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Decision No. 12,959

Appeal of RALPH CHANEY from action of the Board of Education of the Iroquois Central School District, Erie No. 2-Chautauqua-Cattaraugus BOCES, and Sylvia Stevens regarding seniority.

Decision No. 12,959

(July 15, 1993)

Lipsitz, Green, Fahringer, Roll, Salisbury & Cambria, Esqs., attorneys for petitioner, Robert J. Reden, Esq., of counsel

Hodgson, Russ, Andrews, Woods & Goodyear, Esqs., attorneys for respondent Iroquois Central School District, Randy C. Fahs, Esq., of counsel

Saperston & Day, P.C., Esq., attorneys for respondent Erie No. 2-Chautauqua-Cattaraugus BOCES, Patricia Gillen, Esq., of counsel

National Education Association of New York, attorney for respondent Sylvia Stevens, Robert D. Clearfield, Esq., of counsel

SOBOL, Commissioner.--Petitioner, a tenured industrial arts teacher, challenges the termination of his services by the Iroquois Central School District. The appeal must be dismissed.

Respondent, the Iroquois Central School District, appointed petitioner to a three year probationary term in the tenure area of industrial arts, effective September 1973. On September 1, 1976, petitioner was granted tenure in industrial arts by the Iroquois board. Petitioner served full time in his tenure area through the end of the 1990-91 school year. Effective June 30, 1991, the Iroquois Central School Board ("respondent board of education") abolished 2.2 full-time equivalent positions in the tenure area of industrial arts, leaving 2.8 full-time equivalent positions in that tenure area. As a result, two teachers with less seniority than petitioner were terminated and their names were placed on a preferred eligible list. Petitioner, as the next least senior person in the industrial arts tenure area, was notified on April 17, 1991, that his position would be reduced to a .8 position effective June 30, 1991. Thereafter, respondent board of education decided to have respondent Erie No. 2, Chautauqua-Cattaraugus BOCES (respondent "BOCES") take over the .8 position for the 1991-92 school year. In so doing, respondent BOCES offered the .8 position to petitioner. In addition, respondent board of education made an initial scheduling determination that respondent Stevens, a tenured home economics teacher, would teach a course entitled "Introduction to Occupations". The board of education's final decision was to assign this course to Christine MacKay, a tenured home economics teacher who had more seniority in her tenure area than petitioner had in industrial arts. Between April 17, 1991 and August 1991, petitioner continued to try to convince respondent board to transfer the course "Introduction to Occupations" to him rather than a tenured home economics teacher. He failed and this appeal followed.

Petitioner contends that because he has more seniority in his tenure area than respondent Stevens has in hers, and since he is qualified to teach the course, "Introduction to Occupations", respondent Iroquois Central School District was required to shuffle schedules to allow him to retain his full-time position. He further contends that after eliminating his position, respondents violated the law by having the BOCES take over the .8 position because the only students enrolled in the BOCES classes are from the Iroquois district.

Respondents contend that the appeal should be dismissed as untimely and for failure to join a necessary party. Additionally, respondents argue that neither BOCES nor the district violated the law by having the BOCES take over the .8 position even if the students enrolled in the classes are all from one district. Finally, respondents contend that Education Law '2510 does not require them to shuffle schedules to accommodate petitioner's request, only that they abolish the position of the least senior individual in the tenure area in which a position is being eliminated.

As a threshold matter, when a position is abolished, a petitioner is not aggrieved until the start of the school year in September (Appeal of Bales, 32 Ed Dept Rep __; Decision No. 12913, decided April 15, 1993; Appeal of Berowski, 28 Ed Dept Rep 53). Petitioner's position was abolished commencing in September 1991. This appeal was initiated on October 2, 1991, within thirty days of the commencement of the 1991-92 school year. Therefore, I find this appeal timely.

Respondents contend that the appeal should be dismissed because petitioner has failed to join as a necessary party Christine MacKay, the teacher assigned to teach the course "Introduction to Occupations". A party whose rights would be adversely affected by the determination of an appeal in favor of petitioner must be joined as a necessary party (Appeal of Basile, 32 Ed Dept Rep 330; Appeal of Osterman, 30 Ed Dept Rep 290; Appeal of Como, 30 id. 214; Appeal of Fitzpatrick, 30 id. 214; Appeal of Giglia, et al, 27 Ed Dept Rep 453). Petitioner alleges that he rather than Ms. Stevens or Ms. MacKay, should be teaching the Introduction to Occupations course. Although petitioner amended his petition naming Ms. Stevens as a respondent, he did not name Ms. MacKay. If petitioner were to prevail on his claim that he should be teaching the class in question, then Ms. MacKay's schedule or even her position in the district could be jeopardized. Therefore, the appeal must be dismissed for failure to join Ms. MacKay as a necessary party.

The case would have been dismissed on the merits as well. The central issue in this appeal is whether the abolition of the industrial arts position was proper, and whether the Iroquois Board of Education was required to shuffle teachers' schedules and abolish the position of Ms. Stevens, a teacher tenured in home economics who has less seniority in her tenure area than petitioner has in his. Petitioner's assertion that respondent board of education is obliged to shuffle the schedules of teachers outside the tenure area in which a position is abolished, in order to retain the district's most senior teachers, is in error. Education Law '2510(2) provides:

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.

This provision of law has been interpreted by the courts and the Commissioner to require a school board to shuffle teachers' schedules within the tenure area of the abolished position to retain the most senior teachers in that tenure area (Steele v. Board of Education of the Valhalla Union Free School District, 53 AD 2d 674; aff'd. 42 NY 2d 840; Amos v. Board of Education of the Cheektowaga-Sloan Union Free School District, 54 AD 2d 297, aff'd. 43 NY 2d 706; Matter of Smyton, 19 Ed Dept Rep 281). Those cases, however, involved teachers whose schedules could be shuffled within the same general tenure area to enable those with certification in more than one area to be assigned to teach subjects in which they were both certified and tenured. Petitioner seeks to extend this principle to a situation involving two distinct tenure areas. There is no legal authority or precedent that requires a school board to retain the most senior teachers within the district, without regard to their tenure areas. To the contrary, school boards must be free to determine on an economic basis which positions they need to abolish (Young v. Board of Education, 41 AD2d 966, aff'd 35 NY2d 31).

If petitioner is claiming that his position was abolished in bad faith, he bears the burden of proof (Appeal of Bovi, 29 Ed Dept Rep 352; Matter of Currier v. BOCES, 80 AD2d 979). The record reflects that respondent's reduction of petitioner's full-time position was for economic and administrative reasons. Furthermore, petitioner's claim of entitlement to a full-time position within respondent district is baseless. A school board may abolish positions as needed and assign the duties of one position to other teachers according to its own best judgment (Education Law ''1709(16),(33); Matter of Zurlo, 18 Ed Dept Rep 385, aff'd 75 AD2d 662, aff'd 53 NY2d 1035; Matter of Young v. Bd. of Ed., supra; Matter of Ryan v. Ambach, 71 AD2d 719; Appeal of Bovi, supra). A school board is not required to create full-time positions (Appeal of Bovi, supra). Therefore, respondent school district was within its authority to assign the "Introduction to Occupations" class to a teacher in home economics.

Petitioner is, however, entitled to a position with respondent BOCES in accordance with Education Law '3014-a. That section provides the manner in which a BOCES may take over the operation of a program formerly provided by a school district. When teachers are excessed from the school district they must be placed on a preferred eligible list for appointment to a vacancy that may occur under the jurisdiction of the BOCES. Teachers on this preferred eligible list are to be appointed to fill vacancies in corresponding or similar positions under the jurisdiction of the BOCES (Education Law '3014-a). In compliance with the law, petitioner was offered the .8 position that was created at the BOCES as a result of the BOCES takeover.

In addition, petitioner's reliance upon Education Law '1950 and Commissioner's regulations 8 NYCRR '112.2(h)(1) to support his contention that the removal of the remaining .8 position to BOCES was improper, is misplaced. Petitioner's argument that because those provisions require two or more school districts to request that a shared service be provided by a BOCES, all BOCES classes must have students from more than one school, is not compelling. Neither statute nor regulation require a BOCES class to educate students from more than one school district. Therefore, petitioner's argument is without merit.