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Decision No. 14,157

Appeal of PATRICIA PRINCIPIO from action of the Board of Education of the Irvington Union Free School District and Richard A. Hajek, Superintendent of Schools, regarding a preferred eligible list.

Decision No. 14,157

(July 15, 1998)

Raymond G. Kuntz, PC, attorney for petitioner, Mario L. Spagnuolo, Esq., of counsel

Plunkett & Jaffe, PC, attorney for respondents, Phyllis S. Jaffe, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the refusal of the Board of Education of the Irvington Union Free School District ("respondent") to hire her as a full-time mathematics teacher for the 1998-1999 school year. The appeal must be dismissed.

Petitioner began her employment in the Irvington Union Free School District in 1978, and achieved tenure in 1980. In April 1990, she requested a "part-time personal leave for the 1990-1991 school year" and asked to be assigned to a .6 teaching position. Respondent board offered her a .6 teaching position, but refused her leave request. On May 25, 1990, petitioner indicated her agreement, and on June 4, 1990, a "letter of agreement" was signed by the district and the teachers' association. The agreement confirmed the part-time position effective September 1, 1990, and provided that if that position should subsequently be abolished or reduced, petitioner would be entitled to the first full-time vacancy in her tenure area for six years from the date of the abolition or reduction of the part-time position. The agreement further provided that petitioner could not return to full-time status unless a vacancy in her tenure area occurred.

During the 1990-1991 school year, petitioner taught at the .6 level, until her job was abolished effective June 30, 1991. Petitioner claims that in the spring of 1998, respondent advertised a full-time mathematics position for the 1998-1999 school year, but did not provide me with a copy of any such advertisement.

Petitioner claims that the June 4, 1990, agreement erroneously provided for a period of six years on the preferred eligible list, even though Education Law "2510(3) then provided for a period of seven years. Petitioner claims that this was a mutual mistake of the teachers' association and the district, and that the agreement should be enforced as though it read seven years. Petitioner further claims that a full-time vacancy occurred within seven years of the abolition of her full-time position, i.e., prior to June 30, 1998. This appeal was commenced June 3, 1998, prior to the expiration of the claimed seven-year period.

Respondent admits almost all of the facts alleged by petitioner, and states that, regardless of the agreement, petitioner was, in fact, placed on a seven year preferred eligible list which expired June 30, 1998. Respondent denies that any vacancy occurred prior to June 30, 1998, and asserts that no vacancy occurred until September 23, 1998, i.e., the day after the retirement of a full-time mathematics teacher on her 55th birthday on September 22, 1998. As a result, respondent argues that petitioner has no preferred eligible rights under Education Law ""2510 and 3013.

Petitioner's reply does not address the question of when the vacancy occurred, and appears to concede that the vacancy did not fall within the seven-year period. Instead, the reply attempts to claim that a long-term substitute position occurred at the beginning of the 1997-1998 school year, and that petitioner should have been offered that position. The reply claims, upon information and belief, that the mathematics position "was filed" [sic] prior to the end of the 1997-1998 school year.

To the extent that the reply attempts to raise a new claim, which appears to be untimely, it is improper. The reply affirmation is also not executed and is therefore not verified, in violation of 8 NYCRR "275.5. I therefore treat it as a nullity (Appeal of Shabazz, 38 Ed Dept Rep 481, Decision No. 14,076; Appeal of Biggins, 35 id. 357, Decision No. 13,569; Appeal of Frasier, 34 id. 315, Decision No. 13,325).

I find that petitioner has no claim to the full-time position, because no vacancy in that position occurred prior to September 23, 1998. In Matter of Raben v. Bd. of Ed., Hauppauge UFSD (175 AD2d 286, motion for leave to appeal denied, 75 NY2d 754), the Appellate Division held that where a teacher's preferred eligible rights terminated on June 30, 1988, the teacher had no rights to positions whose incumbents resigned effective June 30, 1988, because the vacancies did not arise "at the earliest" until July 1, 1988 (175 AD2d at 287). The Court relied on a statement of the Court of Appeals in Matter of Brewer v. Bd. of Ed., Plainview-Old Bethpage Central School District (51 NY2d 855). In discussing the meaning of the word "vacancy" within Education Law "2510(3), the Court stated:

The term "vacancy" when used in this context connotes a position or office for which there is no incumbent. Viewed in this light, it is evident that the term does not encompass a position that is temporarily opened because the present incumbent has taken a short-term leave of absence. Indeed, it would be somewhat anomalous to treat a position as though it were "vacant" when there exists an incumbent who has a clear right to reclaim the position upon return from his leave. (51 NY2d at 858).

Based upon this reasoning, the full-time mathematics position at issue had an incumbent until September 22, 1998, and a vacancy did not occur until September 23, 1998, several months beyond the expiration of petitioner's preferred eligible rights. See, also, Matter of Lombardo v. Baldwin UFSD, 150 AD2d 452.

Petitioner has presented no proof that a vacancy occurred in the position she claims prior to June 30, 1998, and has presented no evidence that any other person was hired to fill any such vacancy prior to that time. As a result, the appeal must be dismissed.