Appeal of J.C. from action of the New York City Department of Education regarding a personnel matter.[1]

Decision No. 18,446

(July 16, 2024)

Muriel Goode-Trufant, Acting Corporation Counsel, attorneys for respondent, Conner Quinn, Esq., of counsel

ROSA., Commissioner.--Petitioner challenges a determination of the New York City Department of Education (“NYCDOE” or “respondent”) denying his request for security clearance.  The appeal must be dismissed. 

Petitioner was briefly employed by respondent as a teacher for two months in 2021; he resigned thereafter.  In spring 2022, respondent “nominat[ed]” petitioner for a substitute teacher position contingent upon clearance by respondent’s Office of Personnel Investigation (OPI).  According to respondent, petitioner began working as a substitute teacher in spring 2022 without such clearance.  Respondent rescinded petitioner’s employment clearance in March 2022.

Also in March 2022, the Special Commissioner of Investigation for the New York City School District (SCI) opened an investigation against petitioner based upon complaints from two students.  SCI made numerous, unsuccessful attempts to interview petitioner in connection therewith. 

In September 2022, SCI concluded its investigation, finding that petitioner had “acted inappropriately” with students while serving as a substitute teacher earlier that year.  SCI recommended that petitioner “remain on the DOE Do Not Call list, and that [a] problem code attached to his personnel file remain as a permanent bar to future employment with the DOE ....” 

Thereafter, petitioner applied to additional job postings with respondent.  In connection with one such application, OPI attempted to contact petitioner multiple times “to discuss [SCI’s] findings and mitigate any concerns.”  After four unsuccessful attempts, an OPI employee spoke with petitioner, who denied engaging in the conduct described in the SCI report.  On November 20, 2023, OPI denied petitioner’s pending request for employment clearance.  This appeal ensued.  Petitioner’s request for interim relief was denied on January 16, 2024.[2]

Petitioner contends, among other arguments, that his request for security clearance was improperly denied.  He seeks a host of relief, including reinstatement to a teaching position and backpay.

Respondent contends that the appeal must be dismissed, among other reasons, as untimely.  On the merits, respondent contends that it acted reasonably in denying petitioner security clearance. 

The majority of petitioner’s claims must be dismissed as untimely.  An appeal to the Commissioner must be commenced within 30 days from the decision or act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR 275.16; Appeal of Saxena, 57 Ed Dept Rep, Decision No. 17,239; Appeal of Lippolt, 48 id. 457, Decision No. 15,914). 

All but one of the claims raised in the petition occurred well over 30 days prior to the time the petition was served.  Petitioner’s suggestion that respondent’s assignment of a “problem code” to his personnel file constitutes a continuing wrong is without merit.  The continuing wrong exception to the 30-day time limitation does not apply where a petitioner challenges a single discrete action, inaction, or decision and the resulting effects, even if continuous, are not intrinsically unlawful (Application of Ayers, 48 Ed Dept Rep 350, Decision No. 15,883; Appeal of a Student with a Disability, 48 id. 146, Decision No. 15,821, art 78 dismissed Matter of Reyes v Mills [Sup Ct, Albany County 2009, Zwack, J.]).  The assignment of a “problem code” was a discrete act that, as demonstrated by judicial decisions, is not intrinsically unlawful (Kahn v City of New York, 186 AD3d 1159 [1st Dept 2020]; Pepin v New York City Dept. of Educ., 51 Misc 3d 1201[A] [Sup Ct, NY County, 2015], affd, 148 AD3d 443 [1st Dept 2017] lv denied 29 NY3d 912 [2017]).  Thus, petitioner was required to appeal within 30 days after he acquired actual knowledge of the problem code (Appeal of L.N., et al., 61 Ed Dept Rep, Decision No. 18,105).  Petitioner admits that he learned of this designation on July 26, 2023, approximately five months prior to commencement of this appeal.  Accordingly, each of petitioner’s claims—except for his challenge to OPI’s denial of clearance—must be dismissed as untimely (Appeal of Young Advocates for Fair Education, 63 Ed Dept Rep, Decision No. 18,356; Appeal of Schlesinger, 61 id., Decision No. 18,128; Appeal of Handsman, 58 id., Decision No. 17,596). 

Turning to the merits, boards of education are prohibited from acting in an illegal, arbitrary or capricious manner (Appeal of G.P., 62 Ed Dept Rep, Decision No. 18,287, Appeal of A.B., 60 id., Decision No. 18,010; Appeal of X.R.O., 60 id., Decision No. 17,904).  In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she seeks relief (8 NYCRR 275.10; Appeal of P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).

Petitioner has not proven that respondent’s denial of his request for security clearance was illegal, arbitrary, or capricious.  In its determination, respondent reasoned as follows:

Your prior adverse employment history with the NYC Department of Education is of grave concern when considering your application for security clearance ...  The nature of your reported misconduct is extremely concerning, as you will be expected to always maintain appropriate boundaries with the vulnerable population under your supervision ... Moreover, you seemed to prevaricate requests from OPI investigators when asked to provide additional information and documentation throughout the investigatory process, which casts serious doubt on your candor and the veracity of the information you have provided during this investigation.

While petitioner denies the allegations of classroom impropriety, he offers no explanation for his unwillingness to cooperate with OPI or SCI.  Thus, I find that respondent had a rational basis for denying petitioner’s request for security clearance.[3]

Finally, to the extent petitioner argues that he has a right to be employed by respondent, qualification for a position “does not [create] a legal entitlement” thereto (Appeal of Moss and Sealy, 60 Ed Dept Rep, Decision No. 18,001; see also Pepin, 51 Misc 3d 1201[A] [“respondent or any other employer retains the discretion to refuse to hire petitioner as long as the refusal is not for a discriminatory or other unlawful reason”]).  Indeed, as indicated above, courts have upheld respondent’s assignment of a “problem code” under similar circumstances (Kahn v City of New York, 186 AD3d 1159 [1st Dept 2020]; Pepin, 51 Misc 3d 1201[A] [“respondent may rationally assign (a) problem code and deny petitioner’s application for future employment based on respondent’s prior discontinuance of his probationary employment, which in turn was permissibly based on ... substantiated misconduct,” and “[r]espondent quite rationally may review petitioner’s applications for employment more carefully than other applications, conduct investigations of his suitability for the positions he applies for, and deny him employment based on prior performance or conduct detailed in his record of employment with respondent”]).

I have considered petitioner’s remaining arguments and find them to be without merit.

THE APPEAL IS DISMISSED. 

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