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Decision No. 15,183

Appeal of MARYANNE DENOVA, KATHY EATON, JANET EZMAN, PATRICIA HIGGINS, JANET LENHART, ROSE LOMANACO, JULIE MOOLENSCHOT, MICHELE STEVENS, and LAURA WICKMAN from action of the Madison-Oneida Board of Cooperative Educational Services, Amy Galway, Mark Russell, Kelly Ingalls, Tammy Foster, Richard Dando, Deborah Flagler, Michael Schwartz, Christine McCurdy, and John Rork regarding termination of services.

Decision No. 15,183

(March 7, 2005)

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

Ferrara, Fiorenza, Larrison, Barrett & Reitz, PC, attorneys for respondent Madison-Oneida Board of Cooperative Educational Services, Henry F. Sabota and Craig M. Atlas, Esqs., of counsel

MILLS, Commissioner.--Petitioners seek to annul a determination of the Madison-Oneida Board of Cooperative Educational Services ("BOCES") terminating their services at the end of the 2001-2002 school year. The appeal must be dismissed.

Petitioners are nine certified teaching assistants, who were employed by BOCES during the 2001-2002 school year. On June 1, 2002, BOCES terminated 11 of the approximately 65 teaching assistants it then employed, including petitioners, effective June 30, 2002. Petitioners claim that one of the 11 teaching assistants was terminated properly, and that another was recalled to service prior to the commencement of this appeal on July 19, 2002.

Petitioners claim that they were improperly terminated pursuant to Education Law ��2510 and 3013, and Part 30 of the Commissioner 's regulations, because they were not the least senior persons in the tenure area of teaching assistant. Petitioners have named nine individual respondents, all of whom are teaching assistants whose services were not terminated. Petitioners claim that the individual respondents are among the nine least senior teaching assistants, and that all have less seniority than petitioners. (Although all nine individual respondents were personally served with copies of the notice of petition and petition, none has entered an appearance in this matter.)

This appeal arose because of BOCES' maintenance, since at least 1979, of a policy of classifying tenure areas by both position and specific subject assignment. In applying this policy to teaching assistants BOCES created approximately 30 different specific tenure areas (e.g., "teaching assistant-heavy equipment" and "teaching assistant-science"), and teaching assistants received probationary appointments to these specific subject-related areas (seeAppeal of Krason, et al., 41 Ed Dept Rep 305, Decision No. 14,695).

I issued an interim order in this appeal on August 26, 2002, directing BOCES to reinstate petitioners as teaching assistants.

Thereafter, BOCES' director of personnel submitted an affidavit indicating that prior to the issuance of my interim order, petitioners Eaton, Higgins, Lenhart, and Lomanaco had already been recalled by BOCES to positions as full-time teaching assistants. (Petitioners Eaton, Higgins, and Lenhart accepted these offers of employment, while petitioner Lomanaco declined.) As a result, the appeal must be dismissed for lack of standing as to petitioners Eaton, Higgins, and Lenhart, since they have been reemployed and thus are no longer aggrieved.

The record also indicates that, on August 29, 2002, after receiving my order, BOCES offered teaching assistant positions to petitioners DeNova, Ezman, Moolenschot, Stevens, and Wickman. Petitioners Ezman, Moolenschot, and Stevens accepted the positions offered and presumably continued to work through the 2002-2003 school year. Petitioner DeNova declined the offer. Petitioner Wickman also declined the offer, because she had been offered and accepted a position as a full-time case manager on August 1, 2002. As a result, the appeal must be dismissed for lack of standing as to petitioners Ezman, Moolenschot, Stevens, and Wickman, since they have been reemployed and thus are no longer aggrieved.

Petitioners Lomanaco and DeNova also lack standing to pursue this appeal. The record indicates that petitioner Lomanaco was offered reinstatement to a full-time teaching position on August 19, 2002, and declined on August 27. She was again offered a full-time teaching assistant position on August 29, 2002, and declined the position in writing on August 29. Petitioner DeNova was offered a full-time teaching assistant position on August 29, 2002 and declined in writing on August 31. Neither written declination contains any indication that the petitioner wished to be reemployed but for some reason was unable to accept respondent's offer, nor do they state any other significant circumstances. Petitioners Lomanaco and DeNova did not indicate any temporary impediment to being reemployed, and they expressed no interest in the positions (cf., Matter of Lewis v. Cleveland Hill UFSD, 119 AD2d 263; Matter of Sopher v. Board of Educ., East Ramapo CSD, 97 AD2d 768). Based upon the record before me, I must conclude that these petitioners have no interest in the positions offered, and can no longer be considered aggrieved.

Although the appeal is dismissed on procedural grounds, I note that the "layoff units" at issue here have been found impermissible (Appeal of Krason, supra). On review of Krason, the courts have also determined that Education Law �3013(2) does apply to teaching assistants (Matter of Madison-Oneida BOCES v. Mills, 2 AD3d 1240; aff'd ____NY3d ____, December 21, 2004).

THE APPEAL IS DISMISSED.

END OF FILE