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Decision No. 13,977

Appeal of ELIZABETH VALENTINE from action of the City School District of the City of North Tonawanda regarding teacher tenure.

Decision No. 13,977

(August 5, 1998)

James R. Sandner, Esq., attorney for petitioner, Kevin H. Harren, Esq., of counsel

Norton/Radin/Hoover/Freedman, attorneys for respondent Bernard B. Freedman, Esq., of counsel

CATE, Acting Commissioner.--Petitioner appeals the determination of the City School District of the City of North Tonawanda ("respondent") to appoint her to the position of probationary special education teacher allegedly in violation of Education Law "3014-b. The appeal must be sustained.

Petitioner was hired by the Board of Cooperative Educational Services for Orleans-Niagara Counties ("BOCES") for the 1990-91 school year as a special education teacher. At the time she was hired, BOCES credited her with two years of prior teaching experience, which placed her on Step 3 of the salary schedule set forth in the collective bargaining agreement between BOCES and the employee organization representing the teachers and professional employees of BOCES. Every year thereafter, she was advanced one step on the salary schedule for each additional year of service at BOCES. BOCES granted petitioner tenure as a general special education teacher on July 8, 1993.

By letter dated May 24, 1996, petitioner was notified that as of June 30, 1996 her services would no longer be needed at the BOCES due to a decrease in student enrollment. Respondent was planning to take back some of its students from the BOCES and expand its own special education program for the 1996-97 school year. During the summer of 1996, petitioner and respondent began negotiating for respondent to hire petitioner. Petitioner was told that she would be hired pursuant to Education Law "3014-b, a statute which allows an excessed BOCES teacher employed by a district taking back students formerly educated in a BOCES program to retain his or her tenure status and carryover any accumulated sick leave from the BOCES. However, respondent indicated that it only intended to pay petitioner at the rate established in Step 7 of its salary schedule, not the Step 9 rate she would have earned had she remained at BOCES that year.

Petitioner was initially told that her employment with respondent would not be official until the board of education voted on the superintendent’s recommendation to hire her. The vote by the board was scheduled to occur on August 14, 1996. On August 23, 1996 BOCES sent petitioner a letter recalling her from its preferred eligible list effective September 1, 1996. Petitioner received this letter on August 26, 1996, and on the same date faxed her declination of the offer to the BOCES superintendent. Respondent's board of education did not act upon petitioner’s appointment until September 11, 1996. At that time, the board voted to appoint petitioner to a position as probationary special education teacher at Step 7, with no carryover of her 82.5 days of sick leave. Petitioner signed the "Teacher Probationary Appointment Notice" sent to her by respondent, but hand wrote after her signature that, "[m]y signature does not waive any rights I may have under 3014-b."

Petitioner contends that she is entitled to an appointment as a tenured special education teacher, with her accumulated sick leave from BOCES, at a Step 9 salary. She bases this upon the fact that she was hired by respondent pursuant to Education Law "3014-b (""3014-b"). Section 3014-b requires a school district to employ BOCES teachers whose positions are eliminated as a result of the district's takeover of the operation of a program formerly provided by a BOCES. Once a BOCES lays off a teacher due to such a take back, the teacher is considered to be an employee of the school district, with the same tenure status he maintained at the BOCES. Subdivision 1 provides:

In any case in which a school district duly takes over the operation of a program formerly provided by a [BOCES], each teacher employed in such a program by such a [BOCES] at the time of such takeover by the school district shall be considered an employee of such school district, with the same tenure status he maintained in such [BOCES].

Petitioner maintains that respondent took back a program formerly operated by BOCES, that petitioner’s BOCES employment was discontinued as a consequence of the program take back, and that the take back created a vacancy in respondent. Thus, petitioner contends her employment by respondent was a consequence of the operation of "3014-b.

Petitioner alleges that in all of her discussions with respondent prior to August 23, 1996, she was told that she was being hired pursuant to "3014-b. She also claims that respondent’s administrators assured her that her appointment would be acted upon promptly by the board of education. Petitioner contends that she did not accept the offer from BOCES because she felt she had made a commitment to respondent. Petitioner further maintains that she is entitled to all of the rights of a teacher taken back pursuant to "3014-b, which includes her salary at Step 9 and all of her unused sick leave from BOCES. She cites "3014-b(3) which provides:

For any such teacher as set forth in subdivision one of this section for salary, sick leave and any other purposes, the length of service credited in such [BOCES] shall be credited as employment time with such school district.

Thus, petitioner claims that whatever service was credited by BOCES must be accepted by respondent upon a program take back.

Respondent contends that the August 23, 1996 letter from BOCES recalling petitioner to her former job renders the provisions of "3014-b inapplicable. Respondent agrees that up until August 23 it was willing to treat petitioner as a "3014-b employee. Specificially, up until that date, respondent planned to hire her as a tenured teacher, to give her credit for her unused sick leave, and to pay her at Step 7 of its salary schedule.

Respondent also disputes a number of petitioner's factual allegations. While respondent admits that its Director of Special Education may have told petitioner that the district intended to hire her pursuant to "3014-b, petitioner should have been aware that a school administrator cannot promise employment in the district. Respondent maintains that a teaching position can only be attained by receiving a recommendation from the superintendent, and approval by the board of education.

Additionally, respondent contends that on August 23, 1996, immediately after the district learned that petitioner had been recalled by BOCES, its superintendent met with petitioner to inform her that respondent was no longer required to hire her pursuant to "3014-b, and that it planned to fill the open special education teaching position through a probationary appointment. The superintendent purportedly also told petitioner that he intended to recommend her for that position and would place her on Step 7 of the district's salary schedule as opposed to Step 5 (the new hire salary rate). Respondent claims that the superintendent also told petitioner that the board would still have to vote on her appointment for it to be final. The superintendent specifically told her that she was free to accept the offer from BOCES, even though initial preparations had been made for her employment with the district. Respondent alleges that petitioner informed the Director of Special Education for the district on August 26, 1996 that she would accept the probationary appointment.

Respondent argues that the purpose of "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" (Buenzow v. Lewiston-Porter Central School District, 101 AD 2d 30, at 34, aff'd 64 NY2d 676, citing Matter of Acinapuro v. Board of Cooperative Educational Services, 89 AD2d 329). Respondent contends that petitioner’s position was not affected because petitioner was laid off at the end of the school year and recalled prior to the start of the following school year. Petitioner was not assigned any teaching duties for the position at respondent's district during the three months between the abolition of her position at BOCES and its re-establishment. Respondent alleges that as petitioner’s position was not affected by a takeover of the BOCES program, she is not entitled to the protections of "3014-b.

Based on the language of "3014-b, I find that petitioner became an employee of respondent by virtue of its take back of the BOCES program and that petitioner's status as a "3014-b hire was not extinguished by BOCES' August 23, 1996 recall letter. Section 3014-b is triggered by two events, a take back by the district of a BOCES service or program, and a layoff of a BOCES teacher whose position is eliminated specifically because of the take back. Once these two events occur the district must offer available employment in the program taken from the BOCES to the former BOCES teacher before it is able to contract with a new probationary teacher. The statute provides that "at the time of such takeover by the school district [the teacher] shall be considered an employee of such school district, with the same tenure status he maintained in such board of cooperative educational services" (emphasis added) (3014-b[1]). This presumably occurred when the decision to take back the students was made, in May 1996, or no later than June 30, 1996, petitioner's termination date. Thus, once petitioner was terminated by BOCES, her 3014(b) rights "vested," in that she was "considered" to be a tenured employee of the district. Accordingly, by operation of law, petitioner became an employee of respondent district, and no further vote by respondent's board was necessary to confer the benefits of "3014-b.

Respondent relies on Buenzow v. Lewiston-Porter Central School District, supra, for the proposition that a teacher's position must be "affected by a takeover of a BOCES program." In Buenzow, teachers who were not laid off, but who had greater seniority than those BOCES teachers who were laid off, wanted "3014-b to apply to them. These teachers argued that they had greater seniority than the teachers actually fired and should have had the option of going to work for the district. The court rejected this contention, stating that, "[s]uch use of the statute for job improvement rather than job protection, in our opinion, was never envisioned by the Legislature and is unrelated to its primary purpose," (101 AD2d at 34-35). In this case, unlike Buenzow, petitioner was laid off by the BOCES, as a result of respondent's takeover of the program, negotiated with the district for new employment, and was "considered" to be a "3014-b hire by the district. Furthermore, I find that petitioner's job was "affected" by the lay-off from BOCES. The specific teaching position she held at the BOCES was eliminated and taken over by respondent. Thus, her job was "affected." In addition, petitioner had to face the uncertainty that accompanies being laid off; she had to negotiate with the district concerning a new employment situation; and even with the best terms offered by respondent, petitioner was faced with the possibility of working at a reduced salary.

Moreover, I find that the BOCES call back letter issued two months later did not operate to extinguish petitioner's rights under "3014-b. Section 3014-b is silent as to what events, if any, extinguish an employee's "3014-b rights. Although I find respondent's "no-harm, no-foul" argument somewhat persuasive, the statute does not recognize this as an exception. I believe I am constrained by the lack of specificity in the statute to find that "3014-b applies once it is triggered, and it is not "de-activated" by a recall letter issued two months later. Thus, by operation of "3014-b, petitioner became a tenured employee of respondent with her accrued sick leave intact.

Having found that "3014-b applies, there remains the issue of whether or not petitioner should have been given credit for the two years of work experience credited to her by BOCES at the time she was hired by BOCES. Respondent argues that petitioner should only be credited with her actual service at BOCES (six years in this case) and not the additional two years of prior service at another school district. This would place petitioner at Step 7 of respondent's salary scale as opposed to the Step 9 to which she claims she is entitled. Section 3014-b(3) is quite clear on this point, stating that, "[f]or any such teacher as set forth in subdivision one of this section for salary, sick leave and any other purposes, the length of service credited [emphasis supplied] in such [BOCES] shall be credited as employment time with such school district." The statute does not say "length of service in such [BOCES], it specifically uses the word "credited." That is exactly what happened in this situation. The BOCES "credited" petitioner with an extra two years of service.

This interpretation of the statute is consistent with the courts’ findings in Buenzow v. Lewiston-Porter Central School District, supra and Acinapuro v. Board of Cooperative Educational Services of Nassau County, supra. In Buenzow, the Appellate Division 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 by the Legislature in 1975, and quoted this language from Acinapuro (89 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.

As "3014-b applies to petitioner in this case, she too must be credited with her sick leave days and retain the salary step she would have had at BOCES.

For the foregoing reasons, respondent is required to recognize petitioner as a tenured employee in accordance with "3014-b as of September 1996, and to credit her prior service and accumulated sick leave from BOCES.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent grant petitioner tenure as of the beginning of the 1996-97 school year, and pay petitioner any difference in pay between step 7 and 9 over the past two school years.

IT IS FURTHER ORDERED that respondent amend petitioner's sick time entitlements as of the beginning of the 1996-97 school year to conform to the credits accumulated and shown on BOCES' records for petitioner as of June 30, 1996.

END OF FILE