An Article 78 challenge to a school board's tenure determination must be initiated within four months of the determination becoming “final and binding” upon the aggrieved party
Garofano v Board of Educ. of Ramapo Cent. Sch. Dist., 2016 NY Slip Op 03506, Appellate Division, Second Department
The Ramapo Central School District appointed Paul D. Garofano as a foreign language teacher effective September 1, 2004. Garofano’s appointment was subject to his satisfactorily completing a three-year probationary period. However, throughout his employment with the district, Garofano’s "job title" was Instructional Technology Facilitator and he was granted tenure in the tenure area of "Instructional Technology" effective September 1, 2007.
"Instructional Technology," however, is a “nonexistent tenure area” under the Rules of the Board of Regents.*
On January 31, 2013, Garofano was informed that the Board of Education had become aware that it had appointed him to a "nonexistent tenure area" and, during a special meeting held on January 30, 2013, the Board had adopted a resolution changing his tenure area to the tenure area of School Media Specialist (Educational Communications), retroactive to September 1, 2007.
In adopting the resolution the Board noted that its basis for assigning Garofano to the School Media Specialist (Educational Communications) tenure area was because had a valid Educational Technology Specialist Initial Certificate from the New York State Education Department at the time he was granted tenure in the “nonexistent tenure area.” In addition, the Board's resolution noted that Garofano did not consent to his retroactive assignment to the School Media Specialist (Educational Communications) tenure area and contended that he should be assigned to the Elementary Education tenure area instead.
In adopting the resolution the Board noted that its basis for assigning Garofano to the School Media Specialist (Educational Communications) tenure area was because had a valid Educational Technology Specialist Initial Certificate from the New York State Education Department at the time he was granted tenure in the “nonexistent tenure area.” In addition, the Board's resolution noted that Garofano did not consent to his retroactive assignment to the School Media Specialist (Educational Communications) tenure area and contended that he should be assigned to the Elementary Education tenure area instead.
Four months later the Board voted to abolish a number of positions, including at least one position in the School Media Specialist (Educational Communications) tenure area. As Garofano was the least senior teacher of that tenure area, his employment was terminated, effective June 30, 2013.**
About September 19, 2013, Garofano filed an Article 78 petition challenging [1] the Board’s January 30, 2013, determination reassigning him to the tenure area of School Media Specialist (Educational Communications) rather than Elementary Education and [2] his subsequent termination.
Supreme Court dismissed Garofano’s petition as time-barred, which ruling was affirmed by the Appellate Division.
Supreme Court dismissed Garofano’s petition as time-barred, which ruling was affirmed by the Appellate Division.
The Appellate Division explained that a CPLR Article 78 review must be filed within four months of the date when the administrative determination to be reviewed became final and binding upon the aggrieved party and a determination becomes "final and binding" when two requirements are met: [1] the completeness (finality) of the determination, and [2] the exhaustion of administrative remedies.
In the works of the court, Garofano did not commence this proceeding until September 19, 2013, nearly eight months after the Board adopted its January 30, 2013 resolution reassigning him to the tenure area of School Media Specialist (Educational Communications).
In the works of the court, Garofano did not commence this proceeding until September 19, 2013, nearly eight months after the Board adopted its January 30, 2013 resolution reassigning him to the tenure area of School Media Specialist (Educational Communications).
Notwithstanding Garofano argument to the contrary, the Appellate Division ruled that the Board’s action in reassigning Garofano to the tenure area of School Media Specialist (Educational Communications) did not become "effective" at a later date, nor did the [Garofano] first become aggrieved by the action upon his termination on June 30, 2013. The court said that the Board's action was complete and became effective immediately, on January 30, 2013.
Accordingly, the Supreme Court properly determined that the proceeding was barred by the statute of limitations.
* 8 NYCRR 30-1.8(b) provides for tenure areas of: (4) school media specialist; (5) school media specialist (library); and (6) school media specialist (educational communications)
** Presumably Garofano’s name was placed on the preferred list for School Media Specialist (Educational Communications) created as the result of the layoff.
The decision is posted on the Internet at:
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