In this appeal to the Commissioner of Education the Commissioner found that the majority of the Petitioner’s claims must be dismissed as untimely, noting that an appeal to the Commissioner must be commenced within 30 days from the decision or act complained of, unless any delay is excused by the Commissioner for good cause shown (See 8 NYCRR 275.16). In this instance the Commissioner found that all but one of the claims advanced in Petitioner's appeal occurred "well over 30 days prior to the time the petition was served."
Petitioner, however, argued that the
As a petitioner is required to appeal within 30 days after he acquired actual knowledge of the problem code and the instant Petitioner admitted he learned of this designation approximately five months prior to commencement of his appeal to the Commissioner, the Commissioner held that each of Petitioner’s claims — except for his challenge to OPI’s denial of [security] clearance — must be dismissed as untimely.
Turning to the merits of Petitioner's appeal, the Commissioner of Education observed that boards of education are prohibited from acting in an illegal, arbitrary or capricious manner. However, in an appeal to the Commissioner the petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she seeks relief. Finding that Petitioner has not proven that Education's denial of Petitioner's request for security clearance was illegal, arbitrary, or capricious.
Noting that Education advised Petitioner that his " ... prior adverse employment history with the NYC Department of Education is of grave concern when considering your application for security clearance .... The nature of your reported misconduct is extremely concerning, as you will be expected to always maintain appropriate boundaries with the vulnerable population under your supervision .... Moreover, you seemed to prevaricate requests from ... investigators when asked to provide additional information and documentation throughout the investigatory process, which casts serious doubt on your candor and the veracity of the information you have provided during this investigation", the Commissioner concluded that although Petitioner denies the allegations of classroom impropriety, "he offers no explanation for his unwillingness to cooperate with [the Office of Personnel Investigation (OPI) or the Special Commissioner of Investigation for the New York City School District (SCI),] and found that Education "had a rational basis for denying [Petitioner’s] request for security clearance".**
Finally, considering Petitioner's argument that he has a "right to be employed" by the Board of Education, the Commissioner opined that "qualification for a position 'does not [create] a legal entitlement' thereto", and noted [Education], as does any employer, retains the discretion to refuse to hire an applicant for employment "as long as the refusal is not for a discriminatory or other unlawful reason”***.
The Commissioner opined that the Education's prior discontinuance of Petitioner's probationary employment, "which in turn was permissibly based on ... substantiated misconduct,” and “[Education] quite rationally may review [Petitioner’s] applications for employment more carefully than other applications, conduct investigations of his suitability for the positions he applies for, and deny him employment based on prior performance or conduct detailed in his record of employment with [Education]".
* See Application of Ayers, 48 Ed Dept Rep 350, Decision No. 15,883 and other decisions cited in the Commissioner's decision.
** To the extent petitioner suggested that his conduct was attributable to his disability, the Commissioner noted that any such claim of employment discrimination is outside the scope of an appeal to the Commissioner (See Appeal of Moss and Sealy, 60 Ed Dept Rep, Decision No. 18,001).
*** The Commissioner opined that the Department's prior discontinuance of Petitioner's probationary employment, "which in turn was permissibly based on ... substantiated misconduct,” and “[the Department] quite rationally may review [Petitioner’s] applications for employment more carefully than other applications, conduct investigations of his suitability for the positions he applies for, and deny him employment based on prior performance or conduct detailed in his record of employment with [the Department of Education]”.
Click HERE to access the Commissioner's decision posted on the Internet.