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Decision No. 15,707

Appeal of EDWARD DYMINSKI from action of the Board of Education of the City School District of the City of Rochester regarding employment.

Decision No. 15,707

(December 31, 2007)

Harter, Secrest & Emery LLP, attorneys for respondent, Bethany A. Centrone, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals a determination of the Board of Education of the City School District of the City of Rochester (“respondent”) to abolish his position and its failure to appoint him to teach a “Basic Manufacturing and Design” course.  The appeal must be dismissed.

Petitioner holds teaching certificates in the areas of Precision Metalwork Occupations (Welding), Construction Industry and Building Maintenance (Carpentry), School Administration, and Business and Distributive Education.  Respondent granted him tenure in what it then called the “Mechanical Trades” tenure area on August 30, 1995.  Petitioner taught welding courses for at least 50% of his time through the 1997-1998 school year.  The district discontinued its welding program and petitioner’s position was abolished at some point thereafter.  Petitioner was hired as a full-time substitute to teach “Related Drafting” for the 1999-2000 school year.  He taught that course for two more years.  During the next two years, he taught a seminar for ninth graders that surveyed the Career and Technical Education (“CTE”) courses available in the district.  Petitioner taught Carpentry and several other CTE courses in 2005-2006.

Respondent decided to abolish a position in the CTE program for the 2006-2007 school year due to declining enrollment.  It initially determined that Daniel Collins was the least senior of the mechanical trades teachers and notified him he would be “excessed.” Petitioner was advised that he would be assigned to teach Basic Manufacturing and Design.  The principal of the Engineering and Manufacturing School advised petitioner he would be required to teach lathe and milling operations, safety, precision measurement and computer-assisted drafting, among other things. 

Respondent subsequently determined that it had erred in making these decisions because petitioner was not certified to teach a machine tool course and Mr. Collins had a provisional certification in Precision Metalwork (Machine Tool).  Respondent also notes that it had erred in assessing seniority of all the mechanical trades teachers as a group, rather than assessing seniority within specific certifications.  By letter dated September 25, 2006, the district’s chief human resources officer notified petitioner that his position was eliminated.  Mr. Collins was retained to teach several sections of the manufacturing course.  Several other CTE teachers also were assigned to teach sections of that course and a precision manufacturing course.

This appeal ensued.  Petitioner’s request for interim relief was denied on October 18, 2006.

Petitioner seeks reinstatement to his position with back pay and benefits.  He asserts that he was wrongfully denied the assignment to teach the course taught by Mr. Collins.  He also contends that another teacher, Michael Casey, who was assigned to teach precision manufacturing, has less seniority and should have been laid off in his place.  He claims that respondent has not calculated seniority of the CTE teachers correctly or fairly.  Petitioner also alleges that several other CTE teachers with experience similar to his are assigned to courses for which they lack proper certification and argues that he should have been assigned to teach those courses.  He contends that respondent has assigned other CTE teachers without regard to certification or tenure area and that it is now looking narrowly at his certification as an excuse to retain a less senior, less qualified teacher.  Finally, petitioner complains that respondent made no attempt to retain him by creating a full time position responsible for several other CTE courses which he would be eligible to teach.

Respondent contends that petitioner has failed to join necessary parties.  Respondent also argues that petitioner has failed to show he has greater seniority than teachers who were retained. Respondent further asserts that petitioner has not demonstrated that he is entitled to teach the basic manufacturing course or any other course offered by the district. 

The appeal must be dismissed for failure to join necessary parties.  A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of Samuel, 45 Ed Dept Rep 418, Decision No. 15,371; Appeal of Meringolo, 45 id. 128, Decision No. 15,281; Appeal of Kelly, 45 id. 38, Decision No. 15,253).  Joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense (Appeal of Samuel, 45 Ed Dept Rep 418, Decision No. 15,371; Appeal of Meringolo, 45 id. 128, Decision No. 15,281; Appeal of Kelly, 45 id. 38, Decision No. 15,253).  Petitioner contends that he should have been appointed to the positions held by Mr. Collins and Mr. Casey, whose rights obviously would be affected by the determination.  He also raises questions about their credentials.  He has not, however, joined Mr. Collins or Mr. Casey as a party to this appeal.  Nor has he joined the other teachers who are now teaching courses he claims he should be teaching, although he also questions their qualifications and asserts that he has greater seniority.  These teachers, too, are necessary parties to this appeal.

The appeal must also be dismissed on the merits.  In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Hoey and Kosowski, 45 Ed Dept Rep 501, Decision No. 15,394; Application of Bliss, 45 id. 308, Decision No. 15,331; Appeal of Rubinstein, 45 id. 299, Decision No. 15,329). Petitioner has failed to meet that burden.  He has not demonstrated how his certification in welding qualifies him to teach a course on lathes and milling machines.  In essence, he argues that because the district has allegedly assigned CTE teachers without regard to certification or tenure area in the past, it should assign him to a full-time position teaching courses outside his certification.  Moreover, under the Commissioner’s regulations, teachers of trade subjects serve in a special subject tenure area co-extensive with their teaching certificates (8 NYCRR §30.8[c][6]).  Petitioner asserts that he has greater seniority than other teachers who were retained, but fails to provide a clear calculation of his seniority and theirs in properly identified tenure areas.  Petitioner also has failed to demonstrate that respondent was obligated to restructure its career and financial management courses throughout the district to create a full-time position for him, either as an itinerant or at his last location.

In light of this determination, I need not address the parties’ remaining contentions.  I note, however, that petitioner has made serious allegations about respondent’s practices in assigning and retaining CTE teachers.  The district’s chief human resources officer acknowledges that respondent initially erred in evaluating the seniority of CTE teachers and determining which teacher should be excessed.  She also states that the district has been reviewing the certification of all of its CTE teachers and has taken “significant steps” to comply with the Commissioner’s regulations.  I urge respondent to complete this review to ensure full compliance with the regulations.