Appeal of KELLY KRAUSE from action of the Board of Education of the Spencer-Van Etten Central School District regarding appointment from a preferred eligible list.

Decision No. 15,516

(January 11, 2007)

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

Sayles & Evans, attorneys for respondent, James F. Young, Esq., of counsel

MILLS, Commissioner.--Petitioner seeks to annul the actions of the Board of Education of the Spencer-Van Etten Central School District (“respondent”) in assigning teachers to the district’s Home and Career Skills courses.  Petitioner also seeks reappointment to her previously abolished position in the family and consumer sciences tenure area, together with back pay and benefits.  The appeal must be sustained in part.

Petitioner received permanent certification as a home economics teacher in 2000.  Respondent employed her as a full-time home economics teacher beginning with the 2000-2001 school year.  During the 2004-2005 school year, petitioner taught three Home and Career Skills courses to seventh grade students and two related courses to high school students. 

At its July 12, 2005 meeting, respondent adopted a resolution abolishing a number of teaching positions, including its full-time Home and Career Skills teaching position.  Petitioner’s employment was terminated and she was placed on a preferred eligible list for future Home and Career Skills positions.

Respondent continued to offer Home and Career Skills courses during the 2005-2006 school year.  The course for seventh grade students, which petitioner previously taught, was taught by five of respondent’s incumbent teachers, none of whom was certified to teach Home and Career Skills.  Respondent explains that it divided the course into a number of “modules” and assigned each module to a teacher who possessed a related certification.  The modules were taught during an abbreviated class period of 27 minutes each day.  Each section of the seventh grade class received instruction in each of the modules during the year. 

The parties disagree about exactly which topics were taught by each teacher.  It appears that a certified art teacher taught home and fashion design, a certified business teacher taught personal finance and budgeting and a certified social studies teacher taught economics and the world of work.  Petitioner submitted affidavits from teachers certified in health and in special education stating that they taught nutrition and cooking, while respondent asserts they taught family health, parenting, and accommodating persons with disabilities.

On September 13, 2005, respondent’s superintendent wrote to the District Superintendent of the Schuyler-Chemung-Tioga BOCES to notify him that the five teachers assigned to the Home and Career Skills modules were providing incidental teaching.  He stated that “[w]e currently do not have certified personnel on staff or readily available to fill these teaching requirements for students.  Also, we have evaluated the experience and knowledge of these individuals and are confident of their ability to provide high quality instruction to the students in these incidental teaching classes.”  Petitioner’s counsel also wrote to the District Superintendent setting forth the reasons she believed the assignments did not constitute proper incidental teaching under the governing regulations.

By letter dated September 26, 2005, respondent’s superintendent advised the District Superintendent that he no longer believed that the Home and Career Skills course assignments were incidental teaching.  He explained that the course had been divided into subject modules and asserted that each teacher was assigned to a module that fell within the teacher’s existing certification.  This appeal ensued.    

Petitioner asserts that respondent’s Home and Career Skills curriculum does not meet regulatory requirements.  First, petitioner contends that Home and Career Skills courses must be taught by teachers who have Family and Consumer Sciences certification, which is the current title for the former home economics certification.  Petitioner also argues that the modules taught in respondent’s schools do not include the content topics required by the State’s core curriculum.  Petitioner asks that I order respondent to cease assigning teachers who do not have proper certification to teach Home and Career Skills courses and direct respondent to provide the required curriculum.  She also asks that I require respondent to recall her to full-time employment to teach Home and Career Skills with back pay and benefits. 

Respondent asserts that petitioner has failed to join necessary parties, that her position was properly abolished for fiscal reasons and that its method of dividing the seventh grade Home and Career Skills course into modules taught by several teachers is appropriate. 

Preliminarily, I must address a procedural matter.  Respondent asserts that the five teachers who taught modules of Home and Careers Skills are necessary parties.  A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of D.B., 44 Ed Dept Rep 230, Decision No. 15,157; Appeal of R.M. and L.M., 44 id. 218, Decision No. 15,154; Appeal of Hoffman, 43 id. 160, Decision No. 14,953).  However, petitioner does not seek dismissal of the other teachers.  There is no evidence that their status as full-time employees would be adversely affected by changes in the way Home and Career Skills courses are taught.  Moreover, a new school year has begun and staffing changes may have occurred.  Therefore, the appeal will not be dismissed for failure to join necessary parties (seeAppeal of McNamara, 41 Ed Dept Rep 134, Decision No. 14,638, judgment granted dismissing petition to review, Supreme Court, Albany County, Special Term, Kane J., January 10, 2002; n.o.r.). 

The Commissioner’s regulations require all students to complete three-quarters of a unit of study in home and career skills by the end of grade eight (8 NYCRR §100.4[c] [1][vi]).  The regulations permit this instruction to be integrated into other courses, provided that home and career skills “shall be taught by persons certified to teach” the subject (8 NYCRR §§100.4[c][2][ii] and [3]).  The Home and Career Skills core curriculum prepared by the State Education Department (“SED”) identifies four process skills and ten content areas to be included in the course.  The curriculum also notes that the course must be taught by a certified Family and Consumer Sciences teacher.

I find that respondent improperly assigned teachers who lacked the required certification to teach its Home and Career Skills course to seventh graders.  First, the assignments were not properly made under the regulations governing incidental teaching, which provide that teachers may teach outside their certification for a limited number of hours if the district establishes that “no certified or qualified teacher is available after extensive and documented recruitment”  (8 NYCRR §80-5.3).  Petitioner was on the preferred eligible list and remained available to teach the course during the time at issue here.  Perhaps in recognition of this fact, the superintendent withdrew what respondent had identified as a request for approval of incidental teaching. 

Education Law §3009 prohibits boards of education from employing unqualified teachers.  The requirements for obtaining appropriate certification to teach in the public schools are set forth in Part 80 of the Commissioner’s regulations.  Part 80 enumerates, in detail, the formal educational and teaching experience requirements an individual must possess to receive certification in Family and Consumer Sciences.[1]  Respondent’s practice of assigning teachers without the requisite Family and Consumer Sciences/Home Economics certification to teach the entire core curriculum in effect circumvents both the certification requirements and the incidental teaching regulations discussed above.  Though other certifications may relate to some elements of the Home and Career Skills curriculum, they do not serve as replacements for the appropriate certification (seeAppeal of Dankleman, 37 Ed Dept Rep 415, Decision No. 13,892).[2]

Petitioner also alleges that the modules of instruction supplied by respondent do not satisfy the core curriculum for home and career skills.  However, the record in this matter does not provide sufficient information to determine whether this is the case.  In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Patton, et al., 42 Ed Dept Rep 226, Decision No. 14,832; Appeal of Pope, 40 id. 473, Decision No. 14,530). Petitioner and respondent present conflicting information on the titles of the modules of instruction, but petitioner does not present the course syllabus or other evidence of what actually is taught.  While the module titles do not include a number of the content areas required by the core curriculum, the record does not establish that the required topics are not included in the modules.  Accordingly, I am constrained to find that petitioner has not met her burden of proof. I remind respondent that it is responsible for providing the required curriculum in Home and Career Skills courses and urge it to review the core curriculum and course materials.

While I have found that respondent improperly assigned uncertified teachers to its Home and Career Skills courses, I cannot conclude that respondent created a specific position to which petitioner must be reinstated.  Petitioner contends that she is entitled to be recalled to her full-time position pursuant to Education Law §§2510 and 3013.  Those provisions require that a teacher whose position is abolished be appointed to a vacancy in a corresponding or similar position that is subsequently created (Appeal of Strong, 41 Ed Dept Rep 425, Decision No. 14,735; Appeal of Allen, et al., 34 id. 627, Decision No. 13,433).  The record here shows that no vacancy occurred and no new position was created; instead, petitioner’s former teaching duties were redistributed (seeAppeal of Allen, et al., 34 Ed Dept Rep 627, Decision No. 13,433), albeit to teachers who lacked the proper certification.  If, as a result of this decision, respondent creates a new position in Home and Career Skills, petitioner may indeed be entitled to such position by virtue of her place on the preferred eligible list of candidates.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent cease assigning teachers who lack the appropriate Family and Consumer Sciences or Home Economics certification to its seventh grade Home and Career Skills classes, review its curriculum, and comply with Education Law §3013 in the filling of any future vacancies.

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