Appeal of DOREEN MCGRATH, from action of the Board of Education of the Delaware Academy Central School District at Delhi and Jonathan Pecori, regarding tenure.

Decision No. 17,140

(August 9, 2017)

Robert T. Reilly, Esq., New York State United Teachers, attorneys for petitioner, Megan M. Mercy, Esq., of counsel

Hogan, Sarzynski, Lynch, DeWind & Gregory, LLP, attorneys for respondents, Cameron Daniels, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the decision of the Board of Education of the Delaware Academy Central School District at Delhi (“respondent” or “board”) to abolish her position.  The appeal must be sustained in part.

Petitioner was appointed by the district to serve as “Coordinator of Alternative Learning” in the WINGS program,[1] effective September 1, 2007 through June 30, 2010.  For the 2007-2008 school year, petitioner provided two periods of high school social studies instruction to the students in the WINGS program.  During the 2008-2009 school year, petitioner provided three periods of high school social studies instruction. For the 2009-2010 school year, petitioner’s schedule changed and the middle school WINGS program was added to her responsibilities.  That year, she also taught three periods of social studies and provided academic intervention in social studies to her social studies students for another period.  Petitioner was issued a teaching certificate in social studies on February 1, 2010.  On June 21, 2010, petitioner received tenure in the social studies tenure area, effective September 1, 2010.  The WINGS program was abolished effective June 30, 2010.  After the WINGS program was abolished, petitioner taught a full schedule of regular social studies classes in the high school. 

At a board meeting held on July 27, 2009, Jonathan Pecori was hired as a high school social studies teacher and appointed to a 3-year probationary appointment, effective September 1, 2009 through August 31, 2012.  By board resolution effective June 30, 2014, petitioner’s position was abolished, effective September 1, 2014.  Petitioner served a verified claim pursuant to Education Law §3813 upon the board on August 18, 2014, challenging the district’s employment of a less senior social studies teacher and filed an Article 78 proceeding in Delaware County, seeking reinstatement to her position as a social studies teacher in respondent’s district.[2]  In October 2014, respondent received a resignation from another social studies teacher and petitioner was recalled to her position by the board, effective October 14, 2014.  This appeal ensued. 

Petitioner asserts that she was improperly terminated in violation of Education Law §2510.  Petitioner argues that she spent at least 50 percent of her time teaching social studies in both the 2008-2009 and 2009-2010 school years and that she had greater seniority than Pecori, whose employment should have been terminated.  Petitioner requests that I declare the board’s actions to excess her as null and void, and restore her with full seniority rights, benefits and pay retroactive to September 1, 2014.

Respondent asserts that the earliest petitioner could begin to accrue seniority in the tenure area of social studies is February 1, 2010, the date upon which she received certification in social studies.  Therefore, respondent alleges that petitioner was the least senior teacher in the social studies tenure area and that its decision to terminate her services was proper.

To the extent that petitioner requests that she be reinstated to her former position, with back pay and benefits, nunc pro tunc, from September 1, 2014, the appeal must be dismissed, in part, as moot.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836).  The record before me indicates that petitioner was reinstated to her former position on October 14, 2014 and that she has continued in that position to date with full salary and benefits.  Therefore, I need only address the remaining claim, which is petitioner’s request for reinstatement back to September 1, 2014 through October 13, 2014, with back pay, interest, benefits, seniority, tenure and other emoluments of office during this time.

Turning to the merits, Education Law §§2510(2) and 3013(2) provide that when a board of education abolishes a position, “the services of the teacher having the least seniority in the system within the tenure [area] of the position abolished shall be discontinued.”  Under Education Law §§2510(2) and 3013(2) and 8 NYCRR §30-1.13, it is the actual nature of the abolished position that must be considered.  The certification, proper or improper, and the tenure status of the holder of the position, correctly determined or otherwise, are not controlling (Appeal of Tyner, 56 Ed Dept Rep, Decision No. 17,011; Matter of Lynch v. Nyquist, 41 AD2d 363, aff’d 34 NY2d 588; Matter of Silver v. West Canada Valley Cent. School Dist., 46 AD2d 427; Matter of Alessi v. Bd. of Educ., Wilson Cent. School Dist., 105 AD3d 54; see also, Matter of Ward v. Nyquist, 43 NY2d 57; Matter of Bales, 32 Ed Dept Rep 559, Decision No. 12,913).  As I held in Appeal of Tyner, 56 Ed Dept Rep, Decision No. 17,011, in the context of determining which position within a tenure area is to be abolished pursuant to Education Law §§2510(2) or 3013(2), seniority credit shall be awarded for time served in a position for which the teacher did not hold proper certification, at the time, because certification is not controlling in determining seniority credit for this purpose.  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).

Respondent relies upon Matter of Abdallah v. Bd. of Educ. of Massena Cent. Schools (61 AD2d 1096) in which the Appellate Division, without distinguishing or overruling its prior ruling in Matter of Lynch v. Nyquist (41 AD2d 363, aff’d, 34 NY2d 588), stated that the teachers in that case, who were not certified in the tenure area of the position abolished, “could not possibly have gained tenure and seniority in those tenure areas.”  However, in that case, the petitioners were nurse-teachers whose positions were abolished and replaced by registered nurse positions.  The petitioners claimed that they were tenured in either the elementary or secondary tenure area, for which, with one possible exception, they held no certification.  However, the petitioners had been appointed to the separate tenure area of school-nurse teacher, which clearly was the tenure area of the positions abolished.  Thus, I do not interpret that statement as intended to overrule Matter of Lynch v. Nyquist, which relates to determining which teacher’s position should be abolished based on seniority, but rather to affirm that an uncertified teacher cannot be afforded seniority credit toward tenure and thus become tenured even though uncertified.

However, on this record, it is unclear whether respondent ever affirmatively determined the authorized tenure area(s) to which petitioner’s position should be reclassified and then determined seniority within such tenure area(s) as it is required to do under Matter of Abrantes v. Bd. of Educ., Norwood-Norfolk Cent. School Dist., 233 AD2d 718, appeal denied 89 NY2d 812 and Matter of Thorenz v. Bd. of Educ., Monticello Cent. School Dist., 101 AD3d 1563.  Instead, respondent erroneously asserts that it could not reclassify petitioner’s duties because she could not accrue seniority credit in the case of an abolished position for the time period that she did not hold a proper certification.  In addition to the requirement to reclassify under Matter of Abrantes v. Bd. of Educ., Norwood-Norfolk Cent. School Dist., 233 AD2d 718, appeal denied 89 NY2d 812 and Matter of Thorenz v. Bd. of Educ., Monticello Cent. School Dist., 101 AD3d 1563, the Third Department’s holding in Matter of Lynch v. Nyquist, 41 AD2d 363, aff’d 34 NY2d 588, that a district may not circumvent Education Law §3020-a by excessing a tenured, certified teacher based on their lack of certification to teach in the tenure area of an abolished position is still binding precedent.

Since it is unclear from the record what percentage of petitioner’s duties was spent in the social studies tenure area when petitioner’s position was abolished, it is appropriate to remand this matter to respondent for a determination of petitioner’s seniority rights with respect to performing duties in the social studies tenure area, and whether she is entitled to back pay and retroactive benefits from September 1, 2014 through October 13, 2014, in accordance with section 30-1.1 of the Rules of the Board of Regents and this decision.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that, within 30 days of the date of this order, respondent calculate petitioner’s seniority rights in the social studies tenure area and make a new determination as to whether she is entitled to seniority credit, back pay and retroactive benefits from September 1, 2014 through October 13, 2014.

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