Tuesday, September 02, 2014

The date of the meeting on which a school board took formal action to appoint an individual is critical to determining “commencement of service” for the purposes of determining seniority in the event of a layoff


The date of the meeting on which a school board took formal action to appoint an individual is critical to determining “commencement of service” for the purposes of determining seniority in the event of a layoff
Decisions of the Commissioner of Education, Decision #16,657

In this appeal challenging the board of education’s decision concerning determining seniority of educators for the purposes of layoff the Commissioner of Education indicated that “the general principles regarding seniority calculation are well settled.”

When a board of education [board] abolishes a position, it is required by Education Law §§2510(2) and 3013(2) to discontinue the services of the teacher having the least seniority in the system within the tenure of the position abolished.

1. The first criterion for determining seniority is actual full-time service rendered.

2. If such full-time service is equal, the teachers' respective appointment dates are to be used for determining seniority

Teacher A, a certified mathematics teacher, was appointed by the board to a full-time leave replacement position on July 6, 2005, effective September 1, 2005. Teacher B, a certified mathematics teacher was appointed by the board on September 14, 2005, effective September 1, 2005.

Both A and B served as full-time substitutes in the mathematics tenure area from September 1, 2005 through June 30, 2006.  At its May 9, 2006 board meeting, both teachers were terminated from their full-time leave replacement positions.  At the board’s May 9, 2006 meeting the board granted B a probationary appointment in the mathematics tenure area, effective September 1, 2006.  On June 14, 2006, the board granted A a probationary appointment in the mathematics tenure area, effective September 1, 2006.  Following a successful three-year probationary period, which included the year of service as full-time substitutes, on March 12, 2008, both A and B were granted tenure effective September 1, 2008.

Subsequently the board found it necessary to abolish two positions in the mathematics tenure area effective June 30, 2013.  In calculated the seniority credit for teachers A and B, the board determined B to be the more senior of the two and Teacher A was laid off.

Teacher A objected, contending that he was improperly excessed because he had greater seniority in the mathematics tenure area than did Teacher B and that the board violated the law but incorrectly and arbitrarily used the probationary appointment date to determine which of the two teachers should be excessed, Teacher A or Teacher B.

The board, conceding that both A and B had eight years of service within the district when it abolished the position in the mathematics tenure area, argued that A was properly excessed as having less seniority than B in the mathematics tenure area because using the probationary appointment date was a reasonable and rational means to break the tie in actual full-time service rendered.  Thus, said the board, it properly exercised its discretion when it determined B was the more senior teacher based on B’s probationary appointment date, May 9, 2006, as A’s date of appointment as a probationary teacher was June 14, 2006.

Addressing the merits of A’s appeal, the Commissioner said that in determining the order of seniority of teachers within a district "it is clear that the teacher whose appointment occurred first had a longer seniority ... than the teacher who was appointed upon a later resolution ….However, if teachers have equal service, a board of education must evaluate whether the teachers' appointment dates are identical and if they are, then the board may use an objective means to break the tie in determining seniority.”

The District contended that a teacher’s right to seniority credit includes service as a full-time substitute when such service immediately precedes a probationary appointment but that service as a full-time substitute does not accrue unless it is followed by a probationary appointment and “it is the probationary appointment which must be considered when determining seniority for excessing purposes.” The Commissioner rejected this argument.

The board also argued that its use of the probationary appointment date to determine seniority in a case of equal seniority was proper for the board to use as a  reasonable means to break the tie.  Again the Commissioner disagreed, noting that “[i]f teachers have equal service, a board of education must evaluate whether the teachers’ appointment dates are identical and if they are, then the board may use an objective means to break the tie in determining seniority.”*

Citing Matter of Ducey, et al., 65 St Dept Rep 65, an appeal decided in 1943, the Commissioner explained “[t]he date when a teacher commenced her [or his] service in the system is the date she [or he] started her probationary period, if that was the first date that she [or he] became connected with the system.  If she [or he] had been employed by the board as a regular substitute prior to the service as a probationary teacher, the date of the commencement of regular substitute service is the date of commencement of her [or his] seniority.  Teachers employed on a regular substitute basis are ordinarily, and should be, employed pursuant to board action.”

Here, said the Commissioner, both A and B commenced service as regular full-time substitutes on September 1, 2005 and the record shows that A was appointed to the full-time regular substitute position on July 6, 2005, more than two months before B was appointed by board action on September 14, 2005. Accordingly, the Commissioner applied “the long-settled principles of Ducey,” holding that A’s July 6, 2005 appointment to the regular full-time leave replacement position, which occurred pursuant to board action, indicates his commencement of service within the system, it is that initial appointment date from which both the seniority calculation and appointment date determination should have been made.” 

While the board properly calculated the service time of A and B to include their full-time leave replacement positions, the district “erred in selecting the 2006 probationary appointment dates as the dates which established seniority.”

The Commissioner then ordered the board to reinstate A “to the position to which he is entitled in accordance with this decision, and provide him with back pay and benefits and seniority credit from June 30, 2013, less any compensation he may have earned in the interim.”

*See Matter of Kulick, 34 Ed Dept Rep 613, Decisions of the Commissioner of Education, Decision No. 13,428.
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