Appeal of MELISSA GALE, from action of the Board of Education of the Tully Central School District and Monica Abrams, regarding an appointment and preferred eligibility rights.

Decision No. 16,584

(January 16, 2014)

Richard E. Casagrande, Esq., New York State United Teachers, attorneys for petitioner, Frederick K. Reich, Esq., of counsel

Bond, Schoeneck & King, PLLC, attorney for respondents, Subhash Viswanathan, Esq., of counsel

KING, JR., Commissioner.--Petitioner appeals the decision of the Board of Education of the Tully Central School District (“respondent” or “board”) to abolish her position as a teacher of Spanish, grades 7-12. The appeal must be dismissed.

Petitioner is a certified teacher of Spanish, grades 7-12. At a regularly scheduled meeting held on August 18, 2008, respondent board appointed petitioner to the position of Spanish teacher, with an anticipated start date of September 19, 2008. At this same meeting, the board appointed Monica Abrams (“Abrams”) to the position of Spanish teacher with an anticipated start date of September 19, 2008. At its September 15, 2008 meeting, the board re-appointed Monica Abrams to the position of Spanish teacher with a retroactive start date of September 1, 2008. At its May 17, 2011 meeting, the board abolished the Spanish teacher position held by petitioner and terminated her services effective June 30, 2011. By letter dated May 18, 2011, petitioner was notified that her position was abolished, effective June 30, 2011. This appeal ensued.

Petitioner contends that she was improperly terminated in violation of her rights under Education Law §§2510 and 3013 because she has more seniority rights within the foreign language tenure area than Abrams. Petitioner also alleges that the August 18 appointment of Abrams was invalid and therefore Abrams was the least senior teacher. Petitioner requests that she be reinstated as a full-time Spanish teacher in the foreign language tenure area, with full back pay and benefits.

Respondent alleges that the appeal is untimely and that petitioner has failed to demonstrate that the board acted in an arbitrary or capricious manner or abused its discretion in

 

determining that petitioner and Abrams had equal seniority and the same appointment date, and by using an alphabetical tie-breaker to determine that petitioner should be terminated rather than Abrams.

At the outset, I must reject respondent’s argument that the 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 Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879). Petitioner commenced this appeal on July 26, 2011. Since petitioner commenced this appeal within 30 days of the effective date of the abolition of her position on June 30, 2011, the appeal is timely (see e.g., Appeal of Gordon, 54 Ed Dept Rep, Decision No. 16582; Matter of Boykin, 15 Ed Dept Rep 388, Decision No. 9,204).

Next, I must turn to 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 Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).

When a board of education abolishes a position, it is required by Education Law §§2510(2) and 3013 to discontinue "the services of the teacher having the least seniority in the system within the tenure of the position abolished" (Matter of Cole v. Board of Education, 90 AD2d 419; Appeal of Kiernan, 32 Ed Dept Rep 618, Decision No. 12,933). The first criterion for determining seniority is actual full-time service rendered (Matter of Dreyfuss v. Board of Education, 76 Misc 2d 479, aff'd 45 AD2d 988; Appeal of Kiernan, 32 Ed Dept Rep 618, Decision No. 12,933; Matter of Fallick, 18 Ed Dept Rep 586, Decision No. 9,979). If such full-time service is equal, the teachers' respective appointment dates are to be used for determining seniority (Matter of Schoenfeld v. BOCES of Nassau County, et al., 98 AD2d 723; Appeal of Kiernan, 32 Ed Dept Rep 618, Decision No. 12,933; Matter of Fallick, 18 id. 586, Decision No. 9,979; Matter of Ferguson, 14 id. 102, Decision No. 8,884; Matter of Ducey, 65 St Dept Rep 65).

In determining the order of seniority of teachers within a district "it is clear that the teacher whose appointment occurred first had a longer seniority ... than the teacher who was appointed upon a later resolution" (Matter of Ducey, 65 State Dept Rep 65 at 66; see also Matter of Schoenfeld v. BOCES of Nassau County et al., 98 AD2d 723). However, if teachers 3

 

have equal service, a board of education must evaluate whether the teachers' appointment dates are identical and if they are, then the board may use an objective means to break the tie in determining seniority (Appeal of Schoenfeld v. BOCES of Nassau County et al., 98 AD2d 723; Appeal of Kiernan, 32 Ed Dept Rep 618, Decision No. 12,933).

The Appellate Division of the Supreme Court of the State of New York stated in Schoenfeld v. BOCES of Nassau County, et al., 98 AD2d 723, "If two teachers have equal service time, the board's discretion dictates who is to be retained .... In exercising its discretion, a board of education must not act in an arbitrary or unreasonable fashion” (see Matter of Cesaratto, et al., 17 Ed Dept Rep 23, Decision No. 9,477). Here, the record reflects that petitioner and respondent Abrams have the same amount of full-time service with the district. They were both appointed at the same board meeting on August 18, 2008, pursuant to the same resolution and they both commenced service in the district on September 1, 2008. Therefore, I find that the district’s decision to retain Abrams instead of petitioner by alphabetical order was not arbitrary and capricious.

Petitioner further argues that the August 18, 2008 appointment of Abrams was invalid because Abrams failed to provide the required 30-day notice under Education Law §3019-a of her resignation from the Jamesville Central School District before she was appointed on August 18, 2008.

Education Law §3019-a provides, in pertinent part, as follows:

[a] teacher who desires to terminate his services to a school district at any time, shall file a written notice thereof with the school authorities of such school district or with the board of cooperative educational services or county vocational education and extension board at least thirty days prior to the date of such termination of such services.

However, this section does not support petitioner’s theory that a teacher’s failure to provide notice in accordance with §3019-a to his or her employing school district at the time he or she is appointed by another school district invalidates his/her appointment. To the contrary, Education Law §3019-a was enacted for the protection of both the teacher and the students, in that the board of education is required to give the teacher 30 days notice in writing of his discharge; at the same time the interests of students are protected by requiring the teacher to notify the board of education of his resignation (see Matter of the Appeal of Central School District No. 1 of Town of 4

 

Smithtown, 2 Ed Dept Rep 438, Decision No. 7,196). Education Law §3019 authorizes revocation of the teaching certificate of a teacher who fails to complete his or her contract, and there is no other specific remedy set forth in the Education Law for failure to provide notice in compliance with §3019-a. Petitioner cites no authority for the proposition that the proper remedy for Abrams’ failure to provide the required notice is to annul her appointment, and I find none. I note in this regard that respondent’s superintendent explains that Abrams’ appointment was part of an arrangement by three school districts to exchange Spanish teachers under which they each in turn released their teachers from their obligation to complete their contracts. Thus, the record suggests that the districts involved had actual notice that Abrams would be appointed and any failure to provide the required written notice would constitute a technical violation of the statute that would not justify the drastic remedy of invalidation of an appointment.

Petitioner further asserts that Abrams’ August 18, 2008 appointment is invalid and in violation of section 30-1.3(c) of the Rules of the Board of Regents because respondent failed to set forth the specific date of Abrams’ commencement of probationary service in the appointment and instead only set forth an anticipated start date. Section 30-1.3(c) provides that a board of education “shall, in each resolution making a probationary appointment or an appointment on tenure, set forth the date of commencement of probationary service or service on tenure in such tenure area.”

However, petitioner cites no legal authority to support her position that Abrams’ August 18, 2008 appointment was invalid since it only contained an anticipated start date, rather than an actual start date even though respondent later ratified that appointment and clarified the date of commencement of her probationary service. To the contrary, numerous Commissioner’s decisions have held that “the failure of [a] board to comply with the requirements of an appointment will not prejudice the rights of a teacher who holds a position” (Appeal of Fallick, 18 Ed Dept Rep 586, 588, Decision No. 19,979; Matter of Urdanick and Judd, 17 id. 473; Matter of Schoenfeld v. BOCES of Nassau County et al., 98 AD2d 723). Petitioner argues that these cases are distinguishable because they involved inadvertent errors by a board of education rather than the deliberate use of an anticipated start date. However, the principle of those cases is that a defect in the appointment is the responsibility of the appointing board, not of the teacher (see e.g., Appeal of Fallick, 18 Ed Dept Rep 586-588, Decision No. 19,979). I find that principle to be equally applicable here. There is no doubt that respondent board intended to appoint both Abrams and 5

 

petitioner on August 18, 2008 and any defect in the resolution with respect to the start date was cured when the board ratified Abrams’ appointment on September 15, 2008. Such ratification dates from the time the appointment was made (see Appeal of Fallick, 18 Ed Dept Rep 586-588, Decision No. 19,979), so I reject petitioner’s further argument that Abrams’ appointment was made on September 15, 2008.

Accordingly, I find that petitioner has not met her burden of demonstrating that the August 18 appointment of Abrams was invalid and, therefore, based upon the record before me, I find that petitioner and Abrams had the same amount of full-time service in the foreign language tenure area. Thus, the board did not act in an arbitrary or capricious manner when it used its discretion to break the tie alphabetically and terminated petitioner’s services.

THE APPEAL IS DISMISSED.

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