Decision No. 12,932

(May 14, 1993)

SOBOL, Commissioner.--These appeals are decided together because they arise out of the same set of facts and involve the same issue. Petitioners seek reinstatement to full-time positions as instructors with the Vocational Education and Extension Board of Suffolk County. The appeals must be dismissed.

The Vocational Education and Extension Board (VEEB) was created by Suffolk County pursuant to Education Law '1101. VEEB is funded by Suffolk County and the State to provide training programs for volunteer firefighters. Petitioners received probationary appointments as full-time instructors at VEEB, effective April 1, 1982 and received tenure, effective April 1, 1985. Petitioners were notified in 1991 that their employment status would be reduced to part-time per-diem instructors, effective March 1, 1991. Petitioners commenced their appeals on December 8, 1992.

Petitioners maintain that their positions have not been reduced to part time and that they are entitled to be compensated at the higher rate granted to full-time employees. They also maintain that VEEB reduced their positions to part time while retaining the services of an instructor with less seniority in a full-time position in violation of Education Law '2510.

Before addressing the merits of these appeals, it is necessary to review several procedural issues. An appeal to the Commissioner of Education must be instituted within 30 days from the making of the decision or performance of the act complained of, unless excused by the Commissioner for good cause shown (8 NYCRR '275.16). Respondent contends that its decision to make petitioners part-time employees was effective March 1, 1991, and these appeals were not commenced until December 8, 1992, approximately 21 months later. Consequently, respondent argues the appeals are untimely and must be dismissed. Petitioners acknowledge that the appeals are late, but maintain the lateness should be excused because they just recently learned how full-time employment is defined in the contract between VEEB and Suffolk County. After reviewing the hours worked during the 1991-92 school year, petitioners believe they qualify as full-time employees. However, the agreement between VEEB and Suffolk County is a public document which has been available since April 25, 1988. The fact that petitioners were unaware of that agreement is irrelevant. In addition, petitioners were aware of the number of hours they worked during the 1991-92 school year by the end of that school year, i.e., June 30, 1992. Accordingly, petitioners have not offered a valid excuse for their failure to commence these appeals until December 8, 1992.

Petitioners also maintain that the lateness of the appeals should be excused because they just learned that respondent's seniority records are not accurate and that respondent has allegedly retained a less senior instructor in full-time employment. However, the record indicates that petitioners raised this issue in a letter to respondent dated August 23, 1991, approximately 15 1/2 months before they commenced these appeals. Under such circumstances, petitioners have failed to show a good cause for the lateness of their appeals. The appeals are dismissed as untimely.

The appeals must also be dismissed for failure to join a necessary party. In an appeal to the Commissioner of Education, if a determination in favor of the petitioner would adversely affect another individual, that individual must be joined as a necessary party (Appeal of Danin, 32 Ed Dept Rep 20; Appeal of Osterman, 30 id. 290; Appeal of Como, 30 id. 214). Petitioners maintain that they are entitled to a full-time position currently occupied by an individual with allegedly less seniority than themselves. Petitioners' failure to join as a party respondent that instructor, whose position could be adversely affected if the relief sought were to be granted, constitutes a ground necessitating dismissal of the appeals (Appeal of Nordin, 32 Ed Dept Rep 17; Matter of Klyde, 22 id. 362; Matter of Acinapuro, et al., 19 id. 466; Acinapuro v. Ambach, et al., Supreme Court, Albany County, September 23, 1980, CHOLAKIS, J.).

In its memorandum of law, respondent objects to the memorandum of law submitted by petitioners because it contains new unsworn allegations and exhibits not previously stated or set forth in any pleading. Respondent's objection is well taken. A memorandum of law may not be used to belatedly add assertions or exhibits which should have been included in the petition (Appeal of Johnson, 26 Ed Dept Rep 42; Matter of Bd. of Ed., Broadalbin CSD, 24 id. 51; Matter of a Handicapped Child, 24 id. 41). Accordingly, such new allegations and exhibits will not be considered in this appeal.

The appeals must also be dismissed on the merits. Petitioners contend that because they work a full-time schedule they are entitled to be compensated as full-time employees. Pursuant to a board resolution effective July 1, 1988, a full-time instructor is required to teach 210 sessions per year. During the 1991-92 school year petitioner Albert taught 164 sessions, petitioner Hopkins taught 164 sessions, petitioner Poulos taught 158 sessions and petitioner Rempe taught 194 sessions. Since none taught the required 210 sessions, they have not sustained their claim of having been full-time employees of VEEB during the 1991-92 school year.

Petitioners also maintain that in violation of Education Law '2510 their positions were improperly reduced to part time, while an instructor with less seniority has allegedly been retained as a full-time employee. Petitioners, however, have not submitted proper evidence as to the identity of any employee with less seniority whose services have been improperly retained. They offer no evidence as to the date on which such instructor may have been hired and if that individual is working as a full-time employee. In an appeal before the Commissioner of Education, the petitioner has the burden of establishing the facts upon which he or she seeks relief (8 NYCRR '275.10; Appeal of Verity, 31 Ed Dept Rep 485; Appeal of Singh, 30 id. 284; Appeal of Pickreign, 28 id. 163). Petitioners have not met their burden of proof in these appeals.

THE APPEALS ARE DISMISSED.

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