocational Education and Extension Boards, dated April 5, 1962; June 28, 1962; January 13, 1971; July 9, 1971; April 30, 2009) (“Certifications 1 through 5”). Accordingly, it would only be considered a pedagogical position for which certification is required if it involved “the function of administration of teaching, i.e., supervision and direction of supervisors, principals and all other members of the teaching and supervisory staffs.” (Certification 1, dated April 5, 1962, supra). There is no evidence in the record that petitioner’s job duties involve supervision of pedagogical staff. It is well settled that the termination of a classified employee is not the proper subject of an appeal brought pursuant to §310 of the Education Law (see Appeal of Troeller, 51 Ed Dept Rep, Decision No. 16,326; Appeal of Brewer, 46 id. 159, Decision No. 15,473). Accordingly, the appeal must be dismissed.

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