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Decision No. 15,890

Appeal of CHRISTOPHER C. HUTCHINSON from action of the Board of Education of the Van Hornesville-Owen D. Young Central School District, Celia Rathbun and Marrick McDonald regarding a transfer.

Decision No. 15,890

(March 11, 2009)

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

Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C., attorneys for respondents, Craig M. Atlas, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Van Hornesville-Owen D. Young Central School District (“board” or “respondent board”) to transfer him from the Social Studies tenure area to the English tenure area.  Celia Rathbun and Marrick McDonald are teachers employed by the board.  The appeal must be sustained in part.

Petitioner is certified to teach English 7-12 and Social Studies 7-12 and has been employed by respondent board since September 2000.  By resolution dated August 31, 2000, the board appointed petitioner to a probationary position in English 7-12 commencing on September 1, 2000 and ending on June 30, 2003.  Although petitioner had not been given a formal probationary appointment in Social Studies, he was granted tenure in that area effective September 1, 2003.

Although the parties disagree as to the exact teaching schedule to which petitioner was assigned for the first two years of his employment, they agree that from September 2002 to the end of the 2006-2007 school year, petitioner taught only Social Studies.  He did not teach English.

By letter dated August 1, 2007, the superintendent informed petitioner that he would be teaching English for the 2007-2008 school year and that his personnel file was missing a certificate to teach Social Studies.

Thereafter, petitioner advised the superintendent that he was certified to teach Social Studies and requested that he be reassigned to teach in that tenure area.  Petitioner’s request was denied.  This appeal ensued.  Petitioner’s request for interim relief was denied.

Petitioner alleges that he was transferred from the Social Studies tenure area without his consent in violation of the Education Law and §30.9(b) of the Rules of the Board of Regents.[1] Petitioner requests that I direct respondent board to assign him to teach in the Social Studies tenure area and refrain from reassigning him outside that area without his consent.  Petitioner also asks that I grant him seniority credit for the time he has been improperly assigned outside the Social Studies tenure area.[2]

Respondents allege that the petition fails to state a claim upon which relief may be granted and that the appeal is moot.  Respondents also contend that on September 12, 2007 the board granted petitioner tenure in English 7-12, that no other teacher on staff is qualified and available to undertake the teaching responsibilities assigned to petitioner and that reassigning petitioner to teach Social Studies would be impractical and disruptive.  Respondents further contend that the board can unilaterally transfer petitioner to any area in which he is tenured.

Former §30.9(b) of the Rules of the Board of Regents (currently renumbered as §30-1.9[b]) provides:

No professional educator, whether on tenure or in probationary status, may be assigned to devote a substantial portion of his time in a tenure area other than that in which he has acquired tenure or is in probationary status, without his prior written consent.

The parties dispute how the Rule should be applied to the facts of this case.  Petitioner contends that his knowing consent was required to transfer him to a position outside the tenure area in which he was serving (Social Studies).  Respondents, on the other hand, argue that the Rule grants the board discretion to transfer petitioner without consent to any area in which he is tenured.  However, Commissioner’s decisions issued after the adoption of §30.9(b) are controlling.  Those decisions hold that an assignment from a position in one tenure area to a position in another tenure area, in which the teacher also has tenure, is an assignment outside the teacher’s current tenure area and may only be effected with the teacher’s knowing consent (Appeal of Pendl, 28 Ed Dept Rep 511, Decision No. 12,184; Matter of Singer, 19 id. 297, Decision No. 10,137).  Respondents would have me disregard the holdings in Singer and Pendl because they do not expressly refer to the Rule.  However, the appeal record in Singer indicates that the Commissioner was aware of the Rule at the time of his decision, and his decision therefore must be deemed to reflect his interpretation thereof.  Accordingly, I reject respondents’ contention that I disregard Singer and Pendl, and I reiterate the principle stated in those cases which is consistent with the plain language of the Rule.

Respondents argue that the assignment of petitioner to the English tenure area was proper because he possessed tenure therein by estoppel and, in any event, was formally granted tenure in English by board action on September 12, 2007.  The fact that petitioner may have possessed tenure by estoppel, or that respondent board formally granted petitioner tenure in English subsequent to his reassignment to that area, does not alter the fact that petitioner did not consent to the transfer from his position in the Social Studies tenure area.  Accordingly, petitioner’s transfer to the English tenure area without his consent was improper.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that at the conclusion of the 2008-2009 school year respondent board transfer petitioner back to the Social Studies tenure area, or if practical and at the board’s option, sooner.

IT IS FURTHER ORDERED that petitioner’s service in the English tenure area from September 1, 2007 until transfer be deemed to be service in the Social Studies tenure area for the purpose of seniority.

END OF FILE

[1]Effective July 1, 2008, §30.9(b) was renumbered as §30-1.9(b).

[2]Initially, petitioner also argued that he lacked the requisite teaching certificate required for the English teaching assignment.  He subsequently withdrew this contention.