Wednesday, October 08, 2014

A full time employee’s refusal to accept a part time position does not affect the individual’s right to have his or her name placed on an appropriate preferred list



A full time employee’s refusal to accept a part time position does not affect the  individual’s right to have his or her name placed on an appropriate preferred list
Gervais v Board of Educ. of E. Aurora Union Free Sch. Dist., 2014 NY Slip Op 06414, Appellate Division, Fourth Department

In this CPLR Article 78 proceeding Supreme Court determined that the denial of certain teachers' rights to have their names placed on the preferred eligibility list was arbitrary and capricious. The court directed that the school district reinstate their names on the appropriate preferred eligibility list. The Appellate Division unanimously affirmed the lower court’s ruling.

The school district had contended that the teachers were not entitled to be placed on the preferred eligibility list because they had refused to accept the part-time teaching positions offered to them.*

The Appellate Division pointed out that Education Law §2510 (3) (a) provides that, if a teaching position "is abolished or if it is consolidated with another position without creating a new position, the person filling such position at the time of its abolishment or consolidation shall be placed upon a preferred eligible list of candidates for appointment to a vacancy that then exists or that may thereafter occur in an office or position similar to the one which such person filled without reduction in salary or increment, provided the record of such person has been one of faithful, competent service in the office or position he or she has filled."

Further, said the court, an individual "on such preferred list shall be reinstated or appointed to such vacancies . . . in the order of their length of service in the system at any time within seven years from the date of abolition or consolidation of such office or position."

The court explained that by reducing the teachers’ full-time teaching positions to part-time positions of .4 full time equivalent [FTE] and .2 FTE respectively, the district had "effectively abolished the full-time position[s] and created [] new part-time position[s]," thereby triggering teachers' rights under Education Law §2510 to be placed on the preferred eligibility list for possible reemployment in a full-time position.**

The fact that the teachers rejected the offer of appointment to a.4 FTE and .2 FTE position, respectively, which resulted in their termination from the school district, did not render them ineligible for placement on the preferred eligibility list nor to appointment from such a list should they become eligible for appointment to a suitable vacancy.

* On appeal the school district’s argued that the teachers “were not entitled to placement on the preferred eligibility list because they did not have tenure.” The Appellate Division said that any argument based on an alleged lack of tenure was not properly before it inasmuch as that argument was raised for the first time on appeal.

** See, also, Appeal of Morehouse, Decisions of the Commissioner of Education, Decision #13,896

For additional information concerning the layoff of personnel in the public service click on http://booklocker.com/books/5216.html.

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Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

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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