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Decision No. 12,691

Appeal of PATRICIA NETTLES from action of the Board of Education of the City School District of the City of Oswego, relating to the employment of an uncertified teacher.

Decision No. 12,691

(April 30, 1992)

Michael J. Stanley, Esq., attorney for respondent

SOBOL, Commissioner.—Petitioner, a certified teacher, appeals from respondent board of education's refusal to hire her and for instead hiring an uncertified substitute teacher to temporarily fill a position for which she applied. The appeal must be sustained in part.

Petitioner is a certified special education teacher who applied for three vacant teaching positions in respondent's school district. Respondent asserts that petitioner was not considered for a position due to a low undergraduate grade point average, limited work experience, and a less than favorable recommendation from a reference supplied by petitioner. It appears from the record that one of the three positions remained vacant and respondent continued to search for appropriately certified candidates to fill the position on a permanent basis. In the interim, respondent assigned to the position a per diem substitute who is not a certified special education teacher.

Petitioner contends respondent acted improperly by employing an uncertified per diem substitute when petitioner, a certified special education teacher, was available. Petitioner seeks an order directing that she be hired and awarded back pay for the 1990-91 school year, or that respondent provide her with a statement of reasons why she is not qualified to teach.

Respondent contends that the appeal must be dismissed as untimely. Section 275.16 of the Commissioner's Regulations requires that appeals made pursuant to Education Law "310 be instituted within 30 days of the action complained of and provides that the Commissioner may excuse the failure to timely commence an appeal at his discretion for good cause shown. It appears from the record that petitioner wrote a letter to the Office of Teaching of the State Education Department on September 9, 1990, to complain about respondent's hiring an uncertified substitute teacher. It is clear, therefore, that respondent rejected petitioner's application and assigned the per diem substitute prior to that date and that petitioner had knowledge of the assignment on or about that date. Petitioner did not commence this appeal until October 12, 1990, and petitioner does not offer any excuse for the delay other than ignorance of the appeal process. However, except in unusual circumstances not present here, ignorance of the appeal process does not afford a sufficient basis to excuse a delay in commencing an appeal (Application of a Child with a Handicapping Condition, 30 Ed Dept Rep 324; Appeal of Schwartz, 28 id. 258).

To the extent that petitioner seeks an order setting aside respondent's rejection of her employment application as unlawful and directing respondent either to hire her and award back pay or to furnish her with a statement of reasons for her rejection, the appeal is untimely and will be dismissed on that basis. To the extent that petitioner seeks an order declaring that respondent's continued assignment of an uncertified substitute teacher was unlawful, however, the appeal relates to a continuing practice which, if unlawful, would constitute a continuing wrong subject to complaint at any time (Matter of Baxter and Pickett, 21 Ed Dept Rep 610; Appeal of Town of Smithtown, 28 id. 337).

Petitioner argues that because an appropriately certified teacher was available to teach, respondent abused its discretion in assigning an uncertified per diem substitute teacher to the position on a temporary basis. Respondent contends that a certified teacher is not necessarily qualified and that a board of education has discretion to apply its own criteria in determining who to employ as a teacher. Respondent further argues that it has discretion to fill a vacant position on a temporary basis with a per diem substitute teacher while continuing its efforts to recruit certified and qualified candidates for the position.

A school district is authorized by 8 NYCRR 80.36(c) to employ, under certain conditions, per diem substitute teachers who do not hold a teaching certificate. However, 8 NYCRR 80.36(a) contains the following definition of a "substitute teacher":

A substitute teacher is one who is employed in place of a regularly appointed teacher who is absent but is expected to return.

It appears from the record that respondent appointed an uncertified teacher to fill a position in which there was a permanent vacancy, rather than a temporary vacancy created by a leave of absence. Therefore, the uncertified teacher was not a substitute teacher, as defined by "80.36(a), and respondent cannot rely on "80.36 as legal authority for the employment of this uncertified individual.

The Commissioner held in Matter of Wyler, 17 Ed Dept Rep 264:

Where a position is vacant, an appointment to a full-time teaching position must be made for a probationary period of three years. There is no legal authority for a "temporary" appointment to fill a permanent vacancy, and such an appointment would violate the provisions of the tenure law and would be illegal (Matter of Cardo, 8 id. 182 [1969]).

Once there is a permanent vacancy in the position, therefore, the only permissible method to fill the vacancy is by making a probationary appointment. An attempt to fill the position through a temporary appointment violates Education Law "3012, which requires that appointments to teaching positions be made for the statutory probationary period (Matter of Wyler, supra; Matter of Hofheins, et al., 16 Ed Dept Rep 432). An assignment of a per diem substitute teacher to the position is not authorized by 8 NYCRR 80.36. Accordingly, respondent's assignment of an uncertified teacher to this vacant full-time position was illegal.

Moreover, respondent has a duty to employ certified teachers (Education Law "3001), including a specific duty to ensure that special education instruction is provided by certified special education teachers (8 NYCRR 200.6[b][4]). Under Education Law "2503(5), the discretion of a board of education is limited to the employment of properly "qualified" teachers. Education Law "3001, which prescribes the minimum legal qualifications of teachers, requires that they hold a State teaching certificate. Where there are no certified and qualified special education teachers available after extensive recruitment, a board of education may employ individuals who lack special education certification, provided that a temporary license is obtained pursuant to 8 NYCRR 80.18. Among other things, candidates for such a temporary license must be provided staff development and professional support and must be enrolled in a collegiate program leading to certification by the semester following initial employment (8 NYCRR 80.18[a][2][iii]). In this case, however, the superintendent of schools has not submitted an application for a temporary license for the per diem substitute teacher.

Accordingly, I direct respondent to employ only certified special education teachers to fill vacant special education positions, except where the employment of an uncertified teacher is duly authorized under Part 80 of the Regulations of the Commissioner. There is no evidence in the record before me to indicate whether the temporary assignment of an uncertified "substitute" teacher to the position at issue in this appeal has continued during the 1991-92 school year. If it has, respondent must terminate such assignment and fill the position by probationary appointment of a teacher legally qualified to teach special education.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent henceforth employ only certified special education teachers to fill vacant special education positions except where the employment of an uncertified teacher is duly authorized pursuant to Part 80 of the Regulations of the Commissioner of Education.

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