* Subsequent History: Matter of Kwasnik v King; Supreme Court, Albany County; Decision and Order granted petition, annulled Commissioner’s decision; September 30, 2013;  affd 123 AD3d 1264 (3d Dept 2014); lv dismissed 25 NY3d 981 (2015). *

Appeal of ERIKA L. KWASNIK from action of the Board of Education of the City School District of the City of Norwich, Gerard O’Sullivan as Superintendent and Sarah Parker regarding seniority.

Decision No. 16,419

(October 5, 2012)

Richard E. Casagrande, Esq., New York State United Teachers, attorney for petitioner, James D. Bilik, Esq., of counsel

Hogan, Sarzynski, Lynch, Surowka & DeWind, LLP, attorneys for respondents Board of Education of the City School District of the City of Norwich and Gerard O’Sullivan, John P. Lynch, Esq., of counsel

Iaconis Law Office, PLLC, attorneys for respondent Sarah Parker, Christopher D. Thorpe, Esq., of counsel

KING, JR., Commissioner.--Petitioner appeals the decision of the Board of Education of the City School District of the City of Norwich (“board” or “respondent”) to terminate her employment.  The appeal must be dismissed.

On or about January 8, 2001, the board appointed petitioner as probationary English teacher in the district.  In March 2004, she was granted tenure in the English tenure area.  On July 12, 2005, the board appointed petitioner to a two-year probationary position of library media specialist effective September 6, 2005 and, by letter dated July 15, 2005, petitioner resigned from her position as English teacher effective August 31, 2005.  At a meeting on August 16, 2005, the board accepted petitioner’s resignation.

On April 28, 2010, the board abolished a library media specialist position.  Petitioner was the least senior teacher in the library media specialist tenure area and by letter dated April 29, 2010, she was notified that her position was abolished effective June 30, 2010.  This appeal ensued.

Petitioner asserts that she was improperly terminated and that respondent was obligated to transfer her to the English tenure area pursuant to §30-1.13(c) of the Rules of the Board of Regents.  Petitioner claims that respondent Sarah Parker (“Parker”) is the least senior English teacher in the district and that petitioner therefore had a right to Parker’s position.  Specifically, in accordance with §30-1.13(c) of the Rules of the Board of Regents, petitioner seeks to “bump” Parker from her English teacher position because Parker, who was appointed on or about September 2, 2008, has less seniority than petitioner’s approximately 4.5 years in the English tenure area.

The board and Superintendent Gerard O’Sullivan (“O’Sullivan”) assert that the appeal is untimely and that, when petitioner resigned from her position as English teacher, she thereby relinquished any transfer rights to such position.  Parker also claims that petitioner had a gap in employment between August 31, 2005 and September 6, 2005 which effectively waived any seniority rights in the tenure area of English.

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).  The board and O’Sullivan allege that the appeal is untimely because the collective bargaining agreement applicable to petitioner requires 45 days prior written notice of the effective date of any lay off and that this requirement supplants the rule that petitioner is not aggrieved until the start of the school year.

I disagree.  Prior Commissioner’s decisions have found that, as long as an appeal was commenced within 30 days of the school start date on which petitioner became aggrieved, such appeal is timely (see e.g. Appeal of Gimbrone, 50 Ed Dept Rep, Decision No. 16,177).  Accordingly, I decline to dismiss this appeal as untimely.

The appeal, however, must be dismissed on 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).  

There is no dispute that petitioner, after her appointment to the library media specialist position, provided a letter of resignation from her English teacher position which was accepted by the board.  Petitioner argues, however, that because she was continuously employed within the district, she maintained her tenure, and therefore her seniority rights, in the English teacher position.  Under §30-1.10 of the Rules of the Board of Regents, a professional educator who acquires tenure in a new tenure area generally retains tenure in his or her original tenure area while he or she remains continuously employed as a full-time member of the professional staff of the district.  Under §30-1.13(c) of the Rules of the Board of Regents, upon abolition of his or her position, a professional educator who has tenure status in additional tenure areas must be transferred to such other tenure area in which he or she has greatest seniority.  Both regulations apply only to professional educators who have tenure and seniority rights in another tenure area at the time tenure was acquired in a new tenure area or the position was abolished, as applicable.  The issue before me in this appeal is whether petitioner knowingly and freely waived her tenure and seniority rights in the English tenure area by resigning from her position as an English teacher. 

A similar situation occurred in Matter of Middleton (16 Ed Dept Rep 50, Decision No. 9,296, reopening denied 16 id. 366, Decision No. 9,433), where a teacher resigned from a full-time position but was simultaneously appointed to a non-probationary, part-time position in the district.  In Middleton, it was held that the resignation served to terminate the employment relationship and any reinstatement rights.  Similarly, although petitioner continued to work in the district and her benefits accrued without interruption, I must conclude that her resignation from her position as a tenured English teacher constituted a relinquishment of her tenure and seniority rights with respect to an English teacher position (Matter of Middleton, 16 Ed Dept Rep 50, Decision No. 9,296, reopening denied 16 id. 366, Decision No. 9,433; see also Appeal of Morehouse, 37 id. 428, Decision No. 13,896, judgment granted dismissing petition to review, Sup. Ct., Albany Co., [Bradley, J.], November 5, 1998; n.o.r.; affd 268 AD2d 767; lv to appeal den 95 NY2d 751).

To be enforceable, such a waiver of tenure rights must be knowingly and freely given and not the product of coercion (Matter of Feinerman v. Board of Coop. Educ. Servs., 48 NY2d 491; Matter of Gerson v. Bd. of Educ. of Comsewogue Union Free School Dist., et al., 214 AD2d 732). Moreover, “[a]bsent a showing of fraud, duress, coercion, or other affirmative misconduct on the part of school officials which renders a resignation involuntary, a resignation cannot be withdrawn once it has been accepted by school authorities” (Schmitt, et al. v. Hicksville UFSD No. 17, et al., 200 AD2d 661, 663). 

In this regard, petitioner asserts that she expressed reservations to the district’s previous superintendent about resigning but was told that “it was the only way she would be able to take on the duties of a Library Media Specialist.”  Petitioner alleges that she then “reluctantly” agreed to provide a letter of resignation.    

The record indicates that petitioner knowingly and freely resigned from her position of English teacher once she was assured that she would be receiving the position of a library media specialist.  While petitioner may have expressed reservations about providing a letter of resignation, she did not seek the assistance of counsel or her union before submitting the letter, nor did she indicate in her letter that she wished to maintain her tenure and seniority rights to the English teacher position.  Petitioner has not demonstrated that she was coerced into submitting a letter of resignation or that respondent engaged in any other affirmative conduct that rendered her resignation involuntary.  Therefore, I find that the board acted reasonably when it construed petitioner’s resignation as a voluntary end to her employment as an English teacher, thereby terminating her seniority and tenure rights to that position.

In light of the foregoing disposition, I need not address the parties’ remaining contentions.

THE APPEAL IS DISMISSED.

END OF FILE.