Decision No. 13,204

(June 10, 1994)

O. Peter Sherwood, Corporation Counsel, attorney for respondent, Elisabeth A. Palladino, and Patricia LeGoff, Esqs., of counsel

SOBOL, Commissioner.--Petitioner appeals the failing grade he received on an oral examination administered by the Office of Recruitment, Personnel Assessment and Licensing (ORPAL) of respondent school district. The appeal must be dismissed.

Prior to May 17, 1992, petitioner applied for licensure as a teacher of technology education in day high schools. He was also granted a certificate valid for service as a substitute teacher in that same field of study.

On May 17, 1992, petitioner took the oral interview portion of the licensing examination. The oral examination consisted of a taped interview conducted by a testing assistant. Prior to the examination, petitioner was advised to review a rating sheet which indicated that he would be evaluated in the following six categories: "Assessing the Situation," "Making Recommendations," "Addressing Student Needs," "Interpersonal Relations with Parents and/or Guardians, Colleagues, Supervisors and Others," "Organization and Presentation of Ideas," and "Use of the Language." Petitioner was given a hypothetical factual situation and two related questions to consider in advance of the interview.

In June or July of 1992, ORPAL notified petitioner that he had failed to demonstrate the minimum entry-level competence in four categories: "Assessing the Situation," "Making Recommendations," "Addressing Student Needs," "Interpersonal Relations with Parents and/or Guardians, Colleagues, Supervisors, and Others." As a result, petitioner was given a failing grade for the interview test.

On August 14, 1992, petitioner filed an appeal with the Bureau of Appeals of ORPAL. By letter dated October 22, 1992, petitioner was advised that his appeal was dismissed and was also provided with a summary statement of reasons for such dismissal. On the appeal, the Bureau of Appeals awarded petitioner a passing grade on two of the four categories he had originally failed, but these changes were insufficient to result in a passing grade overall.

Thereafter, at a time not revealed in the record, petitioner requested a further review which according to respondent "went beyond the normal administrative process." This further appeal was denied on June 7, 1993. On August 3, 1993, petitioner submitted a further appeal to the Bureau of Appeals, which was denied by a letter dated August 5, 1993. It should be noted that the denials of October 22, 1992, June 7, 1993, and August 5, 1993 were all signed by the same employee within the Bureau of Appeals. This appeal to the Commissioner of Education was commenced on September 1, 1993.

Petitioner contends that the interview examination was arbitrary and capricious in that respondent had no standard answers, that each testing assistant was free to decide what were satisfactory or unsatisfactory answers and that the testing assistants were insufficiently trained. Respondent contends that the interview examination was properly scored and that petitioner's appeal was properly denied. Respondent states that the testing assistants were subject matter experts in the license area being tested and were trained to evaluate the appropriateness of a candidate's responses on the basis of suggested answers. Respondent further contends that this appeal is untimely and fails to state a cause of action.

The appeal must be dismissed as untimely. ORPAL advised petitioner on October 22, 1992 that his appeal was dismissed. However, petitioner did not commence this appeal until September 1, 1993, more than ten (10) months later. Petitioner sets forth no reason for this failure in his petition, as required by 8 NYCRR 275.16, although he states in his reply that he was attempting to exhaust all possible remedies before appealing. In previous decisions of the Commissioner, appeals have consistently been dismissed where an appeal to the Commissioner was not commenced within 30 days of the denial of petitioner's appeal at the local level (Appeal of Edelman, 26 Ed Dept Rep 372; Appeal of Appling, 28 id. 330; Application of Matulsky, 29 id. 157). Petitioner's further communications with the Bureau of Appeals after October 22, 1992 amount to efforts to gain a reconsideration or reversal of the decision, but such attempts do not extend the time in which an appeal must be commenced (Appeal of Hall and Cooper, 32 Ed Dept Rep 377; Appeal of Zeff, 29 id. 5; Appeal of Vachon, 28 id. 276; Appeal of McIntyre, 25 id. 156; Matter of Tripi, 21 id. 349).

The appeal must also be dismissed on the merits. The record contains the interview test instructions, the hypothetical fact pattern, test questions based on the fact pattern and rating sheet indicating the areas of evaluation. The record also contains a "Statement of Reasons for Failure in the Interview Test" prepared by the interviewer and petitioner's August 14 written appeal based upon his review of both the interviewer's statement and the audio recording of the interview. The record further contains respondent's October 22, 1992 "Summary Statement of Reasons for Dismissal of Appeal" which contains a thorough evaluation of petitioner's responses based on the appeal materials and an independent review of the audio recording.

The standard of review for a determination made by respondent's predecessor, the Board of Examiners, has long been whether or not there is clear and convincing evidence that the determination was rendered through malice, prejudice, bad faith, or gross error (Matter of Lubin, 24 Ed Dept Rep 271, aff'd subnom.Matter of Lubin v. Ambach, 124 AD2d 331; Application of Matulsky, 29 Ed Dept Rep 157; Appeal of Appling, 28 id. 330; Appeal of Edelman, 26 id. 372).

Applying this standard to the facts of the appeal, I conclude that petitioner has failed to establish that respondent has acted arbitrarily. Respondent concluded that petitioner was deficient in the areas of "Making Recommendations" and "Interpersonal Relations with Parents and Guardians, Colleagues, Supervisors and Others" and I find those conclusions supported by the record. Since petitioner has failed to set forth clear and convincing proof to the contrary, I will not set aside respondent's determination.

I have reviewed the parties' remaining contentions and find them without merit.

THE APPEAL IS DISMISSED.

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