Appeal of RANDAL TYNER, from action of the Board of Education of the City School District of the City of Glens Falls and Susan Corlew regarding the abolition of a position.

Decision No. 17,011

(December 9, 2016)

Richard E. Casagrande, Esq., attorney for petitioner, Megan M. Mercy, Esq., of counsel

Bartlett, Pontiff, Stewart & Rhodes, P.C., attorneys for respondent, Eileen M. Haynes, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the decision of the Board of Education of the City School District of the City of Glens Falls (“respondent” or “respondent board”) to abolish his position.  The appeal must be sustained in part.

Petitioner holds permanent certification as a teacher of English 7-12 and a gifted education extension.[1]  On or about September 1, 2005, petitioner was appointed to a probationary appointment with respondent’s district in the tenure area of “Gifted and Talented” and received tenure in such area effective September 1, 2007.  Petitioner’s position was abolished, effective June 30, 2013.  This appeal ensued.

Petitioner claims that respondent improperly appointed him to an unauthorized tenure area, in violation of Part 30 of the Rules of the Board of Regents.  He asserts that his duties most resemble those of a teacher performing instructional support services, as defined in section 30-1.1 of the Rules of the Board of Regents and therefore, he should have been accruing seniority credit in his area of certification pursuant to section 30-1.2(b) of the Rules of the Board of Regents and should be retained by the district as he is not the least senior teacher in the 7-12 English tenure area.  Petitioner requests that I annul the district’s termination of his employment and direct respondent board to reinstate him to a position in the English 7-12 tenure area, with back pay, benefits and seniority.

Respondent concedes that it improperly assigned petitioner to an unrecognized tenure area, but contends that petitioner did not spend more than 40 percent of his time performing duties in his certificate area or in instructional support services and that he failed to meet his burden of proof.  Instead, respondent asserts that petitioner was hired as a gifted and talented teacher for grades three through six and, as was expected, spent the majority of his time teaching such students.  Respondent also alleges that petitioner failed to mitigate his damages.

First, I must address a procedural issue. The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No. 15,901).  Additional affidavits, exhibits and other supporting papers may only be submitted with the prior permission of the Commissioner (8 NYCRR §276.5).  While this provision permits the submission of additional evidence, it cannot be used to add new claims against a respondent for which notice has not been provided (Appeals of Gonzalez, 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Marquette, et al., 48 id. 193, Decision No. 15,833).  I will not accept materials that raise new issues and introduce new exhibits that are not relevant to the claims originally raised in the appeal (Appeals of Gonzalez, 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Marquette, et al., 48 id. 193, Decision No. 15,833).

Petitioner requests that I consider his reply and supplemental affidavits and exhibits in an effort to explain his teaching schedule and refute the district’s characterization of his teaching schedule.  Therefore, while I have reviewed the reply and supplemental affidavits and exhibits, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

When a board 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” (Education Law §3013[2]).  Therefore, the district must first identify the tenure area for the position to be abolished (Matter of Cole v. Bd. of Educ., 90 AD2d 419, aff’d 60 NY2d 941; Matter of Bales, 32 Ed Dept Rep 559, Decision No. 12,913).

When, as here, a school district mistakenly appoints a teacher to a non-existent or incorrect tenure area, it has an obligation to correct that mistake by retroactively appointing that teacher to a position that most closely resembles the recognized tenure area with the duties the teacher is actually performing (Education Law §§2510(2); 3013(2); Matter of Abrantes v. Bd. of Educ., Norwood-Norfolk Central School Dist., 233 AD2d 718, appeal denied 89 NY2d 812; Matter of Thorenz v. Bd. of Educ., Monticello Central School Dist., 101 AD3d 1563).

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 (Matter of Lynch v. Nyquist, 41 AD2d 363, aff’d 34 NY2d 588; Matter of Silver v. West Canda Valley Cent. School Dist., 46 AD2d 427; Matter of Alessi v. Board 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).

On this record, it is unclear whether respondent ever conducted a detailed analysis of the duties of the position to be abolished.  Superintendent Jenkins asserts in an affidavit that respondent board considered whether it could reclassify petitioner, but concluded that it could not reclassify petitioner to the tenure area of an elementary or middle school teacher (i.e., the elementary or middle grades tenure area as applicable under 8 NYCRR §§30-1.5 or 30-3.6) because he lacks certification to teach in those areas.  Petitioner concedes that he has never taught in the academic tenure area of English 7-12, but contends that he was spending more than 40 percent of his time providing instructional support services, and under 8 NYCRR §30-1.2(b)(2) he is entitled to credit for tenure and seniority “in a tenure area for which he holds the proper certification”.  Since he was certified in English 7-12, petitioner asserts that respondent was obligated to assign him to the English 7-12 tenure area, in which he was not the least senior teacher.  Respondent denies that petitioner’s job duties involved providing instructional support services for a substantial portion of his time, asserting that he was appointed and served as a teacher of core academic subjects to gifted and talented students in grades three through six.

While it is undisputed that petitioner did not teach English 7-12 during the school years at issue, petitioner’s duties, as self-described, and as described in the affidavits of at least five other district personnel, indicated that he worked a six-day elementary/middle school schedule.  On four of those days, he performed instructional duties for students in grades three through six and instructional support services duties, and on the remaining two days, he performed instructional support services duties. The schedules provided by petitioner in support of his reply indicate that for the 2005-2006 school year through the 2008-2009 school year, less than 40 percent of his duties consisted of performing instructional duties and more than 40 percent of his time was spent providing non-instructional duties (some of which petitioner asserts were instructional support services) and in the 2009-2010 school year through the 2012-2013 school year, he spent more than 40 percent of his time performing instructional duties for students in grades three through five or six and more than 40 percent of his time performing non-instructional duties (some of which petitioner asserts were instructional support services), depending on the year.  Petitioner further asserts in his affidavit that during his employment, the sum of his instructional time, contractual planning time and lunch never exceeded 60 percent and that the remaining time (never less than 40 percent and usually far beyond) was spent on duties related to instructional support services.

On the contrary, respondent asserts that petitioner spent the majority of his time teaching gifted and talented students in grades three through six only.  Both Trent Clay, as the Director of Curriculum and Education and petitioner’s supervisor; and Thomas McGowan, the superintendent from 1995 to 2011, submitted affidavits on respondent’s behalf.  These affidavits reflect that petitioner spent the majority of his time teaching students in grades three through six and that “although he was allowed to set his own schedule, it was expected that he would [solely] teach classes” (emphasis added).  While these individuals appear to acknowledge that some of petitioner’s time was actually spent performing instructional support services duties, including implementing assessments to determine which students qualified for the program and analyzing the results to determine which students scored high enough on the tests to join the program; creating curriculum resources for teachers to use in their classes; and supporting teachers with technical help in making videos, web pages and instructional technology tools, they assert that these duties were part of his teaching duties.  Trent Clay attached to his affidavit a schedule that petitioner gave him for the 2012-2013 school year.  The schedule reflects that petitioner had a six-day schedule, with one planning period and one lunch period each day.  The schedule further reflects that on day one of the six-day cycle, petitioner was working in fifth grade on the Young Scholars Program/Project Kindle; day two was spent in sixth grade Young Scholar Program/Project Kindle; day three consisted of district-wide assessment/consultation; and on days four, five and six, it appears that his time was spent at each of the elementary and middle schools.  However, the schedule does not describe what duties petitioner was performing during each of the periods of the day.  Therefore, it is unclear what the nature of petitioner’s duties were while he was assigned to the elementary and middle schools on days four, five and six.

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, supra and Matter of Thorenz, supra.  Instead, respondent’s superintendent erroneously asserts that respondent could not reclassify petitioner to an elementary or middle school tenure area because he did not hold certification to teach in those tenure areas, and therefore was not legally qualified for such position. In addition to the requirement to reclassify under Matter of Abrantes, supra and Matter of Thorenz, supra, 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.[2]  Based on the record before me, I find that petitioner has met his burden of demonstrating that at least 40 percent of his time was spent in the elementary tenure area (teaching gifted and talented instruction to elementary school students).  Petitioner may also be entitled to credit for his service in the English 7-12 tenure area within the exception created by 8 NYCRR §30-1.2(b)(2) for instructional support services, which provides:

(2) A professional educator employed by a board of education or board of cooperative educational services on May 1, 2009 who was appointed by such board of education or board of cooperative educational services prior to May 1, 2009 for the performance of duties in instructional support services, and who was appointed to tenure or a probationary period in an improper tenure area or a tenure area not authorized under this Subpart based upon the performance of such duties, shall be deemed to have been appointed or assigned by such board of education or board of cooperative educational services to serve in a tenure area for which he holds the proper certification as described in section 30-1.9(b) of this Subpart as it exists on May 1, 2009, from the initial date of his assignment and shall continue to receive credit toward tenure and/or accrue tenure and seniority rights in such tenure area while assigned to perform duties in instructional support services provided that he holds the proper certification for such tenure area.

Section 30-1.1 of the Rules of the Board of Regents defines instructional support services as follows:

(j) Instructional support services shall mean professional development, pedagogical support, technical assistance, consultation, and/or program coordination offered by teachers to other school personnel including, but not limited to: conducting workshops, study groups, and demonstration lessons; modeling instruction; providing feedback, coaching, mentoring and other professional support for instructional staff; providing training in best instructional practices in specific content areas; assisting instructional staff in analyzing student performance data and differentiating instruction to meet the needs of all students; coordinating the provision of special education services; developing and promoting a culture of reflective instructional practice; providing curriculum and assessment resources to instructional staff; providing information and support on technology tools to extend and support student learning; assessing curriculum development or professional development needs; and such similarly related work.

Based upon the record before me, respondent failed to refute petitioner’s assertions and the many affidavits submitted on petitioner’s behalf indicating that he taught gifted and talented education to elementary/middle school students for 40 percent or more of his time and/or spent more than 40 percent of his time performing instructional support services as defined in section 30-1.1 of the Rules of the Board of Regents.  Respondent admits that petitioner created his own schedule and Clay and McGowan acknowledge that petitioner performed certain instructional support services duties, including among other things, the identification of students for the gifted and talented program, which included testing students for eligibility and collaborating with teachers on ways to differentiate instruction for the gifted and talented students; providing professional development to other teachers and establishing educational tools for other teachers to use.  They also acknowledge that petitioner analyzed test data and used educational technology to improve student instruction.[3]

However, since it is unclear from the record what percentage of petitioner’s duties was spent performing instructional support services from the 2005-2006 school year until June 30, 2013 and what percentage of his time was spent performing duties in the elementary tenure area (teaching gifted and talented instruction to elementary school students), 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 instructional support services in the certification area of English 7-12 and petitioner’s seniority rights with respect to performing services in the elementary tenure area, and based on his seniority in these two areas, his right to reinstatement as a teacher in the English 7-12 tenure area and/or elementary tenure area on June 30, 2013, 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 elementary teacher tenure area and make a new determination as to whether he is entitled to be restored to a tenured position as a teacher of elementary education effective June 30, 2013, with back pay and retroactive benefits; and

IT IS FURTHER ORDERED that, within 30 days of the date of this order, respondents also calculate petitioner’s seniority rights with respect to performing instructional support services in the English 7-12 tenure area and make a new determination as to whether he is entitled to be restored to a tenured position as an English 7-12 teacher, if he is not entitled to be restored to a tenured position as a teacher of elementary education effective June 30, 2013, with back pay and retroactive benefits. 

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