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Also, §22 of the New York State's General Construction Law, in pertinent part, provides that “Whenever words of the masculine or feminine gender appear in any law, rule or regulation, unless the sense of the sentence indicates otherwise, they shall be deemed to refer to both male or female persons.” NYPPL typically follows this protocol.

January 25, 2011

Continuing wrong theory to excuse an untimely appeal to the Commissioner of Education rejected

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:
http://www.counsel.nysed.gov/Decisions/volume50/d16193.htm

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