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Decision No. 13,896

Appeal of DAKIN MOREHOUSE from action of the Board of Education of the Hunter-Tannersville Central School District regarding a preferred eligible list.

Decision No. 13,896

(March 23, 1998)

James R. Sandner, Esq., attorney for petitioner, Kevin H. Harren, Esq., of counsel

Hogan & Sarzynski, Esqs., attorneys for respondent, Edward J. Sarzynski, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the refusal of the Board of Education of the Hunter-Tannersville Central School District ("respondent") to hire him for a position as a full-time teacher of technology for the 1997-1998 school year. The appeal must be dismissed.

Petitioner began his employment with respondent as a full-time teacher of industrial arts and technology beginning in February 1987, and continued until the end of the 1991-1992 school year. On June 18, 1992, respondent reduced his full-time position to a half-time position, and petitioner taught as a half-time teacher during the 1992-1993 school year. On June 17, 1993, as part of the process by which the Otsego-Northern Catskill BOCES took over respondent's industrial arts/technology program, petitioner's half-time position was abolished.

Pursuant to Education Law "3014-a, upon this program takeover petitioner was considered an employee of BOCES. Petitioner served as a full-time teacher for BOCES from September 1993 to June 1996, at which time he took an early retirement, effective June 30, 1996.

On March 10, 1997, respondent announced a vacancy for a full-time technology teacher. By letter dated April 17, petitioner made a claim to that position pursuant to Education Law ""2510 and 3013. Petitioner based his claim on the fact that his full-time position had been partially abolished in 1992, and that he was entitled to the position because of his status on the preferred eligible list. By letter dated May 2, respondent denied that petitioner had any preferred rights to that job, but advised him that he could apply for any vacancy for which he was qualified.

Petitioner contends that the 1992 partial abolition of his full-time position, and conversion into a part-time position, entitled him to be placed on the preferred eligible list pursuant to Education Law "2510(3). He further claims that seven years have not expired from the date of the 1992 action, and he continues his position on the preferred eligible list. He further contends that the position created in 1997 is similar to his full-time position which was partially abolished in 1992.

Respondent denies that its action in 1992 entitled petitioner to a place on a preferred eligible list. Respondent further argues that any rights petitioner had as its employee were lost when the program in which he taught was transferred to BOCES pursuant to Education Law "3014-a, and petitioner taught full time in that position. Respondent further points out that petitioner had retired prior to the date the new job became available, and that 8 NYCRR "80.35 prohibits the hiring of a retired person absent compliance with the numerous requirements set forth therein.

The appeal must be dismissed. Assuming, without deciding, that petitioner became entitled to a position on the preferred eligible list as a result of respondent's reduction of his position from full time to half time on June 18, 1992, petitioner's retirement from the teaching profession at the end of the 1995-1996 school year effectively removed him from such list.

I am mindful of petitioner's claimed rights, and I generally agree that the mere acceptance of other employment while a person is on a preferred eligible list does not automatically terminate his re-employment rights (Lewis v. Cleveland Hills CSD, 119 AD2d 263; Dreyfuss v. Board of Education, 76 Misc.2d 479, aff'd 45 AD2d 988). However, I cannot agree with petitioner's broad statement that " . . . . nothing Mr. Morehouse did could be said to constitute a waiver of the "2510(3) rights to which he is entitled by virtue of the 1992 reduction of his position." For example, it has been held that where a teacher submits a formal resignation from a full-time position, which is accepted by the board of education, the resignation serves to terminate the employment relationship and any reinstatement rights, even though the teacher simultaneously accepts a part-time position with no probationary status and continues on the payroll (Matter of Middleton, 16 Ed Dept Rep 50, reopening denied 16 id. 366).

An employee's application for, and receipt of, termination benefits has been held to amount to a waiver of the right to challenge his excessment (Matter of Gerson v. Board of Education of the Comsewogue UFSD, 214 AD2d 732). In Gerson, petitioner's position was abolished effective July 1, 1992, and on that same date petitioner applied for termination benefits, which he received approximately three weeks later. Thereafter, petitioner brought an Article 78 proceeding claiming that upon abolition of his position, he had rights pursuant to 8 NYCRR "30.13 to be transferred to a different position. Supreme Court dismissed the petition, and the Appellate Division, Second Department, agreed. The Appellate Division found that petitioner knew that the termination benefits he applied for and received were payable only upon his separation from the school district. It further found that petitioner had never claimed the right to be transferred to a different position, nor did petitioner claim that the board in any way misrepresented his rights. By accepting the termination benefits, the Court held that petitioner knowingly waived his right to challenge his excessment (214 AD2d at 733).

Neither party has submitted any authority on the precise effect of retirement on one's rights to be continued on a preferred eligible list. I find that retirement should have the same effect as a resignation with acceptance of termination benefits. In this particular case, petitioner changed employers in 1993 pursuant to a statutory provision, worked full time for several years, and then formally retired, apparently without consulting respondent with respect to any effect that his retirement would have on his rights, if any, in the district. These actions amount to a formal, presumably permanent, withdrawal from the teaching profession, and justify respondent's hiring of a different candidate. I also note that 8 NYCRR "80.35(a)(6) restricts the employment of retired person generally to situations where no other qualified person is readily available. This policy would be difficult to advance if retired persons were allowed to remain for extended periods on preferred eligible lists.

If I were not dismissing on this ground, I would dismiss for petitioner's failure to provide any proof that the position which became available in 1997 was "similar" to the full-time position he previously held. While petitioner alleges such similarity, respondent denies it, and petitioner provides no evidence of similarity.

In view of this disposition, I will not consider the other contentions of the parties.