Decision No. 12,913

(April 15, 1993)

Nesbitt & Williams, Esqs., attorneys for petitioner, John B. Nesbitt, Esq., of counsel

Hodgson, Russ, Andrews, Woods & Goodyear, Esqs., attorneys for respondent Board of Education of the North Rose-Wolcott Central School District, David A. Farmelo and John C. Christopher, Esqs., of counsel

Robert D. Clearfield, Esq., attorney for respondent Margaret Cook, Janet Axelrod, Esq., of counsel

SOBOL, Commissioner.--Petitioner, a secondary school science teacher, appeals from respondent board of education's termination of his services. The appeal must be sustained.

On August 25, 1987, respondent board appointed petitioner to a two-year probationary term in the tenure area of "Science-High School Level" effective September 1, 1987. On May 23, 1989, the board granted him tenure effective September 1, 1989, in the tenure area "Science-HS Level." At all times prior to his dismissal, petitioner taught science at the secondary school level.

On August 27, 1985, respondent board appointed respondent Margaret Cook to a three-year probationary term in a tenure area designated as "Gifted/Talented Teacher District," although the board's resolution recognized that "neither the Rules of the Board of Regents nor the Regulations of the Commissioner of Education currently provide a separate and distinct tenure area for teachers of the gifted and talented . . . ." On May 24, 1988, the board purported to grant respondent Cook tenure in the area of "Gifted/Talented-District," effective September 1, 1988.

The parties agree that respondent Margaret Cook, at the time of her initial appointment in 1985, was certified only in the areas of biology, chemistry, and general science 7-12. The parties also agree that at no time after her original appointment did Cook ever devote a substantial portion of her time to teaching science (8 NYCRR '30.1[g]). The record indicates that from September 1985 to June 1990, Cook taught various topics to middle school and high school students in the district's gifted and talented program. From September 1990 to June 1992, Cook taught primarily elementary school students.

During the fall of 1989, faculty members and administration became concerned that certain probationary and tenure appointments made in prior years may not have complied with 8 NYCRR Part 30. After some discussion by the board of education, the administration notified certain teachers, including petitioner and respondent Cook, of proposed changes to their appointments. It appears from the record that each affected teacher was given notice only of proposed changes to his or her own status. In the case of petitioner, on January 31, 1990, he was advised that his original tenure area, "Science-HS Level," was to be changed to a corrected tenure area of "Science Secdy. 7-12." Cook received a similar letter indicating a proposed change from "G/T District" to "Science Secdy. 7-12 Spec. Assign., G/T." On April 10, 1990, respondent board met and, with respect to Cook, purported to amend its minutes of August 27, 1985, and May 24, 1988, to reflect probationary and tenure appointments to Secondary Science 7-12, rather than Gifted/Talented. The record contains a letter dated May 2, 1992 to Margaret Cook, indicating these amendments were made, and her signature dated May 4, 1990, acknowledging receipt of the letter. The record also contains a letter dated May 2, 1990, to petitioner indicating the change in wording of his probationary and tenure appointments from "Science-HS Level" to "Science Secdy. 7-12." The letter contains petitioner's signature dated May 3, 1990, also indicating receipt.

On April 28, 1992, the board resolved to "abolish one Science Position in the Science tenure area effective June 30, 1992." On May 12, 1992, the board passed a further resolution:

On June 4, 1992, the superintendent advised petitioner by letter of the board's actions. Since September 1992, there has been no gifted and talented program, and Cook has been assigned to teach a full schedule of classes within the area of secondary science. The assignment now held by Cook is very similar to the teaching load assigned to petitioner prior to the current school year. Petitioner commenced this appeal against the district and Cook on September 25, 1992.

Petitioner contends that the probationary appointment of Cook in 1985 was improper because of the non-existence of the so-called "Gifted/Talented" tenure area under 8 NYCRR Part 30. Petitioner further contends that Cook never devoted a substantial portion of her time to teaching science, that her purported appointment to tenure in the Gifted/Talented tenure area in 1988 was improper, and that respondent's attempt to correct that mistake by placing her in the secondary science area in 1990 was also improper. Petitioner asserts that the board actually abolished Cook's position, fired petitioner, and improperly gave his position to Cook. Petitioner claims that he has more seniority in the science tenure area than Cook, who has none at all, and that he should not have been dismissed. Finally, petitioner claims that his appeal is timely pursuant to Matter of Berowski, 28 Ed Dept Rep 53, because it was commenced within thirty days after the opening of the 1992-1993 school year.

Respondents contend that the appeal is untimely because petitioner's job was abolished as of June 30, 1992, and this appeal was not commenced within 30 days thereafter. Respondent board points out that its gifted and talented program was authorized by law and indeed received State aid throughout the period at issue. Respondent board claims that Cook's probationary appointment in 1985 was authorized by law, or, in the alternative, was believed at the time to be authorized. Respondent board claims that its 1990 actions were based upon the advice of several offices in the State Education Department. Respondents both contend that the appointment of Cook could or should have been treated as an appointment to teach in an experimental program within the meaning of 8 NYCRR '30.1(i) and '30.9(a). Based upon these claims, respondents contend that Cook either served or should be deemed to have served in the science tenure area at all times since 1985, and that the job abolished, i.e., the teaching of the gifted and talented program, was properly identified as being within the science tenure area. Finally, respondents claim that respondent Cook relied on certain representations made by the district at the time of the 1990 corrections, and that any adverse ruling would cast doubt on a number of other actions modifying probationary and tenure appointments taken at the same 1990 board meeting.

As a threshold matter, I find that the appeal is timely, based upon Appeal of Berowski, 28 Ed Dept Rep 53. In Berowski, petitioner's services were terminated effective June 30, 1987, and his appeal, commenced October 1, 1987, was held timely, based upon Matter of Roupp, 18 id. 378, and Matter of Parcells, 33 id. 61. Respondents argue that the reasoning in Berowski is flawed because the cases cited therein involved recall from a preferred eligible list pursuant to Education Law '2510(3), rather than abolition of a position pursuant to '2510(2). They also argue that Berowski is inconsistent in some respects with later cases. The facts of Berowski with respect to the issue of timely commencement, however, are more similar to this appeal than the cases cited by respondents, and I find that Berowski controls. Berowski also involved the abolition of positions pursuant to Education Law '2510(2), and was commenced within 30 days after the opening of the school year. The Commissioner stated at page 54: "Accordingly, I conclude that petitioner was not aggrieved until the start of school in September 1987, and that this appeal was commenced in a timely manner." The same reasoning applies to this case.

The central issue in this appeal is whether or not the position actually abolished -- the position providing instruction in the area of gifted and talented education -- was properly identified as being within the academic tenure area of science. I hold that it was not. Education Law '2510(2) provides:

When a board abolishes a position, it must first identify the tenure area which includes the position to be abolished (Matter of Cole v. Bd. of Ed., 90 AD2d 419, aff'd 60 NY2d 941; Matter of Grae, 24 Ed Dept Rep 333; 8 NYCRR '30.13). In this case, because the position abolished does not fall within a legally-recognized tenure area, as all parties concede, the analysis must begin with the actual duties performed by respondent Cook prior to June 30, 1992.

The affidavit of Edward J. Maguire, Assistant Superintendent for Administration, described the position as follows:

This description indicates a broadly-based teaching position cutting across many academic areas. Significantly, both respondents admit that Ms. Cook never taught science courses within the science department prior to September 1992, nor did she ever devote a substantial portion of her time, as defined in 8 NYCRR '30.1(g), to instruction in science. Because Ms. Cook spent all of her teaching time on the gifted and talented program, I must conclude that the subject matter content of the abolished position was less than forty percent science. I, therefore, conclude that it was improper to identify the position as being within the science tenure area.

Respondent board did not make any such analysis of the position abolished. It simply concluded that the position belonged to the same tenure area in which the holder of the position purportedly held tenure. The error of that result can be readily demonstrated. If, for example, Ms. Cook had been properly tenured in science and in foreign language, but the gifted and talented program involved almost exclusively instruction in English and social studies to the virtual exclusion of science and foreign language, one would be hard pressed to argue that the abolished position belonged to either the science or foreign language tenure area. Yet, under the board's reasoning, it could be identified as either science or foreign language, but not English or social studies. Such a result clearly violates Education Law '2510(2).

Under Education Law '2510(2) and 8 NYCRR '30.13, 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. On the record before me, respondent board erred in identifying the abolished position as in the science tenure area and thus erred in terminating petitioner's services. Appeal of Collins, 29 Ed Dept Rep 198, is dispositive.

In view of this disposition, I need not consider the other issues raised by the parties. I specifically decline to consider or rule upon the issues relating to probationary and tenure appointments with respect to respondent Cook.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent board of education's termination of petitioner's services as of June 30, 1992, be, and the same hereby is, annulled; and

IT IS FURTHER ORDERED that respondent board of education reinstate petitioner to the position to which he is entitled in accordance with the terms of this decision, and provide him with back salary and benefits from the beginning of the 1992-1993 school year, less any compensation he may have otherwise earned.

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