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Decision No. 15,981

* Subsequent History: Matter of Ferencik v Steiner; Supreme Court, Albany County; Judgment dismissed petition to review; September 15, 2010. *

Appeal of DENISE M. FERENCIK from action of the Board of Education of the Amityville Union Free School District regarding preferred eligibility rights.

Decision No. 15,981

(September 3, 2009)

            Eugene K. Ferencik, Esq., attorney for petitioner

Guercio & Guercio, LLP, attorneys for respondent, Raymond G. Keenan, Esq., of counsel

HUXLEY, Interim Commissioner.--Petitioner challenges certain actions of the Board of Education of the Amityville Union Free School District (“respondent”) while she was on a preferred eligible list.  The appeal must be dismissed.

Petitioner, a certified art teacher, was employed by the Amityville Union Free School District (“the district”) from 1988 to 1992 and received tenure as an art teacher effective September 1, 1991.  During this time, petitioner taught art at the district’s high school.  On May 26, 1992, respondent abolished an art teaching position due to declining enrollment.  Petitioner, the least senior art teacher, was terminated effective June 30, 1992 and placed on a preferred eligible list in accordance with Education Law §3013(3).  Thereafter, respondent transferred the art teacher assigned to Northwest Elementary School to the district’s high school and discontinued the art program at Northwest Elementary School.  During the 1998-1999 school year, a certified music teacher was appointed to a part-time position with the district to teach art and music.

During the seven years petitioner was on the preferred eligible list, she was not recalled for a position with the district.  Beginning October 2001, petitioner became re-employed with the district as an art teacher.

In October 2003, petitioner commenced an Article 78 proceeding against respondent in Nassau County Supreme Court, alleging that the appointment of the music teacher was a violation of her “recall rights” under Education Law §3013(3).  Petitioner sought to compel respondent to recompute her salary, seniority, pension and other benefits based upon respondent’s alleged failure to appoint her to six positions which had become vacant before she was rehired.  According to the most recent correspondence submitted by the parties, this proceeding is still pending.[1]

In June 2007, petitioner commenced a second Article 78 proceeding in Nassau County Supreme Court against respondent.  In that case, petitioner alleged that respondent’s adoption of a time allotment policy in September 1994, created an art teaching position at Northwest Elementary School and that she should have been recalled to that position.  She sought reappointment and reinstatement based upon the start date of the first vacancy which allegedly should have been offered to petitioner while she was on the preferred eligible list.  By Order dated May 29, 2008, Justice Michele M. Woodard dismissed this proceeding under the doctrine of primary jurisdiction.  This appeal ensued.

Petitioner initiated the instant appeal on June 26, 2008 seeking a determination that, in accordance with Education Law §3013, the art teaching position allegedly created in 1994 at Northwest Elementary School is similar to the art teaching position at the district’s high school. Accordingly, petitioner maintains that she is entitled to the position.

Respondent asserts that petitioner has not met her burden of proof and alleges that there was no elementary school art teaching position created in 1994.  Respondent further asserts that the appeal is untimely and was improperly served upon the district.  Finally, respondent urges that I reject petitioner’s reply affidavits because they buttress allegations in the petition and belatedly add assertions that should have been made in the petition.

Initially, I must address the nature of this appeal.  The parties dispute whether the Supreme Court has retained jurisdiction and whether this appeal is properly before me for review.

Justice Woodard’s May 29, 2008 decision states, in pertinent part:

The court concludes that the Commissioner of Education should determine in the first instance whether ... [petitioner’s] position as an art teacher at Amityville Memorial High School was similar to the positions which were subsequently created at Northwest Elementary.  The petition is denied pursuant to the doctrine of primary jurisdiction.

Based on the above quoted language, I find that Justice Woodard dismissed the second Article 78 petition brought by petitioner.   Petitioner acknowledges this in her petition.  I therefore consider this matter to be properly before me for decision.

Respondent requests that I reject petitioner’s reply affidavits because they buttress allegations in the petition and belatedly add assertions that should have been made in the petition.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of a Student with a Disability, 46 Ed Dept Rep 540, Decision No. 15,589; Appeal of E.P. and D.P., 46 id. 390, Decision No. 15,542; Appeals of Cass, et al., 46 id. 321, Decision No 15,521).  Therefore, while I have reviewed the reply affidavits, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

Respondent argues that this appeal is untimely.  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).  Petitioner initiated her appeal on June 26, 2008.  Respondent asserts that the petition is untimely because it was not commenced within 30 days of the alleged creation of an elementary school art teaching position in September 1994.

An unsuccessful attempt to litigate a dispute in court that does not result in a final determination on the merits may be accepted as an excuse for failing to commence a timely appeal with the Commissioner, when the appeal is commenced within a reasonable time after the dismissal or abandonment of the court proceeding (Appeal of Donato, 41 Ed Dept Rep 246, Decision No. 14,677; Appeal of Debowy, 41 id. 161, Decision No. 14,648; Appeal of R.W., 40 id. 671, Decision No. 14,580).  In the instant case, the Supreme Court denied the Article 78 petition on May 29, 2008 and this appeal was commenced, less than 30 days later.  Thus, I find that petitioner commenced this appeal within a reasonable time after the Supreme Court denied her petition and I will not dismiss it as untimely.

The appeal, however, must be dismissed for lack of proper service.  Section 275.8(a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent.  If a school district is named as a respondent, service upon the school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service (8 NYCRR §275.8[a]; Appeal of Henley, 46 Ed Dept Rep 556, Decision No. 15,594; Appeal of D.P., 46 id. 516, Decision No. 15,580).  Petitioner’s affidavit of service states that the petition, verified petition and supporting papers were served on Barbara Miller, the “director assistant.”  Respondent states that Ms. Miller is neither the district clerk, a member of the school board, or the superintendent of schools, nor has she or her position as account clerk been designated by the board to accept service of process under §275.8 of the Commissioner’s regulations.

Petitioner submitted an additional affidavit from the process server stating that “at no time did Ms. Miller ever say or do anything which suggested she was not authorized to accept service.”  I note, however, that the process server’s affidavit does not state that Ms. Miller held herself out to him as a designated individual to accept service of process.  When there is no proof that an individual is authorized to accept service on behalf of the school board or the superintendent, service on that individual is improper and the appeal must be dismissed (Appeal of Baker, 47 Ed Dept Rep 280, Decision No. 15,696; Appeal of J.L., 47 id. 151, Decision No. 15,654; Appeal of D.P., 46 id. 516, Decision No. 15,580).  Because petitioner failed to serve a copy of the petition in accordance with §275.8 of the Commissioner’s regulations, the appeal must be dismissed.

Even if the appeal were not dismissed on procedural grounds it would be dismissed on the merits.  Petitioner contends that, beginning in 1994, she was entitled to be recalled to an art teacher position pursuant to Education Law §§2510 and 3013.  These provisions require that a teacher whose position is abolished be appointed to a vacancy in a corresponding or similar position that is subsequently created (Appeal of Krause, 46 Ed Dept Rep 304, Decision No. 15,516; Appeal of Strong, 41 id. 425, Decision No. 14,735).

Petitioner states that beginning in September 1994, art classes were restored to Northwest Elementary School.  As evidence, petitioner attaches a time allotment policy adopted by respondent at a meeting on September 13, 1994.  This policy allots 40 minutes per week to art in the district’s first and second grades.  Petitioner argues that this policy essentially established a new art teacher position at Northwest Elementary School beginning September 1994.  Respondent argues that the policy merely shows how a first or second grade teacher spends their time in the classroom.

The Commissioner’s regulations require that the arts, including visual arts, music, dance and theatre, be provided in grades one through four (8 NYCRR §100.3[b][v]).  Although it is recommended that elementary level arts instruction be provided by a certified arts teacher, it may also be provided by a certified elementary teacher (see New York State Education Department, Office of Curriculum and Instructional Support’s Summary of Arts (Dance, Music, Theatre, and Visual Art)_Provisions in Part 100 of the Regulations of the Commissioner of Education, November 2005, page 4).  Respondent’s 1994 time allotment policy appears to be nothing more than an effort to assure that the minimum art and music time requirements were being included in the district’s first and second grade classesIt does not necessarily evidence the creation of new art teacher positions (cf. Appeal of Allen, 34 Ed Dept Rep 627, Decision No. 13,433 [school district has discretion to abolish positions in the special subject area of physical education and assign the work to elementary teachers]). Thus, I cannot conclude that respondent’s time allotment policy created a specific position to which petitioner must be reinstated.

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 Brown, 46 Ed Dept Rep 584, Decision No. 15,602; Appeals of Hubbard, 46 id. 533, Decision No. 15,585; Appeal of Darrow, 46 id. 182, Decision No. 15,477).  Petitioner has presented no proof that a vacancy occurred or that a new art teacher position was created at the district during her seven years on the preferred eligible list.  Therefore, I conclude that petitioner is not entitled to the relief she seeks.




[1] The issues and claims surrounding the appointment of the music teacher are not at issue in this appeal.