December 30, 2010

Seniority in a tenure area and the “40% rule”

Seniority in a tenure area and the “40% rule”
Appeal Of Kathi Gimbrone and the Board Of Education, Randolph Central School District, decisions of the Commissioner of Education, Decision No. 16,177

Kathi Gimbrone challenged various actions of the Board of Education of the Randolph Central School District to terminate her employment after being notified that her reading teacher position was abolished that she would be placed on a preferred eligibility list for reappointment to a position in the reading tenure area.

After noting a number of procedural difficulties that required the dismissal of Gimbrone’s appeal, the Commissioner of Education elected to note had Gimbrone’s appeal been considered on its merit, he would have dismissed.

The Commissioner said in situations such as presented by Gimbrone’s being excessed following the abolishment of her position, “Section 30-1.13(c) of the Commissioner’s regulations [8 NYCRR §30-1.13(c)] provides that, in cases involving the abolition of a position,

if the teacher identified as having the least seniority in the tenure area affected by the abolition has tenure or is in a probationary status in additional tenure areas, the teacher shall be transferred to that tenure area in which he or she has the greatest seniority and shall be retained in such area if there is another teacher having less seniority than he or she in such other tenure area.”

Further, said the Commissioner, 8 NYCRR §30-1.1(f) defines seniority as follows:

Seniority means length of service in a designated tenure area, rather than length of service in the district; such service need not have been consecutive but shall during each term for which seniority credit is sought, have constituted a substantial portion of the time of the professional educator.

and as used in Part 30 of the Commissioner’s regulations, substantial portion means:

40% or more of the total time spent by a professional educator in the performance of his duties, exclusive of time spent in preparation, monitoring or in co-curricular activities (see 8 NYCRR §30.1[g] [emphasis in the original]).

The principal issue in this appeal is whether or not 40% or more of the total time spent by Gimbrone in the performance of her duties in the relevant school years was spent in the elementary tenure area. 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 petitioner seeks relief.

The Commissioner said that an examination of these provisions and the record supports the conclusion that Gimbrone failed to meet her burden of proving that she spent more than 40% of her duties in the elementary tenure area.

Accordingly, had be matter been considered on its merits, the Commissioner said that “In view of the foregoing, I cannot conclude that [the Randolph Central School] board was arbitrary or capricious in terminating Gimbrone’s employment.”

The decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume50/d16177.htm
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