* Subsequent History: Matter of Cronk v King; 48 Misc 3d 1215(A) (Sup Ct, Albany County, Melkonian, J. [2014]); Judgment granted petition and annulled Commissioner’s decision; September 18, 2014; affd 130 AD3d 1415 (3d Dept 2015); lv denied 26 NY3d 912 (2015); rearg denied 26 NY3d 1134 (2016). *

Appeal of JENNIFER CRONK from action of the Board of Education of the Valhalla Union Free School District regarding termination of employment.

Decision No. 16,568

(October 15, 2013)

Richard Casagrande, Esq., New York State United Teachers, attorneys for petitioner, Deborah A. Milham, Esq., of counsel

Shaw, Perelson, May & Lambert, LLP, attorneys for respondent, Margo L. May, Esq., of counsel

KING, JR., Commissioner.--Petitioner appeals the decision of the Board of Education of the Valhalla Union Free School District (“respondent”) to abolish her position.  The appeal must be dismissed.

Petitioner is certified to teach grades K-6 and English grades 7-12.  On August 29, 2000, petitioner was assigned to teach computer programming in respondent’s middle school and high school and was appointed to a three- year probationary position in the English tenure area, effective September 1, 2000.  Petitioner was granted tenure in the English tenure area on June 17, 2003, effective August 31, 2003.  On May 24, 2011, petitioner was notified by respondent that it was abolishing two full-time positions in the grades 7-12 English tenure area and that her services would be terminated on June 30, 2011.  This appeal ensued. 

Petitioner alleges that she was not the least senior teacher in the English 7-12 tenure area and, therefore, she was illegally excessed.  Specifically, she asserts that she was providing instructional support services as described in Part 30 of the Rules of the Board of Regents for the 2000-2001 through the 2010-2011 school years and requests a determination that she accrued seniority in the tenure area of grades 7-12 English, commencing on September 1, 2000.  She further requests that she be reinstated with seniority and benefits, retroactive to September 1, 2000.

Respondent contends that petitioner has not met her burden of establishing that she served in the English grades 7-12 tenure area for these school years.  It also alleges that its decision to terminate petitioner was not arbitrary and capricious because petitioner never taught English and only taught computer programming classes and was therefore improperly assigned to the English grades 7-12 tenure area.  Respondent also asserts that petitioner failed to name necessary parties and requests that the reply not be accepted because it adds belated assertions.

First, I must address several procedural issues.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No. 15,901).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

In addition, by letter dated September 27, 2011, petitioner requested permission to file a reply memorandum of law in order to address respondent’s argument in its memorandum of law that petitioner’s reply should not be considered because it seeks to add assertions that should have been included in the petition.  Respondent opposes such request.  Pursuant to §276.4 of the Commissioner’s regulations, reply memoranda of law may be accepted only with the prior approval of the Commissioner (Appeal of Dunshee, 44 Ed Dept Rep 414, Decision No. 15,216; Appeal of Schadtle, 40 id. 60, Decision No. 14,421).  A memorandum of law should consist of arguments of law (8 NYCRR §276.4).  It may not be used to add belated assertions or exhibits that are not part of the pleadings (Appeal of Bruning and Coburn-Bruning, 48 Ed Dept Rep 84, Decision No. 15,799; Appeal of Wright, 47 id. 202, Decision No. 15,668).  Further, additional affidavits, exhibits and other supporting papers may only be submitted with the prior permission of the Commissioner (8 NYCRR §276.5).  While this provision permits the submission of additional evidence, it cannot be used to add new claims against a respondent for which notice has not been provided (Appeals of Gonzalez, 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Marquette, et al., 48 id. 193, Decision No. 15,833).  I will not accept materials that raise new issues and introduce new exhibits that are not relevant to the claims originally raised in the appeal (Appeals of Gonzalez, 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Marquette, et al., 48 id. 193, Decision No. 15,833).  As noted above, consistent with 8 NYCRR §§275.3 and 275.14, I have not considered any portions of petitioner’s reply containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.  Accordingly, such holding renders the issue academic and I deny petitioner’s request to submit a reply memorandum of law.

A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879).  Joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense (Appeal of Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879). 

Petitioners commenced this appeal on June 23, 2011 by service of a notice and petition solely on respondent board and Andrew Tripaldi.  However, the record indicates that there are two other teachers in the district in the English 7-12 tenure area – Laura Booth-Freda and Steven D’Ascoli - who may be affected by a determination in this appeal and they were not named as respondents or served with the petition.  Section 275.1 of the Commissioner’s regulations provides that after an appeal is commenced, “no party shall be joined … except by leave or direction of the Commissioner of Education.”  Petitioner neither sought nor received permission to join any additional parties as respondents subsequent to commencement of the appeal on June 23, 2011.  Rather, on July 22, 2011, petitioner unilaterally attempted to add Booth-Freda and D’Ascoli as respondents to the appeal by serving them with of an amended notice and petition.  However, this was improper, since under §275.1 of the Commissioner’s regulations after an appeal is commenced parties may not be joined except by leave or direction of the Commissioner (see Appeal of Amponsah, et al., 53 Ed Dept Rep, Decision No. 16,549).  Having failed to properly join Booth-Freda and D’Ascoli, petitioner’s appeal must be dismissed.

Even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits. Education Law §3013(2) provides that when a board of education abolishes a position, “the services of the teacher having the least seniority in the system within the tenure of the position abolished shall be discontinued.”  Section 30-1.1(f) of the Rules of the Board of Regents defines seniority as follows: “Seniority means length of service in a designated tenure area ....”  The principal issue in this appeal is whether petitioner was the least senior teacher in the English 7-12 tenure area.

In general, seniority may be accrued in a given tenure area only if the service of the teacher in such area constitutes 40% or more of the total time spent in the performance of instructional duties (8 NYCRR §30-1.1 [f] and [g]). 

It is undisputed that petitioner did not teach English in grades 7-12 in the 2000-2001 through 2010-2011 school years.  However, petitioner alleges that she provided instructional support services during that period and therefore is entitled to receive credit toward tenure and seniority in the English 7-12 tenure area pursuant to section 30-1.2(b)(1) of the Rules of the Board of Regents,  which provides in pertinent part as follows:

(b) Except as otherwise provided in subdivision (c) of this section, the provisions of this Subpart shall apply to a professional educator appointed by a board of education or board of cooperative educational services for the performance of duties in instructional support services, as defined in section 30-1.1(j) of this Subpart, on or after August 1, 1975 as follows:

(1) A professional educator employed by a board of education or board of cooperative educational services on May 1, 2009 that was appointed to tenure or a probationary period in a tenure area identified in this Subpart for the performance of duties in instructional support services and who did not provide knowing consent to an assignment outside of his previous tenure area pursuant to section 30-1.9 of this Subpart when he was assigned by such board of education or board of cooperative educational services prior to May 1, 2009 to the performance of duties in instructional support services shall receive credit toward tenure and/or accrue tenure and seniority rights in his previous tenure area from the initial date of his assignment to the performance of such duties and shall continue to receive tenure and/or seniority rights in his previous tenure area while assigned to perform duties in instructional support services.

Instructional support services is defined in section 30-1.1 of the Rules of the Board of Regents as follows:

(j) Instructional support services shall mean professional development, pedagogical support, technical assistance, consultation, and/or program coordination offered by teachers to other school personnel including, but not limited to: conducting workshops, study groups, and demonstration lessons; modeling instruction; providing feedback, coaching, mentoring and other professional support for instructional staff; providing training in best instructional practices in specific content areas; assisting instructional staff in analyzing student performance data and differentiating instruction to meet the needs of all students; coordinating the provision of special education services; developing and promoting a culture of reflective instructional practice; providing curriculum and assessment resources to instructional staff; providing information and support on technology tools to extend and support student learning; assessing curriculum development or professional development needs; and such similarly related work.

Petitioner holds permanent certification in grades K-6 and English 7-12 and, as discussed below, was granted tenure in the English 7-12 tenure area.  On the record before me, I find that petitioner has failed to demonstrate that she devoted at least 40% of her work time to instruction in English and/or instructional support services.   To the contrary, the record indicates that during the 2000-2001 through 2010-2011 school years, petitioner was assigned full-time to teach computer programming to students in the middle and high school grade levels.  The superintendent avers that petitioner was “never assigned to devote a substantial portion of her time (at least 40%) to perform Technology Integration Specialist duties, which would be an Instructional Support Services Provider (ISSP) position, nor did she perform these services during the period of her employment with the district.” 

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).  Petitioner has failed to submit any lesson plans or any other evidence to demonstrate that she spent more than 40% of her time in the English 7-12 tenure area and/or performing instructional support services during any of these school years.  As such, I find that petitioner never served in the English 7-12 tenure area.

Nor does the prohibition contained in §30-1.9 of the Rules of the Board of Regents against assigning a professional educator to devote a substantial portion of her time in a tenure area other than that in which she has acquired tenure without her consent apply to these facts.  From the inception of her employment by the board, petitioner never devoted a substantial portion of her time within the 7-12 English tenure area and therefore was not a professional educator entitled to the protection of §30-1.9 (Appeal of Ciesla, 52 Ed Dept Rep, Decision No. 16,480; Appeal of DeVente and Jesenof, 48 id. 150, Decision No. 15,822).  Accordingly, petitioner cannot now claim on that basis that she is not the least senior teacher in the English 7-12 tenure area.

While the record indicates that petitioner was assigned to teach computer programming and therefore does appear to have spent a substantial portion of her time in the career and technical education tenure area, she has not raised that issue in this appeal or sought reinstatement to a position in that tenure area.  Even if she had, because she was never in probationary status in that tenure area §30-1.9 does not apply and, in any case, reinstatement with back pay to a position for which she is not qualified would be unlawful (Education Law §§3001, 3009).

Although I am constrained to dismiss this appeal, I note that when petitioner commenced her employment with the district, respondent board lacked the authority to offer her a tenured position as an English 7-12 teacher.  I remind respondent board of the need to follow all pertinent provisions of the Civil Service Law, Education Law §3014 and Part 30 of Rules of the Board of Regents.

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

THE APPEAL IS DISMISSED.

END OF FILE