Decision No. 13,489

(September 29, 1995)

Charles A. Marangola, Esq., attorney for respondent

MILLS, Commissioner.--Petitioner challenges the determination of the board of education of the Enlarged City School District of the City of Auburn (the "district") that he is the least senior teacher in the health education tenure area and his position is to be reduced from full time to half time for the 1995-96 school year. The appeal must be dismissed.

In September 1974, petitioner was appointed health and drug education coordinator for the Cayuga-Onondaga Board of Cooperative Educational Services ("BOCES"). On September 1, 1974, the BOCES assigned him to work as a health teacher at the Carmel Middle School in the district. On December 7, 1976, the district appointed petitioner to a probationary health education teaching position. On December 10, 1976, petitioner resigned from his BOCES position. On June 30, 1995, after determining that petitioner was the least senior teacher in his tenure area, respondent reduced his position from full-time to a half-time position. This appeal followed.

Petitioner contends that he is entitled to seniority credit from the district for September through December 1976, because his BOCES position was purportedly assumed by the district in accordance with Education Law '3014-b. This additional seniority credit, he contends, would make him more senior than two other health education teachers: Alicia Procino and Thomas Blair. Respondent contends that it did not assume the BOCES program pursuant to Education Law '3014-b and that there is no basis to grant petitioner seniority credit for the teaching responsibilities he performed in the district as a BOCES employee from September through December 1976. Respondent also contends that the appeal must be dismissed for failure to join necessary parties.

As a threshold matter, this appeal must be dismissed on procedural grounds. When an individual's rights may be affected by a determination in an appeal brought pursuant to Education Law '310, that individual must be joined as a party (Appeal of Smith, 34 Ed Dept Rep 346; Appeal of Cardinal, 34 id. 76; Appeal of Sanfilippo, 33 id. 500). Here, petitioner failed to join the two health education teachers, Ms. Procino and Mr. Blair, whom he asserts have less seniority than he. Because a decision on the merits in this matter would necessarily involve the rights of those teachers, I find that the appeal must be dismissed for failure to join them (Appeal of Damilatis, 33 Ed Dept Rep 465; Appeal of Williams, 33 id. 318; Appeal of Uciechowski, 32 id. 511). The fact that Ms. Procino and Mr. Blair submitted affidavits in this appeal is of no merit, because they were not named as respondents and have not been properly served in accordance with 8 NYCRR '275.8[a] (Application to Reopen Appeal of Reese, et al., 34 Ed Dept Rep 447).

Even if the appeal was not procedurally defective, I would dismiss it on the merits. In an appeal before the Commissioner of Education, the petitioner has the burden of establishing the facts upon which he or she seeks relief (8 NYCRR 275.10; Appeals of Parrish, 32 Ed Dept Rep 261; Application of Verity, 31 id. 485; Appeal of Singh, 30 id. 284). Petitioner offers only conclusory statements that the district assumed the BOCES program during the critical timeframe; petitioner fails to provide any concrete evidence supporting this assumption, and respondent contends that it is not true. Thus, petitioner has failed to sustain his burden of proof. Accordingly, I find that petitioner's seniority credit is from his probationary appointment on December 7, 1976 until June 29, 1995, giving petitioner 18.7 years of seniority with the district.

Petitioner's assertion that he has more seniority than Thomas Blair is without foundation. Mr. Blair performed long term substitute service for respondent district from January 5, 1976 until June 23, 1977. He was then appointed to a probationary term on September 1, 1977 and continues in that position. Notwithstanding petitioner's contrary assertions, it is well settled that once a teacher is appointed to a probationary position, the teacher's prior full-time regular substitute service in the tenure area of appointment counts for purposes of seniority (Kransdorf v. Northport UFSD, 81 NY2d 871; Appeal of Carey, 31 Ed Dept Rep 394; Matter of Crandall, 20 id. 16; Matter of Silver, 19 id. 444; Matter of Ducey, 65 St Dept Rep 65). While petitioner makes conclusory allegations that Mr. Blair's full-time substitute service was not in the same tenure area as his probationary appointment, he fails to support his claims. Accordingly, including Mr. Blair's full-time substitute service, his seniority credit with respondent district is 19.6 years, as compared to petitioner's 18.7 years.

Petitioner's assertion that he has more seniority than Ms. Procino is also without merit. Ms. Procino was appointed to her probationary term in the health tenure area on September 1, 1971 and worked until March 10, 1974. On March 11, 1974 she took an unpaid leave of absence for medical reasons. On September 1, 1978, Ms. Procino returned to her appointment in the health tenure area and continues in uninterrupted service in that area. Petitioner contends that some of Ms. Procino's service was that of a "social worker." Although it is unclear, I presume petitioner is contending that Ms. Procino is ineligible for seniority credit for out of tenure job functions. However, petitioner's assertions regarding Ms. Procino's employment are conclusory, unsupported by documentation and thus inadequate to sustain petitioner's burden of proof (Appeal of Buckley, et al., 32 Ed Dept Rep 442). Rather, the record reflects that at all times in her employment with respondent district, Ms. Procino was employed as a health education teacher in the health education tenure area. Ms. Procino's seniority thus amounts to 19.6 years, as compared to petitioner's 18.7 years.

Because petitioner's seniority is less than Ms. Procino's and Mr. Blair's, there is no basis upon which to order respondent to recalculate seniority. Consequently, petitioner is not entitled to reinstatement in a full-time position.

I have considered petitioner's other claims and find them without merit.

THE APPEAL IS DISMISSED.

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