MILLS, Commissioner.--Petitioner appeals a determination by the Board of Education of the City School District of the City of Lackawanna ("respondent") to abolish his position as a teacher and its refusal to place him on a preferred eligibility list for recall to his former position or a similar position. The appeal must be sustained in part.

Respondent appointed petitioner to a probationary position as an English teacher in the tenure area of English 7-12, effective September 3, 1998. His probationary period was to expire on September 2, 2001. Petitioner holds a provisional teaching certificate in the tenure area "English 7-12", valid until January 1, 2001.

Petitioner was assigned to respondent’s middle school for the 1998-1999 school year. During this period, the school principal performed one formal in-class observation of petitioner on December 16, 1998. At the conclusion of this observation, the principal noted that: "Mr. Kozak demonstrated great enthusiasm, planning & (sic.) an ability to catch his students’ interest. In short, a well taught lesson." The principal subsequently completed his annual evaluation of petitioner’s performance on May 29, 1999. In that evaluation, the principal rated petitioner as meeting or exceeding district standards in each of four specified categories – "instructional competencies", "learning environment", "professional matters" and "personal characteristics and qualities". In none of the categories was petitioner deemed unsatisfactory or in need of improvement. The evaluation was, in every respect, positive, and included written comments such as: "a positive asset to our school and community"; "readily complies with all administrative requests"; and "outstanding in all respects".

On June 24, 1999 petitioner and respondent’s Acting Supervisor of Buildings and Grounds, Richard Baldelli, engaged in a brief, amicable conversation outside respondent’s high school. Their conversation centered on respondent’s decision to table a motion to allow a local semi-professional football team to use the high school football field for its team practices. Petitioner is acquainted with the family that owns the football team and had served in the past as the public address announcer at the team’s games. Commenting on respondent’s decision to table the motion, petitioner avers that he said words "to the effect of ‘that’s what we need - 45 guys from the East Side coming down here to a Board meeting because they can’t play football.’" According to Baldelli’s affidavit, petitioner’s words were "to the effect that ‘let’s see if they’ll table it when there are 25 football players from the East Side attending the next Board meeting.’" Petitioner avers that his comments were in no way intended as a threat to respondent or to any of its members. Baldelli additionally indicates in his affidavit that he "did not understand the comment to be a threat to anyone and did not convey to anybody that it was."

Dennis Koziol, the head custodian of the Lackawanna Senior High School, overheard portions of the conversation between petitioner and Baldelli, and asked Baldelli about the conversation after petitioner had left the parking lot. Koziol indicates in his affidavit that it was his understanding that the comment petitioner made to Baldelli regarding football team members coming to a board meeting was of a joking nature. He further avers that he is "not aware of any threats whatsoever made by Mr. Kozak, either explicit or implied, to any member or members of the board of education of the Lackawanna City School District."

Later that same day, Koziol relayed petitioner’s conversation with Baldelli to a member of respondent board. According to the affidavit of that board member, in Koziol’s version of the story, petitioner told Baldelli that he was "going to bring a bunch of football players from the East Side to the next board of education meeting so they can talk to the board, and let’s see if they have the [expletive deleted] to table this again." It should be noted that not only did Koziol relay to the board member the contents of a conversation to which he was not a party, but that in doing so he erroneously identified petitioner as the owner of the football team. The board member, seeking clarification of Koziol’s story, called Baldelli, who confirmed that he had had a conversation with petitioner regarding the use of the football field. Following his conversations with Koziol and Baldelli, the board member relayed the story to several of his colleagues on the board.

After the electorate defeated proposed district budgets in May and June, 1999, respondent adopted a contingency budget for the 1999-2000 school year on June 28, 1999. As a result of the fiscal constraints placed on the district by the contingency budget, respondent also voted on June 28 to eliminate 2.8 teaching positions in the secondary English tenure area, effective July 30, 1999. Petitioner’s position was among those abolished. In a resolution adopted at that same meeting, respondent noted that it had been made aware that petitioner had recently made "threats of physical violence against various members of the board," and that "the record of [petitioner] has not been one of faithful and competent service." Accordingly, respondent resolved at that time not to place petitioner’s name on any preferred eligibility list for recall to his former position. By letter dated July 1, 1999, respondent notified petitioner of its decision to terminate his services, effective July 30, 1999, and that his name would not be placed on any preferred eligibility list.

At that same meeting of June 28, respondent also resolved to participate in a state-sponsored early retirement incentive program, provided that a certain number of employees chose to retire from the district. The open period for those wishing to participate in the retirement incentive program was established as June 29- July 29, 1999. At a special meeting held on July 6, 1999, respondent accepted the retirements of three full-time tenured teachers within petitioner’s tenure area. Additionally, a fourth full-time position within petitioner’s tenure area became vacant on June 30, 1999, as a result of the resignation of an employee who had previously notified respondent of her intent to resign at the conclusion of the 1998-99 school year.

In an advertisement dated July 8, 1999, respondent indicated that it was seeking to fill three vacancies in petitioner’s tenure area. As a result of the above-described early retirements and resignation, no full-time teachers within petitioner’s tenure area were excessed, other than petitioner, as a result of respondent’s abolition of 2.8 positions. Furthermore, petitioner asserts – and respondent does not deny – that had respondent placed petitioner’s name on a preferred eligibility list, he would have been the most senior person on such list.

Petitioner contends that respondent acted illegally when it declined to reinstate him to his former position after the retirement and resignation of four teachers rendered moot the need to abolish 2.8 teaching positions. Accordingly, petitioner seeks an order declaring his termination by respondent illegal, and directing his reinstatement to a full-time probationary teaching position within his tenure area with full pay and benefits, including back pay. In the alternative, petitioner seeks an order requiring respondent to place him on a preferred eligibility list pursuant to Education Law "2510 and offering him his former position or any similar one that is or may become available.

Respondent contends that fiscal constraints required the abolition of positions within petitioner’s tenure area, and that it was uncertain at the time it abolished those positions as to the number of vacancies that might occur before the start of the next school year. Further, respondent maintains that it perceived petitioner’s statement regarding the use of the football field to be "threatening, derogatory and insubordinate," and that his "conduct in this matter was grossly inappropriate and indicative of an individual whose record was not one of faithful and competent service to the District." Accordingly, respondent asserts that it acted within its statutory authority when it refused to place petitioner on a preferred eligibility list.

Petitioner asserts that at least four vacancies within the secondary English tenure area existed prior to the effective date (i.e., July 30, 1999) of respondent’s action abolishing 2.8 positions in that tenure area — and that respondent was aware of those impending vacancies when it adopted its resolutions eliminating the positions and declining to place him on any preferred eligibility list. Accordingly, petitioner argues, the emergence of those vacancies prior to the effective date of respondent’s resolution abolishing positions in the same tenure area wholly eliminated the need to abolish any of the positions. In essence, petitioner alleges that respondent used the abolition of the positions as a guise for his termination.

Respondent, however, asserts that it was not aware, nor could it have been aware, of any vacancies that would occur in petitioner’s tenure area when it voted on June 28, 1999 to offer the state’s early retirement incentive to its employees.

In view of the foregoing, I conclude that respondent could not have been certain on June 28 whether any vacancies would, in fact, occur because the open period for employees wishing to participate in the early retirement program did not commence until the following day, June 29, and because state approval of the plan required a specified level of participation by district employees for the district to participate. Likewise, I cannot conclude that respondent acted improperly when it failed to reinstate petitioner to his former position after it received official notification that four vacancies had emerged in his tenure area, since respondent was not obligated to fill those positions.

Respondent must, however, place petitioner’s name on a preferred eligibility list for recall to his former position, or a similar position within his tenure area. By abolishing petitioner’s position and then declining to place his name on a preferred eligibility list, respondent effectively terminated any possibility of petitioner’s continued employment with the district. The law is clear that a board of education, acting in good faith and with reasonable judgment, may abolish a teaching position. (Matter of Lezette v. Board of Education, Hudson City School District, 35 NY 2d 272). Likewise, acting in accordance with the express provisions of the applicable statutes (see, e.g., Education Law "2509[1], "3012[1], "3019-a and "3031), a board may generally terminate the services of a probationary teacher (Matter of Lezette, supra). The relevant provisions of "2509(1)(a) state: "The service of a person appointed to any of such positions may be discontinued at any time during such probationary period, on the recommendation of the superintendent of schools, by a majority vote of the board of education..."

As the Court of Appeals noted in Lezette, "It is clear that sections 2509 and 2510 of the Education Law are to be read together and that the board must take special action to discontinue the services of a teacher whose position has been abolished." (Matter of Lezette, supra. Here, however, respondent took no such special action to terminate petitioner’s employment, and the superintendent concedes in her affidavit that "it is true that at no time did I recommend the discontinuance of petitioner’s services as a probationary teacher..." Accordingly, by abolishing petitioner’s position, respondent merely made him an excess teacher available for appointment to another similar position in the district.

Education Law "2510(3)(a) states:

A board may decline to place a teacher, whether tenured or probationary, on a preferred eligible list only if the record of such person has not been one of faithful, competent service in the office or position he or she has filled. The mandatory nature of the rights and obligations created by "2510 has been long recognized (see, Matter of Lezette, supra; Application of Gmelch, 32 Ed Dept Rep 167, Decision No. 12,794).

In the instant case, there is some question as to the exact words stated by petitioner regarding respondent’s decision to table the motion regarding the use of the district’s football field. However, there is no doubt that the sole individual who actually heard petitioner’s comment (Baldelli), and the sole individual to whom it was immediately relayed (Koziol), took the comment to be nothing more than a joke. Neither believed petitioner’s statement to be a threat of any kind. It was only after Koziol relayed the story to a member of respondent board that this comment acquired a threatening interpretation. After carefully reviewing the record of this appeal, I do not find respondent’s assertion that petitioner failed to render faithful and competent service to the district to be supported by the facts. Significantly, both of the formal evaluations of petitioner carried out by district officials indicated that petitioner’s performance was excellent. Respondent’s determination that petitioner failed to render faithful and competent service was apparently based upon a single hearsay comment – a comment which was acknowledged by the person to whom it was made to be nothing more than a non-threatening joke. Under these circumstances, I do not find respondent’s assessment of petitioner’s service to be supported by the facts in the record. Accordingly, respondent is required by law to place petitioner’s name on a preferred eligibility list.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent Board of Education of the City School District of the City of Lackawanna immediately place petitioner’s name on a preferred eligibility list pursuant to Education Law "2510 for recall to his former position or any similar position that is or may become available in the future.

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