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June 27, 2012

Continuation on leave of absence from a teaching position upon permanent appointment to a classified service position critical to educator’s right to reinstatement to the teaching position

Continuation on leave of absence from a teaching position upon permanent appointment to a classified service position critical to educator’s right to reinstatement to the teaching position
Fehlhaber v Board of Educ. of Utica City School Dist., 2012 NY Slip Op 04904, Appellate Division, Fourth Department

Craig S. Fehlhaber was initially employed by the Utica City School District as a tenured teacher. In 1997 the district appointed Fehlhaber as "Clerk of the Works" and later as Superintendent of Buildings and Grounds.

In 2010 the Board abolished the position of Superintendent of Buildings and Grounds and Fehlhaber asked to be "bump" vertically into the position of Maintenance Foreman or, in the alternative, to resume a teaching position. The Board denied both of these requests and Fehlhaber filed an Article 78 petition seeking a court order directing the Board to place him in one of those positions. Supreme Court dismissed his petition and Fehlhaber appealed..

Initially the Appellate Division resolved a procedural issue.

Supreme Court had ruled that Fehlhaber had failed to file a timely notice of claim. However, the Appellate Division agreed with Fehlhaber that “no notice of claim was required” in this instance.

Although, said the court, Education Law §3813(1) mandates that a notice of claim be filed when a claim is asserted against a board of education, "the notice of claim requirement is inapplicable to cases which seek to vindicate tenure rights which are legal rights guaranteed by State law and in the public interest," citing Cowan v Board of Educ. of Brentwood Union Free School Dist., 99 AD2d 831 and other decisions.

That said, the Appellate Division held that Supreme Court had properly dismissed the petition on the merits. Although Fehlhaber contended that he was entitled to a vertical "bump" into the position of Maintenance Foreman pursuant to Civil Service Law §80(6), the court noted that the record established that the Utica Municipal Civil Service Commission, after consulting with the New York State Civil Service Commission, said that "[i]n order for the rights of bumping' to exist, the [Fehlhaber] would have to demonstrate a legal entitlement to that bumping right.”

The Utica Commission, however, determined that Fehlhaber did not have any such bumping right. 

Here, said the court, in a case concerning an employee's bumping rights under the Civil Service Law, Matter of Hughes v Doherty, 5 NY3d 100, the Court of Appeals ruled that "judicial review of [the Commission's] classification system and determinations are limited to whether there was a rational basis for the agency's conclusion.... Unless the [Commission's] determinations were arbitrary or capricious, a court should not undermine its actions."

As the Appellate Division found that Fehlhaber failed to establish that the Commission's determination was arbitrary or capricious, or that there was no rational basis for its determination, it sustained the Supreme Court’s dismissal of his Article 78 petition on the merits.

Fehlhaber had raised an alternative theory  -- that he is merely on a leave of absence* from his tenured teaching position and was thus entitled to be reinstated to that position. The Appellate Division said that it agreed with Supreme Court that “[Fehlhaber] voluntarily abandoned his teaching position and thereby relinquished his tenure rights, at the latest, upon leaving the position for which the leave of absence was approved.”

Although it is well settled that "[t]he burden of proving abandonment is upon the [Board] and must be established by clear and convincing evidence that the [educator], by a voluntary and deliberate act, intended to relinquish [his or] her teaching position and forfeit [his or] her tenure rights," in this instance the Board granted Fehlhaber a leave of absence in 1997 "[t]o assume duties as Clerk of the Works."

When Fehlhaber left the Clerk of the Works position in 2002, he received a permanent appointment to the position of Superintendent of Buildings and Grounds, a position in the classified service, and he failed to seek reinstatement as a teacher or an extension of his leave of absence when he received that permanent appointment.

4 NYCRR 5.2, Leaves of Absence, applies to employees in the classified service of the State and public authorities, public benefit corporations and other agencies for which the Civil Service Law is administered by the State Department of Civil Service. Subdivision (c) provides as follows: (c) Successive leaves of absence. Where a leave of absence without pay has been granted for a period which aggregates two years, or more if extended pursuant to subdivision (b) of this section, a further leave of absence without pay shall not be granted unless the employee returns to his position and serves continuously therein for six months immediately preceding the subsequent leave of absence. Many local civil service commissions have adopted a similar rule.

The decision is posted on the Internet at:

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