Decision No. 12,866

(December 29, 1992)

Rains & Pogrebin, P.C., attorneys for respondent BOCES, Richard G. Kass, Esq., of counsel

Schwartz, Kobb & Scheinert, Esqs., attorneys for respondent Recine, Joel L. Scheinert, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals from respondent BOCES' determination to terminate petitioner's services as a teacher in the tenure area of plumbing, effective June 30, 1991, and to retain respondent Recine in such tenure area. The appeal must be dismissed.

Petitioner was appointed by respondent Rockland County BOCES to a probationary position in the tenure area of plumbing in September 1974, and received tenure in plumbing effective September 1, 1977. Petitioner has taught plumbing from September 1974 through June 30, 1991, except for the period of September 1980 through August 1984 when he was excessed. Petitioner has thus accrued approximately 12 1/2 years seniority in the tenure area of plumbing. Respondent Anthony Recine was employed as a part-time plumbing teacher by respondent BOCES from February 1972 through June 1973. He was appointed by respondent BOCES to a full-time probationary position in the tenure area of plumbing in September 1973, and he received tenure in plumbing effective September 1, 1976. Recine taught classes in plumbing until September 1977, at which time he was reassigned to teach diversified cooperative work study, an area in which he was granted tenure effective September 1, 1980. Recine taught in the area of diversified cooperative work study through June 1991, for a total of approximately 14 years. From September 1977 through June 1991, Recine also taught night classes in plumbing.

In September 1991, respondent BOCES eliminated the diversified cooperative work study position of Recine and returned him to a plumbing position by excessing the petitioner, effective June 30, 1991, on the grounds that Recine had accrued greater seniority than petitioner in the plumbing tenure area.

Petitioner commenced this appeal against respondent BOCES by serving a copy of the petition on July 24, 1991. Thereafter, petitioner amended his petition to join respondent Recine as a party. Recine was personally served with a copy of the amended petition on August 30, 1991.

Petitioner contends that respondent BOCES improperly terminated his services, as a tenured plumbing teacher, since it was a position in the tenure area of diversified cooperative work study that was being eliminated and respondent was not in the tenure area. Petitioner also alleges that he was not the least senior teacher in the tenure area of plumbing and should not have been terminated. Petitioner further contends that respondent Recine, by failing to challenge the reassignment and the subsequent grant of tenure, waived his right to argue that his reassignment from plumbing to diversified cooperative work study was done without his consent. Petitioner seeks an order restoring him to his full-time position in the tenure area of plumbing nuncprotunc to June 20, 1991 with full salary and benefits, including pension credits contribution and seniority credit.

Respondents contend that respondent Recine did not consent in writing to his reassignment to a new tenure area pursuant to 8 NYCRR '30.9(b), that he did not waive his tenure rights by failing to challenge the reassignment and subsequent grant of tenure, and that therefore he continued to accrue seniority in the tenure area of plumbing. Respondents also contend that the appeal is untimely.

Section 275.16 of the Regulations of the Commissioner of Education requires that an appeal must be instituted within 30 days from the making of the decision or the performance of the act complained of but that the Commissioner may excuse a failure to timely commence an appeal for good cause shown. The Commissioner has traditionally treated the effective date of a decision involving the assignment of a teacher as the day from which to measure the time to appeal (Matter of Daly, 23 Ed Dept Rep 226). Although petitioner served the petition upon BOCES within 30 days of the June 30, 1991 effective date of his termination, respondent Recine was not served with an amended petition joining him as a respondent until August 30, 1991 -- after BOCES raised in its answer the issue of Recine's relevance.

Section '275.1 of the Regulations of the Commissioner of Education provides that after an appeal has been commenced, no party shall be joined, except by leave or direction of the Commissioner (see also Appeal of Giglia, et al., 27 Ed Dept Rep 453). Petitioner's attorney, by affidavit, has indicated that at the time of initiation of this appeal, he did not believe Recine to be a necessary party and that he expeditiously served the teacher after the BOCES' assertion in its answer that Recine is a necessary party. In a separate affirmation dated September 17, 1991, petitioner subsequently requested that the Commissioner accept the amended petition joining Recine. By letter dated September 19, 1991 my Office of Counsel informed the parties that Recine had been joined as a respondent and his answer had been received and filed.

In view of this, and the fact that neither respondent has established any prejudice from the late service, I will excuse such late service.

Turning to the merits, I note that '30.13 of the Regulations of the Commissioner of Education provides that, in cases involving the abolition of a position, if the individual identified as having the least seniority in the tenure area affected by the abolition has tenure in another area, or areas, he shall be transferred to that tenure area in which he has the greatest seniority and shall be retained in such area if there is another individual having less seniority than he in such other tenure area. Accordingly, Recine, whose position in the diversified cooperative work study tenure area was abolished, was transferred to the plumbing tenure area, thereby displacing petitioner. Accordingly, Recine had, in fact, greater seniority than petitioner in the plumbing tenure area; such displacement is authorized pursuant to '30.13.

In general, seniority may be accrued in a given tenure area only if the service of the teacher in such area constitutes 40% or more of the total time spent in the performance of instructional duties [8 NYCRR 30.1 (f) and (g)]. While the record indicates Recine continued to teach night classes in plumbing after his transfer to diversified cooperative work study, there is insufficient information in the record to determine the percentage of time Recine spent teaching such classes.

Nevertheless, the Commissioner of Education has consistently held that an assignment outside of a teacher's tenure area requires the teacher's consent (Appeal of Pendl, 28 Ed Dept Rep 511; Matter of Nicholson, 20 id. 351; Matter of Sammon, 20 id. 335; Matter of O'Connor, 19 id. 213; Matter of Bornstein, 17 id. 236; Matter of Fitzgibbons, 8 id. 205). In addition, '30.9(b) of the Commissioner's regulations provides that:

The Commissioner has determined that the appropriate remedy where an assignment has occurred without such consent is to order that the teacher's service "shall be deemed to be service in the [prior] tenure area for purposes of seniority" (Appeal of Pendl, supra).

Both respondents contend that Recine continued to accrue seniority in the plumbing tenure area, after he was reassigned to diversified cooperative work study, since Recine allegedly never consented to the assignment. Recine alleges that he never requested nor consented to be placed in a new tenure area; that he was never notified that he was entering a new probationary term; and that he was never notified that his assignment to teach diversified cooperative work study affected his status in the plumbing tenure area.

Where questions have arisen as to a teacher's seniority, either within a specific tenure area or district-wide pursuant to Education Law '2510(2) and (3), respectively, the courts have looked to whether the teachers were "sufficiently alerted to the fact" that in leaving one position and taking on the duties of another, they would be "entering an entirely independent tenure area, one in which their previous teaching experience would not be relevant in determining seniority" (Steele v. Bd. of Ed. of the City of New York, 40 NY2d 456). While the record establishes that in September 1980 Recine was awarded tenure in diversified cooperative work study, and that he continued to teach in such area until June 1991, there is no indication that he was ever given a probationary appointment in that area, that he was ever informed that his teaching in that area was an assignment outside of his tenure area in plumbing, or that his appointment to tenure in diversified cooperative work study would terminate his accrual of seniority in the plumbing tenure area. Under such circumstances, it is reasonable to infer that respondent Recine continued to believe he was teaching and accruing seniority within the plumbing tenure area, even after appointment to the new tenure area. Recine continued to teach night courses in plumbing, although the record is insufficient for me to determine if such teaching constituted 40% or more of his total instructional time so as to qualify for seniority accrual under 8 NYCRR 30.1 (f) and (g). Respondent BOCES has offered a March 28, 1980 memo in which Mr. Recine verified the BOCES' statement that his tenure area was plumbing. Respondent has submitted portions of seniority lists for the 1979-80, 1987-88, 1989-90 and 1990-91 school years, which lists are shared each year among the BOCES and the union which represents petitioner and Recine. They indicate that Recine had more seniority than petitioner in the plumbing tenure area for each year.

In the absence of any express notification to respondent Recine that his assignment to teach in the diversified cooperative work study area, or that his appointment to tenure in such area, was an assignment outside his tenure area of plumbing so as to terminate his accrual of further seniority in plumbing, I find, upon the record before me, that respondent Recine did not consent to an assignment outside his tenure area in plumbing. Accordingly, he continued to accrue seniority in the plumbing tenure area, and petitioner was properly excessed as the least senior teacher in the plumbing tenure area.

THE APPEAL IS DISMISSED.

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