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January 25, 2011
Continuing wrong theory to excuse an untimely appeal to the Commissioner of Education rejected
Michael P. Thomas and the New York City Department of Education, Decision No. 16,193
Michael P. Thomas, a tenured teacher employed by the New York City Department of Education, objected to the placement of certain documents in his personnel file.
Noting that an appeal to the Commissioner of Education 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, the Commissioner noted that Cardozo had commenced his appeal more than six months after the date of the most recent document he objected to having been placed in his personnel file.
Conceding that his appeal was not filed in a timely manner, Thomas argued that the placement of these letters and documents in his personnel file constitutes a continuing wrong.
The Commissioner rejected Thomas’ theory, noting that the continuing wrong doctrine applies when the ongoing action is itself an unlawful action, such as the unlawful employment of an unqualified individual, unlawful appointments to a district’s shared decision-making team, an improperly constituted professional development team, certain expenditures under an austerity budget that did not comply with the law.
In contrast, the Commissioner said that the doctrine did apply where the specific action being challenged is a single action, inaction or decision and the resulting effects are not intrinsically unlawful.
Although the parties disagreed as to the nature of each letter and document, the Commissioner ruled that placement of letters and grievance documents in a personnel file is not an inherently unlawful action, ruling that the continuing wrong doctrine does not apply and dismissed Thomas’ appeal as untimely.
The Commissioner’s decision is posted on the Internet at:
Public Personnel Law E-books
The Discipline Book - A concise guide to disciplinary actions involving public employees in New York State set out in a 700 page e-book. For more information click on http://booklocker.com/books/5215.html
A Reasonable Disciplinary Penalty Under the Circumstances - A 442-page e-book focusing on determining an appropriate disciplinary penalty to be imposed on an employee in the public service in instances where the employee has been found guilty of misconduct or incompetence. Now available in two formats - as a large, paperback print edition and as an e-book. For more information click on
The Layoff, Preferred List and Reinstatement Manual - A 645 page e-book reviewing the relevant laws, rules and regulations, and selected court and administrative decisions. For more information click on http://booklocker.com/books/5216.html
General Municipal Law §§207-a and 207-c - Disability Leave for fire, police and other public sector personnel - A 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder. For more information click on
SELECTED REFERENCES and BLOGS
- A Handbook addressing disciplining public employees
- A Handbook focusing on imposing reasonable disciplinary penalties
- A Handbook focusing on layoff and reinstatement
- A Handbook on Disability Benefits for public employees
- A sample personnel handbook
- Blogging Civil Rights Law
- Blogging Constitutional Law
- Blogging Disability Law
- Blogging Education Law
- Blogging Human Rights Law
- Blogging Legal Information
- Blogging Military Law
- Blogging public libraries
- Challenging Adverse Personnel Decisions
- COVID-19 - New York State maps and data
- Delaware Employment Law Blog
- Gotham schools newsroom - A NYC school news blog
- New York City ERS blog - by John Murphy
- NY Municipalities - NYMUNIBLOG
- St. Lawrence County Civil Service Web Site
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