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Decision No. 12,858

Appeal of DEBORAH BORON from action of the Board of Education of the Barker Central School District and Carol Feltz, regarding excessing of a teacher.

Decision No. 12,858

(December 22, 1992)

Bernard F. Ashe, Esq., attorney for petitioner, Gerard John DeWolf, Esq., of counsel

Mahoney, Berg & Sargent, Esqs., attorneys for respondent board, Nicholas J. Sargent, Esq., of counsel

Phillips, Lytle, Hitchcock, Blaine & Huber, Esqs. attorneys for respondent Feltz, Michael R. Moravec, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals from respondent board's termination of her employment pursuant to Education Law '2510. Petitioner contends that she is not the least senior teacher within the tenure area of the position abolished and seeks an order directing her reemployment, together with back pay and benefits. The appeal must be dismissed.

On August 7, 1978 respondent board granted respondent Feltz a probationary appointment as a "methods analyst," effective September 1, 1978. Respondent board awarded petitioner a probationary appointment within the special subject tenure area of remedial reading, effective September 1, 1981. Petitioner received tenure in that tenure area effective September 1, 1985. Except for four family-related leaves of absence, petitioner has continuously taught in the remedial reading tenure area. By notice dated October 6,1986 respondent board notified respondent Feltz that because Part 30 of the Rules of the Board of Regents does not authorize the tenure area of methods analyst, the board was changing her probationary appointment and tenure area. That notice provided in part:

I am pleased to recommend that the Board of Education change your probationary and tenure appointment from methods analyst to elementary education and that you be assigned to the responsibilities outlined in the attached job description for the position of Reading/LanguageArtsSpecialist,K-12. This action will not alter your past or future seniority. All seniority will be accrued in the area of Elementary Education.

As of July 1, 1991 petitioner had accumulated 7 years, 9 months and 26.5 days of seniority in the reading tenure area. District records indicate that as of July 1, 1991, respondent Feltz had accumulated 14 years of seniority in elementary education. By notice dated February 27, 1992, petitioner was informed that, effective the beginning of the 1992-93 school year, she would be excessed due to respondent board's decision to eliminate one remedial reading position.

For the 1992-93 school year respondent board informed respondent Feltz that she would be instructing reading at both the elementary and secondary level. A copy of respondent Feltz' schedule indicates she is to teach 20 reading classes per week at the K-6 level and 11 classes per week at the secondary level.

Petitioner contends that respondent board violated her seniority rights under Education Law '2510 and Part 30 of the Rules of the Board of Regents in purporting to excess her while assigning respondent Feltz, who is tenured in elementary education, to a full-time remedial reading position. Education Law ''2510(1) and (2) provide:

1. If the board of education abolishes an office or position and creates another office or position for the performance of duties similar to those performed in the office or position abolished, the person filling such office or position at the time of its abolishment shall be appointed to the office or position thus created without reduction in salary or increment, provided the record of such person has been one of faithful, competent service in the office or position he has filled.

2. Whenever a board of education abolishes a position under this chapter, the services of the teacher having the least seniority in the system within the tenure of the position abolished shall be discontinued.

Similar provisions appear in '30.13 of the Rules of the Board of Regents.

In response to that contention, respondent board maintains that it had previously and incorrectly designated respondent Feltz as in the elementary education tenure area and that she is, in fact, in the remedial reading tenure area. Respondent board further maintains that if respondent Feltz is within the remedial reading tenure area, she is senior to petitioner. Consequently, upon abolition of a position in the remedial reading area, petitioner, as the least senior person in that area, was properly dismissed from employment.

The tenure area to which an employee belongs is determined by reference to the time of the normal work day spent in a tenure area (Maine-Endwell Teachers v. Central School District, 92 AD2d 1052). In addition, '30.8(a) provides in part:

A professional educator who is employed to devote a substantial portion of his time to instruction in one or more of the following subject areas shall be deemed to serve in the special subject tenure area or areas encompassing such subject:

* * *

(13) remedial reading; . . .

(emphasis supplied)

Section 30.1(a) defines "substantial portion of his time" as

...40% or more of the total time spent by a professional educator in the performance of his duties, exclusive of time spent in preparation, monitoring or in co-curricular activities.

Respondent board maintains that, during her employment with the district, respondent Feltz has always spent 40% or more of her total time, exclusive of time spent in preparation, monitoring or in co-curricular activities, performing duties in the remedial reading tenure area. In support of that contention, respondent board has submitted respondent Feltz's lesson plans for the last 14 years, as well as evaluations of her for 10 years. A review of the evaluations and a sampling of the lesson plans supports the claim of respondent board that respondent Feltz has spent a substantial portion of her professional time performing duties in the remedial reading tenure area.

In connection with petitioner's contention that respondent Feltz is properly tenured as an elementary teacher, '30.5 of the Rules of the Board of Regents states:

A professional educator who is employed to devote a substantial portion of his time to classroom instruction in the common branch subjects at the kindergarten (including pre-kindergarten) level and/or in any of the first six grades shall be deemed to serve in the elementary tenure area (emphasis supplied).

"Common branch subjects" are defined as:

... any or all of the subjects usually included in the daily program of an elementary school classroom such as arithmetic, civics, visual arts, elementary science, English language, geography, history, hygiene, physical activities, practical arts, reading, music, writing, and such other similar subjects (8 NYCRR 30.1[b]).

As such, the common branch subjects refer to those subjects taught in the classroom by individual teachers. However, the record evidence is devoid of any indication that respondent Feltz's duties consisted of teaching the common branch subjects in elementary education.

Based on the foregoing, I conclude that respondent Feltz was not properly designated by respondent board as being part of the elementary tenure area. While prior to this year respondent Feltz provided remedial reading services only to elementary school students, the record supports respondent board's contention that she has continuously served as a remedial reading teacher since her initial employment. Accordingly, respondent Feltz is more senior in the remedial reading tenure area and petitioner's services were properly terminated as the least senior person in that tenure area.

Petitioner maintains that respondent board may not, at this late date, again change respondent Feltz's tenure area from elementary education to remedial reading, especially since respondent Feltz had no notice that she was entering a new tenure area. The New York Court of Appeals has held that retroactive restructuring of tenure areas is impermissible and a teacher's tenure area is fixed when he or she is appointed (Matter of Waiters v Bd. of Educ., 46 NY2d 885; Matter of Baer v Nyquist, 34 NY2d 291). However, in this instance, respondent board has not retroactively restructured respondent Feltz's tenure area, but has corrected its bookkeeping to reflect the fact that she has always served in the remedial reading tenure area.

Citing Matter of Waiters, supra, and Matter of Keeney, 17 Ed Dept Rep 314, petitioner maintains that respondent Feltz cannot be within the remedial reading tenure area because respondent board never gave her proper notice that she was in that tenure area. I find those cases unpersuasive since they involve the situation when a teacher is assigned new duties. That is not the situation in this instance, since respondent Feltz has performed essentially the same or similar duties since the beginning of the 1978-79 school year.