October 2, 2017

Determining an educator's seniority in a tenure area for the purposes of layoff upon the abolishment of a position or positions


Determining an educator's seniority in a tenure area for the purposes of layoff upon the abolishment of a position or positions
Decisions of the Commissioner of Education, Decision No. 17,190

On June 16, 2008 16 elementary education teachers received appointments to positions in the elementary education tenure area effective September 1, 2008.  On June 16, 2015, the School Board [Board] abolished eight positions in the elementary education tenure area. effective July 1, 2015. Scott Page, Kiernan Terranova and Penny Valvo, [Respondents] were among the teachers retained while Gwendolyn Gingrich, Cindy Inglut and Kyle Mack [Petitioners] were among those excessed following the abolishment of the 8 positions.*

Petitioners initiated an Article 78 proceeding challenging the Board's decision to excess them as a result of the abolishment of the eight position, contending that they were "not the least senior persons in the elementary tenure area." Supreme Court, Erie County, granted the school district’s motion to dismiss for lack of primary jurisdiction** and the Commissioner of Education assumed jurisdiction in the matter.

Petitioners contend that the Board erroneously credited Page, Terranova and Valvo with more seniority credit than Petitioners by providing them with seniority credit for prior interrupted substitute service.  Petitioners asked the Commissioner to rule that the Board violated Education Law §§2510(2) and 3013(2) and to reinstate them "with back pay, lost seniority credit, pension credits and other emoluments of the positions."

After considering procedural issues the Commissioner noted that it was undisputed that:

1. Petitioners were continuously employed by school district from September 1, 2008 through July 1, 2015 and that Page, Terranova and Valvo were each appointed by the Board on June 16, 2008. 

2. The record shows that the Board credited Page for regular substitute service from April 1, 2008 through June 12, 2008 (the school year ended on June 20, 2008); Terranova for regular substitute service from February 26, 2008 through June 13, 2008 (the school year ended on June 20, 2008); and Valvo for regular substitute service from April 6, 2006 to June 30, 2006, August 30, 2006 through June 30, 2007 and September 10, 2007 through November 16, 2007; thereby crediting these Respondents with more seniority credit.

The issue to be resolved, as identified by the Commissioner was whether the Board properly credited Respondents for substitute service that was not immediately prior to their June 16, 2008 probationary appointments for purposes of calculating seniority credit for the purposes of layoff under Education Law §§2510(2) and 3013(2) "where it appears from the record that respondents Page and Terranova’s service ended a week prior to their probationary appointment and respondent Valvo’s service ended more than a year before her probationary appointment."

Education Law §§2510(2) and 3013(2) govern the rights of individuals relate to a teacher’s abolition rights and provide, in pertinent part, "Whenever a trustee, board of trustee, board of education or board of cooperative educational services abolishes a position under this chapter, the services of the teacher having the least seniority in the system within the tenure of the position abolished shall be discontinued."

The Commissioner then observed that:

a. It is well-settled that for purposes of determining the seniority rights of teachers when a position is abolished, it is the teacher having the least seniority in the tenure area of the position abolished whose services must be discontinued;

b. It is well-settled that seniority credit for full-time substitute teaching under Education Law §2510(2) need not immediately precede full-time probationary experience; and

c. The Court of Appeals accepted the Commissioner’s interpretation in Appeal of Carey, 31 Ed Dept Rep 394, Decision No. 12,678, that a teacher whose full-time regular substitute service was interrupted could nonetheless receive seniority credit for such service.

In Carey the Commissioner said that Education Law §2510's "salutary purpose is furthered by allowing seniority credit for full-time substitute teaching even though interrupted." In contrast, the Commissioner has ruled that [i] “Teachers lose their seniority rights when they sever service with the school district" and [ii] "A teacher whose full-time service is interrupted by part-time service in the same district does not lose the right to claim such prior full-time service for purposes of seniority.”

The Commissioner concluded that the relevant consideration in this instance is whether Page, Terranova and Valvo’s employment in the school district was severed by the teacher or the district and concluded that Petitioners failed to meet their burden of proving that Respondents voluntarily severed their employment with the district. 

In the words of the Commissioner: "All that is established on the current record is that each of these Respondents had a regular substitute position that terminated prior to their probationary appointments, which suggests that their substitute service was terminated by the district." Accordingly, the Commissioner dismissed Petitioners' appeal, holding that the Board "properly treated [Respondents'] prior regular substitute service as interrupted rather than severed service and properly credited them for their prior regular substitute service in the district."
 
* Petitioners characterize the district’s decision as "abolishing their positions." It would be more accurate to state that the district abolished eight positions and then determined that Petitioners were the least senior in the tenure area of the positions abolished. Only in the event the incumbent was the sole individual having tenure in the tenure area of the abolished position could it be said that his or her position was abolished.

** The Doctrine of Primary Jurisdiction is applied in the event a judicial tribunal determines that the petitioner[s] should have first appealed to the Commissioner of Education  as he or she "is uniquely suited to resolve the matter and . . . possesses the specialized knowledge and experience required to determine the factual issue" involved in the litigation [see, for example, Donato v. Bd. of Educ., 286 A.D.2d 388].

The decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume57/d17190

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