July 31, 2015

Rules protect teachers from being deprived of seniority credit in a tenure area if they unwittingly accept, and serve in, out-of-area assignments

Rules protect teachers from being deprived of seniority credit in a tenure area if they unwittingly accept, and serve in, out-of-area assignments
Cronk v King, 2015 NY Slip Op 06396, Appellate Division, Third Department

In this Article 78 action, Supreme Court granted Jennifer Cronk’s petition to annul the determination of Commissioner of Education dismissing Cronk's appeal of a determination by the Valhalla Union Free School District terminating her employment based on its finding that she was "the least senior" teacher in her tenure area.

Cronk is a teacher certified to teach English to students in grades 7-12. In 2000, Valhalla appointed Cronk to a three-year probationary position in the English 7-12 tenure area and assigned her to teach computer applications courses. In 2003 Valhalla granted Cronk tenure in the English 7-12 tenure area. 

Valhalla abolished two positions in the English 7-12 tenure area at the end of the 2010-2011 academic year and determined that Cronk was the “least senior” teacher in the English 7-12 tenure area because she had earned no seniority for the purposes of layoff as she taught computer classes rather than English classes. Accordingly Valhalla terminated Cronk's employment and [presumably] placed her name on a preferred list.

Cronk appealed Valhalla’s decision to the Commissioner of Education arguing, among other things, that she should not have been terminated due to lack of seniority because, regardless of her specific teaching assignment, certain protections afforded to educators by 8 NYCRR subpart 30-1 of the Rules of the Board of Regents protected her seniority in the English 7-12 tenure area.

Ultimately, the Commissioner dismissed Cronk's appeal on the ground that she failed to join necessary parties. The Commissioner further stated that Cronk's appeal would, in any event, have been dismissed on the merits because he found that the “regulatory protections” Cronk relied upon were inapplicable.

Upon review, Supreme Court granted Cronk’s petition, annulled the Commissioner's determination and remitted the matter to Valhalla to determine whether Cronk's 11 years of accrued seniority entitle her to reinstatement. Valhalla appealed Supreme Court’s ruling but the Appellate Division sustained the lower court’s decision..

As to Valhalla’s argument that Supreme Court erred in its determination that the Commissioner improperly dismissed Cronk's appeal for failing to obtain "leave or direction" to join necessary parties, the Appellate Division said that after Cronk filed her original petition with the Commissioner, it became clear that the jobs of two other teachers who were not named as respondents could be affected if Cronk were reinstated.

Cronk then submitted a letter to the Commissioner that clearly requested permission to amend her petition for the express purpose of joining the two teachers as necessary parties and enclosed along with it a copy of the proposed pleading, with proof of service on all parties. Subsequently Cronk received a response from the State Education Department stating that "the amended petition has been accepted for consideration." In view of this, said the Appellate Division, the Commissioner's determination that Cronk “neither sought nor received permission to join any additional parties" lacks a rational basis and, thus, was properly annulled by Supreme Court.

As to Valhalla’s contention that Cronk failed to exhaust her administrative remedies before filing her CPLR Article 78 proceeding by not first petitioning the Commissioner to reopen her appeal based upon a mistake of fact as to whether she had sought permission to join necessary parties, the Appellate Division concluded that seeking to have the Commissioner reopen her appeal would have been futile inasmuch as the Commissioner held that her petition would have been dismissed on the merits even if it had not been dismissed for failure to join necessary parties.

Further, said the court, “Even if the Commissioner was operating under a misapprehension of the facts as to whether [Cronk] had sought and received permission to join necessary parties, neither party argues that his explanation as to why [Cronk’s] appeal would fail on the merits was subject to any such misapprehension.”

The Appellate Division then addressed “the merits,” and citing Education Law §3013[2], said that whenever a board of education abolishes a teaching position, "the services of the teacher having the least seniority in the system within the tenure of the position abolished shall be discontinued." The Rules  define "[s]eniority" as an educator's "length of service in a designated tenure area [that] shall[,] during each term for which seniority credit is sought, have constituted a substantial portion of the time of the professional educator," a "substantial portion of . . . time" being defined as "40[%] or more of the total time spent by a professional educator in the performance of his [or her] duties, exclusive of time spent in preparation, monitoring or in co-curricular activities."

Cronk, said the court, conceded that although Valhalla awarded her tenure in the English 7-12 tenure area, she never spent 40% or more of her time teaching English classes. Rather she argued that her seniority was preserved by another of the Rules, 8 NYCRR 30-1.9[c], which states that "[n]o professional educator, whether on tenure or in probationary status, may be assigned 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 or is in probationary status, without his [or her] prior written consent."

The Appellate Division said that the evidence demonstrated that Cronk was a professional educator and Valhallaassigned her “exclusively to teach computer classes,” which the Valhalla admits was an assignment outside of her probationary and acquired English 7-12 tenure area. Significantly, the court said that the record was devoid of evidence that Cronk was aware that she was given an out-of-area assignment or that she consented to such an assignment in writing.

In contrast, the Commissioner determined that the protections of 8 NYCRR 30-1.9(c) did not apply to Cronk because, "[f]rom the inception of her employment[,] . . . petitioner never devoted a substantial portion of her time within the English 7-12 tenure area."

The Appellate Division said that “Even according deference to the Commissioner's construction and interpretation of the regulations, as we must," it could not agree that this interpretation is rational or reasonable,” explaining that “Nowhere in the language of 8 NYCRR 30-1.9 (c) is there a requirement that professional educators must first spend some of their time teaching within their probationary or acquired tenure areas before earning the right to consent to an out-of-area assignment.”

As the Commissioner's interpretation reads this nonexistent requirement into the provision, the Appellate Division said it viewed it as "an artificial or forced construction," Further, said the court, the Commissioner's interpretation “also runs contrary to the underlying purposes of the Rules governing teacher tenure and seniority credit,” citing the Court of Appeals' ruling in Kaufman v Fallsburg Cent. School Dist. Bd. of Educ., 91 NY2d 57. In Kaufman it was noted that 8 NYCRR former 30.9 (b) (now 8 NYCRR 30-1.9 [c]) "protects teachers from being deprived of credit in a previously appointed tenure area if they unwittingly accept, and serve in, out-of-area assignments."*

As the "twofold protective purpose" of 8 NYCRR 30-1.9 (c) is  [1] to protect teachers from unknowing, involuntary out-of-area assignments and [2] allowing for the accrual of seniority credit in their original tenure area if they should accept such an assignment  the Appellate Division held that these protections are defeated if the provision is construed in such a way as "to block a teacher from receiving seniority credit which, absent school district error, would have been received by reason of actual service in an out-of-tenure area." Accordingly, the Appellate Division concluded that the Commissioner's interpretation of 8 NYCRR 30-1.9(c) defeated these protections and ruled that Supreme Court properly annulled the Commissioner's confirmation of Cronk's termination.

As noted above, Supreme Court's order had remitted the matter to Valhalla to determine whether Cronk's 11 years of accrued seniority entitle her to reinstatement to her position, presumably with back salary and benefits. In Joan Carey v Rockville Centre CSD, Comm. of Ed. Decision 12,678, the Commissioner ruled that the teacher’s seniority had to be recalculated and if it was found that she was not the least senior teacher in the tenure area at the time of the layoff, she was to be reinstated with back salary and benefits.

* In Speichler v. Board of Co-op. Educational Services, 90 NY2d 110, the court held that Deer Park violated the educator’s rights “as established by the statutory scheme instituted in this State which, [educator] correctly notes, is to be read broadly in favor of the teacher.”

The decision is posted on the Internet at:

The Layoff, Preferred List and Reinstatement Manual - a 645 page e-book reviewing the relevant laws, rules and regulations and summarizing selected court and administrative decisions involving layoff issues. For more information click on


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