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Decision No. 13,428

Appeal of GREGORY KULICK from action of the Board of Education of the Middle Country Central School District and Regina L. Hartin regarding the abolition of a position.

Decision No. 13,428

(June 9, 1995)

Kaplovitz & Galinson, Esqs., attorneys for petitioner, Daniel Galinson, Esq., of counsel

Rains & Pogrebin, P.C., attorneys for respondent board of education, David Wirtz and Jessica S. Weinstein, Esqs., of counsel

Scheyer & Jellenik, Esqs., attorneys for respondent Hartin, Stephen R. Jellenik, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals respondent board's decision to excess him from his position as a physical education teacher. The appeal must be sustained.

On May 18, 1970, respondent board appointed petitioner to a probationary term as a physical education teacher effective September 1, 1970. On June 21, 1971, respondent board appointed respondent Regina Hartin to a probationary term as a physical education teacher, effective September 1, 1971. Petitioner took a leave of absence from September 1, 1980 until June 30, 1981. Prior to August 1994, respondent board notified both petitioner and respondent Hartin that they had equal seniority and that a physical education position was to be excessed. On August 5, 1994, respondent board held a lottery to determine whether petitioner or respondent Hartin would be excessed. A designee of respondent board placed two cubes numbered "1" and "2" in a brown opaque jar. Respondent Hartin as the participant with the lowest last four digits of her social security number had her designee draw first. Hartin's designee selected cube "1." On that basis, respondent declared respondent Hartin to be the most senior. On August 29, 1994, respondent board notified petitioner that his position was abolished and he was excessed as of September 1, 1994. This appeal followed.

Petitioner asserts that he and respondent Hartin do not have equal seniority and, therefore, he was wrongfully excessed. Petitioner further contends that even if their seniority was equal, the process used by respondent board to break the tie was arbitrary and capricious. Respondent board contends petitioner and respondent Hartin have equal seniority and that it has used the tie breaking lottery process for years.

When a board of education abolishes a position, it is required by Education Law '2510(2) to discontinue "the services of the teacher having the least seniority in the system within the tenure of the position abolished" (Appeal of Kiernan, 32 Ed Dept Rep 618; Matter of Cole v. Board of Education , 90 AD2d 419). The first criterion for determining seniority is actual full-time service rendered (Appeal of Kiernan, supra; Matter of Dreyfuss v. Board of Education, 76 Misc 2d 479, aff'd 45 AD2d 988; Matter of Fallick, 18 Ed Dept Rep 586). If such full-time service is equal, the teachers' respective appointment dates are to be used for determining seniority (Matter of Schoenfeld, 98 AD2d 723; Appeal of Kiernan, supra; Matter of Fallick, supra; Matter of Ferguson, 14 Ed Dept Rep 102; Matter of Ducey, 65 St Dept Rep 65).

Respondent board contends that the length of teachers' service is the sole factor for determining seniority, after which any reasonable tie breaking method may be used. That contention ignores prior decisions of the Commissioner of Education and the Courts. In determining the order of seniority of teachers within a district "...it is clear that the teacher whose appointment occurred first had a longer seniority ... than the teacher who was appointed upon a later resolution" (Matter of Ducey, 65 State Dept Rep 65 at 66; see also Matter of Schoenfeld, supra). A teacher whose appointment occurs first has a longer affiliation with the school district and, therefore, greater seniority, infinitesimal though it might be than the teacher who was appointed on a later date (Appeal of Ferguson, supra). Therefore, if teachers have equal service, a board of education must evaluate whether the teachers' appointment dates are identical and if they are, then the board may use an objective means to break the tie in determining seniority (Appeal of Schoenfeld, supra; Appeal of Kiernan, supra).

In this case, I find it was unnecessary for respondent board to use a lottery system to determine the respective seniority of petitioner and respondent Hartin. The record shows petitioner and respondent Hartin have the same amount of full-time service with the district. Therefore, to determine which teacher had greater seniority, it was necessary to ascertain whether petitioner or respondent Hartin was appointed earlier. The record reflects that petitioner was appointed one year prior to respondent Hartin. Therefore, petitioner has greater seniority by virtue of his earlier appointment date. Moreover, petitioner's earlier appointment was not infinitesimal, but an entire school year prior to respondent Hartin. Accordingly, I consider petitioner to have greater seniority than respondent Hartin because petitioner's service with the school district began one year prior to respondent Hartin's.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent board recalculate petitioner's seniority and the seniority of all other teachers in the physical education tenure area, in accordance with Education Law '2510.

IT IS FURTHER ORDERED that if respondent board determines there is a position available for petitioner based on his seniority, respondent board must reinstate petitioner and award him back pay.

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