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Decision No. 13,813

Appeal of PATRICIA ADLER, WENDY CASTIGLIA-AMATO, EILEEN CROWLEY, JOYCE HERBECK, ARTHUR JASPE, PAMELA KAMINSKA, GERALD MOOTE, JACQUELINE ROSE, and ANN RUDIN from action of the City School District of the City of North Tonawanda with respect to calculation of salaries and sick leave accumulations.

Decision No. 13813

(August 13, 1997)

CATE, Acting Commissioner.--Petitioners are employees of the City School District of the City of North Tonawanda ("respondent"). Prior to June 30, 1996, petitioners were employed by the Orleans-Niagara Board of Cooperative Educational Services ("BOCES"), and all had prior teaching experience before their employment with BOCES. At the end of the 1995-1996 school year, BOCES discontinued petitioners’ services because of a takeover of part of its guidance and social work programs by respondent, a component district of BOCES. Pursuant to Education Law '3014-b, petitioners became employed by respondent for the 1996-1997 school year. Petitioners challenge their assignment to salary steps, and the method by which sick leave credits have been calculated. The appeal must be sustained.

With respect to the salary step issue, the following chart illustrates respondent’s actions:

CHART 1

District

salary step

BOCES BOCES salary at which

Date salary Date of step at petitioners

hired step probationary beginning of began 1996-

by at appointment 1995-1996 1997 school

BOCES hiring by BOCES school year year

Adler 12/8/89 6 2/7/92 12 5

Crowley 11/4/93 5 11/5/93 7 4

Herbeck 9/1/83 7 5/5/95 18 2

Jaspe 3/8/91 15 3/8/91 20 6

Kaminska 3/2/90 9 9/1/91 15 6

Moote 11/6/92 3 9/1/93 6 5

Rose 12/13/91 7 2/7/92 11 5

Rudin 3/22/91 9 4/2/92 14 5

It is clear that BOCES recognized and credited prior teaching service at the time it hired petitioners, and started them higher than "step one" on its salary scale, where they would have started without any prior experience. The chart also illustrates the fact that, for the 1996-1997 school year, respondent offered employment at much lower step levels than petitioners had achieved at BOCES.

The following chart will illustrate respondent's calculation of sick leave, compared to the accumulated sick leave shown for each petitioner at the time his/her position was abolished by BOCES. In each case, respondent began with a petitioner's probationary appointment date at BOCES, calculated the number of sick days each petitioner would have earned had he/she been employed with respondent since that date, and subtracted the number of days of sick time used at BOCES since that probationary appointment date:

CHART 2

Number of days Number of

of unused Date of days of

sick time probationary sick time

Date hired accumulated appointment credited by

by BOCES as of 6/30/96 in BOCES district

Adler 12/8/89 88 2/7/92 43.5

Crowley 11/4/93 27 11/5/93 27.5

Herbeck 9/1/83 147.5 5/5/95 14

Jaspe 3/8/91 87 3/8/91 46

Kaminska 3/2/90 44.5 9/1/91 43.5

Moote 11/6/92 59 9/1/93 47

Rose 12/13/91 44 2/7/92 39

Rudin 3/22/91 72.5 4/2/92 69

The parties agree that "3014-b applies to this case, but disagree as to the meaning of subdivision 3 thereof as applied to these facts. Subdivision 3 provides:

3. For any such teacher as set forth in subdivision 1 of this section for salary, sick leave and any other purposes, the length of service credited in such board of cooperative educational services shall be credited as employment time with such school district.

Petitioners argue that all service credited by BOCES, including both prior service and BOCES service, must be recognized and credited by the "takeover district." Respondent, on the other hand, interprets the language of subdivision 3 to require that only service time performed as an employee of BOCES needs to be recognized and credited.

Neither side has cited any authority precisely on this point, and my research has also failed to reveal any controlling authority. However, a prior decision of the Commissioner of Education, Matter of Niver (22 Ed Dept Rep 421), sheds some light on this matter. In that case, petitioner was excessed by a BOCES when a component district discontinued its contract with BOCES for a driver education program. The component district then hired a summer instructor, whom it had characterized as an independent contractor. The Commissioner decided that petitioner was entitled to the position, and was entitled to back pay for the 1982 summer driver education program. The Commissioner held: "Pursuant to Education Law "3014-b(3), petitioner's salary must be calculated as if he was a teacher with respondent board with the same seniority he maintained at BOCES."

This interpretation is consistent with the courts’ findings in Buenzow v. Lewiston-Porter Central School District, 101 AD2d 30, aff'd 64 NY2d 676 (1984) and Acinapuro v. Board of Cooperative Educational Services of Nassau County, 89 AD2d 329 (1982). In Buenzow, the Appellate Division carefully examined the overall scheme of Education law ""3014-a and 3014-b, and concluded that "3014-b is designed to protect the tenure rights of teachers when a program passes from one jurisdiction to another. The Court noted several memoranda submitted in support of the passage of "3014-b to the Legislature in 1975, and quoted this language from Acinapuro (101 AD2d at pp. 335-336):

As manifested by the memoranda submitted to the Legislature in support of enactment of the statute, and as made plain by the language of the provision itself, the purpose of section 3014-b is to afford a BOCES teacher protection, consistent with his tenure and seniority status, when his position is affected by a takeover of a BOCES program.

The Court also provided a footnote containing language from a memorandum of support offered during the process of enacting "3014-a:

Under existing law, a board of cooperative educational services is not required to credit the teacher with years of service previously rendered in the local school district, nor to honor salary, sick leave and other benefits earned through such previous service. . . .

The situation is unfair.

Having considered the factual context and the equities, I conclude that petitioners are entitled to retain the salary step they had achieved at BOCES, and to retain the number of sick days credited to them in BOCES' records at the time they were excessed by BOCES. In this particular case, it appears that respondent district initiated the transfer of this program from BOCES to itself. As stated in several letters by respondent's personnel director to various petitioners on August 6, 1996: "The North Tonawanda City School District has decided to assume certain services previously provided by the Orleans-Niagara BOCES." Indeed, respondent's brief indicates that respondent's board of education made this decision in May of 1996. It seems patently unfair that the district could initiate such a change, then employ the same teachers at salary step levels up to 16 steps lower than petitioners had previously attained.

If respondent's arguments were accepted, a BOCES program could be transferred to a school district pursuant to "3014-b, and the school district would be required to recognize only employment by BOCES. Under respondent's theory, that same program could then be transferred from the "takeover district" back to BOCES pursuant to Education Law "3014-a, and, under subdivision 3 thereof, BOCES would be required to credit only the time for which the employees were employed by the school district. By making a transfer from BOCES to a takeover district and back to BOCES, many years of experience and salary increments could be eliminated. I do not believe that the Legislature intended such a result.

For the foregoing reasons, respondent shall be required to recognize and credit prior service and prior accumulated sick time in accordance with this decision.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent raise each petitioner to the appropriate step level for the beginning of the 1996-1997 school year, and pay to petitioners any difference in pay over this past school year; and

IT IS FURTHER ORDERED that respondent amend petitioners' sick time entitlements as of the beginning of the 1996-1997 school year to conform to the credits accumulated and shown on BOCES' records for each petitioner as of June 30, 1996.

END OF FILE