Appeal of MARTHA KENNELLY from action of the Board of Trustees of the New Suffolk Common School District, the New Suffolk Common School District, Nicole Pollina and Sara Campbell regarding seniority.

Decision No. 17,137

(August 8, 2017)

Starvaggi Law Offices, P.C., attorneys for petitioner, Michael A. Starvaggi, Esq., of counsel

Lamb & Barnosky, LLP, attorneys for respondents, Robert H. Cohen, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the decision of the Board of Trustees of the New Suffolk Common School District (“respondent board”) to terminate her employment.  The appeal must be sustained in part.

Petitioner holds a permanent certification as a teacher of Nursery, Kindergarten and Grades 1-6, as well as a Students with Disabilities (Grades 1-6) professional certificate.  On September 1, 1998, petitioner was given a probationary appointment in the New Suffolk Common School District (“district”) in the position of Teacher - Primary Grades.  Petitioner was granted tenure in the Elementary Education K-6 tenure area effective September 1, 2001.  I note that the district consists of only one three-room school house and currently enrolls 17 students.  At the time of this appeal the district employed three teachers, including petitioner, and two teaching assistants.  Sara Campbell (“respondent Campbell”), one of the teachers in the district, was given a probationary appointment in the Elementary Education K-6 tenure area in September 2009 and was subsequently granted tenure, effective September 1, 2012.  Nicole Pollina (“respondent Pollina”), the third teacher in the district, was given a probationary appointment on September 1, 2011 in the Elementary Education K-6 tenure area.

Following her tenure appointment, for a period of approximately ten years, beginning on or about July 1, 2004, petitioner was designated as a Teacher on Special Assignment with the Middle Eastern Suffolk Teacher Center (“MESTRACT”).  The record indicates that, during this time, petitioner served as the Director at MESTRACT but remained an employee of the district and continued to accrue seniority in the Elementary Education K-6 tenure area.  The district was reimbursed for her compensation by MESTRACT.

The record indicates that, at its April 15, 2014 meeting, respondent board adopted a resolution establishing a “Hybrid Tenure Area: Elementary Education K-6/Special Education” to address the growing need of the district’s students with special needs.  The record further indicates that, at that meeting, two of the district’s three teachers tenured in the Elementary Education K-6 tenure area at that time - respondent Campbell and Holly Plymale - were granted tenure in the new “hybrid” tenure area and their seniority credit was not affected.  Respondent Pollina was appointed as a probationary teacher in the Elementary Education K-6 tenure area on September 1, 2011.  Her probationary appointment was “carried forward” to the “hybrid” tenure area and her service thus far was credited in that area.[1]  Their previous positions in the Elementary Education K-6 tenure area were abolished.  Petitioner remained in the K-6 Elementary tenure area.

By letter dated May 21, 2014, petitioner advised the superintendent of her intent to return to the district in the fall, due to the resignation of Holly Plymale.  By return correspondence, dated June 6, 2014, petitioner was notified that the position she was seeking to fill upon her return required a special education certification which, to the superintendent’s knowledge, petitioner did not possess.  In a series of follow-up letters, petitioner notified the superintendent that she would possess the requisite certification, namely a special education certificate, by the beginning of the 2014 school year and the superintendent requested proof of the same.[2]  Thereafter, beginning on August 18, 2014, petitioner was assigned to non-classroom curriculum development duties in the district.

At its April 16, 2015 meeting, respondent board voted to abolish one teaching position in the Elementary Education K-6 tenure area, effective June 30, 2015.  Petitioner was determined to be the least senior teacher in that tenure area and, consequently, was excessed, effective June 30, 2015.  This appeal ensued.

Petitioner asserts that she was improperly excessed, as she is the most senior teacher in the district, and seeks reinstatement with full salary and benefits, retroactive to June 30, 2015.  Petitioner claims that respondent board’s actions granting retroactive tenure and seniority credit to respondents Campbell and Pollina in the new “hybrid” tenure area is illegal.  She contends that respondent board’s creation of a “hybrid” Elementary Education K-6/Special Education tenure area, and the transfer of two teachers to that tenure area while leaving her in the prior Elementary Education K-6 tenure area constitutes impermissible retroactive restructuring of her tenure area and circumvents her tenure and seniority rights.  She maintains that respondent board impermissibly targeted her for excessing, that the board’s actions must be disregarded, and that she must be retained as the most senior teacher in the tenure area in which the excessing took place.

Respondents assert that the appeal must be dismissed for failure to join necessary parties.  Respondents contend that the creation of a “hybrid” Elementary Education K-6/Special Education tenure area was legally proper.  Respondents further contend that petitioner’s position was eliminated for bona fide budgetary reasons in accordance with Education Law §2510.

I must first address several procedural matters.  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.

Respondents argue that the appeal must be dismissed for failure to join necessary parties.  I disagree.  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).

According to respondents, there are two teaching assistants in the district that work under the supervision of respondents Campbell and Pollina.  According to an affidavit by the president of respondent board, should petitioner prevail and be reinstated, “the likely result” will be the excessing of respondent Pollina, and one or both of the teaching assistants, as well, for budgetary reasons.  Education Law §3013(2) provides that when a position is abolished, “the services of the teacher having the least seniority in the system within the tenure of the position abolished shall be discontinued.”  Respondent board eliminated a position in the Elementary Education K-6 tenure area from which petitioner was excessed and to which she seeks reinstatement.  Teaching assistants hold certificates that are separate and distinct from elementary education teachers and are authorized to act only under the general supervision of a licensed or certified teacher (Education Law §3009[2][b]; 8 NYCRR §80-5.6[b]).  The teaching assistants did not serve in the same tenure area as a classroom teacher, such as petitioner.  Thus, such individuals will not, as matter of law, be affected should petitioner prevail in this matter.  Additionally, respondents’ speculation as to how the district would resolve a budgetary issue should petitioner prevail in this appeal is insufficient to support a conclusion that the teaching assistants would be adversely affected, warranting their joinder as respondents.  Respondents’ reliance on Appeal of McCarthy (54 Ed Dept Rep, Decision No. 16,631) is misplaced.  In that case, the petitioner sought to be reinstated to her position which was abolished along with five other librarian positions and which was replaced by six newly hired reading teachers.  There, the reading teachers directly replaced the excessed librarians, which action was challenged.  Here, the teaching assistants fill ancillary positions and, at this point in time, it is speculative as to how, or if, the district may need to reduce costs should petitioner prevail.  Thus, I cannot conclude on this record that the teaching assistants will be adversely affected.  Consequently, I decline to dismiss the appeal for failure to join them as necessary parties.

Turning to the merits, respondents correctly note that the school district is exempt from the tenure areas set forth in Part of 30 of the Rules of the Board of Regents because it employs fewer than eight teachers (8 NYCRR §30-1.2[e]).  However, respondent board is subject to Education Law §3012-a, which defines the elementary tenure area.  That statute provides that, with exceptions not relevant here, “elementary tenure area shall mean kindergarten through grade 6 for teachers employed in such grade levels [after May 13, 1975].  All teachers holding tenure [as of May 13, 1975] in the kindergarten tenure area or grade one through six tenure area shall be deemed to hold tenure in the elementary tenure area as defined by this section.”  As a matter of law, all teachers in kindergarten through grade six, apart from those in a special tenure area, shall be in a single elementary tenure area without regard to the organizational pattern of the district (see Opinion of Counsel No. 232, 14 Ed Dept Rep 435).  A “hybrid” elementary education/special education tenure area is not permitted under Education Law §3012-a, nor is it permissible to simultaneously have an elementary tenure area and such a hybrid tenure area as respondent attempted to do in this case.  Consequently, respondent board had no authority to create such hybrid tenure area.  Respondent board’s April 15, 2014 action establishing the “hybrid” Elementary Education K-6/Special Education tenure area, as well as the transfer of respondents Campbell and Pollina to the “hybrid” tenure area, was not permissible and is void ab initio.  Thus, respondents Campbell and Pollina remain in the Elementary Education K-6 tenure area.

In abolishing a position in the Elementary Education K-6 tenure area, respondent board was required to excess the teacher(s) “having the least seniority in the system within the tenure of the position abolished” (Education Law §§2510[2] and 3013[2]).  In accordance with my findings in this decision, respondents Campbell and Pollina never served in the unauthorized “hybrid” Elementary Education K-6/Special Education tenure area, rather they remained in the authorized Elementary Education K-6 tenure area (see Kaufman v. Fallsburg CSD Bd. Of Educ., 91 NY2d 57; Appeal of De Oliveira, 52 Ed Dept Rep, Decision No. 16,411, application to review discontinued by stipulation July 11, 2017).[3]  Therefore, respondent board must calculate the seniority of petitioner, respondent Pollina and respondent Campbell, as of April 16, 2015, in the Elementary Education K-6 tenure area.  If petitioner was not the least senior teacher in that tenure area, respondent board must reinstate her with back pay and benefits. 

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

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that, respondent board determine petitioner’s seniority rights, as of April 16, 2015, in accordance with this decision and, if it is determined that petitioner was not the least senior teacher in the Elementary Education K-6 tenure area, that petitioner be reinstated with back pay and benefits, effective June 30, 2015.

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