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Decision No. 16,582

 Appeal of DEBRA GORDON from action of the Board of Education of the Potsdam Central School District, Superintendent Patrick Brady, and Paulette Whalen regarding seniority.

Decision No. 16,582

(December 20, 2013)

Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C.,

attorneys for respondent, Christopher M. Militello,

Esq., of counsel

KING, JR., Commissioner.--Petitioner challenges the decision of the Board of Education of the Potsdam Central School District (“respondent” or “board”) and superintendent Patrick Brady (“superintendent,” collectively referred to as “respondents”) to terminate her employment. The appeal must be sustained in part.

Petitioner is a certified reading teacher and was appointed by the board to a reading teacher position effective September 1, 2007. Respondent Paulette Whalen(“Whalen”) is a certified reading teacher1 and teacher of the deaf and hearing impaired and was appointed by the board as a teacher in both tenure areas effective September1, 2006. Due to budgetary constraints, respondents found it necessary to abolish a reading teacher position effective July 1, 2011. By letter dated May 26, 2011, the superintendent notified petitioner that her employment would be discontinued effective July 1, 2011 and that she would be placed on a preferred eligibility list for reappointment to a position in the reading tenure area. This appeal ensued.

There is no dispute that in May 2011 when the position of reading teacher was abolished, petitioner and Whalen were the two least senior reading teachers. However, petitioner asserts that she was improperly terminated because she had accrued more seniority in the reading tenure area than Whalen. Specifically, petitioner alleges that respondents improperly credited Whalen with working40% or more of her time in the reading tenure area during the 2006-2007 and 2007-2008 school years when she was actually working in the tenure area of teacher of the deaf

1 Although petitioner and respondents refer to the position at issue as that of a “reading teacher” throughout their submissions, in accordance with §30-1.8 of the Rules of the Board of Regents this special subject tenure area is properly entitled “remedial reading.”

and hearing impaired. Petitioner requests that she be reinstated to the reading teacher position and that she receive back pay, monetary compensation for benefits and reimbursement for legal consultations to complete her appeal.

Respondents maintain that petitioner was properly terminated. Respondents claim that Whalen spent at least 40% of her time working in the tenure area of reading during the 2006-2007 and 2007-2008 school years and, therefore, petitioner is the least senior teacher in the reading tenure area. Respondents also allege that the appeal is untimely.

I will first address the procedural issue. Respondents argue that the appeal is untimely. An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879).

The instant appeal involves the abolition of a reading teacher position pursuant to Education Law §§2510(2) and 3013(2) and petitioner’s contention that she was improperly terminated because she had accrued more seniority in the reading tenure area than Whalen. The parties disagree as to the event that triggers the running of the 30-day period: petitioner claims that the 30-day period runs from the date that another person commences service in the position at issue; respondents argue that the period should be calculated from, at the latest, the effective date of petitioner’s termination.

To support her position, petitioner cites Appeal of Berowski (28 Ed Dept Rep 53, Decision No. 12,027) (“Berowski”), in which a teacher’s position was abolished after he was found to be the least senior teacher in his tenure area. In that case, the Commissioner found that the appeal was timely because petitioner “became aggrieved on the date that another person commenced service in the position to which he alleges he was entitled.” In reaching this conclusion, the Commissioner cited Matter of Roupp (18 Ed Dept Rep 378, Decision No. 9,888) (“Roupp”) and Matter of Parcells (23 Ed Dept Rep 61, Decision No. 11,136) (“Parcells”). Unlike the facts presented in Berowski, however, both Roupp and Parcells involved challenges to appointments and recall rights, and not just the abolition of a position.

Respondents, on the other hand, cite a number of Commissioner’s decisions involving the abolition of positions – issued both prior to and after Berowski - in 2

which the 30-day period was calculated from the effectivedate of termination (see e.g., Appeal of McCart, 49 Ed DeptRep 229, Decision No. 16,010; Appeal of Boykin, 15 id. 348,Decision No. 9,205). Respondents also contend that the reasoning in Berowski is flawed because the cases cited therein, including Roupp, involved appointments from preferred eligibility lists, which is not at issue in this case. Additionally, respondents contend that the “Berowskirule” represents “bad law” because it allows teachers to “unfairly extend [the] time to appeal such decisions” and urges that its position helps to “facilitate school operations and ensure prompt determinations.”

This case illustrates that confusion exists regarding the calculation of the 30-day time period in abolition cases. The rule articulated in Berowski was recently applied to a teacher challenging the abolition of her position in one tenure area and asserting “bumping” rightsto a different position in another tenure area (Appeal of Gimbrone, 50 Ed Dept Rep, Decision No. 16,177). However, in cases prior to Berowksi that were factually similar to the instant appeal, the Commissioner applied the “effective date of termination” rule advocated by respondents herein(see e.g., Matter of Boykin, 15 Ed Dept Rep 388, Decision No. 9,204; Matter of Elkins, 14 id. 193, Decision No.8,934). In applying this rule in Matter of Boykin and Matter of Elkins, the Commissioner cited Matter of Winninger v. Williamson, et al. (46 AD2d 689, appeal den. 36 NY2d 648), which involved a challenge to a teacher’s termination brought under Article 78 of the Civil Practice Law and Rules. The Appellate Division, Second Department, concluded that “where a determination is made on one date to become effective at a later date, the determination does not become ‘final and binding’ for purposes of the Statute of Limitations until the date it becomes effective. Since petitioner’s services were not terminated until June 30, 1973, the Statute of Limitations did not begin to run until that time” (Matter of Winninger v. Williamson, et al., 46AD2d 689, appeal den. 36 NY2d 648; see also Matter of Bruso, et al. v. Board of Education of the Clarkstown Central School District, 53 AD2d 692 [2d Dept. 1976] [applying Winninger in a case involving abolition of school nurse position]).

In order to provide clarity to the field, a clear articulation of the rule to be applied in such cases is warranted. In cases like the present appeal in which the teacher claims that his or her services have been discontinued in violation of Education Law §§2510(2) and3013(2) because he or she is not the least senior teacher in the tenure area of the position, the 30-day time period

for commencing an appeal under Education Law §310 begins on the effective date of the abolition (see e.g., Matter of Boykin, 15 Ed Dept Rep 388, Decision No. 9,204; Matter of Elkins, 14 id. 193, Decision No. 8,934). To the extent that Appeal of Bales (32 Ed Dept Rep 559, Decision No.12,913), Appeal of Berowski (28 Ed Dept Rep 53, Decision No. 12,027) or any other previous decisions by the Commissioner in appeals filed pursuant to Education Law§310 may be interpreted to the contrary, those decisions are expressly overruled.

Where on the other hand, the wrong alleged by the teacher is not that he or she should have been retained because another less senior teacher should have been excessed, but rather is that the appointment of another teacher was in violation of law and the excessed teacher’s tenure rights, such a claim would be timely if commenced within 30 days of the date on which another teacher commenced service in a position to which the petitioner alleges he or she is entitled. This would apply, for example, to a claim under Education Law §§2510(1) or 3013(1) that a school district has created a new position to which the excessed teacher is entitled or that the excessed teacher is entitled to reinstatement to the position from a preferred eligible list pursuant to Education Law §§2510(3) or 3013(3).

Finally, although not raised by the parties in the instant appeal, I also note for purposes of clarification that, as explained in Appeal of Nettles (31 Ed Dept Rep437, Decision No. 12,691) (“Nettles”), the continuing wrong doctrine applies to a continuing practice which, if unlawful, would be subject to complaint at any time. In Nettles, the Commissioner concluded that the continuing wrong doctrine applied where petitioner sought an order declaring that a school district’s continued assignment of an uncertified substitute teacher was unlawful. To the extent that Appeal of Sroka (31 Ed Dept Rep 513, Decision No. 12,718[finding that failure to grant a probationary appointment, if improper, would be a continuing wrong]) or any other previous decisions by the Commissioner in appeals filed pursuant to Education Law §310 may be interpreted to the contrary, those decisions are expressly overruled.

In light of the conflict in the past Commissioner’s decisions, a teacher could not know with certainty when they must commence an appeal challenging the abolition of a position. In this circumstance, I will excuse a delay in commencing an appeal more than 30 days after the effective date of the abolition of a position. I will therefore excuse the delay in commencing the instant appeal – and any other similar appeal challenging an abolition of a position

pursuant to Education Law §§2510 or 3013 that is pending before me on the date of this decision.

Turning to the merits, Education Law §§2510(2) and3013(2) provide 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, rather than length of service in the district; such service need not have been consecutive but shall during each term for which seniority credit is sought, have constituted a substantial portion of the time of the professional educator.

As used in Part 30 of the Rules of the Board of Regents,

substantial portion means:40% or more of the total time spent bya professional educator in the performance of his duties, exclusive of time spent in preparation, monitoring or in co-curricular activities (8 NYCRR§30.1[g]).

Thus, the principal issue in this appeal is whether or not Whalen spent 40% or more of her time performing duties in the reading tenure area during the 2006-2007 and 2007­2008 school years. 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 claims that respondents improperly credited Whalen with working in the reading tenure area when she was actually providing services as a teacher of the deaf and hearing impaired to several students, per their Individualized Education Programs (“IEPs”). As evidence that Whalen’s time should have been credited to the teacher of the deaf and hearing impaired tenure area rather than the reading tenure area, petitioner submits partial copies of students’ IEPs2, copies of Whalen’s Basic Educational

2I note that all information pertaining to the identification of the students was redacted on the IEPs submitted to my office, in compliance with the requirements of the federal Family Educational Rights and Privacy Act (“FERPA”) and the Individuals with Disabilities Education Improvement Act (“IDEA”).

Data System (BEDS) code filings, the district’s seniority accountability summary for Whalen dated March 22, 2011 and a copy of Whalen’s records indicating a break-down of her schedule for the school years in dispute. Respondents assert that an analysis was undertaken of Whalen’s teaching assignments for the years in question, as evidenced by the seniority accountability summary, and based on that analysis, respondents properly determined that Whalen spent at least 40% of her time performing duties in the reading tenure area during both the 2006-2007 and 2007-2008 school years.

At issue for both school years is a section in Whalen’s seniority accountability summary that credits Whalen’s time spent working with several hearing impaired students as “Hearing Impaired/Reading Services.” In other words, it appears that respondents believed that the duties performed by Whalen with her hearing impaired students fell under both tenure areas. However, because a teacher cannot be credited with working in two tenure areas during the exact same time period with the same student(s)(see 8 NYCRR §30-1.9), respondents provided Whalen with credit in the reading tenure area. Thus, for the 2006-2007 school year, respondents assert that Whalen spent 43% of her time in the reading tenure area because the district credited the 33%of her time in the self-described “Hearing Impaired/Reading Services” section toward Whalen’s reading tenure area as well as 10% of her time spent providing Title I reading services. Similarly, for the 2007-2008 school year, respondents again credited Whalen’s time spent in the “Hearing Impaired/Reading Services” category as time spent working in the reading tenure area, as well as 37% of her time spent providing Title I/resource room reading services. Therefore, for the 2007-2008 school year, respondents have credited 100% of Whalen’s time in the reading tenure area.

As evidence that this was appropriate, respondents submit a sworn affidavit from Superintendent Brady stating that a labor relations specialist from the St. Lawrence-Lewis Board of Cooperative Educational Services (“BOCES”)reviewed Whalen’s seniority accountability summary and “supported the conclusion that Paulette [Whalen] taught atleast 40% of the time in the tenure area of reading during those [2006-2007 and 2007-2008] school years.” Further, respondents point to a May 4, 2006 memorandum wherein elementary school principal Joann Chambers requested that the superintendent hire Whalen as a “40% Reading Teacher” 6

and described multiple reading assignments the elementary school sought assistance providing.

In support of her position, petitioner asserts that, for the school years at issue, the only teacher assignment code Whalen provided on her BEDS form was teacher of the deaf/hard of hearing. She also submits a memorandum from the superintendent wherein he states that Whalen’s salary was “coded to 2250.150.22.0000 Program Handicap Teaching for the two years in question.” Additionally, petitioner submits partial copies of the IEPs belonging to the students for whom Whalen provided pullout services. These IEPs state that the students were to have time with a “Teacher of the Hearing Impaired” as part of their special education program. The portions of the IEPs provided by petitioner, however, do not state what, if any, specific service(s) that teacher was to provide the students.

For the 2006-2007 school year the Whalen seniority accountability summary states, in pertinent part:

Hearing Impaired/Reading Services:

30 minutes daily – Performed a pullout

service with one hearing impaired student in

kindergarten to reinforce reading readiness

skills and auditory training.

30 minutes daily – Performed a pullout

service with two hearing impaired students

in 2nd grade to work on reading and

vocabulary skills to reinforce the classroom

concepts.

30 minutes daily – Performed a pullout

service with one hearing impaired student in

2nd grade to work on class work, reading and

writing skills to reinforce the classroom

concepts.

30 minutes 3x per cycle – Performed a

pullout service with one hearing impaired

student in 8th grade to work on 8th grade

science vocabulary and reading the science

chapters.

Total: 1 hour 45 minutes daily (33% of day)

Adding insight as to what services were provided to the hearing impaired students referenced in this section of the Whalen summary is Whalen’s sworn affidavit wherein she describes one and a half hours of these daily pull-out services as including “support and re teaching of material from their classroom textbooks to help them learn strategies to improve their reading and listening comprehension. I also provided support to improve the written and oral communication skills of these students.”

In this instance, as pertains to the 2006-2007 school year, I disagree with respondents’ conclusion that Whalen’s time was spent primarily in the tenure area of reading. The students’ IEPs requiring a “Teacher of the Hearing Impaired” and Whalen’s own affidavit wherein she admits that she was providing “support” and reinforcing the material already taught in the classroom, support petitioner’s argument that the section of the Whalen summary entitled “Hearing Impaired/Reading Services” consisted of services to students who were deaf or hearing impaired that were not primarily focused on reading. Further, the description on the Whalen summary states that “auditory training” was provided, that “classroom concepts” were reinforced, and that “8th grade science vocabulary and reading the science chapters” were services provided to the hearing impaired students. In most cases, the services were provided individually. Based on the evidence before me, which demonstrates that the services provided to these students were focused on reinforcing classroom concepts rather than on reading, I find that respondents improperly credited the “Hearing Impaired/Reading Services” section of the Whalen summary to the reading tenure area. Thus, for the 2006-2007 school year, only 10% of Whalen’s time should have been credited to the reading tenure area.

For the 2007-2008 school year, the Whalen summary states, in pertinent part:

Hearing Impaired/Reading Services:

1 hour 30 minutes daily – This time was

spent in a grade one classroom co-teaching

whole group reading/phonics instruction and

teaching one reading group daily with the

one hearing impaired students(sic)and

several general education students.

30 minutes daily – Performed a pullout

service with one hearing impaired student

and five Intensive Title I reading students

in 3rd grade to work on the reading skills

the students showed deficiencies in.

30 minutes daily – Performed a pullout

service with two hearing impaired students

in 3rd grade to work on reading and

vocabulary skills to reinforce the classroom

concepts.

30 minutes daily – Performed a pullout

service with one hearing impaired student in

3rd grade to work on class work, reading and

writing skills to reinforce the classroom

concepts.

40 minutes 3x per cycle – Performed a

pullout service with one hearing impaired

student in 9th grade to work on listening

skills, content vocabulary, and any work

that the student needed assistance

completing.

Total: 3 hours 20 minutes daily (63% of day)

Whalen states that “nearly my entire day was spent providing reading services of one type or another during the 2007-2008 school year.” Additionally, respondents submit an affidavit from first grade teacher Robin LaLonde, who states that she spent one hour and 30 minutes daily with Whalen, supporting the “literacy block” in which Whalen worked with “lower level reading students, ”assisting and providing instruction that was focused upon “reading skill development.” There was one hearing impaired student in this group. Similarly, the second 30 minute block in the “Hearing Impaired/Reading Services” section of the Whalen summary describes the provision of Title I reading services to six third grade students with demonstrated reading deficiencies. One of these students was hearing impaired. In light of these descriptions of Whalen’s teaching duties in which she was providing “reading instruction” to several students at the same time including one student who was hearing impaired, I agree with respondents’ determination that the first two hours of each day, as described in the “Hearing Impaired/Reading Services” section of the Whalen summary for 2007-2008,should have been credited to the reading tenure area.

However, an affidavit submitted from Tracy DeRushia, a third grade teacher with a hearing impaired student who was pulled out of class twice daily to spend 30 minutes with Whalen, indicates that although reading and written expression were part of the instruction provided by Whalen, the time spent with this student was focused on ensuring that he was keeping up with the classroom curriculum and that any “weaknesses” were being addressed. Time spent with this student is described in the third and fourth time periods under the “Hearing Impaired Reading Services” section of the 2007-2008 Whalen summary. The service of reinforcing “classroom concepts” provided to this individual3 student varies significantly from the first two time periods described under the “Hearing Impaired/Reading Services” section of the 2007-2008 Whalen summary and should have been credited to Whalen’s tenure area of teacher of deaf and hearing impaired rather than reading.

3 The student referenced in the DeRushia affidavit did share one of his two 30 minute daily sessions with Whalen with another student.

Further, the final entry under the “Hearing Impaired/Reading Services” section of the 2007-2008 Whalen summary describes providing services to a ninth grade student in “listening skills, content vocabulary, and any work that the student needed assistance completing” to ensure that the student did not fall behind in coursework. Based on the evidence before me, I find that it was inappropriate for respondents to credit these three sections of time to Whalen’s reading tenure area rather than the tenure area of teacher of the deaf and hearing impaired. Therefore, I find that for the 2007-2008 school year, Whalen spent 74% of her time in the reading tenure area rather than the 100% claimed by respondents on the Whalen summary.

Petitioner’s argument that Whalen’s time spent with students pursuant to an IEP that lists “Teacher of the Hearing Impaired” must be fully credited toward the tenure area of teacher of the deaf and hard of hearing is unavailing. The IEPs provided do not state what service the teacher of the deaf and hearing impaired was to provide these students. Also, if the services provided were that of reading instruction to the student with the IEP and others, then Whalen’s time could be credited toward the reading tenure area. Petitioner also argues that two hours were incorrectly credited to Whalen each day under the category of “Title I/Resource Room Reading” for 2007­2008 because there are “various start and stop dates for Whalen’s 11 AIS [Academic Intervention Services]/Title 1students.” Petitioner implies that Whalen should have been credited with no more than one hour per day in the reading tenure area in this section because of the fluctuation in students needing services. However, even with the reduction to one hour per day, in addition to the 37%discussed above under the “Hearing Impaired/Reading Services” category, Whalen would still have spent 55% of her day teaching in the reading tenure area. Thus, although I do not agree with respondents’ finding that Whalen spent 100% of her time during the 2007-2008 school year in the reading tenure area, I do find that she spent at least 55% of her time in the reading tenure area and therefore gained a year of seniority for the 2007-2008school year in the reading tenure area.

I have considered petitioner’s remaining contentions regarding Whalen’s BEDS code filings and that her salary was coded to “Handicap Teaching” for the two years in question and find them to be without merit. In a previous Commissioner’s decision it was found that a BEDS report was not definitive proof of the time a teacher spent teaching a specific area (see Appeal of Soukey, 38 Ed Dept Rep 626,

10

Decision No. 14,106). Nor do I find Whalen’s salary code dispositive evidence that she spent 100% of her time teaching the deaf and hearing impaired.

In light of my determination that Whalen did not spend at least 40% of her time in the reading tenure area for the2006-2007 school year, but did so for the 2007-2008 school year, both petitioner and Whalen have the same number of years of seniority in the reading tenure area. When full-time service is equal, the teachers’ respective appointment dates are to be used for determining seniority (Matter of Schoenfeld, 98 AD2d 723 [2d Dept 1983]; Appeal of Kulick,34 Ed Dept Rep 613, Decision No. 13,428; Appeal of Kiernan,32 id. 618, Decision No. 12,933). In this matter, Whalen’s appointment date was effective September 1, 2006, while petitioner’s was September 1, 2007. Thus, as of July 1,2011, the date the board eliminated a reading teacher position, petitioner was the reading teacher with the least seniority (see Appeal of Kulick, 34 Ed Dept Rep 613,Decision No. 13,428 [“In determining the order of seniority of teachers within a district ‘... it is clear that the teacher whose appointment occurred first had a longer seniority ... than the teacher who was appointed upon a later resolution’” (citations omitted)]). Although I find respondents’ determination regarding the time spent by Whalen in the reading tenure area improper in part, because petitioner remains the least senior teacher, she was properly terminated.

To the extent petitioner seeks to raise claims about respondents’ delay in responding to her FOIL requests, section 89 of the Public Officers Law vests exclusive jurisdiction over complaints alleging FOIL violations in the Supreme Court of the State of New York and alleged violations thereof may not be adjudicated in an appeal to the Commissioner (Appeal of Olka, 48 Ed Dept Rep 10,Decision No. 15,776; Application of Gentile, 47 id. 438,Decision No. 15,747; Appeal of T.K., 47 id. 234, Decision No. 15,679). Therefore, I have no jurisdiction to address the FOIL allegations raised in this appeal.

Finally, petitioner requests that she receive back pay, monetary compensation for benefits and be reimbursed for legal consultations to complete her appeal. The Commissioner has no authority to award monetary damages, costs or reimbursements in an appeal pursuant to Education Law §310 (Application of Kolbmann, 48 Ed Dept Rep 370,Decision No. 15,888; Appeal of S.B., 48 id. 332, Decision No. 15,875).

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that, within 30 days of the date of this decision and order, respondents recalculate Whalen’s seniority rights in the reading and teacher of the deaf and hearing impaired tenure areas in accordance with this decision. END OF FILE