Petitioner filed an appeal pursuant to Education Law §310 with New York State's Commissioner of Education concerning an action of the Board of Education of a school district [Respondent] involving its filling an administrative position [Coordinator Position] for which the Petitioner had earlier applied and had been interviewed.
In the instant appeal Petitioner alleged Respondent "declined to hire him for the vacant Coordinator Position in retaliation for, among other things, multiple lawsuits he commenced against a member of Respondent’s hiring committee. In addition, Petitioner alleged that Respondent had violated certain provisions of New York State's Constitution, the New York State's Civil Service Law, and board policy.
Respondent had posted a job announcement for the Coordinator Position and subsequently reposted the job announcement in which it stated that "previous applicants need not reapply" but was otherwise identical to the previous posting.
Citing Appeal of Frey, 57 Ed Dept Rep, Decision No. 17,308, and other decisions of the Commissioner of Education, the Commissioner said Petitioner's appeal "must be dismissed as premature as the Commissioner will not render an advisory opinion on an issue before it becomes justiciable".
The Commissioner explained the Commissioner’s jurisdiction pursuant to Education Law §310 is appellate in nature and an action is not ripe for review by the Commissioner until it is final and results in an actual, concrete injury.
Noting that Respondent’s Policy 9240 requires that an interview committee recommend three or more candidates for second round interviews for administrative positions such as the Coordinator Position and Respondent reposted the Coordinator Position in an effort to obtain the requisite number of candidates and that at the time Petitioner's appeal was filled Respondent indicated that “none of the candidates … interviewed at the first-level were rejected and as Petitioner had not submitted a reply or otherwise contested these assertions by the Respondent, the Commissioner found that Petitioner's appeal must be dismissed as premature.
The Commissioner then observed that to the extent Petitioner suggests that Respondent was required to conduct "a competitive examination of merit and fitness" to fill the Coordinator Position, such examinations are not required for positions such as the Coordinator Position that involve “the function of administration of teaching” and dismissed Petitioner's appeal.
Click HERE to access the Commissioner of Education's decision posted on the Internet.