Tuesday, May 07, 2013

Educator must serve at least 40% of his or her workday in the tenure area in which he or she claims greater seniority than others in that tenure area for the purposes of layoff


Educator must serve at least 40% of his or her workday in the tenure area in which he or she claims greater seniority than others in that tenure area for the purposes of layoff
Decisions or the Commissioner of Education, Decision 16,480

The school board granted Teacher tenure in the special education tenure area, About two years later the school board adopted a resolution abolishing two special education positions in the special education tenure area and notified Teacher that, as he was one of the least senior persons in the special education tenure area, his services were being discontinued at the end of the school year and that he would be placed on a “preferred eligibility list.”

Teacher, claiming that he was improperly terminated in violation of Education Law §§2510 and 3013 and that he was more senior than five other teachers in the special education tenure area, filed an appeal with the Commissioner seeking an annulment of the district’s determination terminating his services and reinstatement as a full-time teacher of special education, with back pay and benefits.

The school district argued that Teacher [1] failed to meet his burden of demonstrating that he was not one of the least senior teachers in the special education tenure area and [2] that he is not entitled to seniority in the special education tenure area because he did not spend at least 40% of his workday teaching in the special education tenure area.

The Commissioner said that Education Law §3013(2) provides that when a board of education abolishes a position, “the services of the teacher having the least seniority in the system within the tenure [area] of the position abolished shall be discontinued.” Further, 8 NYCRR 30-1.1(f) [Rules of the Board of Regents] defines seniority as follows: “Seniority means length of service in a designated tenure area ....”

The significant issue in Teacher’s appeal was whether Teacher was one of the two least senior teachers in the special education tenure area. Noting that “In general, seniority may be accrued in a given tenure area only if the service of the educator in such area constitutes 40% or more of the total time spent in the performance of instructional duties (8 NYCRR §30-1.1 [f] and [g])"  the Commissioner ruled that Teacher "has not established that the work he performed was in the tenure area of special education."

Although Teacher did hold permanent certification in special education and was granted tenure in the special education tenure area, the record showed that Teacher never devoted at least 40% of his work time to instruction in special education. Rather, said the Commissioner, the record showed that Teacher’s assignment comprised one special education resource room class and alternative education classes in English, mathematics, social studies and global history.

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 he or she seeks relief. As Teacher failed to submit any lesson plans or any other evidence to demonstrate that he spent more than 40% of his time in the special education tenure area during any of relevant school years, the Commissioner found that Teacher “never served in the special education tenure area.”

Nor, said the Commissioner, does the prohibition contained in 8 NYCRR §30-1.9 against assigning a professional educator to devote a substantial portion of his or her time in a tenure area other than that in which he or she has acquired tenure without his or her consent apply to these facts as from the “inception of his employment by the Board Teacher never devoted a substantial portion of his time within the special education tenure area and therefore was not a professional educator entitled to the protection of 8 NYCRR §30-1.9."

The Commissioner said that he was “constrained to dismiss this appeal,” and noted that when Teacher commenced his employment with the district the board lacked the authority to offer him a tenured position as a special education teacher. He then took this opportunity to “remind [the] board of the need to follow all pertinent provisions of the Civil Service Law, Education Law §3014 and Part 30 of Rules of the Board of Regents.

The decision is posted on the Internet at:


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