Appeal of SHEELA SUCHAK from action of the Board of Education of the City School District of the City of Buffalo regarding tenure.

Decision No. 15,411

(May 26, 2006)

Bouvier Partnership, LLP, attorneys for petitioner, Charles D.J. Case, Esq., of counsel

City of Buffalo Dept. of Law, Michael B. Risman, Esq., Corporation Counsel, attorney for respondent, Denise M. Malican, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the City School District of the City of Buffalo (“respondent”) refusing to recognize her tenure status.  The appeal must be sustained.

Petitioner obtained tenure in respondent’s schools as a teacher of K-6 on January 10, 1990, as a teacher of reading on September 28, 1994, and as a teacher of attendance on January 24, 2001.  On July 29, 2005, respondent eliminated the position petitioner held as attendance teacher effective August 31, 2005.  Subsequently, respondent offered petitioner a position as a reading teacher on a probationary basis.  Petitioner accepted the probationary appointment with the caveat that she considered herself tenured.  Respondent refused to recognize petitioner as a tenured reading teacher.  This appeal ensued.

Petitioner alleges that she is a tenured reading teacher and should not be considered a probationary employee.  Petitioner also alleges that she should be placed on a preferred eligibility list to fill any vacancies in the teacher of attendance tenure area.

Respondent alleges that petitioner should not be afforded tenure as a reading teacher or placed on a preferred eligibility list for vacancies in the attendance teacher tenure area.

An individual whose services are terminated as a result of the abolition of a position has the right to appointment to a vacancy which then exists or which may thereafter exist in a tenure area in which the individual has served (Matter of Torreano, 23 Ed Dept Rep 38, Decision No. 11,126; Matter of Moore, 15 id. 475, Decision No. 9249).  Respondent cites no authority that authorizes respondent to place on probation an educator whose position has been abolished and who has been appointed to another tenure area in which the individual previously served and obtained tenure, and indeed there is none.  The record contains documentary evidence that petitioner received tenure as a teacher of reading on September 28, 1994, and respondent does not dispute this.  Since there is no authority which would permit respondent to place petitioner on probationary status, the appeal must be sustained.

A teacher in a large city school district who has been excessed because a teaching position has been abolished must be placed on a preferred eligible list of candidates for appointment to a similar position until his or her name is reached on a seniority list (Education Law �2585[4]).  Therefore, I find that petitioner should be also placed on a preferred eligibility list to fill any vacancies in the teacher of attendance tenure area in accordance with �2585(4) of the Education Law.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent recognize petitioner’s tenure in the area of reading teacher.

IT IS FURTHER ORDERED that petitioner be placed on preferred eligibility list of candidates for appointment to a position of attendance teacher until her name is reached on the seniority list.

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