* Subsequent History: Matter of Board of Educ. of Minisink Val. Cent. Sch. Dist. v Elia; Supreme Court, Albany County (Mackey, J.); Decision and Order dismissed petition to review; November 20, 2017;  affd 170 AD3d 1472 (3d Dept. 2019); lv denied 33 NY3d 911 (2019). *

Appeal of AMANDA DEROSA from action of the Board of Education of the Minisink Valley Central School District, Kristen Daly and Jeni Galligan regarding seniority and preferred eligibility rights.

Decision No. 17,028

(January 19, 2017)

Richard E. Casagrande, Esq., attorney for petitioner, Jacquelyn Hadam, Esq., of counsel

Shaw, Perelson, May & Lambert, LLP, attorneys for respondents, David S. Shaw and Julie M. Shaw, Esqs., of counsel

ELIA, Commissioner.--Petitioner appeals the decision of the Board of Education of the Minisink Valley Central School District (“respondent”) to recall Kristen Daly and Jeni Galligan from the preferred eligibility list and offer each a position in the elementary tenure area.  The appeal must be sustained.

Petitioner is a certified elementary education teacher and holds a Students With Disabilities (Grades 1-6) professional certificate.  Petitioner has been employed with respondent intermittently since the beginning of 2007 in various positions.  Petitioner’s first appointment was as a substitute elementary school teacher from January 23, 2007, through March 27, 2007.  Next, on September 1, 2007, petitioner was appointed as a long-term substitute leave replacement serving as a librarian in the elementary school for the duration of the 2007-2008 school year.  Thereafter, petitioner was granted a probationary appointment in the elementary tenure area, effective September 1, 2008.  Petitioner served full-time in her probationary appointment during the 2008–2009 and 2009–2010 school years, with the exception of the period of November 19, 2009 to January 5, 2010, during which she took unpaid maternity leave.  Effective June 30, 2010, respondent abolished thirteen full-time positions in the elementary tenure area.  At that time, petitioner was notified that her position was being abolished and that she would be placed on a preferred eligibility list (“PEL”) with the right to recall in the elementary tenure area.  

During the 2010-2011 school year, petitioner was appointed and served as a full-time long-term substitute special education teacher in the middle school.  Thereafter, during the 2011-2012 school year, petitioner was appointed to a substitute elementary education teacher position in which she served for nine weeks.

Respondent offered Ms. Daly a position in the elementary tenure area, effective September 1, 2013, which she rejected.  Ms. Galligan was then offered the same position, which she accepted.[1]  The record indicates that, at the time of the recalls of Ms. Daly and Ms. Galligan, petitioner was on the PEL.  Thereafter, petitioner timely commenced an Article 78 proceeding in Orange County Supreme Court seeking a determination that respondent illegally failed to recall petitioner from the PEL.  By decision and order dated January 14, 2014, the petition was dismissed under the doctrine of primary jurisdiction.  This appeal ensued.

Petitioner contends that, at the time of the recall of both Ms. Daly and Ms. Galligan, she had four full years of service in the system, more than either Ms. Daly or Ms. Galligan.  Thus, petitioner argues, in accordance with Education Law §§2510 and 3013, she should have been recalled from the PEL prior to either Ms. Daly or Ms. Galligan.  In calculating time of service in the district, petitioner contends that long-term substitute service can be considered, and that tenure area is irrelevant to the calculation of service.  Petitioner requests an order declaring that long-term substitute service should be included when calculating length of service in the system for recall purposes and directing that she be appointed to a teaching position in the elementary tenure area with retroactive salary, benefits and seniority credit from September 1, 2013.

Respondent contends that petitioner is not entitled to the elementary teacher position and that the recall from the PEL and subsequent appointment of Ms. Galligan was, in all respects, proper and neither arbitrary nor capricious.  Respondent argues that long-term substitute service in positions that do not ripen into probationary appointments is not counted towards seniority and, thus, petitioner’s position as library media specialist cannot be counted towards seniority.  For all of the above reasons, respondent asserts that the appeal must be dismissed.

Education Law §§2510(3) and 3013(3) govern the rights of individuals with regard to a preferred eligibility list. Paragraph (a) of Education Law §3013(3), 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....

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 (Matter of Mahony v. Bd. of Educ. of Mahopac Cent. School Dist., 140 AD2d 33, appeal denied 73 NY2d 703).  Seniority under Education Law §2510(3), which is identical to §3013(3), has been interpreted as all service within the system, not just a particular tenure area (see Matter of Cole v. Board of Educ., 90 AD2d 419, aff’d 60 NY2d 941).  It is also well-settled that full-time regular substitute service counts for seniority purposes under Education Law §§2510(2) and 3013(2) when it did not immediately precede the teacher’s probationary appointment, when the teacher performed part-time services for the district in the interim (Kransdorf v. Bd. of Educ. Northport-East Northport UFSD, 81 NY2d 871); Appeal of Carey, 31 Ed Dept Rep 394, Decision No. 12,678). Teachers lose seniority rights under Education Law §§2510(2) and 3013(2) when they sever service with the school district, not when they have interrupted service (Appeal of Lamb, 42 Ed Dept Rep 406, Decision No. 14,895).

Petitioner calculates her total time of service with respondent as follows: one year of service during the 2007-2008 school year as a long-term substitute elementary education teacher in the elementary school library; two years of service during the 2008-2009 and 2009-2010 school years as an elementary teacher, less twenty days of unpaid child care leave; and one year of service during the 2010-2011 school year as a long-term substitute special education teacher.  The question presented in this appeal is whether the calculation of petitioner’s service in the system under Education Law §3013(3) includes long-term substitute service that did not lead to a probationary appointment in the same tenure area.  Neither party has cited to a prior decision that squarely addresses this issue and indeed I could find none.

Respondent relies on my prior decision in Matter of Kelley, 19 Ed Dept Rep 499, aff’d sub. nom.; Kelley v. Ambach, 83AD2d 733, for the premise that substitute service not connected to a probationary appointment should not be counted towards seniority.  In Matter of Kelley, prior to her position being abolished, the petitioner served as an assistant principal in a junior high school.  After she was excessed, petitioner claimed entitlement to either of two positions of assistant principal at the senior high school, both of which were in a different tenure area.  However, as distinguished from the petitioner in Matter of Kelley, petitioner in the instant matter is seeking recall to a position in the same tenure area as the position from which she was excessed; the substitute service in question herein was in a different tenure area, not in the tenure area of the position to which she seeks to be recalled.  Thus, respondent’s reliance on that case is misplaced.

The question then is whether long-term substitute service that did not lead to a probationary appointment and would be creditable in determining seniority for retention purposes under Education Law §3013(2) should be excluded in determining length of service in the system for recall purposes under Education Law §3013(3).  Respondent has not articulated any compelling policy reason why long-term substitute service that did not lead to a probationary appointment should not be counted for recall purposes when the law is clear that service in another tenure area may be counted (see Matter of Mahony v. Bd. of Educ. of Mahopac Cent. School Dist., 140 AD2d 33, appeal denied 73 NY2d 703; Matter of Leggio v. Oglesby, 69 AD2d 446, appeal dismissed, 48 NY2d 882, 53 NY2d 704).  Education Law §3013(3) bases recall on length of service in the system, which would encompass full-time service as a professional educator as defined in 8 NYCRR §30-1.1(e), and no reason appears why full-time service as a regular substitute in a different tenure area should not be counted as part of service in the system.  I find therefore that on the facts of this case, where petitioner is seeking reinstatement to a position in her original tenure area and only claiming seniority credit for prior long-term substitute service, petitioner is entitled to such credit for her service as a professional educator.  By analogy to the cases under Education Law §§2510(2) and 3013(2), this applies to long-term substitute service that did not immediately precede petitioner’s probationary service and to interrupted service such as petitioner’s.  I find no basis in the statute, or as a matter of policy, for disregarding service as a professional educator in a long-term substitute position in determining total years of service in the system under Education Law §3013(3).

Petitioner’s first position with the district was a temporary appointment from January 23, 2007 through March 27, 2007.  For the reasons stated above, petitioner’s time in this temporary appointment should be used in calculating seniority in the system.  Petitioner next asserts that her position during the 2007-2008 school year as a long-term substitute leave replacement should be counted for purposes of seniority.  The parties disagree as to the tenure area to which petitioner was appointed.  Petitioner states that she was appointed as an elementary teacher and served as a librarian in the elementary school, while respondent maintains that petitioner was appointed as a substitute leave replacement for a school media specialist and that she did not serve any time in the elementary tenure area during that year.  Either way, however, petitioner was serving in a position as a professional educator as defined in 8 NYCRR §30-1.1(e).  I note that, during this time, petitioner did not sever service with the district; rather, her service was only interrupted by service in a different tenure area.  As the Commissioner has previously noted, respondent’s interpretation of the law would have required petitioner to decline the substitute position in another tenure area in hopes of a position becoming available in the elementary tenure area within seven years (Matter of Mead, 23 Ed Dept Rep 101, Decision No. 11,150).  Such an interpretation is inconsistent with both past Commissioner’s decisions and the law in this area. 

Finally, petitioner served in a probationary appointment in the elementary tenure area until such position was abolished.  Service during that probationary appointment counted towards her seniority in the system.  Therefore, at the time that her position was abolished, petitioner had four years of service in the elementary tenure area, less unpaid time taken during the 2009–2010 school year for maternity leave.

The record indicates that Ms. Daly had three years of service in the district and that Ms. Galligan had three years of service, less some number of days of unpaid leave.  As thoroughly detailed above, petitioner had four years of service, less unpaid leave time and, thus, petitioner had more seniority in the system than both Ms. Daly and Ms. Galligan.  Given this, I need not address respondent’s method of counting unpaid leave time as petitioner’s service was a full year in excess of Ms. Daly’s and Ms. Galligan’s service prior to exclusion of any unpaid days.

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

IT IS ORDERED that respondent board place petitioner in the position of elementary teacher in accordance with this decision, with back pay, seniority and benefits as of September 1, 2013, less any compensation she may have received in the interim.

THE APPEAL IS SUSTAINED.

END OF FILE