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October 03, 2013

Procedural defects result in dismissal of the petitioner's appeal to the Commissioner of Education

Procedural defects result in dismissal of the petitioner's appeal to the Commissioner of Education
Decisions of the Commissioner of Education, Decision No.16,555

The petitioner [Administrator] in this appeal holds certification as a school district administrator and a school administrator/supervisor and had been serving as the School District’s full-time Director of Pupil Personnel Services since 2004 

Administrator alleged that in 2011 she asked to have her position reduced from a full-time position to a .8 full time equivalent [FTE] position in connection with her maternity leave. The Board subsequently voted to reduce the professional obligation of the Director of Pupil Personnel Services position from a 1.0 FTE to a .8 FTE, effective July 1, 2011.

Administrator, claiming that it was her understanding that her position was reduced from a 1.0 FTE to a .8 FTE for the 2011-2012 school year only and that she would return to a 1.0 FTE position for the 2012-2013 school year, appealed the Board's action to the Commissioner of Education. Administrator contended that she had requested a reduction in her schedule only for the 2011 - 2012 school year and cited “her prior conversations with the superintendent” in support of her claim.

Administrator also argued that if her position was permanently reduced to a .8 FTE position, she had greater seniority in the administrative tenure area than did another administrator and therefore the other administrator should be assigned to the .8 FTE position.

The Commissioner first addressed a procedural issue involving the verification of the petition filed by Administrator.

Noting that the verification on Administrator's petition was dated "September 6, 2011," prior to the date of the petition, which was dated September 12, 2011, and Administrator's verified reply admitted that modifications were made to her petition after September 6, 2011, the Commissioner said that it was impossible to tell which allegations in the petition were properly verified. Accordingly, the Commissioner ruled that the petition was not properly verified and he elected not excuse this omission "as the defect was never cured."

Turning to the Board’s argument that Administrator’s appeal was untimely, the Commissioner said that he “must also dismiss the appeal as untimely.”

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.”

In this instance, said the Commissioner, “ It appears from the record that the action resulting in the 20 percent reduction in [Administrator’s] position from which she seeks relief was taken by the board on March 28, 2011,” at which time the board “permanently reduced her position from a 1.0 FTE to a .8 FTE.”

Although Administrator alleged that she did not learn of this permanent reduction in her position to .8 FTE until August 19, 2011, the Commissioner said that he rejected that assertion, explaining that the record reflects that Administrator had “reached out to the School Administrators Association of New York State (“SAANYS”) and asked how these actions affect her employment rights.”

SAANYS responded to Administrator by letter dated April 5, 2011 in which SAANY stated that it was its “understanding is that the district’s board recently voted to reduce your position from full-time to a .8 position for the school year beginning July 1, 2011.”
....
Further, said the Commissioner, in a letter dated May 13, 2011 from Board’s Counsel to SAANYS, Counsel was clearly stated that “The District wishes to initially clarify several statements in [SAANYS’s] letter. First, [Administrator] requested that her position be reduced to a .8 FTE position as of July 1, 2011” and “The district understood this request was not just for the 2011-2012 school year, but [was a request for] a permanent reduction.”

The Commissioner concluded that “From [the Board’s Counsel’s] letter, it is clear that it was the intent of the School Board to permanently reduce [Administrator’s] position. As the petition was not served until September 15, 2011, which is well over 30 days from the March board action and even the April and May letters, the appeal must also be dismissed as untimely.”


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