Tuesday, October 29, 2013

An improper appointment to a tenure area may adversely affect the rights of an educator in the event of a layoff


An improper appointment to a tenure area may adversely affect the rights of an educator in the event of a layoff
Appeal of Jennifer Cronk, Decisions of the Commissioner of Education, Decision No. 16,568

Jennifer Cronk was certified to teach grades K-6 and English grades 7-12. On August 29, 2000, she was assigned to teach computer programming in the school district’s middle school and high school and effective September 1, 2000 the district appointed Cronk to a three-year probationary position in the English tenure area.

Cronk was granted tenure in the English tenure area on June 17, 2003, effective August 31, 2003. In May 2011, the district notified Cronk that it was abolishing two full-time positions in the grades 7-12 English tenure area and that her services would be terminated on June 30, 2011.

Cronk, contending that she was not the least senior teacher in the English 7-12 tenure area and thus she had been “illegally excessed,” appealed to the Commissioner of Education.  In support of her claim, Cronk said that had provided instructional support services as described in Part 30 of the Rules of the Board of Regents for the 2000-2001 through the 2010-2011 school years and asked the Commissioner to declare that she had accrued seniority in the tenure area of grades 7-12 English, commencing on September 1, 2000.

The school district, in rebuttal, argued that Cronk “has not met her burden of establishing that she served in the English grades 7-12 tenure area for these school years” and that its decision to terminate her was not arbitrary and capricious because she had never taught English and had only taught computer programming classes and was therefore had been improperly assigned to the English grades 7-12 tenure area.

The school district raised also raised a procedural issue, claiming that Cronk had failed to name and serve necessary parties – other educators that might be adversely affected were the Commissioner to grant her appeal.

The Commissioner agreed with the school district’s position regarding Cronk’s failure to name necessary parties, citing a number of earlier rulings concerning this issue including Appeal of Murray, 48 Ed Dept Rep 517. The Commissioner explained that a necessary party “must be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense."

Cronk had filed her appeal on June 23, 2011 by service of a notice and petition but failed to name two other teachers in the district in the English 7-12 tenure area who might be affected by a determination in this appeal nor were these two teachers served with a copy of Cronk’s petition.* Having failed to properly join the two teachers, the Commissioner ruled that Cronk’s appeal must be dismissed.

However, said the Commissioner, “Even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits” explaining 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 of the position abolished shall be discontinued.” Section 30-1.1(f) of the Rules of the Board of Regents defines seniority as follows: “Seniority means length of service in a designated tenure area ....”

Addressing the merits of Cronk’s appeal, notwithstanding its dismissal on procedural ground, the Commissioner said that the principal issue in this appeal is whether Cronk was the least senior teacher in the English 7-12 tenure area. In general, seniority may be accrued in a given tenure area only if the service of the teacher 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]).

It was undisputed that Cronk did not teach English in grades 7-12 in the 2000-2001 through 2010-2011 school years. Although she alleged that she had provided instructional support services during that period and therefore is entitled to receive credit toward tenure and seniority in the English 7-12 tenure area pursuant to section 30-.2(b)(1) of the Rules of the Board of Regents, the Commissioner said that on the record before him he found that Cronk did not demonstrate that she devoted at least 40% of her work time to instruction in English and/or instructional support services.

Rather, said the Commissioner, the record indicated that during the 2000-2001 through 2010-2011 school years, Cronk was assigned full-time to teach computer programming to students in the middle and high school grade levels. Further, in an appeal to the Commissioner, a 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.” Here, said the Commissioner, Cronk failed to submit any lesson plans or any other evidence to demonstrate that she spent more than 40% of her time in the English 7-12 tenure area and/or performing instructional support services during any of these school years.

Accordingly, the Commissioner decided that Cronk “never served in the English 7-12 tenure area.”

Significantly the Commissioner noted that the prohibition contained in §30-1.9 of the Rules of the Board of Regents against assigning a professional educator to devote asubstantial 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 did not apply in this instance. From the inception of her employment by the board Cronk never devoted a substantial portion of her time within the 7-12 English tenure area and therefore was not a professional educator entitled to the protection of §30-1.9. Accordingly, Cronk could not now claim on that basis that she is not the least senior teacher in the English 7-12 tenure area.

Further, although the record indicates that Cronk was assigned to teach computer programming and therefore did appear to have spent a substantial portion of her time in the career and technical education tenure area, she had not raised that issue in this appeal nor sought reinstatement to a position in that tenure area.

However, said the Commissioner, “Even if she had, because she was never in probationary status in that tenure area §30-1.9 does not apply and, in any case, reinstatement with back pay to a position for which she is not qualified would be unlawful (see Education Law §§3001, 3009).”

The Commissioner then said that “Although I am constrained to dismiss this appeal, I note that when [Cronk] commenced her employment with the district, [the school board] lacked the authority to offer her a tenured position as an English 7-12 teacher” and reminded 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.”

* N.B.Cronk “neither sought nor received permission to join any additional parties as respondents subsequent to commencement of her appeal on June 23, 2011” but, instead, on July 22, 2011, unilaterally attempted to add both teachers as respondents to the appeal by serving them with of an amended notice and petition. This, said the Commissioner, was improper, since under §275.1 of the Commissioner’s Regulations, after an appeal is commenced parties may not be joined except by leave or direction of the Commissioner

The decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume53/documents/d16568.pdf
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Challenging Adverse Personnel Decisions at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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