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Decision No. 12,891

Appeal of ANNE KALINOWSKI from action of the Board of Education of the Rocky Point Union Free School District regarding seniority.

Decision No. 12,891

(February 26, 1993)

John Ray, Esq., attorney for petitioner

Ingerman, Smith, Greenberg, Gross, Richmond, Heidelberger, Reich & Scricca, Esq., attorneys for respondent, Neil M. Block, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals from an action of the Board of Education of the Rocky Point Union Free School District abolishing her secondary teaching position, based upon its computation of her seniority. The appeal must be dismissed.

Petitioner has been employed by respondent since 1984. Although no copy of the board resolution hiring petitioner is included in the record, petitioner has included a "Notice of Appointment and Salary" dated June 1, 1984, indicating that she was appointed as a "Math/Science Teacher-Secondary" for a probationary period of three years beginning September 1, 1984. During the school years 1984-1985, 1985-1986, and 1986-1987, petitioner was assigned to teach primarily science courses, and the parties agree that at no time during her probationary period did petitioner teach a substantial portion of her time, i.e., 40 percent or more, in the tenure area of math (8 NYCRR '30.1[g]).

In September 1985 the district hired two mathematics teachers who apparently taught only mathematics and were tenured in 1988. Those two teachers have continued to teach mathematics through the 1991-1992 school year, and are each credited with seven years of seniority as of the end of that year.

At its meeting on April 30, 1987, the board of education approved a recommendation that petitioner be granted tenure in the field of "High School Science." After her appointment to tenure, the parties agree that petitioner taught exclusively in the science tenure area from September 1987 to June 1991. The parties also agree that during the 1991-1992 school year, petitioner spent 60 percent of her time teaching in the area of science, and 40 percent teaching in the area of mathematics.

On March 27, 1992, respondent's superintendent informed petitioner that her position had been abolished. On June 25, 1992, petitioner's attorney wrote to the superintendent, and claimed that petitioner had been tenured in both mathematics and science since March 31, 1987. Based upon this claim, petitioner's attorney further asserted that petitioner had more seniority in the mathematics tenure area than at least one other mathematics teacher, and therefore was entitled to continued employment as a teacher of mathematics.

By certified letter dated July 1, 1992, the superintendent advised petitioner that the position being abolished was that of science teacher and that petitioner would be placed on a preferred eligible list. There is no question that petitioner has the least amount of seniority credit in the science tenure area.

Petitioner claims, however, that she was appointed to tenure in the areas of both mathematics and science in 1987, as evidenced by the notices of appointment and salary for the eight years she taught in the district. Based upon her claim to tenure in both areas, she alleges that the district's failure to assign her to teach a substantial portion of her time in the mathematics tenure area from the 1984-1985 school year to the 1990-1991 school year, inclusive, amounted to a transfer outside her tenure area without her consent. Finally, petitioner claims that she should be deemed to have earned eight years of seniority in the mathematics tenure area as of the end of the 1991-1992 school year, and therefore has greater seniority in that tenure area than the two mathematics teachers hired in September 1985.

Respondent claims that the petition must be dismissed because petitioner has failed to join as necessary parties those whose rights may be affected: the two mathematics teachers hired in September 1985. Respondent further alleges that petitioner was granted tenure only in science in 1987. Respondent claims, and petitioner agrees, that petitioner has accrued eight years of seniority in the tenure area of science; however, respondent, while admitting that petitioner should have received a formal probationary appointment in mathematics for the 1991-1992 school year, concedes only that petitioner is entitled to one year of seniority in the mathematics tenure area. Based upon its computation, respondent concludes that petitioner has the least amount of seniority in the mathematics tenure area.

I find that petitioner's failure to join the two mathematics teachers hired in September 1985 is sufficient to warrant dismissal. A decision on the merits in this matter would necessarily involve the rights of those teachers. I therefore find that they are necessary parties and should have been served and joined as parties so that they might have an opportunity to respond to petitioner's contentions (Appeal of Healy, 29 Ed Dept Rep 391; Appeal of Zimmerman, 28 id. 382; Matter of Halayko, 23 id. 247). Petitioner did send copies of the petition to the two mathematics teachers by certified mail one day prior to commencing this appeal by personal service on respondent. However, the petition does not indicate that they are respondents, and service by mail alone is not a permissible method of commencing an appeal and acquiring jurisdiction over a party (8 NYCRR '275.8[a]).

Although petitioner did give the two mathematics teachers notice of this appeal, she argues, in the alternative, that they are not necessary parties, relying on Zubal v. Ambach (103 AD2d 927). Petitioner's reliance is misplaced. In Zubal, the Appellate Division affirmed a judgment of Special Term, which had annulled the Commissioner's decision in Matter of Zubal, 21 Ed Dept Rep 383, on the ground that both the school district and the Commissioner had wrongly determined petitioner's tenure area. As a result, the district had never determined petitioner's relative seniority in the correct tenure area. The court therefore excused Zubal's failure to join two other teachers in the same tenure area because such joinder would have been premature (103 AD2d at 929). In this appeal, however, respondent has made a seniority determination within the correct tenure areas, and joinder of the two mathematics teachers is essential.

Even if I were not to dismiss this appeal on procedural grounds, I would do so on the merits. Assuming that petitioner originally received a probationary appointment in both mathematics and science, her assignments during the probationary period complied with 8 NYCRR '30.9(a), which requires that the probationer be assigned in such a manner that "he shall devote a substantial portion of his time throughout the probationary period in at least one designated tenure area . . . " (emphasis added). Under Education Law '3012 and 8 NYCRR Part 30, petitioner served in, and earned tenure in, only the tenure area of science. Indeed, the superintendent's recommendation for tenure, as contained in the record, was only in the field of science. Because the superintendent's recommendation was only in science, the board could not have legally appointed petitioner to tenure in any other area (Matter of Gerathy, 19 Ed Dept Rep 440; Matter of Leviness, 18 id. 213; Matter of Marino, 11 id. 336), nor do the board minutes of its April 10, 1987, meeting indicate that it attempted to do so.

Petitioner's argument confuses her original probationary appointments in the areas of both mathematics and science with her tenure appointment. Petitioner appears to argue that because she was originally appointed in both areas, she was automatically entitled to appointment to tenure in both areas, or to a single tenure area encompassing both. However, pursuant to 8 NYCRR '30.7, it is clear that mathematics and science are separate academic tenure areas, and that a person may only be appointed to a tenure area where he or she has actually served a substantial portion of his or her time. Petitioner appears to argue that because she was assigned to teach only science courses for the four school years following her appointment to tenure, she was somehow assigned outside her tenure area, without notice, and against her will. She therefore claims that she is entitled to seniority credit not only for those four years, but for the three probationary years prior to the granting of tenure, in the area of mathematics, even though at no time did she serve more than 20 percent of her time in that area.

Petitioner's reliance on Appeal of Pendl, 28 Ed Dept Rep 511, and Matter of Singer, 19 id. 297, in support of this argument is misplaced. In both of those cases, the teacher first earned tenure in one area, then earned tenure in a second area, and was transferred back to his original area against his will. These cases have no application to the facts now before me. Petitioner earned tenure only in one tenure area, and has never devoted a substantial portion of her time to any subject matter outside the tenure area of science prior to 1991-1992. Respondent properly computed her seniority, and petitioner cannot be entitled to more than one year of seniority in the area of mathematics. She therefore has the least seniority in both the science and mathematics tenure areas, and respondent acted properly in abolishing petitioner's science position and placing her on its preferred eligible list.

I have reviewed petitioner's other contentions, including her claimed reliance on allegedly erroneous documents produced by respondent, and find them without merit.