Appeals to the Commissioner must be filed within 30 days of the act or omission for which redress is sought absent the Commissioner excusing the delay

Appeals to the Commissioner must be filed within 30 days of the act or omission for which redress is sought absent the Commissioner excusing the delay
Appeal of Michael P. Thomas seeking the removal of High School Superintendent Francesca Pena, Decisions of the Commissioner of Education, Decision No. 16,090

On September 4, 2008, Michael P. Thomas a certified, tenured mathematics teacher in the New York City school district, asked Superintendent Francesca Pena to file charges against Principal David J. Jimenez for certain actions, including alleged retaliatory actions against Thomas for reporting the misuse of Title I funds and scoring irregularities on a Regents examination.

On or about November 20 2008, Pena advised Thomas that she had referred the matter to the Special Commissioner of Investigation for the New York City School District. In May 2009, Thomas wrote Pena requesting the results of the investigation, Pena did not respond to Thomas.

Thomas appealed to the Commissioner of Education seeking the removal of Pena for “neglect of duty,” contending that she had failed “to take all necessary steps to ensure the integrity of community district operations.” He also asked the Commissioner to remove other administrators “for allegedly falsifying the results of a Regents examination, retaliating against [him] for reporting such alleged scoring irregularities and the misuse of Title I funds.”

The Commissioner dismissed Thomas’ appeal as untimely.

The Commissioner said that Thomas asked that Pena investigate his allegations in 2008. After Pena informed him that she referred matter to SCI in November 2008, Thomas asked Pena for the results of the investigation in May 2009 and asked her to respond within 10 business days. Thomas argued on May 28, 2009, which he contended was the 10th business day after Pena had received his letter, the 30-day period available to him to commence his appeal began to run.

The Commissioner disagreed with Thomas’ argument. He said that Pena responded to Thomas in November 2008 “with respect to the actions complained of in this appeal.” Accordingly, said the Commissioner, Thomas’ May 2009 letter, ”like a request for reconsideration, does not extend the time within which an appeal must be commenced.”

The Commissioner explained that “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,” citing 8 NYCRR §275.16. As the affidavits of service reflect that the petition was served on the several respondent administrators in 2009 and the events complained of occurred more than 30 days prior to those dates, the Commissioner ruled that appeal filed by Thomas was untimely.

The Commissioner’s decision is posted on the Internet at: http://www.counsel.nysed.gov/Decisions/volume50/d16090.htm