Decision No. 14,173

(July 28, 1999)

MILLS, Commissioner.--Petitioner appeals the refusal of the Board of Cooperative Educational Services, Monroe 2-Orleans, to hire him as a teacher specialist. The appeal must be dismissed.

In late 1997, respondent began recruiting for a position entitled teacher specialist to coordinate school-to-work programs. Petitioner applied for the position, was interviewed in December 1997, but learned on February 10, 1998, that a different candidate would be selected. It appears that the other candidate was appointed effective March 31, 1998.

From February 1998 through October 1998, petitioner engaged in lengthy correspondence with respondent, seeking further information and seeking appointment to the position. On June 3, 1998, the district superintendent advised petitioner quite directly that the board was not going to change its mind, and suggested that he seek a determination from the Commissioner or the courts. Petitioner finally commenced this appeal on December 16, 1998.

In addition to denying the merits of petitioner's claims, respondent raises numerous affirmative defenses, two of which are dispositive. The appeal is clearly untimely. The successful candidate was appointed effective March 31, 1998, and this appeal was not commenced until December 17, 1998, well beyond the applicable 30 day limitation found in 8 NYCRR "275.16. Petitioner asks that he be excused from this requirement because he was trying to resolve this matter with respondent. However, numerous decisions have held that an attempt to gain reconsideration of a final determination does not stop the running of the limitation period (Appeal of Johnson, 38 Ed Dept Rep 524, Decision No. 14,086; Appeal of Ytuarte, 36 id. 238, Decision No. 13,712; Appeal of Goodman, 35 id. 93, Decision No. 13,477).

In addition, petitioner has failed to join the successful candidate as a respondent, and failed to make service upon him. Petitioner specifically requests that I "order his appointment to the Teacher Specialist position with the respondent effective March 31, 1998." This demand for relief clearly threatens the rights of the incumbent, and petitioner's failure to join and serve the incumbent requires the dismissal of this appeal (Appeal of Hessney, 37 Ed Dept Rep 366, Decision No. 13,881, Supreme Court, Albany County, Special Term, Sheridan, J., judgment granted dismissing petition to review, March 4, 1999, n.o.r.; Appeal of DiStefano, 36 Ed Dept Rep 217, Decision No. 13,705; Appeal of Healy, 34 id. 611, Decision No. 13,427).

In light of this disposition, I will not discuss the parties' other allegations, which I find without merit.

THE APPEAL IS DISMISSED.

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