Decision No. 12,943

(June 9, 1993)

Bernard F. Ashe, Esq., attorney for petitioners, Gerard J. DeWolf, Esq., of counsel

Adam D. Kaufman, Esq., attorney for respondent

Jay Worona, Esq., attorney for New York State School Boards Association, amicuscuriae,

Shari Greenleaf, Esq., of counsel

Petitioners appeal from respondent's abolition of their positions and termination of their assignments in those positions. The appeal must be dismissed.

Respondent employed petitioners as probationary teachers and assigned them to positions in the tenure areas of guidance counselor, librarian and school social worker. By letter dated February 12, 1992, during petitioners' respective probationary periods, respondent's director of human resources notified every petitioner individually that, due to fiscal considerations, respondent would be abolishing their positions at a meeting on March 2, 1992. At a special meeting held instead on March 4, 1992, respondent adopted resolutions abolishing petitioners' positions effective March 16, 1992 and terminating their assignments effective March 13, 1992. Pursuant to Education Law '2585, respondent placed petitioners on a preferred eligibility list for recall.

Petitioners challenge respondent's actions, contending that their services were terminated in violation of Education Law '2509(1)(a) which requires the recommendation of the superintendent of schools prior to termination of a probationary teacher's services. Petitioners also argue that respondent failed to afford them the notice required by Education Law ''3019-a and 3031.

Respondent argues that, because petitioners' positions were abolished due to budgetary constraints, and they have been placed on a preferred eligibility list for recall pursuant to Education Law '2585, petitioners' services were not discontinued as contemplated by Education Law ''2509(1)(a), 3019-a and 3031. Respondent contends that those statutes are, therefore, inapplicable.

Respondent is correct. Respondent abolished petitioners' positions pursuant to Education Law ''2554(2) and 2585(2). A decision to abolish a position does not require the recommendation of the superintendent of schools (see, Appeal of Smith, 32 Ed Dept Rep 341; Appeal of Sroka, 31 id. 513; Appeal of McGraw, 31 id. 451). Upon the abolition of petitioners' positions, respondent placed petitioners on a preferred eligibility list for recall as required by Education Law '2585. Respondent did not deny petitioners tenure or terminate their probationary appointments. Had respondent done so, Education Law ''2509(1)(a) or 2573(1)(a) and 3012 would have applied. The validity of respondent's actions, therefore, was not contingent upon a recommendation of the superintendent of schools or the provision of 30 days' notice to petitioners.

Petitioners' reliance on the decision of the New York Court of Appeals in Matter of Lezette v Board of Education, Hudson City School District, 35 NY2d 272 (1974), is misplaced. Unlike the matter before me, the Lezette case involved not only the abolition of a teacher's position but termination of her probationary appointment without placement on a preferred eligibility list. Here, the board only terminated petitioners' assignments to those positions which it had abolished and then placed them on preferred eligibility lists for reassignment. Respondent did not, therefore, terminate their probationary appointments. As the court noted in Lezette, "... it cannot be inferred that the abolishment of one position presumes intent to terminate the services of the ... teacher" (Id., at 279). By abolishing their positions, petitioners merely became excess teachers available for reemployment in the same or similar positions pursuant to Education Law '2585(4) and thus, remained employees of the district. Consequently, the recommendation of the superintendent was not required prior to the abolition of their positions. Similarly, petitioners' claims pursuant to Education Law ''3019-a and 3031 must be rejected.

THE APPEAL IS DISMISSED.

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