Appeal of GARY LACHLER from action of the Orleans-Niagara Board of Cooperative Educational Services regarding seniority.

Decision No. 15,752

(June 2, 2008)

Wayne M. Van Vleet, Esq., attorney for respondent

AHEARN, Acting Commissioner.--Petitioner challenges the action of the Orleans-Niagara Board of Cooperative Educational Services (“respondent”) which changed petitioner’s seniority status.  The appeal must be dismissed.

Petitioner holds permanent certification as a school psychologist, effective September 1, 1983.  It appears that he was employed by the Lewiston-Porter Central School District (“Lewiston-Porter”) for approximately ten years, through the 1991-1992 school year.  By letter dated, May 28, 1992, petitioner was informed that Lewiston-Porter had entered into a contract with respondent for provision of psychological services, and that his employment would be discontinued as of June 30, 1992.

At a meeting on August 20, 1992, respondent appointed petitioner as a tenured school psychologist in the tenure area of school psychologist.  The resolution provided:

Resolved, that Mr. Lachler is appointed to tenure status, at PC20 plus 60 hours, plus Ed.M., and is entitled to retain the number of sick days accumulated at Lewiston-Porter prior to his lay off from their district, and is entitled to credit for the length of service credited for his service in the Lewiston-Porter Central School District, as required by New York State Education Law Section 3014(b)[sic].  Carried unanimously.

Petitioner has served as a school psychologist in the employment of respondent since that time.

At its meeting on January 9, 2008, respondent adopted the following resolution:

Whereas, Gary Lachler, was appointed to service in the special subject tenure area of school psychologist effective September 1992; and

Whereas, the August 1992 Board of Education resolution(s) pertaining to Mr. Lachler’s appointment to service in the special subject tenure area of school psychologist stated, in part, that such employment was pursuant to Education Law Section 3014-a and that Mr. Lachler was credited with the length of service that he had previously rendered in the special subject tenure area of school psychologist for the Lewiston-Porter Central School District; and

Whereas, court decisions (including Fink v. Avon Central School District, 617 N.Y.S.2d 672 (4th Dept. 1994) and Board of Education of the North Tonawanda City School District v. Mills, 693 N.Y.S.2d 271 (3d Dept. 1999)), interpretive of Education Law Sections 3014-a and 3014-b, have held that those statutes do not apply to pupil personnel service providers, including but not limited to school psychologists.

Now Therefore Be It Resolved that:  The above-referenced August 1992 Board of Education resolution(s) are corrected to conform to the applicable law; and Gary Lachler’s service and seniority, in the special subject tenure area of school psychologist, began to accrue effective September 1, 1992.

Petitioner was informed of this action by letter dated January 10, 2008.

This appeal was commenced on February 7, 2008.  Petitioner’s application for interim relief, nullifying respondent’s action of January 9, 2008, was denied on February 19, 2008.

Petitioner claims that respondent’s action, after more than 15 years of employment, was arbitrary and capricious, and violated his contractual employment rights.

Respondent generally denies any wrongdoing, and claims that its action was in compliance with law.  Respondent also asserts several affirmative defenses, including failure to state a claim, lack of any injury or grievance on the part of petitioner, and failure to join necessary parties, specifically the school psychologists who now appear to have more seniority than petitioner. 

The appeal must be dismissed as premature.  The Commissioner will not render an advisory opinion on an issue before it becomes justiciable (Appeal of Fioretti, 45 Ed Dept Rep 188, Decision No. 15,297; Appeal of Lombardo, 44 id. 167, Decision No. 15,135; Appeals of American Quality Beverages, LLC, et al., 42 id. 153, Decision No. 14,805).

It appears that prior to January 9, 2008, petitioner had the greatest seniority among respondent’s school psychologists.  After January 9, it appears that three other school psychologists may have greater seniority than petitioner, and petitioner expresses this concern:

The resulting placement at the bottom of the psychologist’s seniority list puts me at risk of lay-off this June.  This has been a near happening for the bottom position for the past couple of years.

A similar situation occurred in Appeal of Vuoto, (44 Ed Dep Rep 251, Decision No. 15,163).  In that appeal, petitioner claimed that he had been assigned to an incorrect tenure area, without his consent.  As in this appeal, there was no claim that petitioner’s duties had been altered in any way, that his salary had been reduced, that he was excessed from his position, or that he otherwise suffered economic harm.  As I stated then:

Seniority rights, however, do not exist in the abstract.  There must be an impact upon the individual to cause him to be aggrieved, and a party may not maintain an appeal solely to obtain a declaration of his tenure rights or relative seniority

...

In essence, petitioner seeks an advisory opinion concerning his seniority status, relief that is unavailable in an Education Law §310 appeal ....

Petitioner seeks that same relief in this appeal, which must therefore be dismissed.

Such dismissal, however, is without prejudice to any future application for similar relief should petitioner hereafter become actually aggrieved within the purview of Education Law §310.

In light of this disposition, I need not address the parties’ remaining contentions. 

THE APPEAL IS DISMISSED.

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