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Decision No. 13,730

Appeal of KAREN ALLEN, SUSAN BEGLEY, LUCILLE DeVITO, MICHAEL HERRSHAFT, GREGORY KULICK, ETTORE MALVETTI and RICHARD ZAKAR from action of the Board of Education of the Middle Country Central School District and Eileen Banschback, Timothy Dowler, George Royce and John Wolkiewicz, teaching assistants, relating to teacher excessing.

Decision No. 13,730

(January 28, 1997)

Kaplovitz & Galinson, Esqs., attorneys for petitioners, Daniel Galinson, Esq.,

of counsel

Rains & Pogrebin, P.C., attorney for respondent, Jessica S. Weinstein, Esq.,

of counsel

MILLS, Commissioner.--Petitioners are certified physical education teachers formerly employed by the Board of Education of the Middle Country Central School District ("respondent"). On August 25, 1994, respondent abolished 11.6 physical education teacher positions held by petitioners, effective September 1, 1994 and, pursuant to Education Law '2510(3), discontinued petitioners' services and placed them on a preferred eligible list for appointment to any vacancy that existed or occurred thereafter in a position similar to that which petitioners previously held.

Pursuant to a physical education instructional plan developed throughout August 1994 and implemented effective September 11, 1994, respondent required its elementary school teachers to provide physical education to their students under the supervision of a certified physical education teacher and the director of physical education. In addition, respondent required its teaching assistants to provide adaptive physical education under the direction and supervision of a certified physical education teacher to students requiring adaptive physical education pursuant to an individualized education program (IEP). Three of the four teaching assistants required to provide adaptive physical education were previously employed prior to June 1994. Respondent hired a fourth teaching assistant, George Royce, effective September 1994.

On October 3, 1994 petitioners initiated an appeal pursuant to Education Law '310 challenging respondent's abolition of their teaching positions and termination of their employment. On June 19, 1995, Commissioner Sobol dismissed the appeal, holding that respondent's abolition of the positions was not undertaken in bad faith, that the determination was based on fiscal reasons and, therefore, was proper (Appeal of Allen, 34 Ed Dept Rep 627). Moreover, the Commissioner held that no new positions had been created to which petitioners were entitled. Petitioners challenged that decision in an action brought pursuant to Article 78 of the Civil Practice Law and Rules in New York State Supreme Court, Albany County. In Allen, et al. v. Mills, et al., No.5719-95 (Sup. Ct. 1996), the Court upheld Commissioner Sobol's decision and dismissed the Article 78 petition. However, the Court further held that the decision did not address the issue of whether vacancies existed or subsequently arose for positions similar to those previously held by petitioners. The Court found that at least one new teaching assistant was hired after petitioners' termination date. The Court remanded the matter for consideration of "petitioners' claim that respondent violated the Education Law by failing to appoint petitioners from the preferred eligible list to any vacancies then existing or thereafter arising for positions similar to those previously held by petitioners." Accordingly, I will address that claim as directed by the Court.

Education Law '2510(3)(a) provides in pertinent part:

If an office or position is abolished or if it is consolidated with another position without creating a new position, the person filling such position at the time of its abolishment or consolidation shall be placed upon a preferred eligible list of candidates for appointment to a vacancy that then exists or that may thereafter occur in an office or position similar to the one which such person filled 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. The persons on such preferred list shall be reinstated or appointed to such vacancies in such corresponding or similar positions in the order of their length of service in the system at any time within seven years from the date of abolition or consolidation of such office or position.

Petitioners have the burden of proving that a majority of the duties of any new positions are similar to the duties of their former positions (Matter of Gworek, 21 Ed Dept Rep 501). In addition, petitioners must also establish that the positions are in the same tenure area (Kelley v. Ambach, 83 AD2d 733; Appeal of Schwarz, 28 Ed Dept Rep 101; Matter of Torreano, 23 id. 38).

With respect to tenure area, there is no dispute that respondent Royce was hired as a teaching assistant in September 1994, subsequent to petitioners' termination date, and his assignment included providing adaptive physical education instruction under the direction and supervision of a certified physical education teacher. However, teaching assistants serve in the special subject tenure area of "teaching assistant" established by Part 30 of the Regents Rules (8 NYCRR '30.8[d]). That tenure area is separate and distinct from the special subject tenure area of "physical education" (8 NYCRR 30.8[a][12]) in which petitioners were formerly employed. Consequently, because the subject vacancy existed in a separate tenure area, petitioners were not entitled to appointment to fill that vacancy pursuant to Education Law '2510(3). Nor are they entitled under that statute to appointment to any subsequent vacancies that may arise in the teaching assistant tenure area.

In addition to establishing that a vacancy is within the same tenure area, the law is clear that petitioners are entitled to appointment to an existing or subsequent vacancy only if the duties of that position are similar to that of the former position (Greenspan v. Dutchess Co. BOCES, 96 AD2d 1028). In this instance, petitioners have failed to establish that the vacancy was similar to the physical education positions abolished by respondent. The test of whether the duties of the two positions are, in fact, similar is whether more than 50% of the functions to be performed by the incumbent of the new position are those which were performed by petitioner in his or her old position (Greenspan at 1029). Petitioners have the burden of proving that a majority of the duties of the new position are similar to those of the former position (Matter of Coates v. Ambach, 52 AD2d 261; Appeal of Schwarz, 28 Ed Dept Rep 101; Appeal of Gworek, 21 id. 501). Other than their general assertion that respondent Royce is providing instruction in adaptive physical education, petitioners fail to set forth any evidence establishing that the provision of such instruction constitutes more than 50% of respondent Royce's duties. Teaching assistants may provide a variety of instructional services under the direction of a certified teacher. There is no evidence in the record indicating what portion of respondent Royce's time is spent providing adaptive physical education. Therefore, petitioners have also failed to establish that the vacant position was similar to the abolished physical education positions. Thus, there is no basis on which to order respondent to appoint one of the petitioners to the position held by respondent Royce or any vacancy which may subsequently arise in the "teaching assistant" tenure area.