Some common procedural errors or omissions that will bar the Commissioner of Education's considering the merits of an appeal

Some common procedural errors or omissions that will bar the Commissioner of Education's considering the merits of an appeal

Decisions of the Commissioner of Education, Decision No. 17,239

A tenured teacher [Petitioner] employed at a New York City School District School [District] received an unsatisfactory annual performance rating [U-rating] after having been given three unsatisfactory observation reports during the academic year. Petitioner appealed the U-rating to the Commissioner of Education.

The Commissioner, however, never reached the merits of Petitioner's appeal as there were a number of  errors in Petitioner's filing the appeal that resulted in the Commissioner dismissing  it on procedural grounds. 

1. Timeliness: One frequently encountered problem in "perfecting" an appeal to the Commissioner is that it is found to have been untimely filed.  An appeal to the Commissioner must be commenced within 30 days from the making of the final administrative decision, or the performance of the act or omission complained of, unless any such delay is excused by the Commissioner "for good cause shown."

In this appeal Petitioner submitted the challenged "Annual Evaluation Report" in which she given a U-rating and which she signed on June 19. Petitioner, however, did not file her appeal until September 3, more than two months later. 

The Commissioner observed that Petitioner offered "no good cause for the delay other than to state in her reply that she filed an appeal to the United Federation of Teachers within the 30 days and sent a letter to the Commissioner dated July 19." This, Petitioner argued, shows that she was attempting to file her appeal in a timely manner. The Commissioner said that she has "consistently held that, except in unusual circumstances, ignorance of the appeal process is not a valid excuse for late commencement of an appeal." Finding no such unusual circumstances present here, the Commissioner dismissed Petitioner appeal as untimely. 

Petitioner's Reply: Petitioner had submitted a response to the District's answer captioned “Verified Answer” but stated that was intended “to address the [District's] denial of all of the allegations in [her] complaint.” The Commissioner said "[a]pplying the most liberal construction of the regulations, as [Petitioner] is not represented by counsel, it would appear that the intent of the same is that it be construed as petitioner’s reply."

The Commissioner then explained that the purpose of a reply is to respond to new material or affirmative defenses set forth in an answer and is not meant to buttress allegations in the appellant's petition or to belatedly add assertions that should have been in the petition. Accordingly, the Commissioner said that although she reviewed the reply, she had not considered those portions containing new allegations or exhibits that were not responsive to new material or affirmative defenses set forth by the District in its answer.

Addendum to a response: Petitioner appeared to have served two letters on the District and then submitted those letters, characterized as an "Addendum to her response," for the Commissioner's consideration. The Commissioner pointed out that such additional affidavits, exhibits and other supporting papers may only be submitted with the prior permission of the Commissioner.

Further, although such material may be submitted for the Commissioner's consideration, such a submission  cannot be used to add new claims against a respondent for which notice has not been provided. In the words of the Commissioner, "I will not accept materials that raise new issues and introduce new exhibits that are not relevant to the claims originally raised in the appeal."

With respect to the procedure to follow by a  party seeking to file such additional affidavits, exhibits and other supporting papers pursuant to 8 NYCRR §276.5, the individual is to submit an application to the Office of Counsel stating the reason or reasons why such affidavits, exhibits or other supporting papers are necessary and include a copy of each, together with proof of service of the application and the proposed additional material upon all parties as set out in  8 NYCRR §275.8(b) of the Commissioner’s regulations.

In this instance, said the Commissioner, Petitioner did not explain why the Addendum was necessary nor did Petitioner request permission to submit the Addendum in accordance with 8 NYCRR §276.5. 

Notwithstanding this, the Commissioner did review Petitioner's Addendum and found that it contained new factual or legal assertions which were not raised in the pleadings.  Accordingly, the Commissioner said that she would not consider the Addendum submitted by the Petitioner.

Memorandum of law:  Considering Petitioner's "memorandum of law," the Commissioner said that 8 NYCRR §276.4 requires that a memorandum of law "must be served within 20 days of service of the answer or 10 days after service of the reply, whichever is later."

In this instance the Commissioner found that Petitioner’s memorandum of law was served on the District more than 10 days after service of its reply. While the Commissioner may permit the late filing of a memorandum of law where a party has established good cause for the delay and demonstrated the necessity of such memorandum to the determination of the appeal, the Commissioner found that Petitioner had made no such showing here. 

As Petitioner provided no excuse or justification for such late service, the Commissioner did not considered Petitioner’s untimely memorandum of law.

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume57/d17239