Appeal of KRISTINE DEVENTE and JOCELYNE JESENOF from action of the Broome-Delaware-Tioga Board of Cooperative Education Services, Jennifer Mondolfi and Mary Jo Rankin, regarding termination of employment.

Decision No. 15,822

(August 14, 2008)

James R. Sandner, Esq., attorney for petitioners, James D. Bilik, Esq., of counsel

The Law Firm of Frank W. Miller, attorneys for respondents, Charles E. Symons, Esq., of counsel

MILLS, Commissioner.--Petitioners appeal the determination of the Broome-Delaware-Tioga Board of Cooperative Educational Services (“BOCES” or “respondent board”) to terminate or reduce their services.  The appeal must be dismissed.

Respondent board hired petitioner Kristine deVente (“deVente”) in 1997 for a part-time position as a “Professional Development Specialist.”  The duties of her position involved training teachers, administering a number of BOCES programs and occasional teaching.  Effective July 1, 1999, deVente’s position became full-time, and respondent board appointed her to a three-year probationary period in the elementary education tenure area.  Respondent board granted deVente tenure effective August 7, 2002.

On September 16, 1998, respondent board appointed Jocelyne Jesenof (“Jesenof”) to the position of “Professional Development Specialist” for a three-year probationary period in the tenure area of elementary education.  The duties of her position involved providing multi-cultural educational services and some classroom instruction.  Respondent board granted Jesenof tenure effective September 15, 2001.

At its July 2, 2003 meeting, respondent board reduced deVente’s position to part-time (.5) and abolished Jesenof’s position.  On or about August 15, 2003, Jesenof was offered and agreed to accept a part-time (.4) position for the 2003-2004 school year.

On November 3, 2003, petitioners commenced an action in the New York Supreme Court, Broome County.  By decision and judgment dated May 13, 2004, the Court dismissed the petition because petitioners had failed to file a timely notice of claim or obtain judicial permission to file a late claim.  The Court further determined that the Commissioner of Education is “the preferred venue” for the review of petitioners’ seniority/tenure dispute.

Petitioners appealed the Supreme Court’s decision to the Appellate Division of the Supreme Court for the Third Judicial Department.  By memorandum and order, decided and entered on February 5, 2005, the Appellate Division determined that the Supreme Court properly invoked the doctrine of primary jurisdiction in dismissing the petition.  This appeal ensued.

Petitioners assert that they have more seniority in the elementary education tenure area than respondents Mondolfi and Rankin.  Petitioners request an order directing respondent board to reinstate them to full-time positions in the elementary education tenure area, nuncpro tunc, as of September 1, 2003, along with benefits incident to such reinstatement.

Respondents assert that the petition is untimely and that petitioners failed to file a proper notice of claim.  Respondents further contend that the appeal is barred by the doctrines of resjudicata, collateral estoppel, law of the case, laches and unclean hands.  Respondents also assert that petitioners earned no seniority in the elementary education tenure area because they never spent at least 40% of their work time providing classroom instruction.  In addition, respondents assert that petitioners waived any claim that they were assigned work outside their tenure areas and that respondents Mondolfi and Rankin have accrued more seniority in elementary education than either petitioner.

An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of O’Brien, 44 Ed Dept Rep 43, Decision No. 15,092; Appeal of Spina, 43 id. 354, Decision No. 15,016).  Petitioners were advised of respondent board’s adverse decision on July 5, 2003, and did not commence this appeal until one year and eight months after receiving that notification.  Nonetheless, petitioners ask that I excuse their failure to commence this appeal within 30 days because their delay was due to an attempt to litigate this dispute in court.

An unsuccessful attempt to litigate a dispute in court that does not result in a final determination on the merits may be accepted as an excuse for failing to commence a timely appeal with the Commissioner, when the appeal is filed within a reasonable time after the dismissal or abandonment of the court proceeding (Appeals of Spectrum Communities, LLC, et al. and Edelstein, 46 Ed Dept Rep 160, Decision No. 15,474; Appeal of Markow-Brown, 45 id. 315, Decision No. 15,333; Appeal of Donato, 41 id. 246, Decision No. 14,677).  In this instance, the Appellate Division determined that the Supreme Court properly dismissed petitioners’ Article 78 proceeding under the doctrine of primary jurisdiction.  Petitioners commenced this appeal 29 days after the Appellate Division decision.  Accordingly, I excuse petitioners’ delay in commencing this appeal.

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 Hoey and Kosowski, 45 Ed Dept Rep 501, Decision No. 15,394; Application of Bliss, 45 id. 308, Decision No. 15,331; Appeal of Rubinstein, 45 id. 299, Decision No. 15,329).

Petitioners have not established that they were employed as professional educators within the meaning of Part 30 of the Rules of the Board of Regents.  In §30.1(e) of the Rules, a professional educator is defined as:

[A]n individual appointed or to be appointed to a full-time position on the professional staff of a school district or board of cooperative educational services, which position has been certified as educational in nature by the commissioner to the State Civil Service Commission pursuant to the provisions of 35-g of the Civil Service Law and in which position tenure may be acquired in accordance with the provisions of the Education Law.

Petitioners acknowledge that respondent board hired them to serve in the position of Professional Development Specialist.  The position of Professional Development Specialist, however, is not among the positions certified by the Commissioner of Education to the New York State Civil Service Commission pursuant to Civil Service Law §35(g) as being in the teaching or supervisory staff of a school district.  Since petitioners were not employed as professional educators as that term is defined in Part 30 of the Commissioner’s regulations, the protections of that Part do not apply to their employment.

Petitioners have also not established that the work which they performed was in the tenure area of elementary education.  Part 30 of the Rules of the Board of Regents establishes the various subject tenure areas that must be used for teachers hired after August 1, 1975.  In regard to the tenure area of elementary education, §30.5 of the Rules of the Board of Regents provides:

A professional educator who is employed to devote a substantial portion of his time to classroom instruction in the common branch subjects at the kindergarten (including pre-kindergarten) level and/or in any of the first six grades shall be deemed to serve in the elementary tenure area.

Section 30.1(g) of the Rules defines “substantial portion of his time” as:

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.

Although petitioners hold permanent certification in elementary education, they acknowledge that they never devoted at least 40% of their work time to classroom instruction.  Rather, the BOCES employed petitioners in its “Center for Education Support and Technology.”  As such, petitioners never served respondent board in the elementary education tenure area.

Nor does the prohibition contained in §30.9 of the Rules of the Board of Regents against assigning a professional educator to devote a substantial portion of his time in a tenure area other than that in which he has acquired tenure without his consent apply to these facts.  First, as previously stated, petitioners are not professional educators within the meaning of Part 30.  Second, from the inception of their employment by the BOCES, petitioners never performed the duties of an educator within the elementary education tenure area.  Accordingly, petitioners cannot now claim that they have more seniority in elementary education than respondents Mondolfi and Rankin.

I am not persuaded by petitioners’ contention that the holding in Boron v. Sobol, et al. (205 AD2d 28) should be read to prohibit characterizing petitioners’ employment as something other than employment as elementary education teachers.  In Boron, the Third Department considered whether a board of education could retroactively redesignate a teacher’s service from the tenure area of elementary education to the tenure area of remedial reading.  In that instance, there was no dispute that plaintiff was in a position protected by Part 30 of the Commissioner’s regulations.  Rather, the issue was whether plaintiff had properly earned seniority in elementary education or remedial reading.  The Appellate Division found that a review of the teacher’s lesson plans and evaluations for the relevant period supported her characterization of her duties to be in the area of elementary education.  Here, petitioners accepted employment by the BOCES as Professional Development Specialists.  Petitioners’ challenge to the BOCES’ subsequent determination that they had not earned seniority in elementary education fails because petitioners have not established that their duties were ever in the tenure area of elementary education or any other teacher tenure area.

Based on the record before me, I cannot find that respondent board’s determination that respondents Mondolfi and Rankin had greater seniority than petitioners in the elementary education tenure area was arbitrary or capricious.

Although I am constrained to dismiss this appeal, I note that when petitioners commenced their employment with the BOCES, respondent board lacked the authority to offer them tenured positions as Professional Development Specialists.  I remind respondent board of the need to follow all pertinent provisions of the Civil Service Law, Education Law §3014 and Part 30 of Rules of the Board of Regents.

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

THE APPEAL IS DISMISSED.

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