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Decision No. 13,964

Appeal of ELLEN CHERNOFF from action of the Board of Cooperative Educational Services of Rensselaer-Columbia-Greene Counties regarding teacher re-employment.

Decision No. 13,964

(June 17, 1998)

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

Whiteman, Osterman & Hanna, Esqs., attorneys for respondent, Beth Bourassa, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Cooperative Educational Services for Rensselaer-Columbia-Greene Counties ("respondent"), in rehiring her as a probationary teacher, allegedly in violation of Education Law ""2510, 3013, and 3014-b. The appeal must be dismissed.

Petitioner was hired by respondent in February 1995 as a "Training Specialist, SETRC" within the tenure area of General Special Education. In the spring of 1997, petitioner was notified that her services would be discontinued effective June 30, 1997, because of several program takebacks by respondent's component districts. It appears that in early June 1997, respondent may have offered petitioner the chance to continue her employment in a full-time equivalent position for the following school year, consisting of a one-half time regular teaching position and a one-half time substitute teaching position. Despite that possibility, petitioner on June 9, 1997, participated in a "teacher draft" conducted by respondent, which was a method of bringing component districts to meet and talk with teachers excessed by takebacks. As a result of discussions between petitioner and the Wynantskill Central School District, petitioner was offered, and accepted, a full-time position with that district in the tenure area of General Special Education. Petitioner was asked to sign a BOCES form to that effect, containing the following language:

I have been advised of my rights under Section 3014-b, and I have accepted a full-time position with the Wynantskill School District in the Tenure Area of General Special Education. As a result, I hereby resign as an employee of Questar III effective June 30, 1997.

Petitioner signed this form, but upon recommendation of a union representative, added the following language in her own handwriting: "I hereby reserve any rights I have under any applicable law."

At its June 30, 1997, meeting, respondent formally accepted petitioner's resignation. On July 1, respondent sent information to the Wynantskill Central School District with respect to petitioner's tenure status, seniority, compensation step level, and accumulated sick leave.

Early in August 1997, after securing certain funding from the State Education Department, respondent contacted petitioner and offered her the opportunity to return in a full-time position entitled "Training Specialist, Bilingual Education" in the General Special Education tenure area. By a letter dated August 12, petitioner accepted the position. She requested written confirmation, and stated that upon receipt she would resign her position at Wynantskill.

At the beginning of September, petitioner began her new position with respondent. Respondent board did not actually confirm her appointment until October 2, and on October 3 respondent sent her a "probationary appointment notice" advising that she was appointed as a probationary teacher for a period of two years from September 1, 1997, to September 2, 1999. On October 15, petitioner accepted the appointment in writing, but added the following statement to the acceptance form: "I am very pleased to accept this position. However, I am not in agreement with the conditions as set forth above." On October 30, 1997, petitioner commenced this appeal seeking an order directing respondent to recognize her as a tenured teacher of special education, rather than a probationary teacher, and to credit her with all sick leave days that she had accumulated as a prior employee from 1995 to June 30, 1997.

Both parties agree that petitioner's termination at the end of the 1996-1997 school year was as a result of program takebacks, and that Education Law "3014-b applied to her situation. Petitioner claims that upon the occurrence of a takeover as envisioned in Education Law "3014-b, a teacher is entitled to all of the rights provided by that section, e.g., the right to employment by a component district with the same tenure status enjoyed at BOCES or placement on a preferred eligible list of a component district if there is no position available, but also claims that an excessed teacher has the right to remain on a BOCES preferred eligible list pursuant to Education Law ""2510 and 3013, despite the purported "resignation" and despite obtaining full-time employment with a component district, citing "3014-b(5).

Respondent, on the other hand, complains that the appeal is untimely, because it was not commenced within 30 days after September 1, 1997, when petitioner effectively began work. Respondent defends its practice of requiring a resignation from those teachers who obtain full-time employment with a component district as a result of the "teacher draft," and argues that petitioner's resignation was valid and in essence terminated any remaining rights she may have had under Education Law ""2510, 3013, and 3014-b. Respondent further argues that by freely and knowingly becoming a full-time employee of Wynantskill with the same tenure status, leave accruals, and seniority she enjoyed at BOCES, any preferred eligible list rights were terminated.

I will not dismiss this matter for untimeliness. The record does contain evidence that petitioner was informed during August 1997 that if she accepted the position offered, she would be hired as a probationary teacher and would not retain the sick leave she had previously accumulated. However, until the board actually confirmed her appointment on October 2, there remained a possibility that she would be hired in the same status as when she left. Until October 2, there was no final determination that could properly be appealed, so I find that commencement of this appeal on October 30 was sufficient.

The appeal must be dismissed on the merits, however, because petitioner accepted a full-time position with the Wynantskill Central School District in full compliance with Education Law "3014-b. I cannot accept petitioner's argument that she retains the right to remain on a preferred eligible list at BOCES despite accepting the full-time position. Education Law ""2510 and 3013 are designed to protect the rights of teachers whose positions are abolished generally; Education Law "3014-b is intended to protect the rights of BOCES teachers whose positions are eliminated specifically because of program takebacks. When a teacher is excessed because of a program takeback, "3014-b(1) provides that " . . . each teacher employed in such a program by such a board of cooperative educational services at the time of such takeover by the school district shall be considered an employee of such school district, with the same tenure status he maintained in such board of cooperative educational services." That is what happened here. Once a teacher excessed under this section actually becomes a full-time employee of the school district taking over the program, and is offered and accepts employment including the same tenure status, salary step, and is credited with all seniority and sick leave days, the purpose of the statute has been fulfilled. If I were to accept petitioner's argument, a teacher excessed because of a program takeover could accept a full-time position with a school district, enjoy all the rights and benefits he or she had enjoyed at BOCES, but still have a priority claim on any similar job created at BOCES for the next seven years. There is no indication that such a result was intended by the Legislature.

Although I do not find that the "resignation" executed by petitioner had any significance in this matter, I also find no authority for BOCES to require such a document where a teacher is excessed under "3014-b. In the case before me, petitioner was considered an employee of Wynantskill and, by affirmatively reaching an agreement with that district, became an actual employee of Wynantskill; the requirement of a "resignation" is superfluous. I recommend that respondent discontinue this practice.

In view of this disposition, it is unnecessary to discuss the parties' other contentions, which I find without merit.