Appeal of VINCENT VUOTO from action of the Eastern Suffolk Board of Cooperative Educational Services regarding tenure.

Decision No. 15,163

(January 31, 2005)

Minerva and D�Agostino, P.C., attorneys for petitioner, Albert A. D�Agostino, Esq., of counsel

Grotta, Glassman & Hoffman, P.A., attorneys for respondent, David M. Wirtz, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges actions of the Eastern Suffolk Board of Cooperative Educational Services ("respondent") concerning his tenure area designation. The appeal must be dismissed.

Petitioner is employed by respondent as lead Teacher Coordinator of Diversified Cooperative Work Experience in the Occupational Education Program. Petitioner initially received a probationary appointment in October 1990 and was granted tenure, effective October 8, 1992, as a "Teacher of Diversified Cooperative Work Study in the Occupational Education Program" by the Board of Cooperative Educational Services First Supervisory District, Suffolk County ("BOCES 1"). During the 1993-1994 school year, BOCES 1 merged with the BOCES Second Supervisory District to form respondent, which has continuously employed petitioner since then.

In the summer of 2003, respondent issued seniority lists designating district teachers by their respective tenure areas and listed petitioner under the tenure area of Agriculture/Plant Science/Horticulture. By letter dated January 21, 2004, petitioner�s counsel asserted that this designation was incorrect and requested that respondent place petitioner instead on the Occupational Business Education and Distributive Occupation Subjects tenure list. In a responsive letter dated February 12, 2004, respondent�s counsel advised that petitioner�s tenure area was correctly designated. This appeal ensued.

Petitioner claims that respondent unlawfully changed his tenure area without his consent and requests that I order respondent to designate his tenure area as Occupational Business Education and Distributive Occupational Subjects.

Respondent raises a number of procedural objections, including that the appeal is untimely and petitioner has failed to join necessary parties. Respondent also maintains that it properly designated petitioner�s tenure area.

The appeal must be dismissed on procedural grounds. The record reflects that petitioner has served continuously as a Teacher Coordinator of Diversified Cooperative Work Experience in the Occupational Education Program since October 1990. Although petitioner claims that respondent changed his tenure area without his consent, petitioner does not allege that respondent has altered his duties in any way, or even threatened to do so (see, e.g., Matter of Bell v. Bd. of Educ. Vestal CSD, 61 NY2d 149; Appeal of Daly, 23 Ed Dept Rep 226, Decision No. 11,196). Nor does he allege that his salary has been reduced, that he has been excessed from his position, or that he has otherwise suffered economic harm from respondent�s actions. Rather, petitioner simply challenges respondent�s designation of his tenure area as Agriculture/Plant Science/Horticulture rather than Occupational Business Education and Distributive Occupational Subjects.

Seniority rights, however, do not exist in the abstract. There must be an impact upon the individual to cause him to be aggrieved, and a party may not maintain an appeal solely to obtain a declaration of his tenure rights or relative seniority (Matter of Greco v. Bd. of Educ. Patchogue-Medford UFSD, et al., 98 AD2d 721; Appeal of Eaton, 24 Ed Dept Rep 88, Decision No. 11,326; Appeal of Murphy, 21 id. 419, Decision No. 10,738). In essence, petitioner seeks an advisory opinion concerning his seniority status, relief that is unavailable in an Education Law �310 appeal (Appeal of Murphy, supra). Therefore, the appeal must be dismissed. Such dismissal, however, is without prejudice to any future application for similar relief should petitioner hereafter become actually aggrieved within the purview of Education Law �310.

In light of this disposition, I need not address the parties� remaining contentions.

THE APPEAL IS DISMISSED.

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