Decision No. 12,929

(May 14, 1993)

Bernard F. Ashe, Esq., attorney for petitioner, Gerard John DeWolf, Esq., of counsel

Scolaro, Shulman, Cohen, Lawler & Burstein, P.C., attorneys for respondent, Norman H.

Gross, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals from a determination of respondent board of education ("the board") excessing him from his teaching position. The appeal must be sustained.

Petitioner is a certified teacher of business and distributive education. On July 1, 1986, the board extended a probationary appointment to petitioner, effective September 1, 1986, in the special subject tenure area of business education. Petitioner taught continuously in that tenure area from September 1, 1986 until the end of the 1991-92 school year.

On April 21, 1992, pursuant to Education Law '2510, the board excessed petitioner from his position. The district's superintendent of schools notified petitioner of the board's action by letter dated May 22, 1992. Petitioner commenced this appeal on July 28, 1992. He maintains that respondent Hickey was the least senior teacher in the business tenure area and, consequently, that the board should have excessed him instead.

Respondent raises a procedural issue which I will consider before reviewing the merits of the appeal. Although the district notified petitioner on May 22, 1992 that he would be excessed from his position, petitioner did not commence this appeal until July 28, 1992. Respondent contends, therefore, that the appeal must be dismissed as untimely (8 NYCRR 275.16). I disagree. Although petitioner did not commence the appeal within the 30 day period set forth in the Regulations of the Commissioner of Education (8 NYCRR 275.16), the district's employment of respondent Hickey, if unlawful, is a continuing wrong, subject to complaint at any time (Appeal of Nettles, 31 Ed Dept Rep 437; Appeal of Sroka, 31 Ed Dept Rep 513). I find, therefore, that the appeal is not time barred.

Respondent Hickey served as the district's school business administrator from October 1970 until September 1986. At its meeting on August 4, 1986, the board accepted respondent Hickey's resignation as school business administrator, and then eliminated his position. At the same meeting, the board granted Hickey a probationary appointment as a teacher in the business tenure area, effective September 1, 1986.

Prior to the commencement of the 1989-90 school year, the district's assistant superintendent for business resigned. Thereafter, the board asked respondent Hickey to work in the business office for several hours at the end of each school day until the district could appoint a new assistant superintendent. Respondent Hickey agreed and performed administrative duties before and after school, in addition to his full-time teaching load. He was compensated accordingly for the extra service.

At the end of September 1989, the district asked respondent Hickey to serve temporarily as a "teacher on special assignment" in the business office, full time, until the district could appoint an assistant superintendent. At that time, respondent Hickey inquired whether such an assignment would affect his seniority rights in the business tenure area. A meeting ensued, attended by Hickey, the superintendent of schools and the president of the Camden Teacher's Association (CTA), culminating in the execution of a "memorandum of understanding" (MOU) which stated, in part, that "Mr. Hickey shall maintain full seniority within the tenure area `business education' as a result of his services as Teacher-on-Special Assignment." The board approved the MOU and Hickey's special assignment on October 3, 1989. Respondent Hickey served in an administrative capacity, pursuant to the MOU, until January 29, 1990. Thereafter, the board reassigned him to teach business education full time.

Petitioner and respondent Hickey both commenced their probationary periods in the business tenure area on September 1, 1986. Petitioner contends, however, that Hickey's administrative service as a "teacher on special assignment" does not qualify as service in the business tenure area and, consequently, that respondent Hickey was not entitled to seniority credit for the period of that assignment. Petitioner thus concludes he has greater seniority than Hickey and, consequently, that he should not have been excessed from his position.

Petitioner's argument turns on the enforceability of the MOU. Although the MOU provides that respondent Hickey would maintain "full seniority" in the business tenure area during his special assignment, petitioner argues that it is unlawful to award Hickey seniority for service rendered outside the business tenure area. Caselaw supports petitioner's position.

The Education Law provides:

The Rules of the Board of Regents define the term "seniority" as,

The term "substantial portion of his time" is defined as,

It is undisputed that respondent Hickey, during the term of his special assignment, did not serve a "substantial portion of his time" in the business tenure area. Without more, this would compel a determination in petitioner's favor. Respondents assert, however, that the MOU is fully enforceable and that, pursuant to its terms, respondent Hickey is entitled to seniority credit in the business tenure area for the period of his special assignment. I cannot agree.

The Court of Appeals has held that the provisions of a collective bargaining agreement, however explicit or clear, cannot supersede imperative provisions of the Education Law (Matter of Union Free School Dist. No. 2 v Nyquist, 38 NY2d 137, 143; see, Matter of Johnson v Nyquist, 46 AD2d 930; seealso, City of Newburgh v Potter, 168 AD2d 779).

I acknowledge the general rule, also articulated by the Court of Appeals, that,

In the case before me, however, caselaw specifically holds that a contractual provision violates the mandate of Education Law '2510 if "it permits the inclusion of service accrued in a separate tenure area to be applied toward seniority within the tenure of the position abolished" (Matter of Szumigala v Hicksville Union Free School Dist., 148 AD2d 621, 622; see, Honeoye Falls-Lima Central School Dist. v Honeoye Falls-Lima Education Assn., 49 NY2d 732; Board of Educ. of Depew Union Free School Dist. v Depew Teachers Org., 167 AD2d 907).

In Honeoye Falls (supra), the Court of Appeals held that a contractual provision expanding the scope of Education Law '2510(2) was unenforceable. In Szumigala (supra), the Appellate Division struck down a similar provision which permitted teachers to transfer seniority from one tenure area to another because it altered the imperative language of Education Law '2510(2). Respondents do not quarrel with the general propositions set forth in Honeoye Falls and Szumigala. They contend, however, that the instant matter is distinguishable.

Respondents argue that, because Honeoye Falls and Szumigala involved collective bargaining agreements generally applicable to all teachers, they are not controlling in this case because the MOU, in their view, involves an exclusive agreement applicable only to respondent Hickey. The district argues that the MOU was not intended to affect the rights of other teachers. Rather, according to respondents, its singular purpose was to assure respondent Hickey that accepting the temporary assignment would not jeopardize his seniority rights in the business tenure area.

I find the distinction irrelevant to the issue before me, i.e., whether the agreement, on its face, is enforceable. It is immaterial that the MOU applied exclusively to respondent Hickey: as in Honeoye Falls and Szumigala, the agreement altered the imperative provisions of Education Law '2510(2). In essence, respondents ask me to find that an individual teacher can negotiate broader rights than the law permits, while under Honeoye Falls and Szumigala an entire collective bargaining unit cannot. There is no basis in law for such a finding. I conclude, therefore, that the MOU is not enforceable.

Respondents' reliance on Ambromovich v Board of Educ. (46 NY2d 450) and Matter of Feinerman v Nassau BOCES (48 NY2d 491) is misplaced. In those cases, individual teachers waived rights to which they were entitled under the Education Law. The instant matter, by contrast, involves private negotiations for rights beyond those established in statute. In light of the important educational policy served by Education Law '2510(2), such negotiations cannot be condoned.

Respondents also contend that, because the CTA was a party to the MOU, petitioner is estopped from "disavowing" the agreement. I need not address this argument, in light of my determination that the MOU is unenforceable. Respondents also suggest that, where there is evidence of good faith by all parties to the agreement, public policy should favor enforcement. I do not question the parties' good faith. Sound educational policy, however, cannot favor the enforcement of an agreement which expressly contravenes an imperative provision of the Education Law.

Finally, respondents argue that respondent Hickey's good faith reliance on the MOU requires a determination upholding its provisions. Respondents note, correctly, that teachers must be "sufficiently alerted" to tenure and seniority consequences when they transfer to different tenure areas (Steele v Board of Educ., 40 NY2d 456, 463; see, Waiters v Board of Educ., 46 NY2d 885; Matter of Herendeen v Board of Educ., 73 AD2d 817). The very existence of the MOU, however, demonstrates respondents' recognition that service in the district's business office would not otherwise constitute service in the business tenure area. By requesting and executing the MOU, respondent Hickey was obviously aware of this reality. This is not a case where the teacher lacked notice that he was changing tenure areas. Rather, possessed of such knowledge, respondent Hickey either failed to obtain legal counsel or relied on poor advice. In this regard, it is significant that respondent Hickey's union president attended the meeting at which the MOU was initiated. Indeed, as respondents state in their memorandum of law,

In light of the foregoing, I find that respondent Hickey is not entitled to seniority credit for the period of time spent as "teacher on special assignment" in the district's business office. Petitioner, therefore, has greater seniority than respondent Hickey in the business tenure area and, consistent with Education Law '2510(2), should not have been excessed from his position.

THE APPEAL IS SUSTAINED, and

IT IS ORDERED that respondent board of education reinstate petitioner to his position in the business tenure area, with appropriate back pay and benefits.

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