* Subsequent History: Matter of Marsico v Armstrong; Supreme Court, Westchester County;  Judgment granted petition and annulled Commissioner’s decision; March 24, 2015; Stipulation and Order vacated judgment and transferred proceeding to Albany County; August 19, 2015; Supreme Court, Albany County; Judgment denied motion to amend and dismissed petition; April 12, 2017. *

Appeal of DONNA MARSICO, from action of the Board of Education of the City School District of the City of Mount Vernon, Adrian Armstrong, Maria Aneiro, Carol Ben Reuben, Delia Farquharson, Derrick Claye, Elias Gootzeit, Lynn McBride, Charles Stern, Michelle Walker, Candelaria Wright, Concetta Fantini, Lorraine Scialabba and John Omokpo regarding preferred eligibility rights.

Decision No. 16,158

(September 30, 2010)

Robert David Goodstein & Associates, attorneys for petitioner, Robert David Goodstein, Esq., of counsel

Aiello & Cannick, attorneys for respondents, Jennifer A. Arditi, Esq., of counsel

STEINER, Commissioner.--Petitioner challenges various actions of the Board of Education of the City School District of the City of Mount Vernon (“board”), Adrian Armstong, Maria Aneiro, Carol Ben Reuben, Delia Farquharson, Derrick Claye, Elias Gootzeit, Lynn McBride, Charles Stern and Michelle Walker, as members of the board, and Candelaria Wright, Concetta Fantini, Lorraine Scialabba and John Omokpo (collectively referred to as “respondents”), relating to her preferred eligibility rights.  The appeal must be dismissed.

Petitioner was appointed to a probationary appointment as a teacher of business education, effective February 1, 1989.  By letter dated August 3, 1990, petitioner was notified that her position was abolished and that she would be placed on the preferred eligibility list.  Petitioner was later appointed as a business education teacher in the district, effective September 1, 1993.  Petitioner was granted tenure, effective September 1, 1994.  By resolution dated September 24, 2008, the board established a preferred eligibility list and petitioner was listed as the most senior business education teacher. By letter dated October 1, 2008, petitioner was notified that her position was abolished for budgetary reasons, effective October 3, 2008. 

Following receipt of an opinion letter from the New York State United Teachers, dated June 24, 2009, the board rescinded the September 24, 2008 seniority list and established a new seniority list with Concetta Fantini (“Fantini”) listed as the most senior business education teacher.  On or about September 2, 2009, Fantini was recalled to a business education position.  On September 8, 2009, petitioner commenced a proceeding in Supreme Court, Westchester County, challenging Fantini’s appointment.  On October 26, 2009, Acting Justice Loehr issued a decision to stay the proceeding to permit an appeal to the Commissioner.  This appeal ensued.

Petitioner argues that the board’s recission of the September 24, 2008 resolution and its establishment of the June 24, 2009 preferred eligibility list were arbitrary and capricious and in violation of Education Law §§2510(2) and 2585(3).  Specifically, petitioner alleges that she was continuously employed as a tenured business education teacher from 1993 until her layoff in October 2008, rendering her the most senior business education teacher and eligible for the first recall from the preferred eligibility list.  Petitioner requests that the June 24, 2009 resolution be rescinded, that the September 24, 2008 preferred eligibility list be reinstated and that I annul the appointment of Fantini and reinstate petitioner to the business education teacher position, effective September 2, 2009, with all economic benefits.

Respondents contend that the board’s decision to recall Fantini was proper because petitioner cannot claim seniority credit for years served in a non-tenure track position that does not require a teaching certificate.  Therefore, such service is not “service in the system” as required under Education Law §2510(3) for purposes of recall rights. 

Education Law §2510(3)(a), which relates to a teacher’s recall rights provides, in pertinent part:

If an office or position is abolished ... the person filling such position at the time of its abolishment or consolidation shall be placed upon a preferred eligible list .... The persons on such preferred list shall be reinstated or appointed to such vacancies ... in the order of their length of service in the system ... (emphasis supplied).         

It is well settled that for purposes of determining the recall rights of teachers on a preferred eligibility list, length of service in the system is used, not length of service within a particular tenure area (Mahony v. Bd. of Educ. of Mahopac Cent. School Dist., 140 AD2d 33, appeal denied 73 NY2d 703).  The novel issue presented in this appeal is what is considered “length of service in the system.”  Since Education Law §2510 is statutory and only applies to positions to which appointments on tenure may be made (see Appeal of Merz, 21 Ed Dept Rep 449, Decision No. 10,748) and only individuals in tenure-track positions have preferred eligibility rights and accrue seniority under Education Law §2510, I find that the phrase “length of service in the system” means length of service as a professional educator as defined in section 30-1.1 of the Commissioner’s regulations.[1]

The record reveals that petitioner served as an adult education teacher in a distance-learning program from September 1, 1993 through the 2006-2007 school year.  Since none of the tenure areas prescribed in Subpart 30-1 of the Rules of the Board Regents relate to teachers of adult education and there is no teaching certificate required for such position, I find that petitioner’s service as an adult education teacher was in a non-tenure track position and cannot be considered for purposes of recall rights (see Appeal of Thomas, 34 Ed Dept Rep 181, Decision No. 13,275).

While petitioner claims that she was a tenured business education teacher during this time frame, she has failed to establish that she was employed as a professional educator within the meaning of Subpart 30-1 of the Rules of the Board of Regents.  In §30-1.1(e) of the Rules of the Board of Regents, a professional educator is defined as:

[A]n individual appointed or to be appointed to a full-time position on the professional staff of a school district or board of cooperative educational services, which position has been certified as educational in nature by the commissioner to the State Civil Service Commission pursuant to the provisions of 35-g of the Civil Service Law and in which position tenure may be acquired in accordance with the provisions of the Education Law.

The position of an adult education instructor, however, is not among the positions certified by the Commissioner of Education to the New York State Civil Service Commission pursuant to Civil Service Law §35(g) as being in the teaching or supervisory staff of a school district (see Appeal of Thomas, 34 Ed Dept Rep 181, Decision No. 13,275; In the Matter of the Certifications of Classes of Positions of the Teaching and Supervisory Staffs of School Districts, Boards of Cooperative Educational Services and County Vocational Education and Extension Boards, dated April 5, 1962; June 28, 1962; January 13, 1971; July 9, 1971; April 30, 2009) (“Certifications 1 through 5”).

Subpart 30-1 of the Rules of the Board of Regents establishes the various subject tenure areas that must be used for teachers hired after August 1, 1975.  With regard to the tenure area of business education, §30-1.8(a) of the Rules of the Board of Regents provides, in part:

1. A professional educator who is employed to devote a substantial portion of his time to instruction in one or more of the following subjects shall be deemed to serve in a special subject tenure area or areas encompassing such subject:...

(2)  business education-general

Section 30-1.1(g) of the Rules of the Board of Regents defines “substantial portion of his time” as:

40 percent or more of the total time spent by a professional educator in the performance of his duties, exclusive of time spent in preparation, monitoring or in co-curricular activities.

Although petitioner holds permanent certification in business and distributive education, she fails to demonstrate that she devoted at least 40% of her work time in the tenure area of business education from September 1, 1993 until the 2006-2007 school year or in any other tenure area described in Subpart 30-1 of the Rules of the Board of Regents.  Accordingly, petitioner’s service from September 1, 1993 until the 2006-2007 school year was not in a tenure-bearing position and, therefore, cannot be counted as “service in the system” for purposes of recall rights under Education Law §2510(3).

Based on the record before me, I cannot find that the board’s determination that respondent Fantini had greater seniority than petitioner in the business education tenure area was arbitrary or capricious.

Although I am constrained to dismiss this appeal, I note that the board lacked the authority to grant petitioner tenure in the business education tenure area for her service as an adult education teacher.  I remind the board of the need to follow all pertinent provisions of the Civil Service Law, Education Law §2510 and Part 30 of Rules of the Board of Regents.

THE APPEAL IS DISMISSED.

END OF FILE.