January 30, 2017

Determining seniority for the purpose of layoff and establishing an educator's position on a "preferred list" for the purpose of reinstatement

Determining seniority for the purpose of layoff and establishing an educator's position on a "preferred list" for the purpose of reinstatement
Matter of DeRosa and the Minisink Valley Central School District, et al, Decisions of the Commissioner of Education, Decision No. 17,028

Amanda DeRosa served full-time in her probationary appointment during the 2008–2009 and 2009–2010 school years, with the exception of the period of November 19, 2009 to January 5, 2010, during which she took unpaid maternity leave. 

The Minisink Valley Central School District [Minisink] abolished thirteen full-time positions in the elementary tenure area effective June 30, 2010 and Ms. DeRosa was notified that she would be placed on a "preferred eligibility list" [PEL] with the right to reinstatement to a position in the elementary tenure area. When Minisink recalled two other teachers on the PEL, Ms. Kristen Daly and Ms. Jeni Galligan, Ms. DeRosa claimed that at the time of the recall she had four full years of service in the system, more than Ms. Daly and Ms. Galligan and that,  in accordance with Education Law §§2510 and 3013, she should have been recalled from the PEL prior to either of those educators.

In contrast to Minisink's argument that "long-term substitute service in positions that do not ripen into probationary appointments is not counted towards seniority," the Commissioner of Education ruled that long-term substitute service should be so considered and that tenure area is irrelevant to the calculation of service for the purposes of determining an individual's ranking on a preferred list.

The Commissioner pointed out that paragraph (a) of Education Law §3013(3) addresses a teacher’s recall rights following a layoff and provides, in pertinent part that "If an office or position is abolished ...  the person filling such position at the time of its abolishment or consolidation shall be placed upon a preferred eligible list.... The persons on such preferred list shall be reinstated or appointed to such vacancies ... in the order of their length of service in the system...."

The Commissioner explained that for purposes of determining the recall rights of teachers on a PEL, length of service in the system is used, not length of service within a particular tenure area. Further, said the Commissioner, "Seniority under Education Law §2510(3), which is identical to §3013(3), has been interpreted as all service within the system, not just a particular tenure area" and it is well-settled that full-time regular substitute service counts for seniority purposes under Education Law §§2510(2). Rather, a teachers loses his or her seniority rights under Education Law §§2510(2) and 3013(2) when he or she severs, or is severed, for his or her employment with the employer, not at the result of "interrupted service" during an "uninterrupted" period of employment as the result of an authorized leave of absence without pay or for such other reason such as military leave as defined in New York State's Military Law.

The question presented in this appeal was whether the calculation of Ms. DeRosa's service in the system under Education Law §3013(3) includes long-term substitute service that did not lead to a probationary appointment in the same tenure area. This, said the Commissioner, appeared to be a question of first impression and neither party has cited to a prior decision that squarely addresses this issue nor could the Commissioner find one.

Although Minisink cited Matter of Kelley, 19 Ed Dept Rep 499, aff’d sub. nom.; Kelley v. Ambach, 83AD2d 733, as authority that substitute service not connected to a probationary appointment should not be counted towards seniority, the Commissioner noted that in Kelley an excessed assistant principal in a junior high school claimed entitlement to appointment from the a PEL to positions of assistant principal at a senior high school. As both of the senior high school positions were in a different tenure area, the Commissioner held that Minisink's "reliance on [Kelley was] misplaced," noting that Ms. DeRosa argued that she should have been recalled by Minisink to a vacant position that was in the same tenure area as the position from which she was excessed.

Accordingly, the question is whether long-term substitute service that did not lead to a probationary appointment would be creditable in determining seniority for the purposes of layoff under Education Law §3013(2) and for recall purposes under Education Law §3013(3). 

In the words of the Commissioner, "[Minisink] has not articulated any compelling policy reason why long-term substitute service that did not lead to a probationary appointment should not be counted for recall purposes when the law is clear that service in another tenure area may be counted [and] Education Law §3013(3) bases recall on length of service in the system, which would encompass full-time service as a professional educator as defined in 8 NYCRR §30-1.1(e) [and] no reason appears why full-time service as a regular substitute in a different tenure area should not be counted as part of service" at Minisink.

In consideration of the facts in this case, the Commissioner found:

1. "Where [a] petitioner is seeking reinstatement to a position in her [or his] original tenure area and [is] only claiming seniority credit for prior long-term substitute service, the petitioner is entitled to such credit for her [or his] service as a professional educator. 

2. "By analogy to the cases under Education Law §§2510(2) and 3013(2), this applies to long-term substitute service that did not immediately precede [a] petitioner’s probationary service and to interrupted service such as [Ms. DeRosa's]. 

3. There was "no basis in the statute, or as a matter of policy, for disregarding service as a professional educator in a long-term substitute position in determining total years of service in the [district] under Education Law §3013(3).

4. Ms. DeRosa's "did not sever service with the district; rather, her service was only interrupted by service in a different tenure area.

5. Ms. DeRosa had "served in a probationary appointment in the elementary tenure area until such position was abolished" and service during that probationary appointment "counted towards her seniority in the [district]."

Ms. DeRosa, at the time that her position was abolished, had four years of service in the elementary tenure area, less unpaid time taken during the 2009–2010 school year for maternity leave. In contrast, Ms. Daly had three years of service in the district and Ms. Galligan had three years of service, less some number of days of unpaid leave." Thus Ms. DeRosa had more seniority at Minisink than either Ms. Daly or Ms. Galligan."

Accordingly, the Commissioner ordered Minisink to reinstate Ms. DeRosa as elementary teacher, with back pay, seniority and benefits as of September 1, 2013, "less any compensation she may have received in the interim."

The decision is posted on the Internet at:


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

January 24, 2017

An individual's right to due process is truncated if he or she is persuaded not to attend his or her administrative hearing

An individual's right to due process is truncated if he or she is persuaded not to attend his or her administrative hearing
Kennedy v United States, USCA, Federal Circuit, Docket 16-1512

Although a federal Claims Court held that individual’s disenrollment from a program was lawful and that his breach-of-contract claims for monetary relief lacked merit, the Federal Circuit Court of Appeals reversed.

The Circuit Court ruled that in view of the government’s concession that the individual’s due process rights were violated when he was dissuaded from attending his hearing, the Claims Court erred in concluding that individual’s disenrollment was inevitable.

The decision is posted on the Internet at:

January 08, 2017

Court of Appeals' decision addresses the serving of a late notice of claim on a public entity

Court of Appeals' decision addresses the serving of a late notice of claim on a public entity
Newcomb v Middle Country CSD, 2016 NY Slip Op 08581, Court of Appeals, December 22, 2016

The issue in this appeal is whether the Supreme Court and, on appeal, the Appellate Division, abused their discretion in denying the petitioner's motion for leave to serve a late notice of claim on the Middle Country Central School District. The Court of Appeals concluded that “it is an abuse of discretion as a matter of law when, as here, a court determines, in the absence of any record evidence to support such determination, that a respondent will be substantially prejudiced in its defense by a late notice of claim. Here, the lower courts also improperly placed the burden of proving substantial prejudice solely on petitioner.” 

Accordingly, the Court of Appeals reversed the lower courts’ rulings.

The court explained that “Pursuant to General Municipal Law §50-e(1)(a), a party seeking to sue a public corporation, which includes a school district, must serve a notice of claim on the prospective defendant "within ninety days after the claim arises." General Municipal Law §50-e(5) permits a court, in its discretion, to extend the time for a petitioner to serve a notice of claim. The statute requires the court to consider whether the public corporation "acquired actual knowledge of the essential facts constituting the claim within [90 days after the accrual of the claim] or within a reasonable time thereafter" (General Municipal Law §50-e[5]). Additionally, the statute requires the court to consider "all other relevant facts and circumstances" and provides a "nonexhaustive list of factors that the court should weigh" (Williams v Nassau County Med. Ctr., 6 NY3d 531, 539 [2006]). One factor the court must consider is "whether the delay in serving the notice of claim substantially prejudiced the public corporation in maintaining its defense on the merits" (General Municipal Law §50-e[5]).

However, the Court of Appeals observed that ”... a finding that a public corporation is substantially prejudiced by a late notice of claim cannot be based solely on speculation and inference; rather, a determination of substantial prejudice must be based on evidence in the record.”

Decision highlights some essentials of the Freedom of Information Law

Decision highlights some essentials of the Freedom of Information Law
PBA of the New York State, Inc., v State of New York, 2016 NY Slip Op 08918, December 29, 2016

In this decision the Appellate Division addressed elements of the State’s Freedom of Information Law [FOIL] and explained:

"Under FOIL, agency records are presumptively available for public inspection, without regard to the need or purpose of the applicant, unless the requested documents fall within one of the exemptions set forth in Public Officers Law §87(2)" (Matter of Aurigemma v New York State Dept. of Taxation & Fin., 128 AD3d 1235, 1236-1237 [2015] [internal quotation marks and citations omitted]; see Matter of Fappiano v New York City Police Dept., 95 NY2d 738, 746 [2001]; Matter of Johnson v Annucci, 138 AD3d 1361, 1362 [2016], lv denied 27 NY3d 911 [2016]). "Exemptions are to be narrowly construed to provide maximum access, and the agency seeking to prevent disclosure carries the burden of demonstrating that the requested material falls squarely within a FOIL exemption" (Matter of Capital Newspapers Div. of Hearst Corp. v Burns, 67 NY2d 562, 566 [1986] [citations omitted]; see Matter of Town of Waterford v New York State Dept. of Envtl. Conservation, 18 NY3d 652, 657 [2012]; Matter of MacKenzie v Seiden, 106 AD3d 1140, 1141 [2013]). Notably, "blanket exemptions for particular types of documents are inimical to FOIL's policy of open government" (Matter of Gould v New York City Police Dept., 89 NY2d 267, 275 [1996]; accord Matter of Thomas v New York City Dept. of Educ., 103 AD3d 495, 498 [2013]; Matter of New York State Defenders Assn. v New York State Police, 87 AD3d 193, 196 [2011]), and the agency must "articulat[e] a particularized and specific justification for denying access" to the requested documents (Matter of Capital Newspapers Div. of Hearst Corp. v Burns, 67 NY2d at 566; accord Matter of West Harlem Bus. Group v Empire State Dev. Corp., 13 NY3d 882, 885 [2009]; Matter of Moody's Corp. & Subsidiaries v New York State Dept. of Taxation and Fin., 141 AD3d 997, 999 [2016]).

“Public Officers Law §87(2)(b) permits an agency to deny access to records, or portions thereof, if disclosure ‘would constitute an unwarranted invasion of personal privacy.’ The statute does not, however, categorically exempt such documents from disclosure. To the contrary, Public Officers Law §89 expressly permits an agency to delete ‘identifying details’ from records that it makes available to the public (Public Officers Law §89[2][a]), and provides that ‘disclosure shall not be construed to constitute an unwarranted invasion of personal privacy . . . when [such] identifying details are deleted’ (Public Officers Law § 89 [2] [c] [i]; see Matter of Scott, Sardano & Pomeranz v Records Access Officer of City of Syracuse, 65 NY2d 294, 298 [1985]; Matter of New York Times Co. v New York State Dept. of Health, 243 AD2d 157, 159 [1998]).”

N.B. The release of some public records is limited by statute [see, for example, Education Law, §1127 - Confidentiality of records; §33.13, Mental Hygiene Law - Clinical records; confidentiality]. Otherwise, an individual is not required to submit a FOIL request as a condition precedent to obtaining public records where access is not barred by statute. A FOIL request is required only in the event the custodian of the public record[s] sought declines to “voluntarily” provide the information or record requested. In such cases the individual or organization is required to file a FOIL request to obtain the information. It should also be noted that there is no bar to providing information pursuant to a FOIL request, or otherwise, that falls within one or more of the exceptions that the custodian could rely upon in denying a FOIL request, in whole or in part, for the information or records demanded.


Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the decisions summarized here. Accordingly, these summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
New York Public Personnel Law Blog Editor Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
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