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Decision No. 14,143

Appeal of JOSEPH T. BOJARCZUK from action of the Board of Education of the City School District of the City of Utica, et al., regarding teacher re-employment.

Decision No. 14,143

(June 8, 1999)

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

Donald R. Gerace, Esq., attorney for respondent school district et ano.

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the City School District of the City of Utica ("district") not to rehire him to a teaching position, allegedly in violation of Education Law ""2510 and 3013. The appeal must be dismissed.

Petitioner was employed by the district as a teacher of secondary mathematics from March 1995 to the end of the 1995-1996 school year in its Alternative Education Program. At the end of the 1995-1996 school year, the district contracted with the Oneida-Herkimer-Madison Board of Cooperative Educational Services ("BOCES") for the operation of that program by BOCES. As a result of the takeover of the program by BOCES, petitioner was hired by BOCES as a full-time teacher for the 1996-1997 school year. However, it appears that petitioner's probationary service was terminated as unsatisfactory by BOCES on or about February 15, 1997.

In June 1997, one of the district's secondary mathematics teachers retired, creating a vacancy. The district's board of education filled that vacancy at its meeting of August 12, 1997, when it granted a probationary appointment to respondent Kathleen Capozzella, effective September 2, 1997. Petitioner brings this appeal claiming that his reinstatement rights under Education Law ""2510(3) and 3013(3) were violated by the hiring of Ms. Capozzella, and that he has a superior right to the vacancy.

Respondent district generally denies petitioner's claims and raises a number of affirmative defenses. Among other things, the district claims that petitioner's former position was not abolished or consolidated, and that he was not laid off in 1996. The district also argues that petitioner did not provide faithful, competent service to BOCES while employed. The district also argues that petitioner became an employee of BOCES pursuant to Education Law "3014-a(1) and retains no right to be placed on the district's preferred eligibility list.

The appeal must be dismissed. There is no question that at the end of the 1995-1996 school year, the program in which petitioner taught was taken over by BOCES, pursuant to Education Law "3014-a. By operation of that statute, petitioner was "considered" an employee of BOCES from that time forward. Beyond that, BOCES took formal action at its August 28, 1996 meeting acknowledging petitioner's acceptance of employment effective September 1, 1996. Thereafter, petitioner actually taught as a BOCES employee.

The facts in Appeal of Chernoff (37 Ed Dept Rep 709; Matter of Chernoff v. Mills, et al., Supreme Court, Albany County, Canfield J.; judgment granted dismissing petition to review, May 24, 1999, n.o.r.) are remarkably similar to this appeal, although Chernoff involved a program transferred from a BOCES to a school district pursuant to Education Law "3014-b. In Chernoff, upon transfer of the program, petitioner sought employment with the receiving school district, was offered a position, and accepted a full-time position which preserved her tenure status, seniority, compensation step level, and accumulated sick leave, as required by Education Law "3014-b(3). Petitioner later changed her mind and claimed the right to return to BOCES at her previous pay status pursuant to Education Law ""2510 and 3013. I found that her acceptance of a full-time position with the school district that took over the program terminated re-employment rights with BOCES. I specifically reasoned that:

The appeal must be dismissed on the merits, however, because petitioner accepted a full-time position with the Wynantskill Central School District in full compliance with Education Law "3014-b. I cannot accept petitioner's argument that she retains the right to remain on a preferred eligible list at BOCES despite accepting the full-time position. Education Law ""2510 and 3013 are designed to protect the rights of teachers whose positions are abolished generally; Education Law "3014-b is intended to protect the rights of BOCES teachers whose positions are eliminated specifically because of program takebacks. When a teacher is excessed because of a program takeback, "3014-b(1) provides that " . . . each teacher employed in such a program by such a board of cooperative educational services 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 board of cooperative educational services." That is what happened here. Once a teacher excessed under this section actually becomes a full-time employee of the school district taking over the program, and is offered and accepts employment including the same tenure status, salary step, and is credited with all seniority and sick leave days, the purpose of the statute has been fulfilled. If I were to accept petitioner's argument, a teacher excessed because of a program takeover could accept a full-time position with a school district, enjoy all the rights and benefits he or she had enjoyed at BOCES, but still have a priority claim on any similar job created at BOCES for the next seven years. There is no indication that such a result was intended by the Legislature.

The same reasoning applies to this appeal, because the basic purpose of Education Law "3014-b is the same as that of Education Law "3014-a. When petitioner was offered and accepted a full-time position with BOCES for the beginning of the 1996-1997 school year, the purpose of "3014-a was fulfilled. Petitioner, under these circumstances, retains no preferred eligibility rights with the district.

In view of this disposition, it is unnecessary to discuss the parties' other contentions, which I find without merit.

THE APPEAL IS DISMISSED.

END OF FILE.