Decision No. 13,892

(March 23, 1998)

MILLS, Commissioner.--Petitioner, a tenured science teacher in the Glens Falls City School District, appeals a determination of the Glens Falls Board of Education ("respondent") to assign her to teach two classes of general biology at its high school. The appeal must be sustained in part.

Pursuant to Part 80 of the Regulations of the Commissioner of Education, petitioner holds a permanent teaching certificate in the areas of "Mathematics, Physics and General Science 7-12". In September of 1980 respondent employed petitioner as a science teacher, assigning her to teach physics and general science. In September of 1983 respondent granted petitioner tenure in the academic tenure area of "Science". Up until the 1996-97 school year, petitioner continuously taught secondary level physics and various general science classes. Beginning in September 1996, petitioner was assigned to teach two classes per day of General Biology Course I, as well as two classes of physics and physics laboratories. Petitioner protested her assignment to teach biology, arguing that she was not certified to teach that particular area of science. Respondent contacted the State Education Department's (SED) regional certification liaison at the Board of Cooperative Educational Services for Washington, Hamilton and Warren Counties to discuss petitioner's concerns. The regional certification liaison informed respondent that he had spoken with staff in SED's Office of Teaching and was told that a teacher certified in general science could be assigned to teach biology. Accordingly, respondent continued petitioner's assignment and this appeal ensued.

Petitioner asserts that certification pursuant to "80.16 of the Commissioner's Regulations is conferred in a specific area of science, i.e., biology, chemistry, physics or earth science, and that such certification is not interchangeable for teaching purposes. Petitioner alleges that, because she holds only physics and general science certification, her appointment to teach biology is improper.

Respondent alleges that this appeal is untimely and should be dismissed on that basis. With respect to the merits, respondent asserts that, having relied on guidance provided by the regional certification liaison, its determination to assign petitioner to teach two classes of biology was rational, not arbitrary, capricious or an abuse of discretion.

I will first address the issue of timeliness raised by respondent. Section 275.16 of the Regulations of the Commissioner of Education requires that an appeal be initiated within 30 days of the action or decision sought to be reviewed. Petitioner was notified in June 1996 that she would be assigned to teach two classes of General Biology Course I commencing September 3, 1996. Petitioner initiated this appeal on October 29. Respondent argues that, even if the 30-day period commenced on September 3, the appeal was initiated more than 30 days later and, therefore, is untimely. Although petitioner did not initiate this appeal within the 30-day period set forth in "275.16 of the Commissioner's regulations, a district's employment of an uncertified teacher, if unlawful, is a continuing wrong, subject to complaint at any time (Appeal of Kimball, 36 Ed Dept Rep 508; Appeal of Tropia, 32 id. 606; Appeal of Nettles, 31 id. 437). I find, therefore, that the appeal is not time-barred.

As to the merits, petitioner contends that, because she holds a teaching certificate only for "mathematics, physics and general science 7-12" she is unqualified to teach biology. Thus, in assigning her to teach two classes of General Biology Course I, petitioner asserts respondent acted in contravention of law.

Education Law "3009 prohibits boards of education from employing unqualified teachers. The requirements for obtaining appropriate certification to teach in the public schools are set forth in Part 80 of the Commissioner's regulations. Part 80 enumerates, in great detail, the formal educational and teaching experience requirements which an individual must possess in order to receive either a provisional or permanent teaching certificate (8 NYCRR 80 et seq.). Section 80.16 of those regulations specifies the credentials which one must hold to receive a valid teaching certificate "for teaching English, a language other than English, mathematics, a science, and social studies in grades 7-12" (Emphasis supplied).

With respect to the sciences, which are defined as "biology, chemistry, physics, earth science" (8 NYCRR 80.16[a][1]), the regulations provide that to be eligible to receive provisional certification the applicant must complete "an approved program registered by the department specifically for service as a teacher of … ascience (biology, chemistry, physics or earth science)… The program will assure that the candidate has completed a baccalaureate degree with a concentration in one of the liberal arts or sciences appropriate to the area of the teaching certificate …" (8 NYCRR 80.16[a][1][i]) (Emphasis supplied). In the alternative, the candidate must complete a concentration of study of "36 semester hours of college-level credit in the area in which the certificate is sought" and "[f]or certification in a specific area of science, at least 18 semester hours of the 36-semester-hour total must be in the specific science area (biology, chemistry, physics or earth science) of the certificate" (8 NYCRR 80.1[a][1][iii]) (Emphasis supplied). Permanent certification requires that the applicant possess a master's degree and one year of supervised internship or two years of teaching experience (8 NYCRR "80.16[b][1]).

Petitioner possessed certification only in physics and general science and has never possessed certification to instruct biology.

The precision with which the Commissioner's regulations defines the academic and experience requirements for certification in the various science disciplines clearly indicates that, to instruct biology, the teacher must possess the requisite subject matter certification. This is further supported in the record by an affidavit submitted in this proceeding by Charles C. Mackey, Jr., Acting Executive Coordinator for the State Education Department Office of Teaching.

In his affidavit, Dr. Mackey states that, since students were granted biology course credit for the classes petitioner was teaching, the Commissioner's regulations require that the instructor possess biology certification. Dr. Mackey further states that, to the extent that another staff member indicated that petitioner's possession of general science certification would suffice, such response was based upon incomplete information or was in error.

Moreover, if, as respondent argues, petitioner could be assigned to instruct two classes daily without possessing the requisite biology certification, this would effectively nullify and render unnecessary the incidental teaching provisions of the Commissioner's regulations which specify that, absent the Commissioner's approval, no teacher may instruct more than five classes weekly outside his or her area of certification (see, 8 NYCRR 80.2[c]).

Therefore, I find that because petitioner did not possess a teaching certificate in the area of biology, respondent's assignment of her to teach two classes of General Biology Course I was in violation of law and regulation.

Respondent asserts that, at the time it determined petitioner's assignment, it was relying on information obtained from staff in the State Education Department's Office of Teaching. Respondent contends that, consequently, its decision cannot be found to be without rational basis, arbitrary or capricious. Although respondent cannot be faulted for relying on erroneous information at the time of its decision to assign petitioner to teach two classes of biology, it is clear that such assignment is improper.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent rescind its appointment of petitioner as an instructor of General Biology Course I and assign her to instruct classes consistent with her teaching certificate.

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