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October 5, 2010

Filing a timely appeal challenging administrative decisions critical

Filing a timely appeal challenging administrative decisions critical
Decker v BOCES Monroe 2-Orleans, Decisions of the Commissioner of Education #14173

It is not unusual for a disappointed job seeker to press for reconsideration of his or her application for appointment. The Decker case demonstrates that once a “final determination” concerning the appointment is made, seeking reconsideration does not toll the statute of limitations for filing a timely appeal of the decision.

Marvin R. Decker applied for a teaching position with Monroe2-Orleans BOCES. In February 1998, he learned that another applicant had been selected and was to be appointed effective March 31, 1998. Decker then “engaged in lengthy correspondence” with the BOCES in an effort to secure his appointment to the position.

In June 1998, the district superintendent candidly advised Decker that the board was not going to change its mind and suggested that he “seek a determination” from the Commissioner of Education or the courts. Notwithstanding this suggestion, Decker continued to correspond with the BOCES through October 1998 and did not file his Section 310 appeal with the Commissioner until December 16, 1998.

The Commissioner dismissed Decker’s appeal as untimely, rejecting Decker’s request that his delay in filing the appeal be excused “because he was trying to resolve this matter with [the BOCES].” The Commissioner pointed out that there were “numerous decisions ... that an attempt to gain reconsideration of a final determination does not stop the running of the [statute of] limitations period.”

In addition, Decker’s appeal contained a fatal defect, which would have required the Commissioner to dismiss his appeal even if it were timely filed: Decker neglected to name, and serve, a necessary party to his appeal - the successful candidate.* The Commissioner noted that Decker sought an order directing his appointment effective March 31, 1998, which relief “clearly threatens the rights of the incumbent....”

Some of the technical elements to keep in mind in filing Section 310 appeals to the Commissioner of Education are:

1. Appeals must be filed 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].

2. If the agency agrees to “reconsider its original determination,” this decision would trigger a “new” statute of limitations period running from the date of the “new” final determination.

3. The appellant is required to file an affidavit proving service of a copy of the petition on the respondents [8 NYCRR 257.9; 276.8]

* Sometimes it is possible to correct this type of problem by filing a new appeal naming, and serving, all necessary parties omitted in the original appeal. Such a filing, however, must still meet the original time limits for perfecting the appeal.
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