Decision No. 15,143
* Subsequent History: Matter of Quattrone v New York State Educ. Dept.; Supreme Court, Albany County (Teresi, J.); Judgment dismissed petition to review; November 21, 2005; affd 37 AD3d 939 (3d Dept 2007). *
Appeal of ELIZABETH G. QUATTRONE from action of the Board of Education of the Chautauqua Lake Central School District, the Board of Education of the City School District of the City of Dunkirk, Mary Anzalone and Donna Reiman regarding teacher employment.
Decision No. 15,143
(November 24, 2004)
Hodgson Russ, LLP, attorneys for respondents, Karl W. Kristoff and David Farmelo, Esqs., of counsel
MILLS, Commissioner.--Petitioner appeals the refusal of the Board of Education of the Chautauqua Lake Central School District and the Board of Education of the City School District of the City of Dunkirk to appoint her to a full-time teaching position. Mary Anzalone (“Anzalone”) is a teacher in the Chautauqua Lake Central School District (“Chautauqua Lake”), and Donna Reiman (“Reiman”) is a teacher in the City School District of the City of Dunkirk (“Dunkirk”). The appeal must be dismissed.
Petitioner is a tenured elementary education teacher employed by Erie 2 – Chautauqua-Cattaraugus Board of Cooperative Educational Services (“BOCES”). Prior to the 2003-2004 school year, petitioner was assigned to provide a gifted and talented program for component school districts that had contracted for such services, including Chautauqua Lake and Dunkirk.
Before the 2003-2004 school year, Chautauqua Lake and Dunkirk apparently notified BOCES that they were discontinuing their participation in the BOCES gifted and talented program. By letter dated June 17, 2003, petitioner received notification from BOCES that her teaching position had been eliminated effective July 1, 2003. Petitioner was subsequently recalled by the BOCES for a .2 position to teach a gifted and talented program at another component district of the BOCES. Petitioner accepted the part-time position, but allegedly stated in her acceptance letter that she was not waiving any of her rights under Education Law §3014-b or any other law. This appeal ensued.
Petitioner contends that the actions of Chautauqua Lake and Dunkirk constituted a “takeover” within the meaning of Education Law §3014-b and that she is entitled to all of the rights and privileges provided therein. She seeks a determination that she is entitled to an appointment to a full-time teaching position in the elementary tenure area within Dunkirk.
Respondents contend that Chautauqua Lake and Dunkirk did not takeover the gifted and talented program formerly provided by the BOCES and, therefore, petitioner is not entitled to any rights under Education Law §3014-b. Respondents argue that petitioner failed to prove that a takeover occurred and, therefore, the petition must be dismissed in its entirety.
Initially I must address several procedural issues. Pursuant to §276.4 of the Commissioner’s regulations, respondents were required to serve their memoranda of law within 30 days after service of their answers. Respondents served their answers on October 20, 2003 but did not submit their memoranda of law until December 1, 2003. While the Commissioner may permit the late filing of a memorandum of law where a party has established good cause for the delay and demonstrated the necessity of such memorandum to the determination of the appeal (8 NYCRR §276.4[a]), respondents have not shown either in this appeal. Therefore, I have not considered respondents’ memoranda of law.
Petitioner’s memorandum of law contains several new exhibits that were not part of her original pleadings. A memorandum of law may not be used to belatedly add exhibits that are not part of the record (Appeal of Smolen, 43 Ed Dept Rep ___, Decision No. 15,000; Appeal of George, 40 id. 509, Decision No. 14,540; Appeal of Adriatico, 39 id. 248, Decision No. 14,228). Therefore, I have not considered the new exhibits submitted with petitioner’s memorandum of law.
Where a component school district withdraws its students from a BOCES program and establishes an equivalent program of its own, it has “taken over” the program as contemplated by Education Law §3014-b thereby conferring certain rights on the teachers of such programs. In order to determine whether such a takeover has occurred, certain relevant factors should be considered, including (1) the reason why the school district withdrew from the BOCES program, (2) the program offered by BOCES, (3) the new program offered by the school district, (4) whether the programs are equivalent, (5) the reasons why the school district may have hired new probationary teachers, and (6) the reasons why the BOCES teachers were excessed (Cooper v. Bd. of Educ. of Shenendehowa Cent. School Dist., 206 AD2d 811; Sklar v. Bd. of Coop. Educ. Services of Nassau County, 104 AD2d 622). It was the intent of the statute that a school district taking over a program would no longer be free to hire probationary teachers to staff its newly established equivalent program (Buenzow v. Lewiston-Porter Cent. School Dist., 101 AD2d 30, aff’d, 64 NY2d 676; Acinapuro v. Bd. of Coop. Educ. Services of Nassau County, 89 AD2d 329).
In an appeal to the Commissioner, petitioner has the burden of demonstrating a clear right to the relief requested and the burden of establishing the facts upon which she seeks relief (8 NYCRR §275.10; Appeal of D.M.L., 43 Ed Dept Rep ___, Decision No. 14,990; Appeal of M.F. and J.F., 43 id. ___, Decision No. 14,960). Upon examination of the factors in the present case, I find that petitioner has not established that a takeover by either Chautauqua Lake or Dunkirk has occurred.
Dunkirk avers that it discontinued the BOCES program because of the high cost of maintaining the program and decreased interest in the program. While cost may have been a factor, petitioner has provided evidence that the number of Dunkirk students enrolled in the BOCES program has been consistent and, therefore, I find the argument that there was decreased interest in the program unpersuasive. However, based on the record before me, it is clear that Dunkirk did not create a new gifted and talented program within the district, but rather its regular classroom teachers now include gifted and talented instruction within their general classroom instruction. Moreover, Dunkirk did not hire Reiman to fill a position that was created by a new gifted and talented program within the district, but rather hired her to teach in a program for students who experience behavioral problems in the classroom.
With respect to the issue as to why petitioner was excessed, petitioner’s excess letter does not state a reason, but I find that it is reasonable to conclude that it was due, at least in part, to the fact that four component districts decided not to contract with the BOCES for such services. Accordingly, I find that petitioner failed to establish that a takeover occurred with respect to Dunkirk.
Chautauqua Lake avers that it discontinued the BOCES program because it no longer has as many gifted students and because it was dissatisfied with the BOCES program. While dissatisfaction may have been a factor, petitioner has provided evidence that the number of Chautauqua Lake students enrolled in the BOCES program has been consistent and, therefore, I find the argument that there was a decrease in the number of gifted students unpersuasive.
The record indicates that Chautauqua Lake established an “Enrichment Program” after it terminated its participation in the BOCES gifted and talented program. Petitioner contends that this new program is equivalent to the program she provided at BOCES. Respondent argues that the program is not equivalent because it was created to serve a greater number of students with a broader range of academic abilities in comparison to the students that participated in the BOCES program. Moreover, it includes field trips and has a “push-in” component where the enrichment teacher works in the general education classrooms with general education teachers. Significantly, Chautauqua Lake did not hire a new probationary teacher to fill the position created by the new Enrichment Program, but instead assigned Anzalone, who was already on staff (Cooper v. Bd. of Educ. of Shenendehowa Cent. School Dist., supra).
As stated above, with respect to the issue as to why petitioner was excessed, petitioner’s excess letter does not state a reason, but I find that it is reasonable to conclude that it was due, at least in part, to the fact that four component districts decided not to contract with the BOCES for such services. After careful review of the record before me, I find petitioner has not met her burden of proving that a takeover occurred with respect to Chautauqua Lake.
THE APPEAL IS DISMISSED.
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