Appeal of ROBERT W. FIFE from action of the Board of Education of the Sullivan West Central School District regarding seniority.

Decision No. 15,533

(February 22, 2007)

Shaw & Perelson, LLP, attorneys for respondent, Lisa S. Rusk, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Sullivan West Central School District (“respondent”) to terminate or reduce his employment.  The appeal must be dismissed.

The Board of Education of the Delaware Valley Central School District hired petitioner to a probationary physical education/health teaching position in 1995 and granted him tenure in physical education and health in 1997.  In 1999, the Delaware Valley Central School District merged with the Jeffersonville-Youngsville and Narrowsburg School Districts to form the Sullivan West Central School District.

At its June 16, 2005 meeting, respondent abolished a .5 full-time equivalent (“FTE”) position in the physical education tenure area and a .5 FTE position in the health tenure area.  By letter dated June 17, 2005, respondent’s superintendent advised petitioner that he was the least senior person in those tenure areas, that his services would be terminated effective June 30, 2005, and that he would be placed on a preferred eligible list.  Thereafter, respondent appointed petitioner to a .4 FTE physical education position.  This appeal ensued.

Petitioner acknowledges that he devoted less than 40% of his total time providing health instruction during five of his ten years of employment, but he contends that he fell below 40% when he taught more classes than the number of periods that was usual and customary.  Petitioner also contends that the percentage of his time spent providing health instruction would increase if the time he spent teaching driver education is viewed as a co-curricular activity.

Respondent asserts that petitioner failed to join the only other health teacher in its district and that the teacher whose services were retained had seven years of seniority credit in the health tenure area.  Respondent also asserts that petitioner has always been assigned to devote a substantial portion of his time to either the physical education or health tenure areas and has never been assigned to devote a substantial portion of his time in another area.

The appeal must be dismissed for failure to join a necessary party.  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).  Joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense (Appeal of D.B., 44 Ed Dept Rep 230, Decision No. 15,157; Appeal of Hoffman, 43 id. 160, Decision No. 14,953).  Although petitioner alleges in his reply that he had no way of knowing the party or parties who would be adversely affected by a decision in his favor, only one other teacher employed by respondent was tenured in the area of health.  Since petitioner’s request for reinstatement would affect the employment status of this teacher, he should have been joined as a party to the appeal.

The appeal must also be dismissed on the merits.  Section 30.1(f) of the Commissioner’s regulations provides:

Seniority means length of service in a designated tenure area, rather than length of service in the district; such service need not have been consecutive but shall during each term for which seniority credit is sought, have constituted a substantial portion of the time of the professional educator.

As used in Part 30 of the Commissioner’s regulations, substantial portion means:

40 percent or more of the total time spent by a professional educator in the performance of his duties, exclusive of time spent in preparation, monitoring or in co-curricular activities (8 NYCRR §30.1[g]).

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 admits that he devoted less than 40 percent of his total time providing health instruction during five of his ten years of employment.  Petitioner alleges this occurred because he taught more classes than the number of periods that was usual and customary, but he does not set forth a legal basis for earning seniority credit in health during the years in which health instruction did not constitute a substantial portion of his time.  In addition, the record indicates that petitioner taught driver education as an assigned period during his regular work schedule and does not support his contention that this instruction should be viewed as a co-curricular activity.

Based on the record before me, I cannot find that respondent’s actions in determining that petitioner earned less seniority in the health tenure area than the teacher retained was arbitrary or capricious.

I have considered petitioner’s remaining contentions and find them without merit.

THE APPEAL IS DISMISSED.

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