Decision No. 12,743

(July 2, 1992)

Norton, Radin, Hoover & Freedman, Esqs., attorneys for respondent, David A. Hoover,

Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals from respondent's failure to appoint her to a position as an elementary school teacher. Petitioner requests that I overrule and annul certain appointments to elementary teaching positions made by respondent, that I direct respondent to recall and reinstate petitioner to a position to which she is legally entitled, and that I award her back pay and benefits accruing by virtue of such appointment. The appeal must be dismissed.

Petitioner received a probationary appointment in 1986 to the special subject tenure area of art. She was awarded tenure in that position in 1989. In June 1991, petitioner received a letter from the superintendent advising her that her position had been eliminated and that her services would be discontinued as of June 21, 1991. Petitioner was advised that her name would be placed on a preferred eligibility list for recall if a vacancy arose in her tenure area within seven years from the date of the termination of her services. On August 27, 1991 respondent, acting at a regular meeting, approved the recall and reemployment of three elementary teachers. On September 20, 1991, petitioner wrote to the superintendent of schools requesting that she be recalled to an elementary teaching position. Petitioner asserted that her years of service in the district entitled her to one of the appointments which had been made at respondent's August 27, 1991 meeting. Her request was not granted, and petitioner commenced this appeal.

Petitioner alleges that she spent twenty percent of her time providing teaching services to elementary school students while she was serving as a teacher in the art tenure area, and that she is certified as an elementary teacher. Petitioner argues that based upon these facts, and by operation of Education Law '2510(3), she is entitled to one of the elementary school appointments made by respondent. Petitioner acknowledges that this appeal was not brought within thirty days of the appointments made by respondent to the elementary teaching area. However, petitioner requests that her delay in commencing the appeal be excused on the ground that she did contact the district in a timely manner and requested appointment, but respondent's delay in complying with a freedom of information request relating to documents needed to commence this appeal caused her delay beyond the thirty day limitation in 8 NYCRR '275.16.

Respondent contends that petitioner is not entitled to any of the positions in the elementary tenure area. Respondent alleges that as a teacher of art, the nature of petitioner's services are not similar to those rendered by elementary school teachers who provide instruction in all the common branch subjects, e.g., arithmetic, civics, visual arts, elementary science, English language, etc. within the meaning of the provisions of Education Law '2510(3) (8 NYCRR '30.1[b]). Respondent further contends that this appeal, commenced on October 23, 1991, is not timely to review respondent's action of August 27, 1991. Respondent alleges that the petition fails to show why the delay in commencing this appeal should be excused. Respondent also alleges that petitioner has failed to join the three teachers who were appointed to the elementary teaching positions as necessary parties to this appeal, and that such failure requires dismissal.

Respondent's procedural arguments constitute grounds for dismissal of this appeal. (Matter of Cesaratto, supra; see also Matter of Wininger v. Williamson et al., 46 AD2d 689; Matter of Sikora v. Board of Education, 51 AD2d 135; Matter of Elkins, 14 Ed Dept Rep 193). Petitioner's argument that her inability to obtain specific documentation caused her to delay commencing her appeal might have merit with respect to an application to submit additional papers once an appeal was timely commenced, but it is clear from this record that petitioner had notice of the appointments she challenges and could have commenced an appeal in a timely manner. Therefore, I find no basis to grant her request that I excuse the delay commencing the appeal.

Petitioner's failure to join as party respondents those teachers whose positions could be adversely affected if the relief sought were to be granted is yet another reason why the appeal is procedurally defective. This procedural infirmity constitutes a ground necessitating dismissal of the appeal (Matter of Acinapuro, et al., 19 Ed Dept Rep 466; Matter of Klyde, 22 id. 362).

With respect to the merits, the principal issue here is whether the function of the position previously held by petitioner is "similar" within the meaning of the provisions of Education Law '2510(3). The issue, therefore, reduces to whether or not the duties and responsibilities of petitioner's position as an art teacher are similar to the duties and responsibilities of an elementary school teacher (Matter of Cesaratto, et al., 17 Ed Dept Rep 23, 28). Petitioner argues that her duties were similar to those of the elementary tenure positions because twenty percent of her duties involved teaching elementary students. Petitioner argues that since she is certified in elementary education that she is, therefore, qualified to serve in an elementary position and should have been offered one of the positions in the elementary tenure area.

Petitioner's argument is misdirected. As respondent notes, the provisions of Part 30 NYCRR generally define the duties performed by teachers serving in the elementary tenure area. My examination of those provisions and the record before me leads me to conclude that the positions of elementary teacher and petitioner's former position in the art tenure area are not similar within the meaning of '2510(3), and that petitioner was, therefore, not entitled to one of these elementary teaching positions. While petitioner may have provided teaching services to some students in the elementary tenure area, her services were limited to instruction in art, and not the general range of subjects provided by elementary teachers.

THE APPEAL IS DISMISSED.

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