Determining an educator's seniority for the purposes of layoff

Determining an educator's seniority for the purposes of layoff

Decisions of the Commissioner of Education, Decision No. 17,140

Education Law §§2510(2) and 3013(2) provide that when a board of education 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.”  Further, in determining which position within a tenure area is to be abolished "seniority credit shall be awarded for time served in a position for which the teacher did not hold proper certification, at the time, because certification is not controlling in determining seniority credit for this purpose." 

In this appeal to the Commissioner of Education the Petitioner alleged that she was improperly excessed from her position in violation of Education Law §2510 as she had spent at least 50 percent of her time teaching social studies in both the 2008-2009 and 2009-2010 school years and thus she had greater seniority than another social studies teacher and that teacher should have been excessed. Petitioner requested that the Commissioner declare the school board’s actions excessing her null and void and to direct the school board to reinstate her to her former position "with full seniority rights, benefits and pay retroactive to September 1, 2014."*

The school district, in rebuttal, contended that the earliest Petitioner could begin to accrue seniority in the tenure area of social studies was the date upon which she received certification in social studies. Accordingly, the school district argued Petitioner was the least senior teacher in the social studies tenure area and that its decision to terminate her services was proper. In so doing the school board cited the Appellate Division's decision in Abdallah v. Bd. of Educ. of Massena Cent. Schools, 61 AD2d 1096, in support of its action.

In Abdallah the court held that the petitioners in that case, nurse-teachers whose positions were abolished and replaced by registered nurse positions, "were not certified in the tenure area of the position abolished" and thus they “could not possibly have gained tenure and seniority in those tenure areas.” However, the Commissioner opined that this statement by the Appellate Division in Abdullah was not intended to overrule Matter of Lynch v. Nyquist, 41 AD2d 363, affirmed, 34 NY2d 588. In Lynch the court held that an uncertified teacher cannot be given seniority credit towards tenure and thus become tenured even though uncertified.

The Commissioner said "it is unclear" whether the school district ever affirmatively determined the authorized tenure area(s) to which Petitioner’s position should be classified or reclassified and then determined her  seniority within such tenure area(s) as it is required to do. Rather the school district, relying on Abdallha, "erroneously asserted that it could not reclassify Petitioner’s duties because she could not accrue seniority credit in the abolished position for the time period that she did not hold a proper certification." However, noted the Commissioner, the Appellate Division's ruling in Lynch indicated that a school 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" is still binding precedent.

Accordingly, the matter was remanded to the school board for its determination of Petitioner’s seniority rights with respect to [1] performing duties in the social studies tenure area, and [2] whether she is entitled to back pay and retroactive benefits from September 1, 2014 through October 13, 2014, in accordance with 8 NYCRR 30-1.1 and this decision.

It should be noted that the Education Law and the rules and regulations promulgated thereunder addressing seniority, tenure and layoff with respect to educators apply to those positions in the Unclassified Service as defined in §35(g) of the Civil Service Law.

In contrast, §80 [positions in the competitive class of the Classified Service]** of the Civil Service Law, subject to certain statutory exceptions, provide that "suspension or demotion, as the case may be, among incumbents holding the same or similar positions shall be made in the inverse order of original appointment on a permanent basis in the classified service in the service of the governmental jurisdiction in which such abolition or reduction of positions occurs, subject to the provisions of subdivision seven of section eighty-five of this chapter; provided, however, that the date of original appointment of any such incumbent who was transferred to such governmental jurisdiction from another governmental jurisdiction upon the transfer of functions shall be the date of original appointment on a permanent basis in the classified service in the service of the governmental jurisdiction from which such transfer was made."

Further, as the Appellate Division held in City of Plattsburgh v Local 788, 108 AD2d 1045, the statutory rights set out in §80 of the Civil Service Law may not be abrogated by the terms of a collective bargaining agreement as an individual’s seniority for the purposes of layoff may neither be diminished or nor impaired by the terms of a collective bargaining agreement.

* The record indicated that Petitioner was reinstated to her former position on October 14, 2014 and that she has continued in that position to date with full salary and benefits. Accordingly, said the Commissioner, the only issue to be addressed is "Petitioner’s request for reinstatement with back pay, interest, benefits, seniority, tenure and other emoluments of office for the period September 1, 2014 through October 13, 2014."

** See §80-a of the Civil Service Law, which provisions control with respect to positions in the non-competitive class of the Classified Service of the state as the employer in the event of a layoff of such personnel.

The decision is posted on the Internet at: 

http://www.counsel.nysed.gov/Decisions/volume57/d17140

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