Appeal of MARY McCOLLUM from action of the Board of Education of the Sidney Central School District, Stephanie Fredenburg, and Cathryn Barnes, regarding a reduction of services.

Decision No. 15,182

(March 7, 2005)

James R. Sandner, Esq., attorney for petitioner, Kevin H. Harren, Esq., of counsel

Ferrara, Fiorenza, Larrison, Barrett & Reitz, PC, attorneys for respondent Board of Education of the Sidney Central School District, Marc H. Reitz and Norman H. Gross, Esqs., of counsel

MILLS, Commissioner.--Petitioner seeks to annul a determination of the Board of Education of the Sidney Central School District ("respondent") reducing her services from a full-time position to a .5 part-time position at the end of the 2002-2003 school year. The appeal must be sustained.

Petitioner is a certified teaching assistant who was employed full-time by respondent during the 2002-2003 school year. On June 26, 2003, respondent terminated two of its five full-time teaching assistants, and reduced petitioner from full-time to a .5 part-time position effective September 1, 2003. Petitioner claims, and respondent admits, that the two teaching assistants who were terminated had less seniority as teaching assistants than petitioner, and were terminated properly.

Petitioner claims that she was improperly reduced from full-time to .5 part-time in violation of Education Law ��2510 and 3013, and Part 30 of the Commissioner's regulations, because she was not the least senior person in the tenure area of teaching assistant. Petitioner has named two individual respondents, who were not terminated, and petitioner claims, and respondent admits, that these named respondents also had less seniority than petitioner, but were retained in full-time status. (Respondents Fredenburgh and Barnes were personally served with copies of the notice of petition and petition, but have not appeared in this appeal.)

This appeal arose because of respondent's practice of classifying teaching assistants by specific subject assignments. As a result, respondent purportedly created three "layoff units" within the tenure area of teaching assistant, which it characterizes as teaching assistants with special skills, teaching assistants in the special education program, and teaching assistants in the general instructional program. In making its determination, respondent made reductions only in the "special education layoff unit" that included petitioner and the two persons terminated, and did not make its decision based on seniority among all of its teaching assistants.

Respondent maintains that such "layoff units are permissible" and that the provisions of Education Law �3013 regarding seniority and layoffs are not applicable to teaching assistants.

These same arguments were advanced in Appeal of Krason, et al. (41 Ed Dept Rep 305, Decision No. 14,695), and were rejected. While that determination was originally annulled (subnom., Matter of Madison-Oneida BOCES v. Mills, Sup. Ct., Albany County, Kavanagh, J., December 20, 2002), Supreme Court's determination was reversed by the Appellate Division, Third Department (2 AD3d 1240), and the determination of the Appellate Division was recently affirmed by the Court of Appeals ( _____ NY3d ______, December 21, 2004). The Court of Appeals held:

The legislative history of �3013(2) supports the conclusion that persons hired by a board of education or a BOCES should be laid off according to seniority. Thus, for lay-off purposes, TAs fall within the ambit of �3013[2]) (Sic., uncorrected slip op., p.7.) Teaching assistants, which is a separate tenure area from teachers, should not have their abolition rights judged by whether or not they meet the qualifications and credentials of teachers . . . Their separate credentials have been accorded tenure, and the TAs should have due process rights within that system.

As a result, the three-part system of "layoff units" that respondent has fashioned is invalid, and has been from its inception. Respondent was, and is, obligated to abolish any position within the tenure area of teaching assistant in accordance with Education Law �3013(2).

Consistent with the determination of the Court of Appeals, the appeal must be sustained.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the determination of respondent Board of Education of the Sidney Central School District reducing petitioner's services as of September 1, 2003, be, and the same hereby is annulled; and

IT IS FURTHER ORDERED that respondent reinstate petitioner to a position as a full-time teaching assistant as of September 1, 2003, with back salary and benefits from that date, less any compensation she may have otherwise earned in excess of her salary as a .5 part-time teaching assistant.

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