An educator may accrue tenure and seniority rights in both an administrative and teacher tenure area simultaneously under certain circumstances

An educator may accrue tenure and seniority rights in both an administrative and teacher tenure area simultaneously under certain circumstances
Nancy Pearse v Board of Education of the Burnt Hills-Ballston Lake Central School District, Decisions of the Commissioner of Education, Decision #16,159

The Commissioner of Education sustained, in part, an appeal filed by Nancy Pearse challenging the determination of the Board of Education of the Burnt Hills-Ballston Lake Central School District and its Superintendent, James Schultz, to excess her as a foreign language teacher.

Pearse served in a position where she was assigned to spend 60% of her time as Dean of Students and 40% of her time as a foreign language teacher. On January 22, 2008, the board granted Pearse tenure in the administrative tenure area of dean of students, effective March 19, 2008.

In June 2008 the district abolished Pearse’s .4 teaching assignment as a foreign language teacher and she was laid off as a result.

Pearse appealed to the Commissioner contending that the board had violated her tenure and seniority rights as a foreign language teacher. She argued that she had received tenure by estoppel* in the foreign language tenure area and that she was not the least senior foreign language teacher in the district at the time it abolished her postion.

As redress, Pearse asked the Commissioner to direct the district to reinstate her to her foreign language teaching position, with back pay and benefits.

The district, on the other hand, argued that as Pearse’s teaching position was part-time, she was not eligible to receive tenure in the foreign language tenure area. In addition, the district contended that the decision to layoff Pearse’s was lawful because she was not entitled to accrue tenure and seniority rights in both an administrative and teaching tenure area simultaneously and, therefore, that she never accrued tenure or seniority rights as a foreign language teacher in the district.

The Commissioner said that Pearse’s appeal “presents a novel issue -- whether an educator may accrue tenure and seniority rights in both an administrative and teacher tenure area simultaneously.

The test of whether an employee should be deemed to serve in an administrative tenure area is whether an employee spends over 50% of his or her time on administrative duties. The test with respect to teachers attaining "tenure" is that the educator spend at least 40% of his or her duties in the relvent teacher tenure area.**

The Commissioner rejected the school district’s theory that Pearse could not have accrued tenure and seniority rights in a teacher tenure area because she is not a professional educator as defined in Part 30 of the Commissioner’s regulations, noting that 8 NYCRR §30-1.1(e) of the Commissioner’s regulations defines professional educator as follows:

Professional educator means an individual appointed or to be appointed to a full-time position on the professional staff of a school district or board of cooperative educational services, which position has been certified as educational in nature by the Commissioner to the State Civil Service Commission pursuant to the provisions of section 35-g of the Civil Service Law and in which position tenure may be acquired in accordance with the provisions of the Education Law.

Although, said the Commissioner, “§30-1.1(e) requires that the educator be appointed to a full-time position on the professional staff of the district, [it] does not require an individual to be employed solely in a full-time teaching position.”

The Commissioner also rejected the district’s claim that “an educator cannot accrue tenure and seniority rights in both an administrative and teacher tenure area simultaneously,” noting that Part 30 of the Commissioner’s regulations clearly permits a professional educator to simultaneously hold tenure and earn seniority in more than one teacher tenure area, citing 8 NYCRR §30-1.9[d].

Accordingly, the Commissioner ruled that an educator “should be able to serve in both an administrative and teacher tenure area at the same time and receive seniority credit and tenure in both tenure areas provided that the individual performs more than 50% of his or her duties in the administrative tenure area and at least 40% of his or her duties in a teacher tenure area.”

Also, noted the Commissioner “Public policy favors the protection of the tenure rights of both teachers and administrators.”

However, the Commissioner said that it was “unclear from the record” if Pearse was the most senior teacher in the foreign language tenure area on the date on she was excessed. He deemed it appropriate “to remand this matter” to school district for it to calculate Pearse’s seniority rights in the foreign language teacher tenure area and make a new determination as to whether she is entitled to be restored to a tenured position as a teacher of foreign language effective June 23, 2009, with back pay and retroactive benefits.

* Tenure by estoppel "results when a school board fails to take the action required by law to grant or deny tenure and, with full knowledge and consent, permits a teacher to continue to teach beyond the expiration of the probationary term" (see Lindsey v Board of Education of Mt. Morris Central School District, 72 AD2d 185, 186].

** Part 30 of the Commissioner’s regulations [8 NYCRR 30] provide that teachers are deemed to serve in any tenure area in which they spend at least 40% of their time. Further, the test of whether an employee should be deemed to serve in an administrative tenure area is whether an employee spends over 50% of his or her time on administrative duties.

The Commissioner’s decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume50/d16159.htm

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