Labor & Employment Law

An appeal to the Commissioner of Education must show a clear legal right to the relief sought

By Harvey Randall, Esq.

An appeal to the Commissioner of Education must show a clear legal right to the relief sought

Appeal of Edward Dyminski from action of the Board of Education of the City School District of the City of Rochester regarding employment.

Decisions of the Commissioner of Education No. 15,707, December 31, 2007

Following the School District?s decision to abolish a position due to declining enrollment, it determined that Daniel Collins was the least senior of the mechanical trades teachers and notified him that he would be ?excessed.? Edward Dyminski was told that he would be assigned to teach Basic Manufacturing and Design.

The district then decided that it had erred in making these decisions because Dyminski was not certified to teach the course to which he had been assigned while Mr. Collins had a provisional certification to teach that course. The district eliminated Dyminski?s position and retained Collins to teach several sections of the course. Unhappy with the district?s determination, Dyminski appealed to the Commissioner of Education.

Although his appeal was on technical grounds ? Dyminski failed to name a necessary party to his appeal[1]-- the Commissioner took the opportunity to address the merits of Dyminski?s appeal.

The Commissioner stated that even if Dyminski?s appeal was properly before him, it would be dismissed, noting that in an appeal to the Commissioner, the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which he or she seeks relief.

Here, said the Commissioner, Dyminski failed to meet that burden because he:

1. ?has not demonstrated how his certification in welding qualifies him to teach a course on lathes and milling machines.?[2]

2. failed to provide a clear calculation of his seniority and theirs in properly identified tenure areas in order to demonstrate that he had greater seniority.

3. failed to demonstrate that the School District was obligated to restructure its career and financial management courses throughout the district to create a full-time position for him, either as an itinerant or at his last location in support of his theory in this regard.

[1] A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such.

Full post as published by New York Public Personnel Law on January 28, 2008 (boomark / email).