Preferred list rights following layoff

Preferred list rights following layoff
Bojarczuk v Mills, 98 NY2d 663

Joseph T. Bojarczuk was excessed when the Utica City School District abolished his position when the Oneida-Herkimer-Madison Board of Cooperative Educational Services (BOCES) took over its Alternative Educational Program. As Bojarczuk was “transferred to BOCES” with his position, Utica did not include him on its “preferred list” for reemployment with the District should a suitable vacancy occur while his name was on the list.

According to Utica, Bojarczuk "was afforded seniority rights under section 3014-a," and he had received all the rights to which he was entitled in connection with the layoff. The Commissioner of Education sustained Utica’s actions.

The Court of Appeals, however, disagreed, noting that Education Law Section 3014-a(4) provides that “[t]his section shall in no way be construed to limit the rights of any of such employees set forth in this section granted by any other provision of law.” Accordingly, ruled the court, the fact that Bojarczuk had been provided with Section 3014-a seniority rights did not preclude his having “additional recall rights” in the District under Sections 2510(3) and 3013(3) of the Education Law.

The decision states that a teacher whose position has been abolished during a BOCES takeover of a school district program has the right to be placed on the school district's preferred eligibility list for employment for seven years in accordance with sections 2510(3) and 3013(3), provided the teacher otherwise qualifies for the statutes’ benefits.

As the lower courts had not determined whether or not Bojarczuk qualified for placement on the Utica School District preferred list, the case was remanded back to Supreme Court for such a determination.

The basic principle expressed by this decision:

If a teacher is excessed and his or her name is placed on a preferred list upon the abolishment of his or her teaching position, he or she is entitled, subject to seniority considerations, to be appointed to the next available vacancy in the school district in the tenure area in which he or she is certified the district decides to fill, unless he or she is found unqualified for that position by the District.

The fact that the teacher may obtain employment in another jurisdiction does not truncate his or her rights to reinstatement from the preferred list by the school district.

Some key considerations concerning preferred lists:

1. A preferred list comes into being when an individual having tenure or permanent status in the title is excessed as the result of the abolishment of a position.

2. Unless otherwise disqualified, an individual's name is continued on the preferred list until (a) he or she is reinstated from the list to the same or a similar position or (b) his or her eligibility for reinstatement from the list expires. Depending of the controlling statute providing for the establishment of the preferred list, an individual’s name may on a preferred list from two years, i.e., a “special military list” [Military Law Section 243.7] to seven years under the Education Law.

3. If additional positions are abolished on a later date, the names of the more recently excessed individuals would be placed on the same preferred list on the basis of seniority as among themselves. In other words, an individual who is first on an existing preferred list would be displaced to a lower rank on the list if the names of an individual having greater employment seniority are placed on the same preferred list at a later date.

4. Preferred lists do not "expire" but continue in existence as long as there is at least one eligible individual qualified for appointment from the list.

To illustrate this last point, assume that Bojarczuk is never reinstated from the preferred list. On the day before the last day of the seventh year from date when Bojarczuk's name was placed on the preferred list another layoff takes place and the name of the individual excessed is placed on the preferred list.

For one day both Bojarczuk name and this second individual's name are on the preferred list, in order of relative seniority as among themselves. If neither is reinstated from the preferred list on the following day, the preferred list continues in existence but thereafter would include only the name of the second individual. The preferred list then continues in existence as long as the second individual continues to be eligible for reinstatement from the preferred list.

Reinstatement from a preferred list, however, may raise other concerns. For example, nepotism. Section 3016 of the Education Law deals with the issue of the employment of a relative by blood or marriage of a member of its school board as a teacher by the district. In essence, it requires that any such appointment must be approved by a two-thirds vote of the board.

Does Section 3016 apply in situations involving the reinstatement of a relative of a school board member as teacher from a preferred list?

Barbara Gmelch thought it did and asked the Commissioner of Education to remove a school board member from his position because the board member did not advise the board that his daughter was among a number of teachers to be reinstated from a preferred list that resulted from the lay off of a number of teachers and that a two-thirds vote would be required with respect to her employment.*

The Commissioner dismissed Gmelch's appeal, agreeing with the school board Section 2510 mandates the reinstatement of a teacher from a preferred and thus it was required to reinstate the relative of a board member regardless of his or her relationship to the member.

In this instance the Commissioner ruled that reinstating the board member's daughter "was required by law and not within its discretion to decline" [Commissioner of Education Decision #12794].

* The record indicates that the teacher was employed by the district prior to the election of her father to the board.