Appeal of CHRISTOPHER CURTIS and G. MICHAEL NEWELL from action of the Otsego-Northern Catskill Board of Cooperative Educational Services and Roger Davidson, Jill Ogden, Janet Orlando, Jeffrey Tew and Michael Vesley regarding the abolition of positions.

Decision No. 15,831

(September 17, 2008)

Janet Axelrod, Esq., attorney for petitioners

Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C., attorneys for respondent BOCES, Henry F. Sobota, Esq., of counsel

MILLS, Commissioner.--Petitioners appeal the abolition of their positions by the Otsego-Northern Catskill Board of Cooperative Educational Services (“BOCES”).  The appeal must be dismissed.

BOCES operates its alternative education program at two sites, namely, the Otsego Area Occupational Center (“OAOC”) and the Northern Catskills Occupational Center (“NCOC”).  During the 2003-2004 school year, petitioner Curtis (“Curtis”) and petitioner Newell (“Newell”) were both certified and tenured English teachers at BOCES.  At that time, they were the only teachers in the English 7-12 tenure area in the Alternative Education Department and taught English, GED Reading/Writing, Creative Writing and Journalism.

By letters dated May 24, 2004, BOCES’ district superintendent (“district superintendent”) notified petitioners that lower student enrollments from component school districts for the 2004-2005 school year might cause their positions to be reduced or eliminated.  At its meeting on August 23, 2004, BOCES voted to eliminate two positions of “English Teacher” in the Alternative Education Department effective September 1, 2004, because of a reduced request for services.  Petitioners were listed as the affected employees.  This appeal ensued.

Petitioners contend that the stated reason for the abolition of their positions was unsupported by the facts because for the 2004-2005 school year, BOCES provided the same or similar level of English, GED Reading/Writing and Creative Writing classes.  They argue that BOCES assigned 18 classes to other BOCES teachers, specifically, the individually named respondents, who were not certified in English 7-12.  Petitioners assert, therefore, that BOCES acted in bad faith in violation of the Education Law.  Alternatively, petitioners contend that by assigning those 18 classes to the individual respondents, BOCES engaged in unlawful “fractionalization,” effectively creating two full-time English 7-12 positions for the 2004-2005 school year.  Petitioners also assert that BOCES had not obtained a waiver permitting the individually named respondents, who were admittedly uncertified in English, to teach English or GED Reading/Writing courses.

Petitioners seek an order requiring BOCES to rescind its action of August 23, 2004 abolishing the two English positions and to reinstate them to their positions with full back pay and benefits.  Alternatively, they seek to be recalled to the two full-time positions BOCES effectively created when it assigned 18 classes to other teachers, with full back pay and benefits.

BOCES asserts that, to the extent Newell seeks any relief, the petition is moot because he retired from his position effective September 20, 2004.  BOCES also asserts that the appeal must be dismissed for failure to join a necessary party.  It asserts further that the petition fails to state a claim upon which relief may be granted.

BOCES denies that it needed a waiver to enable any individual respondent to teach in its alternative education and GED programs.  BOCES maintains that petitioners’ positions were abolished in good faith and denies that it created new positions that were similar within the meaning of Education Law §3013 to petitioners’ abolished positions.  It also asserts that, according to a 1999 New York State Education Department (“SED”) internal memorandum, any certified secondary academic/special subject teacher (other than a special education teacher) may teach alternative education and GED classes.

The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of C.A., Sr., 45 Ed Dept Rep 388, Decision No. 15,360; Appeal of the New York Charter Schools Assn., Inc., et al., 45 id. 376, Decision No. 15,355; Appeal of the Bd. of Trustees of the N. Merrick Public Library, et al., 45 id. 363, Decision No. 15,350).  BOCES asserts that the petition is moot as to Newell because he retired from his position effective September 20, 2004.

Retirement constitutes a formal and presumably permanent withdrawal from the teaching profession (Appeal of Donato, 41 Ed Dept Rep 246, Decision No. 14,677; judgment granted dismissing petition to review, Donato v. Mills, et al., Sup. Ct., Albany Co., Special Term [Stein, J.], January 14, 2003, n.o.r.; affd April 22, 2004).  Thus, I find that the petition is moot to the extent Newell seeks reinstatement to his former position.  However, the portion of Newell’s claim that seeks back salary and benefits is not entirely moot because petitioners allege that BOCES abolished their positions improperly on August 23, 2004 and unlawfully assigned others to teach English classes commencing September 7, 2004, prior to the effective date of Newell’s retirement on September 20, 2004 (seeStork v. Bd. of Trustees of the Village of Medina, 179 AD2d 1058; Appeal of Capeless, 35 Ed Dept Rep 454, Decision No. 13,599).

BOCES also contends that the appeal must be dismissed for failure to join Cynthia Kropp (“Kropp”) as 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 Samuel, 45 Ed Dept Rep 418, Decision No. 15,371; Appeal of Meringolo, 45 id. 128, Decision No. 15,281; Appeal of Kelly, 45 id. 38, Decision No. 15,253).  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 Samuel, 45 Ed Dept Rep 418, Decision No. 15,371; Appeal of Meringolo, 45 id. 128, Decision No. 15,281; Appeal of Kelly, 45 id. 38, Decision No. 15,253).

Although petitioners allege that respondent Tew (“Tew”) was recalled from a preferred eligibility list at the beginning of the 2004-2005 school year, the record indicates that he and another teacher declined the recall offer and that BOCES instead granted a probationary appointment to Kropp on September 27, 2004.  Petitioners admit that they were unaware of these circumstances until receipt of BOCES’ answer.

In this proceeding, however, petitioners do not seek to replace any other teachers.  They ask, instead, to be reinstated as English teachers.  They do not assert that this would require dismissal of any individual respondent, or the most recently hired probationary teacher (Kropp), and neither party addresses why it could not accommodate petitioners’ reinstatement by other means (seee.g.Appeal of McNamara, 41 Ed Dept Rep 134, Decision No. 14,638, judgment granted dismissing petition to review, McNamara v. Mills, et al., Sup. Ct., Albany Co., Special Term [Kane, J.], January 10, 2002, n.o.r.).  Thus, BOCES has not shown that Kropp is a necessary party to the appeal and the appeal will not be dismissed for failure to join her.

The record, however, contains no affidavit of service upon Tew.  Section 275.8(a) of the Commissioner’s regulations requires that an appeal be commenced by personal service of a copy of the petition upon each named respondent.  In the absence of proof of service upon Tew, the appeal is dismissed as to him.

Petitioners argue that their positions were abolished in bad faith in violation of the Education Law.  Section 3013(1) provides that if a position is abolished and a similar position is created, the person who filled the abolished position must be appointed to the new position.  However, petitioners acknowledge that they are not claiming that BOCES created similar positions and failed to appoint them to those positions.  They claim that BOCES “effectively created” two positions by redistributing their workload.

Generally, a board of education, acting in good faith, may abolish positions and consolidate the duties of the former positions among existing positions (Education Law §§1709[16] and [33]; Young v. Bd. of Educ. CSD No. 6, Town of Huntington, et al., 41 AD2d 966, affd 35 NY2d 31; Lezette v. Bd. of Educ., Hudson City School District, 35 NY2d 272; Appeal of Allen, et al., 34 Ed Dept Rep 627, Decision No. 13,433; Appeal of Chaney, 33 id. 12, Decision No. 12,959).  Similarly, a board of cooperative educational services may abolish a position and consolidate it with another without creating a new position (see Education Law §3013[3][a]).

The district superintendent avers that student enrollment in the alternative education program had steadily decreased from 61.8 in the 2002-2003 school year, to 37 for 2003-2004, and to 30 for 2004-2005.  She states that, with tuition at approximately $19,000 per student per year, the loss of seven students amounted to the loss of $133,000 in revenue for BOCES for the 2004-2005 school year.  Therefore, there were legitimate economic reasons for reducing the Alternative Education Department.

The district superintendent states that after reviewing the needs of the incoming 30 students, she determined the greatest needs to be in math, and to a lesser extent, social studies and science.  Accordingly, she avers that for reasons of efficiency and economy, the students would be best served with no cuts to those areas and she chose to make cuts in the area of English.  BOCES argues that boards of education have wide latitude to determine where to effect a reduction in force (seeRappold v. Bd. of Educ., Cleveland Hill Union Free S.D., et al., 95 AD2d 890) and need not readjust class schedules and make class assignments to accommodate the full-time teaching needs of a particular teacher (Chambers v. Bd. of Educ., Lisbon CSD, 47 NY2d 279).  Petitioners present no authority to the contrary.  The record reflects that the elimination of two full-time English positions in BOCES’ Alternative Education Department was for economic and administrative reasons.  I must therefore conclude that petitioners have failed to meet their burden of showing that BOCES acted in bad faith in abolishing their positions.  Petitioners are accordingly not entitled to the requested reinstatement or back pay.

Although the appeal is dismissed, I must comment on the parties’ arguments regarding teacher certification.  BOCES bases its position, in part, on an internal guidance memorandum issued by SED a decade ago concerning certification requirements for alternative education.  This memorandum must be read in conjunction with the requirements of the federal “No Child Left Behind Act of 2001” (“NCLB”)(P.L. 107-110, 20 U.S.C.A. 6301 etseq.) and conforming state regulations (see 8 NYCRR §120.6).  Those provisions now require public school teachers to be certified and, in addition, a certified public teacher who teaches a core academic subject (such as English) or, who teaches a core academic subject in an alternative education program leading to a credit-based diploma, must also be “highly qualified,” as defined by NCLB and the Commissioner’s regulations (8 NYCRR §120.6).  BOCES is therefore advised to review its policies and practices to ensure compliance with current law.

THE APPEAL IS DISMISSED.

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