BOCES takeover of school district positions
Decisions of the Commissioner of Education, Decision No. 16,592
A tenured certified physical education and health teacher [Petitioner] taught in a .2 physical education and .8 health position. Subsequently the school district reduced her position to a .5 health teacher position and ultimately Petitioner was notified that “due to fiscal resources” the board had adopted a resolution abolishing the .5 position and that her name would be placed on a preferred eligible list.
Learning that teachers employed by a BOCES would teach physical education in kindergarten through fifth grade in the district in the following academic year, Petitioner filed an appeal with the Commissioner of Education contending that the school board had “improperly circumvented her tenure and seniority rights” by making an improper arrangement with the BOCES to provide teachers to teach the courses she had previously taught.
In addition, Petitioner alleged that the school district “improperly assigned” another physical education teacher in the district to teach seven physical education classes in violation of the terms of the relevant collective bargaining agreement.
Petitioner also argued that because BOCES took over “a single teaching job” and not the district’s entire physical education program, there was no permissible BOCES takeover within the meaning of Education Law.
After addressing a number of procedural matters, the Commission addressed the merits of Petitioner’s allegations and dismissed her appeal.
Noting that Petitioner had the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which Petitioner sought relief, the Commissioner held that Petitioner failed to meet these burdens.
The Commissioner explained that Education Law §1950 provides that a BOCES “for the purpose of carrying out a program of shared educational services in the schools of the supervisory district ... at the request of component school districts and with the approval of the Commissioner of Education,*may provide certain services on a cooperative basis, including physical education services.”
Further, said the Commissioner, “prior case law has held that an entire tenure area need not be transferred to a BOCES in order to constitute a permissible BOCES takeover.”
Accordingly, the Commissioner ruled that the school district’s transfer of its pre-kindergarten through fifth grade physical education classes to the BOCES, while retaining physical education for grades six through twelve constitutes a permissible takeover by the BOCES within the meaning of Education Law §3014-a.
Turning to Petitioner’s claim that the takeover was invalid because a district teacher continued to teach seven physical education classes in alleged violation of the collective bargaining agreement, the Commissioner found that “upon the record” before him it appears that relevant provision of the district’s collective bargaining agreement permitted the challenged assignment.
Petitioner, said the Commissioner, also failed to demonstrate that the transfer to the BOCES of the school district’s pre-kindergarten through fifth grade physical education program was for an illegal purpose.
The school district had indicated that that the takeover of the elementary physical education program by the BOCES was expected to result in a significant cost savings to the district. Although Petitioner disputed the actual cost savings, the Commissioner said that she had not met her burden of establishing that school district’s expectation of savings was a ruse for an illegal purpose.
The bottom line: The Commissioner held that “After careful review of the record, I can not conclude that the BOCES takeover of [the school district’s] pre-kindergarten through fifth grade physical education program, pursuant to Education Law §3014-a, was impermissible.” Thus abolishing Petitioner’s position and her placement on its preferred eligibile list was ruled proper.
* The records of the Education Department revealed that, pursuant to Education Law §1950(4)(d)(1) and (4)(bb), a cooperative services application was approved for the BOCES to provide, among other things, shared itinerant physical education services to component districts, including Petitioner’s school district.
The decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume53/documents/d16592.pdf.