Friday, October 10, 2014

Ignorance of the appeal process does not provide a sufficient basis to excuse a delay in commencing a timely appeal


Ignorance of the appeal process does not provide a sufficient basis to excuse a delay in commencing a timely appeal
Decisions of the Commissioner of Education, Decision No.16,671

A certified public school administrator [Probationer] was appointed by the School District as a probationary Special Education School Improvement Specialist.  Probationer’s three-year probationary appointment was to expire on November 22, 2013. By letter dated November 19, 2013, Probationer was notified that the School Superintendent was recommending the board discontinue her probationary appointment as of January 19, 2014. At the same time Probationer was offered a one-year extension of her probationary term, which she subsequently declined.

Ultimately Probationer was advised by letter dated December 17, 2013, that her employment was terminated effective January 19, 2014. 

In her appeal to the Commissioner challenging her termination Probationer alleged that she had fulfilled her job responsibilities, had positive evaluations and no disciplinary actions had been taken against her.* She also claimed that she had been recommended for tenure by two supervisors. In view if this, Probationer asked that the Commissioner issue an order directing her reinstatement to her former position with tenure and “back pay or monetary rewards.”

Contending that Probationer had not been denied any statutory or constitutional rights and that she fails to demonstrate a clear right to the relief requested, the School District argued that Probationer’s appeal was untimely and must be dismissed.

Addressing the procedural issue of timeliness, the Commissioner noted that an appeal to the Commissioner 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.”

Here the record did not indicate when Probationer actually received the letter advising her that her employment was to be terminated. In such case, explained the Commissioner, the date of receipt is calculated by affording the usual five days for mailing, excluding Sundays and holidays. In Probationer case, said the Commissioner, even allowing the usual five days for mailing, her appeal was not commenced within 30 days of the December 17, 2013 letter notifying her of her termination.

Probationer had attempted to explain her delay in commencing the appeal in a letter to the State Education Department’s Office of Counsel indicating that she had written to the State Education Department in May 2014 and received a response in June 2014 advising her that she could appeal the school district’s decision to the Commissioner without an attorney.  Petitioner said that she was previously unaware that she could appeal “without an attorney.” 

However, said the Commissioner, “Even if I accept [Probationer’s] letter … she offers no satisfactory explanation of why a delay of more than six months in commencing the appeal should be excused.”  Further, observed the Commissioner, “It is well-settled that, except in unusual circumstances, ignorance of the appeal process does not afford a sufficient basis to excuse a delay in commencing an appeal.”

The Commissioner said that he found “no unusual circumstances in this case” and dismissed Probationer’s appeal on the ground that it was untimely.

* The Commissioner's decision states that Probationer “does not allege that she was terminated for a constitutionally impermissible reason or in violation of a statutory proscription,” citing Appeal of Rubinstein, 45 Ed Dept Rep 299, Decision No. 15,329. As the Court of Appeals said in Duncan v Kelly, 9 N.Y.3d 102, a probationary employee may be discharged for "almost any reason, or for no reason at all" as long as the decision is not made "in bad faith or for an improper or impermissible reason."

The decision is posted on the Internet at: http://www.counsel.nysed.gov/Decisions/volume54/d16671
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