Excessing and Recall of Teachers and Administrators Pursuant to Education Law Sections 2510 and 3013

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1 THE OMNI 333 EARLE OVINGTON BLVD., SUITE 901 UNIONDALE, NEW YORK (516) WARREN H. RICHMOND DIRECT: FAX: Excessing and Recall of Teachers and Administrators Pursuant to Education Law Sections 2510 and 3013 In these times of significant budget cutbacks, boards of education throughout New York state have been called upon to lay off or "excess" members of their administrative and teaching staff in numbers surpassing anything in recent memory. With the advent of the 2% tax cap imposed in the last session by the state legislature, this trend will no doubt continue. The legal framework which dictates the order in which such employees are to be excessed in the event of the abolition of positions, as well as the rights of such employees to be recalled, are outlined in Education Law Sections 2510 and 3013, the provisions of which are virtually identical. While the requirements of these sections appear relatively straightforward, their application by the courts and the Commissioner of Education has resulted in an intricate and sometimes inconsistent set of principles. Abolition of Positions Sections 2510(2) and 3013(2) provide that, whenever 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." The key words here are "within the tenure area." Teachers are not excessed on the basis of their seniority in the district, nor on the basis of their seniority in a particular subject or certification. Rather, it is solely their seniority within a given tenure area which determines their priority. A school district is not required to maintain seniority lists. However, it must be able to ascertain relative seniority from its records. Appeal of Tucholski, 28 Ed. Dept. Rep. 112 (1988).

2 A board must take formal action to abolish a position. Matter of Hofheins, 19 Ed. Dept. Rep. 570 (1980). In so doing, it must identify the tenure area of the position to be abolished, 8 NYCRR (a), and determine the person having the least seniority in the tenure area affected by the abolition. 8 NYCRR (b). There is no statutorily prescribed notice that must be given to the affected teacher. Matter of Lestin, 21 Ed. Dept. Rep. 390 (1982). Very often, however, notice requirements are set forth in collective bargaining agreements. A board of education may abolish, consolidate or fractionalize positions provided that it does so in good faith and with reasonable judgment. Young v. Board of Ed., 41 A.D.2d 966, 344 N.Y.S.2d 65 (2d Dept. 1973) aff d 35 N.Y.2d 31, 358 N.Y.S.2d 709, 315 N.E.2d 768 (1974); Zurlo v. Ambach, 75 A.D.2d 662, 426 N.Y.S.2d 191 (3 rd Dept. 1980) aff d 53 N.Y.2d 1035, 442 N.Y.S.2d 486, 425 N.E.2d 874 (1981). Accordingly, a board may not abolish a position as a subterfuge for ridding itself of unwanted teachers when, in fact, no economy or increased efficiency is realized. Board of Ed. v. Niagara Wheatfield Teachers' Assn., 54 A.D.2d 281, 283, 388 N.Y.S.2d 459 (4 th Dept. 1976) app. den. 41 N.Y.2d 801, 393 N.Y.S.2d 1025, 361 N.E.2d 1051 (1971). Teachers whose positions are abolished and who are tenured or in a probationary status in additional tenure areas created by Part 30 of the Rules of the Board of Regents have the right to "bump" less senior teachers in such other tenure areas. 8 NYCRR (c) and (d). The requirement that teachers be excessed on the basis of seniority within their tenure area can, in some instances, be extremely problematic for school districts. Certain tenure areas created by Part 30, most notably science and foreign language, are not coextensive with the requisite teacher certification. In other words, teachers certified in biology and those certified in physics all fall within the tenure area of science. Similarly, teachers certified in French and those certified in Spanish all fall within the tenure area of foreign language. Thus, when a district seeks to reduce classes in a particular subject, e.g. physics, it cannot excess the least senior physics teacher, but rather must excess the least senior teacher in the science tenure area. This can, and not infrequently does, result in a situation where the more

3 senior teacher who retains his or her position may lack the certification legally required to teach the courses to which he is entitled to be assigned. Unfortunately, there is no readily available solution to this predicament. New York courts have clearly held that in these circumstances issues of teacher certification may not undermine teacher tenure rights. Rather, the course of action available to a school district should this situation arise is to seek termination of a teacher lacking the requisite certification for legal incompetency pursuant to Education Law Section 3020-a. Lynch v. Nyquist, 41 A.D.2d 363, 343 N.Y.S.2d 179 aff d 34 N.Y.2d 588, 354 N.Y.S.2d 948, 310 N.E.2d 544 (1973); Silver v. Board of Ed., 46 A.D.2d 427, 362 N.Y.S.2d 638 (4 th Dept. 1975). Such a proceeding is expensive, oftentimes prolonged, and requires that the teacher be continued on the payroll pending its resolution. N.Y. Educ. Law 3020-a (2) (b). Creation of a New Position Sections 2510 (1) and 3013 (1) address the situation where a board of education abolishes an office or position and creates another office or position "for the performance of duties similar to those performed in the office or position abolished." In this circumstance, the person filling such office or position at the time of its abolishment shall be appointed to the office or position thus created without reduction in salary or increment, provided the record of such person has been one of faithful, competent service in the office he or she has filled. It is the individual claiming the newly created position who has the burden of proving that the duties of the new position are similar to those of his or her former position. Appeal of Jordan, 37 Ed. Dept. Rep. 487 (1988). To be similar, the two positions must have the same certification requirement. Davis v. Mills, 98 N.Y.2d 120, 748 N.Y.S.2d 890, 778 N.E.2d 540 (2002). In addition, the prevailing rule is that the two positions must be in the same tenure area, Kelly v. Ambach, 83 A.D.2d 733, 442 N.Y.S.2d 616 (3d Dept. 1981); Appeal of DeBowy, 41 Ed. Dept. Rep. 161 (2001), although one court has held to the contrary. Leggio v. Ogelsby, 69 A.D.2d 446, 419 N.Y.S.2d 118 (2d Dept. 1979). Generally, the positions will be found to be similar if more than fifty percent of the duties of the

4 new position were performed by the incumbent of the abolished position. Greenspan v. Dutchess County BOCES, 96 A.D.2d 1028, 466 N.Y.S.2d 430 (2d Dept. 1983). The Commissioner has repeatedly held, however, that the standard of what is similar is flexible and is not to be applied mechanically, see e.g. Appeal of Walters, 49 Ed. Dept. Rep. 115 (2009); Appeal of Barker and Pitcher, 45 Ed. Dept. Rep. 430 (2006), in that the degree of comparable skill and experience required for each position must be considered. Appeal of Heath, 37 Ed. Dept. Rep. 544 (1998). It has been held that the due process clause of the Constitution requires that a teacher or administrator whose position has been abolished is entitled to a hearing if the board of education knew or should have known that there was a substantial possibility that the employee might possess a substantive right under the statutes to occupy the new position. DeSimone v. Board of Education, 612 F.Supp (E.D.N.Y. 1985). Failure to provide such a hearing may result in a significant damage award against the district pursuant to 42 U.S.C The language in Sections 2510 (1) and 3013 (1) to the effect that reinstatement shall apply only to individuals with a record of "faithful, competent service in the office he or she has filled" has received scant attention from the courts and the Commissioner. Indeed, there appears to be no reported case in which a denial of reinstatement pursuant to either section has been addressed. In any event, it is clearly inadvisable for a school district to abolish a position and subsequently deny reinstatement to a similar position on the basis of the employee's subpar performance. Such action will give rise to a claim that the underlying abolition of the position was merely a pretext for avoidance of the formal termination procedures to which an employee is otherwise entitled pursuant to Education Law Section 3020-a. Preferred Eligible List Sections 2510 (3) and 3013 (3) address the priority to be given to "excessed" teachers and administrators to vacant positions which are thereafter created. Subdivision (a) of these sections provides that such employees:

5 ... 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 or she 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. Subdivision (b) provides that those on the list shall also be entitled to be reinstated to substitute positions of five months or more "without losing their preferred status on the list." As is set forth in Subdivision (a), priority on the preferred eligible list is based upon service in the system, whereas the order of excessing pursuant to Section 2510 (2) and 3013 (2) is based upon seniority in the tenure area. The Commissioner has held that the phrase "length of service in the system" means length of service as a professional educator as defined in Section of the Commissioner's Regulations. Appeal of Marsico, 50 Ed. Dept. Rep. (Dec. No. 16,158, September 30, 2010). Thus, where a teacher has served in several tenure areas, all such service is included. On the other hand, service in civil service positions for which no teaching certificate is otherwise required is excluded. Appeal of Marsico, supra. The different manner of computing seniority for purposes of Subdivisions (2) and (3) of the statutes will create the anomalous result that a teacher who is excessed before another teacher in his or her tenure area will be recalled earlier when he or she possesses greater system-wide service. The statutory right to be placed on a preferred eligible list applies to probationary as well as tenured employees, Lezette v. Board of Ed., 35 N.Y.2d 272, 360 N.Y.S.2d 869, 319 N.E.2d 189 (1974), including teaching assistants. Madison-Oneida BOCES v. Mills, 2 A.D.3d 1240, 770 N.Y.S.2d 443 (3d Dept. 2003). Recall rights are extinguished upon an employee's retirement, Morehouse v. Mills, 28 A.D.2d 767, 702 N.Y.S.2d 406 (3d Dept. 2000), or resignation, Appeal of Beauchamp, 50 Ed. Dept. Rep. (Dec. No , August 9, 2010). A school district has an affirmative obligation to make a reasonable effort to notify eligible persons of vacancies so that they may be afforded the opportunity to accept or decline a

6 position. Appeal of Dickinson, 49 Ed. Dept. Rep. 463 (2010). An individual who declines an offer of reinstatement from the preferred eligible list because of a commitment to another employer does not waive his or her future recall rights absent a clear indication of intent to sever ties with the district. Lewis v. Cleveland Hill UFSD, 119 A.D.2d 263, 506 N.Y.S.2d 608 (4 th Dept. 1986). Similarly, an excessed teacher who accepts a position in another tenure area with the same district will remain on the preferred eligible list, Appeal of Mead, 23 Ed. Dept. Rep. 101 (1983), even in the event that he or she subsequently resigns from the second position. Appeal of Principio, 39 Ed. Dept. Rep. 11 (2006). As with reinstatement pursuant to Sections 2510 (1) and 3013 (1), an individual on the preferred eligible list is only entitled to be appointed to a similar position. The test for determining whether a position is similar under subdivision (1) and subdivision (3) is the same, i.e. were more than fifty percent of the duties of the new position performed by the individual in the abolished position. See Greenspan v. Dutchess County BOCES, 96 A.D.2d 1028, 466 N.Y.S. 430 (2d Dept. 1983). A person may be rehired from the preferred eligible list only if he or she possesses the requisite certification for the position to be filled. Matter of Chauvel v. Nyquist, 43 N.Y.2d 48, 400 N.Y.S.2d 753, 371 N.E.2d 473 (1977). A teacher on the preferred eligible list has no right to a civil service position that does not require educational certification, notwithstanding the fact that the duties of the new position may be otherwise "similar" to the duties of the abolished position. Ryan v. Ambach, 71 A.D.2d 719, 419 N.Y.S.2d 214 (3d Dept. 1979); see Appeal of MarkowBrown, 45 Ed. Dept. Rep. 315 (2005). A teacher may be denied reinstatement from the preferred eligible list where he or she had been the subject of formal disciplinary action while serving in the earlier position upon the ground that such service was not "faithful and competent." Matter of Schimmel v. Board of Ed., 111 A.D.2d 966, 490 N.Y.S.2d 64 (3d Dept. 1985). A teacher on the preferred eligible list is entitled to appointment to a vacancy in a similar part-time position. Matter of Zurlo v. Ambach, 53 N.Y.2d 1035, 442 N.Y.S.2d 486, 425 N.E.2d 874 (1981). The

7 acceptance of a part-time position does not foreclose the assertion of his or her right to a full-time position which subsequently becomes available. Matter of Avila v. Board of Ed., 240 A.D.2d 661, 658 N.Y.S.2d 703 (2d Dept. 1997). If an individual is reinstated to a part-time position from the preferred eligible list and that position is subsequently abolished, the abolition of the part-time position serves to renew the seven year preferred eligibility period. Matter of Avila v. Board of Ed., supra. Pursuant to the provisions of Subdivision 3(b), a teacher who is recalled to a regular substitute position will be entitled to be appointed to a vacancy which occurs while serving in that position. Due to the fact that the teacher will receive seniority credit for regular substitute service, see Matter of Crandall and Toth, 20 Ed. Dept. Rep. 16 (1980), his or her position on the preferred eligibility list may improve as a result of such service. Although there are no cases on point, it is highly unlikely that termination of a regular substitute position, unlike the abolition of a part-time position, would be held to result in renewal of the seven year preferred eligibility period. Issues may arise regarding whether a vacancy exists which is to be filled from the preferred eligible list. It has been held that reduction of a full-time position to one that is part-time position does not constitute the abolition of a position. Rather, the incumbent merely retains the position in a reduced form. Matter of Gettinger v. Putnam-N. Westchester BOCES, 158 A.D.2d 688, 552 N.Y.S.2d 141 (2d Dept. 1990); Matter of Van Derzee v. Board of Ed., 228 A.D.2d 998, 644 N.Y.S.2d 847 (3d Dept. 1996). Where a board takes action to abolish a position and subsequently re-establishes the position prior to the time teaching duties are to be performed, e.g. prior to the beginning of the school year, the position will not be deemed to be abolished for purposes of Section 2510 (3) and 3013 (3). Matter of Matthews, 16 Ed. Dept. Rep. 265 (1977). Finally, the courts have repeatedly held that the preferred eligible rights established by Education Law Section 2510 (3) and 3013 (3) may not be contravened by the provisions of a collective bargaining agreement. Thus, a contract provision which provides that a teacher whose position is abolished shall be appointed to any job opening for which he or she is certified violates

8 public policy and, as such, is null and void. Matter of Board of Ed. v. Barker CSD, 209 A.D.2d 945, 619 N.Y.S.2d 423 (4 th Dept. 1994); see also, Board of Ed. v. Depew Teachers Org., 167 A.D.2d 907, 562 N.Y.S.2d 275 (4 th Dept. 1990). In times of strictly constrained budgets, it is crucial that boards of education be aware of the requirements of Sections 2510 and 3013 with regard to abolishing positions, creation of new positions in more streamlined operations, and recall rights of excessed employees. By remaining mindful of the interplay among these complex rules, boards can establish a framework for navigating these difficult times. Warren H. Richmond is a partner in Harris Beach PLLC in Uniondale where he practices on the Educational Institutions Industry Team.