Placement on a preferred list
Bratge v Stockbridge Valley CSD, Decision of the Commissioner of Education #14454
The Bratge case demonstrates the importance of complying with all statutory and contractual procedures relevant to personnel actions.
The Stockbridge Valley Central School District appointed Katrina Bratge as an Assistant Building Principal/Guidance Counselor [K-12]. Bratge’s appointment was subject to a three-year probationary period.
In March 1999 School Superintendent Charles Stratton met with Bratge. According to Bratge, the superintendent told her that the district intended to eliminate her position in favor of creating a new full-time guidance counselor position and converting a part-time business administrator position to a full-time position.
Stratton, on the other hand, said that he had told Bratge that he intended to terminate her probationary employment but that she would be allowed to resign rather than be terminated.
In August 1999 Bratge wrote to the school board indicating that she did not intend to resign her position and requested it place her name on the preferred eligibility list for appointment as a guidance or administrative position should one become available in accordance with Sections 2510(3) and 3013(3) of the Education Law.
In response, the district wrote to Bratge advising her that because she had voluntarily resigned from her position and had returned to a position with the Rome City School District ... she had no recall rights. Bratge wrote the district to clarify the events that had led to her asking to be placed on a preferred list and repeated her request. When the district failed to act, Bratge asked the Commissioner to order it to place her on a preferred list.
Although the Commissioner ruled that Bratge’s appeal had to be dismissed because it was untimely, he elected to comment on the merits of her appeal.
The Commissioner pointed out that the problem resulted because the district did not provide Bratge with a clear and unambiguous notice of its intentions. Although the district claims that Bratge agreed to resign and asked for her letter of resignation, it never actually received a written resignation from her.
Despite not having received Bratge’s written resignation, the Commissioner noted, the district did not take the procedural steps required to terminate her probationary employment.* This, according to the Commissioner, left Bratge unsure of her exact status and the district believing that the position was vacant as of the beginning of the 1999-2000 school year.
The Commissioner also took the opportunity to point out that personnel decisions must comply with all applicable legal and contractual requirements. In the event the district provides an employee with an option of resigning in lieu of termination, it must comply with all statutory and contractual notification requirements if it then wishes to terminate an employee who does not voluntarily submit his or her written resignation.
One issue not addressed by the Commissioner: assuming that Bratge had a right to have her name place on a preferred list, would her returning to a position with the Rome City School District have any impact on her status on such a list?
Here are some points to keep in mind regarding preferred lists:
1. Typically the most senior individual on the list may be passed over or, under certain circumstances, have his or her name removed from the list, only if he or she actually declines the appointment.
2. The name of an individual may not be removed from a preferred list if he or she merely declines appointment to a different position for which certification of the preferred list was not mandated or deemed appropriate.
3. The individual is not required to seek information concerning the existence of any vacancy for which he or she could be certified.
4. While an appointing authority is not required to fill a vacant position, if it elects to do so, it must use the appropriate preferred list if one exists. (Under certain circumstances, a public employer may be required to use other types of preferred lists such as a special military list.)
5. If an individual accepts other employment, his or her name is to remain on the preferred list until it may otherwise be lawfully removed. For example, Jones is laid off from Position A and subsequently accepts a position to a lower rank position for which the preferred list was certified. If Position A is reestablished and Jones is eligible for certification from the preferred list and is the most senior person on the list, Jones must be certified for appointed to the newly created position.
* The fact that the district did not take the procedural steps required to terminate Bratge’s probationary employment suggests that had Bratge filed a timely appeal the Commissioner might have found that she had attained tenure by estoppel.
For information about PELP's electronic handbook Layoff, Preferred Lists and Reinstatement of public employees in New York, go to: http://nylayoff.blogspot.com/
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