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August 17, 2017

Determining seniority and tenure area of teachers in the event of the abolishment of positions


Determining seniority and tenure area of teachers in the event of the abolishment of positions
Decisions of the Commissioner of Education, Decision No. 17,137

Petitioner [M] appealed the decision of the School Board [Board] terminating her employment as the result of "the abolishment of her position."

At the time of this appeal the district employed three teachers, M held a permanent certification as a teacher of Nursery, Kindergarten and Grades 1-6, as well as a Students with Disabilities (Grades 1-6) professional certificate. On September 1, 1998, M had been given a probationary appointment in the position of Teacher - Primary Grades and granted tenure in the Elementary Education K-6 tenure area effective September 1, 2001

The other staff members at this time consisted of two teachers, C and N, and two teaching assistants.  C was given a probationary appointment in the Elementary Education K-6 tenure area in September 2009 and was subsequently granted tenure effective September 1, 2012.  N, the then third teacher in the district, was given a probationary appointment on September 1, 2011 in the Elementary Education K-6 tenure area.

Effective July 1, 2004, M was designated as a Teacher on Special Assignment with a "Teacher Center." Although M served as the Director at the Teacher Center, she remained an employee of the district, was continued on its payroll and continued to accrue seniority in the Elementary Education K-6 tenure area.  The district was reimbursed for her "district-paid compensation" by the Teacher Center.

At its April 15, 2014 meeting, the Board adopted a resolution establishing a “Hybrid Tenure Area: Elementary Education K-6/Special Education” and the two teachers then in service, C and P, were granted tenure in the new “hybrid” tenure area and their seniority credit was not affected.  N, the third teacher on staff, had been appointed as a probationary teacher in the Elementary Education K-6 tenure area effective September 1, 2011 and her probationary appointment was “carried forward” to the “hybrid” tenure area and her service thus far with the district was credited in the new, hybrid tenure area and she was subsequently granted tenure effective September 1, 2014. M, however, was retained in the K-6 Elementary tenure area.

P resigned and by letter dated May 21, 2014, M advised the district of her intention to return to the district in the fall. M was then notified that the position she was seeking to fill upon her return required a special education certification, which certification M did not then possess.  However, M notified the district she would possess the necessary special education certificate by the beginning of the 2014 school year. On August 18, 2014, M was assigned to non-classroom curriculum development duties in the district.

At its April 16, 2015 meeting, the board voted to abolish one teaching position in the Elementary Education K-6 tenure area effective June 30, 2015 and M was determined to be the least senior teacher in that tenure area. As a result M was excessed, effective June 30, 2015

M, asserting that she was the most senior teacher in the district, appealed her being excessed to the Commissioner of Education, seeking reinstatement with full salary and benefits, retroactive to June 30, 2015.  M contended that the Board’s actions granting retroactive tenure and seniority credit to C and N in the new “hybrid” tenure area was illegal, arguing that the board’s creation of a “hybrid” Elementary Education K-6/Special Education tenure area, and the transfer of these two teachers to that tenure area while leaving her in the prior Elementary Education K-6 tenure area constitutes impermissible retroactive restructuring of her tenure area and circumvented her tenure and seniority rights. 

The Board, in rebuttal, [1] raised a procedural issue, contending that M's appeal must be dismissed "for failure to join necessary parties," and [2] contended that its creation of a “hybrid” Elementary Education K-6/Special Education tenure area was legally proper.
  
In support of its claim that necessary parties had not been served, the Board argued that there were two teaching assistants in the district that work under the supervision of  C and N and should M prevail and be reinstated, “the likely result” will be the excessing of  N, and one or both of the teaching assistants for budgetary reasons.

Noting that a party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such and be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense, the Commissioner rejected the Board's argument that M's appeal must be dismissed for failure to join necessary parties, .

Here the Board eliminated a position in the Elementary Education K-6 tenure area as a result of which M was excessed and to which she seeks reinstatement.  Teaching assistants, explained the Commissioner, hold certificates that are separate and distinct from elementary education teachers and are authorized to act only under the general supervision of a licensed or certified teacher and do not serve in the same tenure area as a classroom teacher such as M.  Thus, such individuals will not, as matter of law, be affected should M prevail in this matter. The Commissioner pointed out that Education Law §3013(2) provides that when a position is abolished, “the services of the teacher having the least seniority in the system within the tenure of the position abolished shall be discontinued.” 

Further, the Commissioner said that the Board's "speculation as to how the district would resolve a budgetary issue should M prevail in this appeal is insufficient to support a conclusion that the teaching assistants would be adversely affected, warranting their joinder as respondents."

Turning to the merits of M's appeal, the Commissioner acknowledged the Board's argument that the district was exempt from the tenure areas requirements set forth in Part of 30 of the Rules of the Board of Regents "because it employs fewer than eight teachers." However, said the Commissioner, the Board is still subject to Education Law §3012-a, which defines the elementary tenure area.
 
Significantly, the Commissioner observed that §3012-a provides that, with exceptions not relevant here, “elementary tenure area shall mean kindergarten through grade 6 for teachers employed in such grade levels [after May 13, 1975].  All teachers holding tenure [as of May 13, 1975] in the kindergarten tenure area or grade one through six tenure area shall be deemed to hold tenure in the elementary tenure area as defined by this section.” The Commissioner pointed out that, as a matter of law, "all teachers in kindergarten through grade six, apart from those in a special tenure area, shall be in a single elementary tenure area without regard to the organizational pattern of the district."

Another consideration: the Commissioner observed that a “hybrid” elementary education/special education tenure area is not permitted under Education Law §3012-a, nor is it permissible to simultaneously have an elementary tenure area and such a hybrid tenure area as the Board attempted to create in this case. 

In the words of the Commissioner, the Board "had no authority to create such hybrid tenure area" and its April 15, 2014 action establishing the “hybrid” Elementary Education K-6/Special Education tenure area, as well as the transfer of C and N to that “hybrid” tenure area, was not permissible "and void ab initio."  This meant that C and N remained in the Elementary Education K-6 tenure area for the purposes of determining seniority in the event of a layoff.

Noting that when abolishing a position in the Elementary Education K-6 tenure area the Board, was required to excess the teacher(s) “having the least seniority in the system within the tenure of the position abolished,” the Commissioner said that, based on her findings, C and N never served in the unauthorized “hybrid” Elementary Education K-6/Special Education tenure area. Rather they remained in the authorized Elementary Education K-6 tenure area and the Board must calculate the seniority of M, C and N as of April 16, 2015, in the Elementary Education K-6 tenure area. 

Further, if the Board finds that M was not the least senior teacher in that tenure area, it must reinstate her to her position with back pay and benefits effective June 30, 2015.

The decision is posted on the Internet at: 
http://www.counsel.nysed.gov/Decisions/volume57/d17137

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