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Decision No. 13,379

Appeal of PERRY LESSING from action of the Board of Education of the Saranac Lake Central School District regarding termination of employment.

Decision No. 13,379

(March 23, 1995)

Bernard F. Ashe, Esq., attorney for petitioner, Kevin H. Harren, Esq., of counsel

Robert E. White, Esq., attorney for respondent

SOBOL, COMMISSIONER.--Petitioner appeals respondent's termination of his service as a probationary teacher. The appeal must be sustained.

On June 17, 1992, respondent Board of Education of the Saranac Lake Central School District ("respondent") adopted a resolution appointing petitioner as a "remedial math teacher" for a probationary period commencing September 1, 1992 and ending August 31, 1995. During the 1992-1993 school year, petitioner was assigned to teach remedial math for 75% of his time and remedial social studies for the balance. During the 1993-1994 school year, petitioner states that his teaching responsibilities were distributed as follows:

Secondary social studies - 48%

Secondary math - 26%

Middle school computer science- 10%

Middle school technology - 10%

Remedial Reading - 6%

On June 5, 1994, petitioner received a memorandum from respondent's superintendent stating that:

I didn't recommend you for continued probationary employment as your position is being eliminated at the end of the school year.

Had the position not been cut, you would have been recommended for continuation of your probationary appointment.

Petitioner first claims that his June 17, 1992 appointment was to an unauthorized tenure area, since remedial math is not a tenure area authorized pursuant to 8 NYCRR '30.7 or '30.8. He asserts, therefore, that his service should be considered within the mathematics tenure area.

Section 30.7 of the Rules of the Board of Regents provides:

(a) A professional educator who is employed at or above seventh grade level to devote a substantial portion of his time to instruction in one or more of the core academic subjects in a grade or grades in which instruction is departmentalized shall be deemed to serve in the academic tenure area or areas encompassing such subjects.

(b) There shall be five academic tenure areas, reflecting the division of the instructional staff of a departmentalized school into separate units for giving of instruction in English, social studies, mathematics, science and foreign languages.

The regulations further define "a substantial portion of his time" as "40 percent 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" (8 NYCRR 30.1(g)). Moreover, a teacher who is given a probationary appointment in an unauthorized tenure area is deemed to have served pursuant to an appointment in the authorized tenure area that encompasses the teacher's actual duties (Matter of Murchison, 21 Ed Dept Rep 11).

The record indicates that during the 1992-93 school year, petitioner devoted a substantial portion of his time to instruction in mathematics. Accordingly, petitioner's service should be considered within the mathematics tenure area. Respondent's contention that tutoring of remedial math is not within the mathematics tenure area is without merit. In addition, the fact that petitioner's salary was paid from federal funds is also of no significance. Appointment to teaching positions must be made in accordance with Education Law '2509 regardless of the sources of funding (Matter of Durr, 15 Ed Dept Rep 442, Board of Educ., Oneida City SD v. Nyquist, 59 AD2d 397, rev'd 45 NY 2d 975; Matter of McPhillips, 13 id. 95; Matter of Shayo, 12 id. 143).

Having determined that petitioner served and earned credit within the mathematics tenure area for the 1992-93 school year, my analysis must turn to his service during the 1993-94 school year. Section 30.9(b) of the Rules of the Board of Regents provides:

No professional educator, whether on tenure or in probationary status, may be assigned to devote a substantial portion of his time in a tenure area other than that in which he has acquired tenure or is in probationary status, without his prior written consent.

(SeealsoAppeal of Lawrence, 32 Ed Dept Rep 398; Appeal of Pendl, 28 id. 511; Matter of Nicholson, 20 id. 351; Matter of Sammon, 20 id. 335; Matter of O'Connor, 19 id. 213; Matter of Bornstein, 17 id. 236; Matter of Fitzgibbons, 8 id. 205). It has also been determined that the appropriate remedy where an assignment has occurred without such consent is to order that the teacher's services "shall be deemed to be service in the [prior] tenure areas for purposes of seniority" (Appeal of Lawrence, supra; Appeal of Pendl, supra). The record discloses that petitioner never consented to a transfer out of the mathematics tenure area in which he served during the 1992-93 school year. Accordingly, he continued to accrue seniority in the mathematics tenure area during the 1993-94 school year.

Petitioner also argues that since respondent assigned him to spend over 40% of his time in the social studies tenure area during the 1993-1994 school year, that assignment should be deemed a grant of a new probationary appointment within the social studies tenure area and he should be given one year's probationary and seniority credit in the social studies tenure area for the 1993-1994 school year. I note, however, that respondent concedes that petitioner is entitled to one year's probationary and seniority credit in social studies for the 1993-94 school year.

Finally, petitioner argues that since respondent never actually abolished a position in either the mathematics or social studies tenure area in accordance with Education Law '2510, and since respondent never terminated petitioner's probationary employment in accordance with Education Law ''3019(a) and 3031, he is entitled to continued employment as a teacher in the district.

Education Law ''3019-a and 3031 establish procedures for the termination of a probationary teacher when a school board is dissatisfied with the teacher's performance. However, in this case, respondent concedes that it did not intend to terminate petitioner's services because of some dissatisfaction with his performance, but rather intended to eliminate a teaching position. Therefore, ''3019-a and 3031 do not apply to respondent's action in this case, and respondent was not obligated to comply with the notice provisions of those sections (Appeal of Sroka, 31 Ed Dept Rep 513).

However, respondent was required to comply with Education Law '2510, which establishes specific procedures regarding the abolition of teaching positions. Section 2510(2) provides that:

[w]henever 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.

It is well established that a board of education must take formal action to abolish a position (Matter of Hofheins, et al., 19 Ed Dept Rep 570; Matter of Agresti, 11 id. 308; Board of Educ., Pleasantville UFSD v. Ambach, 132 AD2d 257). In this case, there is no evidence in the record that respondent ever took formal action to abolish petitioner's position or any other position. Moreover, pursuant to 8 NYCRR '276.5, my counsel's office specifically requested respondent to provide information regarding any action taken by the board to abolish the position held by petitioner, including any relevant memoranda or minutes of board meetings documenting such action. In response, respondent submitted only handwritten notes which the superintendent gave to the board at a budget work session. Although respondent argues that the portion of the budget concerning petitioner's employment was implemented in the budget adopted by the board and subsequently passed by the voters, the superintendent's handwritten notes fall short of the formal board action required and lead to a reasonable inference that the board never resolved to abolish the position in question. Consequently, respondent's termination of petitioner's employment was improper.

Furthermore, even if the budget work session notes somehow constitute board action, when a board abolishes a position, it must first identify the tenure area of the position to be abolished (Appeal of Bales, 32 Ed Dept Rep 559; Matter of Cole v. Bd. of Educ., 90 AD2d 419, aff'd 60 NY2d 941; Matter of Grae, 24 id. 333). Here, respondent first claimed that it eliminated a position in the social studies area by increasing class sizes. Then, it claimed in a subsequent affidavit that the position abolished was in remedial math and technology. Neither of those areas are recognized tenure areas. Moreover, they are not in petitioner's tenure area of mathematics, as determined above. Accordingly, respondent improperly terminated petitioner's services and he is entitled to reinstatement to a position in the mathematics tenure area.

Since I am sustaining the petition on this basis, I will not address petitioner's remaining contentions. As a final note, however, I expect that respondent will in the future act more diligently to comply with proper employment practices and procedures.


IT IS ORDERED that respondent board of education reinstate petitioner to the position to which he is entitled in accordance with the terms of this decision, and provide him with back pay and salary and benefits from the beginning of the 1994-1995 school year, less any compensation he may have otherwise earned.