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Decision No. 12,933

Appeal of ROBERT KIERNAN from action of the Board of Education of the Carle Place Union Free School District regarding abolition of a position.

Decision No. 12,933

(May 24, 1993)

James R. Sandner, Esq., attorney for petitioner, James D. Bilik, Esq., of counsel

Robert E. Mulligan, Esq., attorney for respondent

SOBOL, Commissioner.--Petitioner appeals from respondent's action excessing him from his position as a mathematics teacher. The appeal is dismissed.

On July 14, 1986 respondent granted both petitioner and Ms. Barbara Guidi probationary appointments as teachers in the tenure area of mathematics. At all times during their employment, petitioner and Ms. Guidi spent at least 40% of their time teaching mathematics, and they have equal seniority in that tenure area.

At a meeting on April 29, 1992, respondent adopted a resolution abolishing nine teaching positions, including a position in the mathematics tenure area. A second resolution was adopted terminating the employment of teachers identified as the least senior in the tenure area affected by the abolition of those positions. Petitioner was identified as the least senior teacher in the mathematics tenure area, and his services were terminated effective June 30, 1992. This appeal followed.

When a board of education abolishes a position, it is required by Education Law '2510(2) to discontinue "the services of the teacher having the least seniority in the system within the tenure of the position abolished" (seeMatter of Cole v. Board of Educ., 90 AD2d 419). The first criterion for determining seniority is actual full-time service rendered (Matter of Dreyfuss v. Board of Educ., 76 Misc 2d 479, aff'd 45 AD2d 988; Matter of Fallick, 18 Ed Dep Rep 586). If such full-time service is equal, the teachers' respective appointment dates are to be used for determining seniority (Matter of Fallick, supra; Matter of Ferguson, 14 Ed Dept Rep 102; Matter of Ducey, 65 St Dept Rep 65).

In this case, petitioner and Ms. Guidi have equal seniority and the same dates of appointment. Citing Schoenfeld v. BOCES of Nassau County (98 AD2d 723) and Matter of Sommers (19 Ed Dept Rep 99), petitioner maintains that a board of education must apply reasonable criteria when breaking a tie in seniority as exists in this instance. Petitioner further maintains that because respondent failed to apply such criteria, its decision to terminate his services and retain Ms. Guidi must be overturned. Petitioner asked that he be restored to his full-time position in the tenure area of mathematics nuncprotunc to June 30, 1992 with full salary and benefits. In support of his position, petitioner notes that respondent has no written policy governing the breaking of ties in seniority and that the board minutes for the April 29, 1992 meeting, at which respondent voted to excess petitioner, cite no criteria used in the board's decision.

However, the Appellate Division of the Supreme Court of the State of New York stated in Schoenfeld v. BOCES of Nassau County, supra, "If two teachers have equal service time, the board's discretion dictates who is to be retained . . . ." In exercising its discretion, a board of education must not act in an arbitrary or unreasonable fashion (seeMatter of Cesaratto, et al., 17 Ed Dept Rep 23, and Matter of Sommers, supra). The record indicates that the services of Ms. Guidi were retained rather than the services of petitioner for two reasons. First, Ms. Guidi is certified in Italian 7-12, which could be beneficial to the district in the future. Secondly, the decision to abolish a math position was partly motivated by a need to reduce expenditures. Ms. Guidi's salary was approximately $15,000 less than petitioner's, making her retention more cost effective. On the basis of this record, I cannot conclude that respondent acted in an arbitrary or unreasonable fashion.

Moreover, there is no requirement that a board of education have a pre-existing policy, written or otherwise, governing the breaking of ties in seniority. There is also no requirement that its reasons for selecting one teacher over another be set forth in official board minutes.

Although it is not entirely clear from his papers, petitioner seems to argue that the decision to retain the services of Ms. Guidi rather than petitioner was made by the superintendent rather than the board. However, there is no proof in the record to support that contention. The record shows that the superintendent recommended petitioner's services be terminated, and that respondent acted on that recommendation.

The appeal must also be dismissed on procedural grounds. If the relief sought in this appeal were to be granted, it could adversely affect Ms. Guidi. Accordingly, she is a necessary party, and petitioner's failure to join her necessitates dismissal of the appeal (Appeal of Nordin, 32 Ed Dept Rep 17; Matter of Klyde, 22 id. 362; Matter of Acinapuro, et al., 19 id. 466).