Appeal of STEPHANIE PETKOVSEK from action of the Board of Education of the Cheektowaga Central School District and Carreen Schroeder regarding preferred eligibility.

Decision No. 15,933

(June 23, 2009)

James R. Sandner, Esq., New York State United Teachers, attorney for petitioner, Kevin H. Harren, Esq., of counsel

Thomas J. DeBoy, Esq., attorney for respondent Board of Education

MILLS, Commissioner.--Petitioner challenges the determination of the Board of Education of the Cheektowaga Central School District (“respondent board” or “board”) to appoint Carreen Schroeder (“Schroeder”) to a French teacher position.  The appeal must be sustained.

Petitioner is a New York State certified teacher with certificates in the areas of French 7-12 and Social Studies 7-12.  Petitioner began her employment as a foreign language teacher with the Cheektowaga Central School District (the “district”) in September 1999.  She completed her probationary term and received tenure as a foreign language instructor effective September 1, 2003.  At its meeting of May 3, 2005, the board abolished one teaching position within the foreign language tenure area.  Petitioner was the least senior teacher and her services were discontinued effective July 1, 2005.  Petitioner was placed on a preferred eligible list in the foreign language tenure area.

Also at its May 3, 2005 meeting, the board appointed petitioner to a two-year probationary appointment as a Social Studies teacher beginning September 1, 2005.  Petitioner resigned from this position on June 30, 2007.

Due to a retirement effective July 1, 2008, the district sought to hire a new French teacher.  Petitioner emailed the district’s superintendent on June 26, 2008 and sent a letter on July 7, 2008 seeking to be recalled.  The board did not respond to petitioner’s letters and at its meeting of August 19, 2008 appointed Schroder to the French teacher position effective September 1, 2008.  This appeal ensued.

Petitioner contends that although she resigned from her position as a Social Studies teacher in June 2007, due to the abolition of her French teacher position in May 2005 she remained on the preferred eligible list for a French teaching position.  Petitioner further argues that the appointment of Schroeder to the position of French teacher violated Education Law §§2510(3) and 3013(3).  Petitioner requests that she be placed in the position of French teacher and that she be granted seniority as a foreign language teacher beginning September 1, 2008, as well as back pay and benefits.

Respondent board contends that upon her resignation from the Social Studies teacher position in June 2007, petitioner’s preferred eligibility rights with the district were terminated.  Additionally, respondent board argues that the petition must be dismissed because it is untimely and not verified.

An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Proctor, 46 Ed Dept Rep 575, Decision No. 15,599; Appeal of Henley, 46 id. 556, Decision No. 15,594).  Respondent board asserts that the appeal is untimely because it was initiated on September 26, 2008, more than 30 days after the board appointed Schroeder to the French teacher position.  Additionally, respondent board argues that a conversation held between petitioner’s attorney and the district’s attorney, on August 27, 2008, evidences that petitioner knew that Schroeder was appointed to the French teacher position at the August 19, 2008 board meeting.

Whether petitioner was aware of the August 19, 2008 board appointment is not the controlling factor.  In circumstances such as this, a petitioner does not become aggrieved until the date that another person commences service in the position at issue (Appeal of Berowski, 28 Ed Dept Rep 53, Decision No. 12,027; seealsoAppeal of Notre Dame High School and Seton Catholic High School, 38 id. 615, Decision No. 14,104; Appeal of Chernoff, 37 id. 709, Decision No. 13,964).  Since petitioner initiated the appeal within 30 days of September 1, 2008, the effective date of Schroeder’s appointment, I will not dismiss the appeal as untimely.

Respondent board also argues that the appeal should be dismissed because petitioner’s verification was made in Colorado and not New York.  Section 275.5 of the Commissioner's regulations requires that all pleadings in an appeal to the Commissioner be verified.  When a petition is not properly verified, the appeal must be dismissed (Appeal of D.P., 46 Ed Dept Rep 516, Decision No. 15,580; Appeal of C.S., 46 id. 260, Decision 15,501).  Petitioner currently resides in Colorado and verified the petition there before a person authorized to administer oaths within that state.  The intent behind the verification requirement is to ensure the truthfulness of the pleadings by having the parties, who are familiar with the facts underlying the appeal, swear that they have read the contents of the pleadings and verify that they are true.  Petitioner’s verification satisfies this intent.   Therefore, I find no merit to the board’s argument that the verification is improper.[1]

Education Law §§2510(3)(a) and 3013(3)(a) govern the rights of a former employee to re-employment and provide, in pertinent part:

If an office or position is abolished or if it is consolidated with another position without creating a new position, the person filling such position at the time of its abolishment or consolidation shall be placed upon a preferred eligible list of candidates for appointment to a vacancy that then exists or that may thereafter occur in an office or position similar to the one which such person filled without reduction in salary or increment, provided the record of such person has been one of faithful, competent service in the office or position he has filled.  The persons on such preferred list shall be reinstated or appointed to such vacancies in such corresponding or similar positions in the order of their length of service in the system at any time within seven years from the date of abolition or consolidation of such office or position. 

Accordingly, in order for petitioner to be entitled to appointment to a vacant position, the position must be similar to that of her former position (Greenspan v. Dutchess County BOCES, et al., 96 AD2d 1028; Appeal of Barker and Pitcher, 45 Ed Dept Rep 430, Decision No. 15,375).  The test to ascertain whether the two positions are “similar” is whether more than 50% of the duties of the vacant position are those which were performed by petitioner in her former position (Greenspan v. Dutchess County BOCES, et al., 96 AD2d 1028; Appeal of Barker and Pitcher, 45 Ed Dept Rep 430, Decision No. 15,375; Appeal of Debowy, 41 id. 161, Decision No. 14,648).  Additionally, the two positions must be in the same tenure area (Kelley v. Ambach, et al., 83 AD2d 733; Appeal of Barker and Pitcher, 45 Ed Dept Rep 430, Decision No. 15,375; Appeal of Debowy, 41 id. 161, Decision No. 14,648).

Respondent board does not dispute that the two positions are in the same tenure area or that they are more than 50% similar in their duties.  Instead, the board asserts that petitioner’s resignation from a different position in the district in 2007 ended her employment relationship with the district, terminating her preferred eligibility rights.  This case, therefore, presents the question of whether a teacher’s resignation from a position in one tenure area terminates her preferred eligibility rights in another tenure area.

Respondent board argues that it does and, in large part, bases its argument on Appeal of Lamb (42 Ed Dept Rep 406, Decision No. 14,895).  In Lamb, I stated that a teacher who severs her service with a district, through retirement or resignation, no longer has recall rights pursuant to Education Law §§2510 and 3013.  Cases that address preferred eligibility rights after resignation or retirement find that an employee knowingly relinquishes rights to either a transfer or recall when they take affirmative steps to terminate their employment (Appeal of Morehouse, 37 Ed Dept Rep 428, Decision No. 13,896, judgment granted dismissing petition to review, Sup. Ct., Albany Co., [Bradley, J.], November 5, 1998; n.o.r.; affd 268 AD2d 767; lv to appeal den 95 NY2d 751; Matter of Gerson v. Bd. of Educ. of Comsewogue Union Free School Dist., et al., 214 AD2d 732; Appeal of Middleton, 16 id. 50, Decision No. 9296, reopening denied 16 id. 366, Decision No. 9433).

The instant appeal, however, is distinguishable from these cases because petitioner served the district in more than one tenure area.  When petitioner was involuntarily excessed from her position as a French teacher in 2005, she was properly placed on the preferred eligible list for that position.  I find that her subsequent employment by the district in a different position, in a different tenure area, and her voluntary resignation from that subsequent position does not affect her recall rights to the initial position, of French teacher.  Public policy favors the protection of employees’ seniority rights (Ricca v. Bd. of Educ. of the City of New York, et al., 47 NY2d 385, 391; Matter of Boyer v. Bd. of Educ., West Seneca Cent. School Distict, 132 Misc. 2d 282, 285) and I find that public policy supports this result.

Additionally, there is no indication that petitioner waived her recall rights to a French teacher position.  “[W]aiver of a teacher’s tenure rights must be knowingly and freely given” (Matter of Gerson v. Bd. of Educ. of Comsewogue Union Free School District, et al., 214 AD2d 732, citing Matter of Gould v. Bd. of Educ. of Sewanhaka Cent. High School District, et al., 81 NY2d 446, 452).  On at least one occasion, petitioner specifically inquired as to her recall rights.  This is not the action of an individual seeking to waive those rights.  Thus, I find that respondent board violated petitioner’s rights when it did not recall her to the French teacher position.

THE APPEAL MUST BE SUSTAINED.

IT IS ORDERED that respondent board place petitioner in the position of French teacher in accordance with this decision, with back pay, seniority and benefits as of September 1, 2008, less any compensation she may have earned in the interim.

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