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The doctrine of primary jurisdiction applied in case where an administrative remedy is available

The doctrine of primary jurisdiction applied in case where an administrative remedy is available
Appeal of Denise M. Ferencik from action of the Board of Education of the Amityville Union Free School District regarding preferred eligibility rights, Decisions of the Commissioner of Education, Decision No. 15,981

One aspect this appeal to the Commissioner of Education concerned the impact of the dismissal of an Article 78 action pursuant to the doctrine of primary jurisdiction with respect to the timeliness of an administrative appeal.

Denise M. Ferencik, a certified art teacher employed by the Amityville Union Free School District, was granted tenure as an art teacher effective September 1, 1991. On May 26, 1992, the district abolished an art teaching position due to declining enrollment and Ferencik, the least senior art teacher, was terminated effective June 30, 1992 and placed on a preferred eligible list in accordance with Education Law §3013(3).

During the seven years Ferencik was on the preferred eligible list, she was not recalled for a position with the district.

In October 2001, Ferencik was re-employed by the district as an art teacher. However, in October 2003, she commenced an Article 78 proceeding against the district in Nassau County Supreme Court, alleging that the earlier appointment of a music teacher constituted a violation of her ?recall rights? under Education Law §3013(3).

In June 2007, Ferencik commenced a second Article 78 proceeding in Nassau County Supreme Court against the district, alleging that it had created an art teaching position and that she should have been recalled to that position. The court, however, dismissed this second under the doctrine of primary jurisdiction and Ferencik filed this appeal with the Commissioner of Education.

The district objected, arguing that ?An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown? (see 8 NYCRR §275.16).

Pointing out Ferencik initiated her appeal before the Commissioner on June 26, 2008, the district said that in order to be timely the appeal had to have filed with the Commissioner ?within 30 days of the alleged creation of an elementary school art teaching position in September 1994.?

The Commissioner rejected the district?s theory, noting that ?An unsuccessful attempt to litigate a dispute in court that does not result in a final determination on the merits may be accepted as an excuse for failing to commence a timely appeal with the Commissioner, when the appeal is commenced within a reasonable time after the dismissal or abandonment of the court proceeding.?*

In this instance, said the Commissioner, commenced this appeal within a reasonable time after the Supreme Court denied her petition and declined to dismiss it as untimely.

However, the Commissioner then dismissed for lack of proper service, noting that Section 275.8(a) [8 NYCRR 275.8] of the Commissioner?s regulations requires that the petition be personally served upon each named respondent.

In the event a school district is named as a respondent, service upon the school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service. Here Ferencik served Barbara Miller, the ?director assistant.? As Miller was not the district clerk, a member of the school board, or the superintendent of schools, nor had she or her position as account clerk been designated by the board to accept service of process under §275.8 of the Commissioner?s regulations, the Commissioner ruled that Ferencik?s appeal had not been properly served on the district.

* N.B. As a general rule, a statute of limitations continue to run with respect to the deadline for filing a timely action in the proper forum even if the complaint has been filed in a different, but wrong forum or another action is pending. [See Transit Authority v Campbell, OATH Index No. 343/00.]

The Ferencik decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume49/d15981.htm

Full post as published by New York Public Personnel Law on September 16, 2009 (boomark / email).