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Decision No. 12,667

Appeal of ALBERT WILCOX from action of the Board of Education of the New Lebanon Central School District relating to termination of services.

Decision No. 12,667

(March 20, 1992)

Bernard F. Ashe, Esq., attorney for petitioner, Gerard John DeWolf, Esq., of counsel

O'Connell and Aronowitz, Esqs., attorneys for respondent, Kristine Amodeo Lanchantin, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals from respondent's termination of his services, resulting from the abolition of his teaching position. The appeal must be sustained.

Petitioner was employed by the New Lebanon Central School District ("respondent") since September 1, 1974, when he was granted a probationary appointment in the secondary tenure area as a teacher of social studies, driver education and reading. On May 23, 1977, he was granted tenure as a social studies teacher within the secondary tenure area. In May 1989, respondent reassigned petitioner for the 1989-90 school year to a position as a full-time driver education teacher. Upon notification of the reassignment, petitioner made a written request to respondent's superintendent of schools to clarify the impact of his reassignment on his tenure rights. On May 15, 1989, respondent informed petitioner in writing that since driver education fell into the general secondary tenure area "your assignment to such position will in no way impair your tenure rights . . . . [and] . . . . [y]ou will continue to accrue seniority in the secondary tenure area as you have since 1974".

On January 30, 1991, petitioner was informed that respondent had abolished one full time position in the secondary tenure area, effective July 1, 1991, due to the elimination of driver education from the school curriculum. As a result, petitioner was informed that because he was the least senior teacher in the secondary tenure area, he would no longer be employed by the district.

Petitioner contends that as a teacher hired prior to August 1, 1975, he is not the least senior employee within the district in the general secondary tenure area, having seniority rights over tenured teachers hired thereafter. Petitioner requests that I nullify respondent's action and award him back pay plus benefits.

Respondent alleges that petitioner was properly terminated because he is the least senior teacher in the district within the general secondary tenure area. Respondent also asserts that the district met its obligation to reshuffle schedules to maintain petitioner by examining every alternative to place him in a position in which he is both tenured and certified. In its review, respondent apparently examined the certification of teachers in the social studies and physical education tenure areas and determined that none of them were multiply certified. Respondent asserts that beyond the actions taken, it is not required to rearrange teaching schedules where it is neither financially or educationally feasible to do so. Respondent also argues that it is unauthorized to assign teachers out of their certification area.

As a procedural matter, respondent requests that all necessary parties be joined in this appeal to protect respondent's interests, to avoid a multiplicity of lawsuits and to avoid liability for claims to back pay. Respondent also requests that if petitioner prevails, I determine which teacher in the district would be properly terminated.

I decline to require joinder of the parties potentially impacted by this decision. As a general rule, joinder is necessary where the rights of an individual would be inequitably affected by a proceeding (Appeal of Zimmerman, 28 Ed Dept Rep 382; Matter of Spataro, 24 id. 392). However, an appeal need not be dismissed for failure to join teachers who might be "bumped" in the event a teacher were reinstated (Boyer v. West Seneca School District, 132 Misc. 2d 282 [1986]). Moreover, where a school district misapprehends a teacher's proper tenure area and has not properly determined his seniority in comparison with other teachers in the same tenure area, joinder is premature (Matter of McNamara v. Board of Education, 54 AD2d 467 [1976]). That is precisely what has occurred here.

Section 2510(2) of the Education Law provides:

"Whenever a board of education abolishes a position...., the services of the teacher having the least seniority in the system within the tenure of the position abolished shall be discontinued."

Because petitioner received his probationary appointment prior to August 1, 1975, his position is not subject to Part 30 of the Rules of the Board of Regents that established separate special tenure areas in contrast to the previous broad general tenure areas (8 NYCRR 30.2). Pre-Part 30 teachers in the general secondary tenure area enjoy greater seniority rights than post-Part 30 teachers employed in narrow tenure areas previously included within the broader tenure area (Matter of Berowski, 28 Ed Dept Rep 53; Matter of Murphy, 22 id. 616).

Respondent erred when it considered petitioner's seniority rights only in relation to other pre-Part 30 teachers in his tenure area rather than in relation to those post-Part 30 teachers whose tenure fell within petitioner's broad tenure area. Respondent also concluded incorrectly that teachers hired after August 1, 1975, in either the social studies and physical education tenure areas who were not multiply certified could not be reassigned to retain petitioner. In reaching its decision, respondent misconstrued its obligation to reshuffle its teaching assignments and schedules to preserve senior teachers in positions within their area of certification (Matter of Steele v. Board of Education, 53 AD2d 674, aff'd 42 NY2d 840, [1977]; Matter of Amos v. Board of Education, 54 AD2d 297, aff'd 43 NY2d 706 [1977]). Consistent with Education Law '2510, respondent was obligated to reshuffle the schedules of any teacher less senior than petitioner to preserve his position in an area where he was both tenured and certified. Instead, respondent not only concluded erroneously that teachers hired after August 1, 1975, in the social studies and physical education tenure areas were senior to petitioner but also concluded that because they were not multiply certified, their schedules could not be reshuffled to preserve petitioner's position.

Because petitioner served within respondent's general secondary tenure area at all times since 1974, he enjoys seniority rights over every post-Part 30 teacher employed by respondent in the narrow Part 30 tenure areas (Murphy, supra). Therefore, petitioner has seniority rights over all post-Part 30 teachers, including those social studies and physical education teachers who respondent claims it could not reassign. Respondent is obligated, therefore, to the extent possible, to reinstate petitioner to a position in which he is both tenured and certified to teach (see Chambers v. Bd. of Ed., 62 AD2d 109, aff'd 47 NY2d 279 [1979]; Amos v. Bd. of Ed., 54 AD2d 297, aff'd 43 NY2d 706 [1977]; Steele v. Bd. of Ed., 53 AD2d 674, aff'd 42 NY2d 840 [1977]; Lynch v. Nyquist, 41 AD2d 363 aff'd, 34 NY2d 588 [1974]).

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent board of education's action terminating petitioner's services is annulled; and

IT IS FURTHER ORDERED that respondent board of education reinstate petitioner to a teaching position in accordance with the terms of this decision, with back pay and benefits as of July 1, 1991, less any compensation he may have earned in the interim.

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