Monday, 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

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

The Discipline Book at

Challenging Adverse Personnel Decisions at

The Disability Benefits E-book: at

Layoff, Preferred Lists at


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