Decision No. 12,746

(July 13, 1992)

SOBOL, Commissioner.--Petitioner appeals from the denial of a salary increment and the subsequent abolition of his position by respondent. He requests that I award the salary increment and fringe benefits retroactive to July 1, 1990 and restore petitioner to his previous position. The appeal must be dismissed.

On July 11, 1988, respondent appointed petitioner "District Information Officer" effective August 1, 1988. On January 9, 1989, respondent granted petitioner permanent status as a "Public Relations Specialist" at the scheduled end of his probationary period on February 8, 1989. On July 2, 1990, at a reorganization meeting, respondent voted on administrative salaries for the 1990-1991 school year. Board minutes indicate that the proposed salaries represented increases for those administrators and were based on the superintendent's evaluation of each individual. The superintendent recommended a six percent (6%) salary increase for each of the eight individuals. Respondent voted to approve the salary increase for all of the administrators except for petitioner. The motion to grant petitioner the salary increase failed by a 3-4 vote.

On August 13, 1990, a board member made a motion to grant petitioner the same salary increase that was previously denied, retroactive to July 1, 1990. Her motion failed by a 3-4 vote. Petitioner commenced this appeal on September 8, 1990. On September 10, 1990, respondent voted 4-2 to abolish its Public Information Department, including the three positions in that department: public information officer, clerk/typist, and part-time liaison. Petitioner filed and served additional papers on September 14, 1990, seeking to have the action of respondent abolishing the department and his position overturned. Petitioner's request for a stay of respondent's action pending my determination on the merits of his appeal was denied.

Petitioner contends that the denial of the salary increment and the subsequent abolition of his department was violative of respondent's code of ethics, violative of petitioner's due process rights, violative of concepts of affirmative action in hiring and employment practices, as well as arbitrary and capricious. Petitioner further asserts that respondent violated State Civil Service Law insofar as he was terminated even though he had received a satisfactory evaluation and without being afforded any of the procedural protections found in the Civil Service Law. He further claims that the asserted reason for the elimination of his department and position, i.e., budgetary constraints, was a mere pretext to allow respondent to terminate petitioner in circumvention of the Civil Service Law.

Respondent raises untimeliness as an affirmative defense to this action. Section 275.16 of the Commissioner's Regulations requires that appeals be instituted within 30 days of the action complained of. Specifically, respondent claims that the appeal is not timely because it was not commenced within thirty days of the July 2, 1990 action denying the salary increment. Respondent denies that the salary increment was denied at the August 13, 1990 board meeting. While the salary increment was denied at the July 2, 1990 meeting, it was also denied at the August 13th meeting as the board minutes attached to respondent's own papers clearly show. Therefore, as the appeal was commenced within thirty days of the action complained of, I find the appeal timely.

On the merits of the appeal, respondent contends that it abolished petitioner's department and position to realize the cost savings. Petitioner was appointed pursuant to the provisions of the Civil Service Law and, therefore, his rights in that position are governed by those provisions.

Section 75 of the Civil Service Law provides that permanent employees may not be terminated for cause unless and until they are afforded an appropriate hearing. Petitioner maintains that his employment was terminated without cause and, therefore, in violation of Civil Service Law '75. Petitioner has mischaracterized respondent's actions in this matter. Respondent did not terminate petitioner's employment for cause, but instead made a discretionary decision to abolish the public relations department for budgetary reasons and thereby abolish the position previously held by petitioner. Essentially petitioner is alleging that respondent acted in bad faith in that it acted to abolish the public relations department not for reasons of cost and efficiency, but as a means of terminating the employment of petitioner without having to afford him the procedural protections, including a hearing, required for all such civil service employees. This claim is not an action that is properly before the Commissioner of Education, but should be brought under Article 78 of the Civil Practice Law and Rules or as an action for damages. (Switzer v. Sanitary Dist. No. 7, Town of Hempstead, 59 AD2d 889 (8). Under the authority granted to me pursuant to the provisions of '310 of the Education Law, I will not entertain this type of appeal. (Appeal of Cohen, 30 Ed Dept Rep 252).

THE APPEAL IS DISMISSED.

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