Decision No. 12,690

(April 30, 1992)

SOBOL, Commissioner.--Petitioner, a certified special education teacher, appeals from respondent board of education's hiring of an uncertified teacher for a special education position in the 1990-91 school year, when petitioner was available to teach. The appeal must be dismissed.

During the spring and summer of 1990, respondent board of education of the Altmar-Parish-Williamstown Central School District (APW) conducted a search for candidates for a vacant position as a teacher of special education in a resource room at the APW Middle School. Petitioner contends that she applied for such position and was not hired. Respondent board of education denies that petitioner submitted a written application for the teaching position, but admits that petitioner telephoned late in the summer of 1990 and left a message for the district's director of special education indicating her desire to be considered for the vacancy. On or about August 23, 1990, respondent's superintendent of schools and director of special education determined there were no certified and qualified special education teachers available and that an uncertified teacher should be appointed to the position. Upon learning of the hiring of an uncertified teacher, petitioner contacted the superintendent of schools on or about September 5, 1990. The superintendent suggested that petitioner place her name on the district's list of substitute teachers and demonstrate her teaching abilities as a substitute.

Petitioner contends that respondent violated Education Law "3001 by hiring an uncertified teacher when she, a certified special education teacher, was available to teach. Petitioner seeks an order directing respondent to hire certified special education teachers for all special education classes, directing respondent to hire her or provide her with a statement of why she is not qualified to teach and awarding her back pay for the 1990-91 school year. Respondent contends that the appeal must be dismissed on procedural grounds, including untimeliness. On the merits, respondent argues that a board of education has discretion to determine who to employ as a teacher and may require a higher professional or academic standard for a teaching position than that prescribed by the Commissioner. Respondent further contends that the uncertified teacher appointed to the APW Middle School resource room position duly applied to my Division of Teacher Certification for a temporary license pursuant to 8 NYCRR "80.18. Respondent argues that under "80.18, a board of education may employ an uncertified teacher when no certified and qualified teacher is available after extensive recruitment, and that petitioner, though certified, was not "qualified" within the meaning of such regulation.

Respondent contends that the appeal was not commenced within 30 days of the action complained of, as required by 8 NYCRR "275.16, and therefore must be dismissed as untimely. The appeal was commenced by service of the petition on October 12, 1990. Since the appeal is taken from the board of education's action in appointing an uncertified teacher, it would be timely if commenced within 30 days of the appointment. There is no competent evidence in the record before me as to the date of the board's action, although the respondent board's attorney admits in a memorandum of law that the board of education appointed the uncertified teacher on September 13, 1990. If true, the appeal was commenced within 30 days of the board's action. In any case, the appeal relates to the employment of an uncertified teacher which, if unlawful, would constitute a continuing wrong subject to complaint at any time (Matter of Baxter and Pickett, 21 Ed. Dept. Rep. 610; Appeal of Town of Smithtown, 28 id. 337). Under the circumstances, I find that respondent has failed to establish that the appeal is untimely and I decline to dismiss the appeal on such basis.

Respondent further contends that the appeal must be dismissed for failure to serve the petition on the uncertified teacher appointed by respondent, a necessary party to this appeal. Pursuant to 8 NYCRR "275.1, the Office of Counsel, on my behalf, directed petitioner to join the uncertified teacher as a party to this appeal. Petitioner has submitted proof of service of the petitioner on respondents Machell Jones and Melissa Wart, who have failed to submit answers to the petition. Since they have been afforded the opportunity to appear as parties to this appeal, I will not dismiss the appeal for nonjoinder of a necessary party.

Education Law "3001, which prescribes the minimum legal qualifications of teachers in the public schools, requires that teachers hold a teacher's certificate issued under authority of the Education Law. Pursuant to Education Law "3006(3), the Commissioner is authorized to issue temporary teaching licenses, limited to a specific school district, for a period not to exceed one year. The regulation implementing such statute is "80.18 of the Commissioner's Regulations, which provides:

Pursuant to 8 NYCRR "276.6, I take administrative notice from the records of the Division of Teacher Certification of the State Education Department that on October 15, 1990, the APW superintendent of schools submitted applications for a temporary license for the employment of respondents Melissa Wart and Machell Jones as uncertified teachers in special education positions for the 1990-91 school year. In the letters accompanying such applications, the superintendent states that three certified special education teachers were available, none of whom were competent to perform the duties of the position. It further appears that respondent Wart holds a certificate of qualification valid for service in grades Nursery-6. During the 1990-91 school year, respondent Jones was near completion of the requirements for provisional certification in special education, and she did receive a certificate of qualification as a teacher of special education effective September 1, 1991. On January 8, 1992 respondent Jones was issued a temporary license for the 1990-91 school year. On December 28, 1990, the superintendent was notified that no action could be taken on the application of respondent Wart until more information was submitted on the availability of applicants who are certified teachers and the specific reasons for rejecting such applicants, if any. By letter dated September 5, 1991, the superintendent identified that three certified special education teachers who had been available, one of whom was petitioner, and indicated that these individuals had not demonstrated that they were qualified for the position.

Respondent board of education contends that despite the availability of petitioner, its employment of an uncertified teacher was proper, since "80.18(a)(1) authorizes the employment of an uncertified individual "when no certified and qualified teacher is available after extensive recruitment." Respondent asserts that the words "and qualified" must be construed to have some meaning other than "certified" since the phrase would otherwise be redundant. Petitioner asserts that the term "qualified" should be construed to mean having the legal qualifications for the position; that is, to mean "certified."

One of the canons or principles of statutory construction, which also applies to the interpretation of regulations, provides that meaning and effect should be given to all the language of a statute, if possible, and words are not to be rejected as superfluous when it is possible to give each word a distinct and separate meaning (McKinney's Consolidated Law of New York, Book 1, Statutes, "231). Interpreting the term "qualified" to mean "certified," as petitioner suggests, would violate this principle by making one of the words in the regulation superfluous. As respondent argues, the term "qualified" is intended to have a distinct meaning.

Respondent further argues that because "7.2 of the Rules of the Board of Regents authorizes a board of education to "require for any teaching position a professional or academic standard higher than that prescribed by the commissioner," it has discretion to reject a certified teacher who it deems to be unqualified and hire an uncertified teacher who it deems to be qualified. Rule 7.2 does not authorize the employment of individuals who do not meet the minimum professional and academic standards established by the Commissioner for teachers in a particular subject area. Section 80.18 may not be construed so broadly as to empower boards of education to employ uncertified teachers (Education Law ""3001; 3009(1); 3010), particularly in the area of special education, where a school district has a specific duty to employ certified special education teachers (8 NYCRR "200.6[6]).

On the other hand, it would not be reasonable to interpret "80.18 as leaving a board of education with no discretion to hire an uncertified teacher when a certified teacher is available, regardless of the circumstances. Such a rigid interpretation could compel a board of education to hire a certified teacher, for example, who has been dismissed by another school district for misconduct or who has otherwise demonstrated incompetence. As respondent board of education contends, "80.18 does contemplate that a board of education may apply for a temporary license to employ an uncertified individual, where a certified teacher is available but is not "qualified" within the meaning of the regulation.

The term "qualified" is defined in Webster's Third New International Dictionary of the English Language (Unabridged), G.8.C. Merriam Company, 1981, as follows:

As used in "80.18(a)(1), the term "qualified" is intended to have the first dictionary meaning; that is, it is intended to connote competence or fitness. Thus, to obtain a temporary license where a certified teacher is available to teach, a school district must demonstrate that it had reasonable cause to question the competence or fitness of the certified teacher.

In this case, petitioner had previously applied for a position as a substitute teacher in the APW district on September 19, 1989. She was interviewed for the position by respondent's director of special education, who contacted her references from her prior employment in the Mexico Central School District. Petitioner's former supervisors informed the APW director of special education that petitioner's teaching skills are deficient, her knowledge of the instructional area is questionable and, based on her unsatisfactory job performance, she would not be recommended to be rehired by the Mexico Central School District. In November 1989, the director of special education recommended to the APW superintendent of schools that petitioner not be hired for the substitute teaching position. In January 1990 the superintendent interviewed petitioner and found that she failed to specifically and adequately answer questions posed to her. She was not hired for the substitute position.

On the record before me, I find that respondent had reasonable cause to question petitioner's competence as a special education teacher and therefore could employ an uncertified teacher, despite petitioner's availability, provided that all other requirements for issuance of a temporary license pursuant to "80.18 are met.

Petitioner was employed by the Mexico Central School District during the 1987-88 school year as a resource room and remedial math teacher in the Palermo Elementary School. As the school year progressed, her performance evaluations became more critical, and serious deficiencies were noted in her classroom teaching performance. The building principal recommended, based upon these deficiencies, that petitioner's probationary appointment be terminated. Rather than terminate petitioner's services, the Mexico Central School District gave her a new teaching assignment at a new school for the 1988-89 school year. Petitioner was assigned to a self-contained special education class in the New Haven Elementary School. While her evaluations at the New Haven Elementary School were more favorable, deficiencies in her classroom teaching performance continued to be noted by her supervisors, particularly an inability to maintain control of the classroom. By the end of the school year, petitioner's supervisors had concluded that petitioner's teaching skills were deficient, and the director of pupil service indicated that she was prepared to recommend the termination of petitioner's probationary appointment. In May 1989 petitioner resigned her teaching position in the Mexico Central School District.

When petitioner expressed interest in the vacant special education position for the 1990-91 school year, respondent had already been advised by a former employer that she had performed unsatisfactorily in a prior special education position and demonstrated a lack of teaching skills. Respondent had sufficient reason to question petitioner's competence and determine that she is not a certified and qualified teacher within the meaning of "80.18(a)(1).

Because the determination was never made on the application of respondent Wart for a temporary license, I will refer this matter to my Division of Teacher Certification for a determination, in light of this decision, on whether a temporary license for the 1990-91 school year should be issued retroactive to September 1, 1990. According to the records of the State Education Department, no application for a temporary license has been filed for the 1991-92 school year. If the employment of an uncertified teacher continued beyond the 1990-91 school year, a renewal of the temporary license must be obtained to lawfully pay the salary of the uncertified teacher (Education Law "3009[1]; 3010).

In addition, although the present record does not contain sufficient information on the competence of the other two available certified special education teachers to determine whether respondent could properly reject them, the record does suggest the possibility that respondent may be hiring uncertified individuals in preference to certified special education teachers. If so, respondent's conduct of its special education programs may not comply with the requirements of the Individuals with Disabilities Education Act and 8 NYCRR "200.6. Accordingly, I will also refer this matter to my Office for Special Education Services for a compliance review in accordance with this decision.

THE APPEAL IS DISMISSED.

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