December 28, 2016

Difficulties result following the appointment of a teacher to an “unauthorized tenure area”

Difficulties result following the appointment of a teacher to an “unauthorized tenure area”
Decision of the Commissioner of Education, Decision No. 17,011

A teacher [Teacher] appealed the decision of the Board of Education that resulted in his being “excessed” following the abolishment of his position by the Board.  The Commissioner held that his appeal must be sustained in part.

Teacher held permanent certification as a teacher of English 7-12 and a gifted education extension. He was permanently appointed to the position subject to his satisfactory completion of a probationary period and ultimately received tenure in that "area" effective September 1, 2007.
Teacher’s position was abolished effective June 30, 2013 whereupon he challenged his being laid-off, contending that the district had “improperly appointed him to an unauthorized tenure area, in violation of Part 30 of the Rules of the Board of Regents” and he should have been accruing seniority credit in his area of certification pursuant to 8 NYCRR 30-1.2(b) of the Rules of the Board of Regents and should be retained by the district as he is not the least senior teacher in the 7-12 English tenure area. 

Accordingly, Teacher asked the Commissioner to annul the district’s termination of his employment and direct the school board to reinstate him to a position in the English 7-12 tenure area, with back pay, benefits and seniority.

The school district, conceding that it had improperly assigned Teacher to an unrecognized tenure area, argued that Teacher “did not spend more than 40 percent of his time performing duties in his certificate area or in instructional support services and that he failed to meet his burden of proof.” In addition, the school district contended that Teacher “failed to mitigate his damages.”

The Commissioner said that in the event a board 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” (Education Law §3013[2]).  Therefore, the district must first identify the tenure area for the position to be abolished.”

In this instance, however, the school district mistakenly appointed an educator to a non-existent or incorrect tenure area. Accordingly, said the Commissioner, the school district "had an obligation to correct that mistake by retroactively appointing that teacher to a position that most closely resembles the recognized tenure area with the duties the teacher is actually performing.” In so doing, the Commissioner explained that “it is the actual nature of the abolished position that must be considered.  The certification, proper or improper, and the tenure status of the holder of the position, correctly determined or otherwise, are not controlling.”

On the record before her, the Commissioner said that it was unclear whether the school district ever conducted a detailed analysis of the duties of the position to be abolished.  On the other hand, and conceding that he has never taught in the academic tenure area of English 7-12, Teacher contended that he was spending more than 40 percent of his time providing instructional support services, and under 8 NYCRR §30-1.2(b)(2) he was entitled to credit for tenure and seniority “in a tenure area for which he holds the proper certification”.  Further, Teacher argued that since he was certified in English 7-12, the school district was obligated to assign him to the English 7-12 tenure area, in which tenure area he was not the least senior teacher. 

In contrast, the school district denied the representation that the Teacher’s job duties involved providing instructional support services for a substantial portion of his time, and asserted that he was appointed and served as a teacher of core academic subjects to gifted and talented students in grades three through six.

The Commissioner observed that “it is unclear whether [the school district] ever affirmatively determined the authorized tenure area(s) to which [Teacher’s] position should be reclassified and then determined seniority within such tenure area(s) as it is required to do. Rather, the school district’s superintendent “erroneously asserts that [the school district] could not reclassify [Teacher] to an elementary or middle school tenure area because he did not hold certification to teach in those tenure areas, and therefore was not legally qualified for such position. However, the Commissioner explained that “a district may not circumvent Education Law §3020-a by excessing a tenured, certified teacher based on their lack of certification to teach in the tenure area of an abolished position.”

The Commissioner ruled that, based on the record before her, Teacher had met his burden of demonstrating that at least 40 percent of his time was spent in the elementary tenure area (teaching gifted and talented instruction to elementary school students). Further, noted the Commissioner, Teacher may also be entitled to credit for his service in the English 7-12 tenure area within the exception created by 8 NYCRR §30-1.2(b)(2) for instructional support services.

Further, the Commissioner determined that the school district failed to refute Teacher’s assertions and the many affidavits submitted on Teacher’s behalf indicating that he taught gifted and talented education to elementary/middle school students for 40 percent or more of his time and/or spent more than 40 percent of his time performing instructional support services as defined in 8 NYCRR 30-1.1 of the Rules of the Board of Regents. 

However, since it was unclear from the record what percentage of Teacher’s duties was spent performing instructional support services from the 2005-2006 school year until June 30, 2013 and what percentage of his time was spent performing duties in the elementary tenure area (teaching gifted and talented instruction to elementary school students), when Teacher’s position was abolished, the Commissioner ruled that it was  appropriate to remand this matter to school district for a determination of Teacher’s seniority rights with respect to performing instructional support services in the certification area of English 7-12 and Teacher’s seniority rights with respect to performing services in the elementary tenure area, and based on his seniority in these two areas, his right to reinstatement as a teacher in the English 7-12 tenure area and/or elementary tenure area on June 30, 2013, “in accordance with 8 NYCRR 30-1.1 of the Rules of the Board of Regents and this decision.”


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