Concerning filing a timely Article 78
Budihas v Board of Education, 285 AD2d 549
Bonilla v Board of Education, 285 AD2d 548
When does the four-month Statute of Limitation to file a timely Article 78 petition begin to run? This critical issue involving the State's adjective law is explored in the Budihas and Bonilla cases.
The Budihas Case
On April 8, 1998, Stephen J. Budihas was told that his employment as a probationary principal would be terminated “as of the close of business on May 1, 1998”. Ultimately, the decision to terminate Budihas was sustained by the Chancellor of the Board of Education of the City of New York on April 8, 1999.
On July 30, 1999, Budihas filed a petition pursuant to Article 78 of the Civil Practice Law and Rules seeking to overturn the Chancellor's decision. The Appellate Division, Second Department, affirmed a Supreme Court decision holding that Budihas' petition was untimely.
The court pointed out that “a determination to terminate probationary employment becomes final and binding on the date the termination becomes effective,” citing Frasier v Board of Education, 71 NY2d 763. Accordingly, said the court, Budihas' petition, filed on July 30, 1999, is clearly time-barred.
Courts, usually in cases involving employee timeliness claims in civil rights litigation, have ruled that the Statute of Limitations commence to run when the decision to terminate an employee is communicated to the individual rather than the effective date of the termination. The leading case addressing this issue: Delaware State College v Ricks, 449 US 250.
The Bonilla Case
The Bonilla case, however, in addition to the issue of the “timeliness” of an Article 78 challenging an employee's dismissal, concerned the timeliness of an appeal from an administrative decision affirming the unsatisfactory performance evaluation underlying the employee's termination.
On June 26, 1998, New York City teacher Carmelo Bonilla was terminated from his position as a provisional [sic] science teacher. Bonilla had received an unsatisfactory rating of his teaching performance.
However, the final decision sustaining Bonilla's unsatisfactory performance rating was not issued by the Chancellor of the Board of Education until March 25, 1999. On July 20, 1999, Bonilla filed an Article 78 petition seeking to have his unsatisfactory rating annulled and an order directing his reinstatement to his former position with back pay and benefits.
The Supreme Court dismissed Bonilla's petition in its entirety as time-barred, ruling the Statute of Limitations began to run on the date Bonilla's employment was terminated in June 1998. The Appellate Division disagreed in part with this ruling, holding that the “Supreme Court erred in dismissing the entire proceeding on the ground that it was barred by the Statute of Limitations.”
Clearly, said the court, an Article 78 proceeding against a public body or officer must be commenced within four months after the determination to be reviewed becomes final and binding. Thus that part of Bonilla's Article 78 petition seeking a review of determining to dismiss him effective June 26, 1998, is barred by the four-month Statute of Limitations because this determination became final on the effective date of his discharge.
In contrast, said the court, that part of Bonilla's Article 78 petition challenging the March 25, 1999 determination by the Chancellor, sustaining Bonilla's unsatisfactory rating was not time barred.
Bonilla, explained the Appellate Division, had a right to administrative appeal his unsatisfactory evaluation as well as a hearing to test that determination. The hearing panel's recommendation did not become final until the Chancellor issued a decision acting upon it. Accordingly, the determination that Bonilla's teaching performance was unsatisfactory did not become final and binding until the Chancellor denied his appeal and sustained the rating.
The court annulled Bonilla's unsatisfactory rating “since the [Board of Education conceded] that it was not preceded by an inspection of [Bonilla's] work and a consultation with him by the appropriate official.”
As Bonilla's Article 78 attack on the Chancellor's determination has survived [and assuming his was a probationary, in contrast to holding a provisional appointment], he may ultimately prevail in his quest for reinstatement if he can demonstrate that the performance evaluation underlying his termination was arbitrary or capricious or was otherwise materially defective.
If, on the other hand, Bonilla was, in fact, appointed as a provisional employee, presumably any further proceeding would be solely in the nature of a “name-clearing” hearing.