Decision No. 13,257

(September 14, 1994)

SOBOL, Commissioner.--Petitioner challenges certain acts taken by the Board of Education of the Saugerties Central School District ("respondent") in response to an action commenced by Karen Ann Chaffee. The appeal must be dismissed.

As a result of comments allegedly made by board member Ernest Fick at a regular board meeting on September 14, 1992, an action was commenced in Supreme Court, Ulster County by Karen Ann Chaffee ("Chaffee action") against respondent and Mr. Fick. On March 29, 1993, respondent adopted a resolution pursuant to Education Law '3811 authorizing the district's insurance carrier to designate an attorney to handle the defense of that action (the "resolution"). The resolution further provided that any costs incurred, together with damages that may be awarded, would be charged against the district. Petitioner commenced this appeal on February 16, 1994.

In this appeal, petitioner challenges the actions of respondent and Mr. Fick which resulted in the Chaffee action. Petitioner also challenges certain statements made by respondent in its answer submitted in the Chaffee action. Petitioner further challenges the propriety of the March 29, 1993 resolution adopted by respondent pursuant to Education Law '3811.

An appeal to the Commissioner of Education must be instituted within 30 days from the making of the decision or the performance of the act complained of (8 NYCRR 275.16). However, the Commissioner may excuse a failure to commence an appeal for good cause shown in the petition. The actions challenged in this appeal occurred in September 1992 and March 1993. Petitioner offers no excuse for his delay of approximately 10 months after the most recent of respondent's challenged actions. Accordingly, the appeal must be dismissed as untimely.

In connection with petitioner's challenge to respondent's actions which resulted in the institution of the Chaffee lawsuit, those actions and respondent's answer will be reviewed by Supreme Court, Ulster County in the action pending before it. Under such circumstances, it is inappropriate for the Commissioner of Education to comment on those issues (Appeal of Regent, et al., 27 Ed Dept Rep 398; Appeal of Board of Education of the North Bellmore UFSD, et al., 25 id. 333).

Regarding petitioner's challenge of the March 29 resolution adopted by respondent pursuant to Education Law '3811, that issue was the subject of a prior appeal in which petitioner sought to overturn that very same resolution (Appeal of Bach, 33 Ed Dept Rep 452). That appeal was dismissed on the merits (Appeal of Bach, supra).

Having litigated the same claim and received an adverse determination on whether respondent abused its discretion, petitioner is barred by the doctrine of res judicata from relitigating the issue (Appeal of Tobin, 30 Ed Dept Rep 315; Appeal of Roth, 26 id. 165; Matter of Monaco, 24 id. 348). Even though petitioner now appears to base his claim in part on a new legal theory involving personal benefit to individual board members, the appeal must, nonetheless, be dismissed because it arises out of the same set of facts (O'Brien v. City of Syracuse, 54 NY2d 353; Appeal of Bach, 32 Ed Dept Rep 499; Appeal of Tobin, supra).

THE APPEAL IS DISMISSED.

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