April 3, 2019

Determining an educator's "seniority" for the purposes of reinstatement from a preferred list


In the event teaching positions are consolidated or abolished by a school district or a BOCES the services of the teacher having the least seniority in the system within the tenure area of the position that has been abolished shall be discontinued. In contrast, where the same or a similar vacancy becomes available and its to be filled, teachers are to be recalled for reinstatement "in the order of their length of service in the system" without reference to the tenure area in which that service was performed.*

A teacher [Educator] certified in elementary education and special education commenced working for the employer [School Board] in 2007 and was employed in a variety of positions including serving as a probationary elementary education teacher. While serving as a probationary elementary education teacher Educator was "excessed" and her name was placed on "a preferred eligible list of candidates" from which individuals would be selected for reinstatement should a similar position open in the future. When a vacancy for an elementary education teacher vacancy arose in 2013, the School Board determined that two individuals on the preferred list had greater seniority that Educator "because [Educator's] full-time regular substitute work as a special education teacher and as an elementary school librarian were not counted" in determining Educator's length of service for the purposes reinstatement from the preferred list. School District reinstated one of the two teachers having "greater seniority" to the vacancy.**

Educator appealed action of the School Board to the Commissioner of Education, contending that she should have been credited for her long-term substitute work in the school district and thus she had greater seniority than the individual the School District had reinstated to the vacancy. The Commissioner agreed and ordered that the School Board to appoint Educator to the position of elementary education teacher with back pay and benefits effective September 1, 2013. The School Board then commenced this CPLR Article 78 proceeding seeking to annul the Commissioner's determination. Supreme Court dismissed the proceeding, which ruling was affirmed by the Appellate Division.

The Appellate Division explained that a court may not substitute its judgment for that of the Commissioner unless it concludes that such determination was "arbitrary and capricious, lacked a rational basis or was affected by an error of law." Further, in making such a determination courts "tread gently in second-guessing the experience and expertise of state agencies charged with administering statutes and regulations," knowing that "[i]t is for the Commissioner in the first instance . . . to establish and apply criteria to govern the selection and retention of qualified educators and staff." Accordingly, deference is afforded to the Commissioner's determination "where, as here, it is based upon her expertise in applying an ambiguous statutory and regulatory framework."***

Although long-term substitute work is counted toward "seniority in the system within the tenure of the position" for layoff purposes if it was performed in that tenure area prior to the teacher's probationary appointment in the same tenure area, in determining the rights of an individual on a preferred list for reinstatement "any and all service within the system" is counted without any "further qualification of service in a particular tenure area." The Appellate Division also commented that "this interpretation comports with the language of Education Law §3013 and prior precedent and, in addition, avoids the negative policy outcome of deterring teachers from accepting long-term substitute work if it falls outside of their preferred tenure area."

Accordingly, the Appellate Division found the Commissioner's decision was "entitled to deference" and agreed with Supreme Court that the Commissioner's determination is supported by a rational basis and that no reason exists to set it aside.

* The Education Law controls with respect to the layoff and reinstatement of certain officers and employees employed by a BOCES, a school district, certain other public schools, academies and colleges, the New York State School for the Blind and the New York State School of the Deaf serving in positions in the Unclassified Service as described in subdivisions (g), (j) and (k) of §35 of the Civil Service Law; the Civil Service Law controls with respect to the layoff and reinstatement of officers and employees in the Classified Service serving in positions described in §§40-45 of the Civil Service Law. Further, §85 and §86 of the Civil Service Law and §242 and §243 of the State’s Military Law provide  certain rights to individuals that could be relevant in a layoff situation.

** Educator initially challenged the School Board's service calculation in a CPLR Article 78 proceeding that was dismissed by Supreme Court on its finding that the Commissioner of Education had primary jurisdiction over the matter.

*** Noting that courts have not addressed certain differences in the provisions of Education Law §3013 but have done so with regard to the "nearly identical" provisions of a statute governing abolition and recall in school districts for cities with fewer than 125,000 inhabitants, the Appellate Division opined that that the statutory language and underlying policy dictate a calculation of recall rights using "any and all service within the system, not just within the specific tenure area at issue." Accordingly, the Appellate Division held that the Commissioner  "interpreted, and reasonably so, the analogous provisions of Education Law §3013 in the same manner."

The decision is posted on the Internet at:


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The Layoff, Preferred List and Reinstatement Manual - An e-book focusing on relevant laws, rules and regulations, and selected court and administrative decisions. For more information click on  http://booklocker.com/books/5216.html
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