Appeal of NANCY PEARSE from action of the Board of Education of the Burnt Hills-Ballston Lake Central School District, Superintendent James Schultz, Amber Haggarty and Ganna Zaderej regarding tenure.

Decision No. 16,159

(September 30, 2010)

School Administrators Association of New York State, attorneys for petitioner, Arthur P. Scheuermann, Esq., of counsel

Robert E. Van Vranken, Esq., attorney for respondents Board of Education of the Burnt-Hills Ballston Lake Central School District and Superintendent James Schultz

STEINER, Commissioner.--Petitioner challenges the determination of the Board of Education of the Burnt Hills-Ballston Lake Central School District (“board”) and Superintendent James Schultz (collectively “respondents”) to abolish her position as a foreign language teacher.  The appeal must be sustained in part.

On February 2, 2005, petitioner was recommended to a probationary appointment in a position where she was assigned to spend 60% of her time as Dean of Students and 40% of her time as a foreign language teacher, effective March 18, 2005.  On January 22, 2008, the board granted petitioner tenure in the administrative tenure area of dean of students, effective March 19, 2008.  On June 23, 2009, the district abolished petitioner’s .4 teaching assignment as a foreign language teacher.  This appeal ensued.  Petitioner’s request for interim relief was denied on July 29, 2009.

Petitioner alleges that the board improperly abolished her position as a foreign language teacher in violation of her tenure and seniority rights.  Petitioner contends she received tenure by estoppel in the foreign language tenure area and that she was not the least senior foreign language teacher in the district.  Petitioner requests that she be reinstated to her foreign language teaching position, with back pay and benefits, and that the district be directed to abolish or reduce the position of the least senior foreign language teacher.  Petitioner also requests that respondents’ sur-reply be rejected.

Respondents counter that petitioner’s teaching position was part-time and, therefore, not eligible to receive tenure in the foreign language tenure area.  Respondents also argue that the decision to abolish petitioner’s position was proper because petitioner is not entitled to accrue tenure and seniority rights in both an administrative and teaching tenure area simultaneously and, therefore, that she never accrued tenure or seniority rights as a foreign language teacher in the district. 

First, I must address a procedural matter.  Respondents submitted a sur-reply to petitioner's reply.  Pursuant to §275.3(b) of the Commissioner’s regulations, I decline to consider respondents’ sur-reply since it merely reiterates or rephrases respondents’ positions in the answer (seeAppeal of Lawson, 36 Ed Dept Rep 450, Decision No. 13,774). 

This case presents, a novel issue -- whether an individual can accrue tenure and seniority credit in both administrative and teacher tenure areas simultaneously if they perform more than 50% of their duties in an administrative tenure area and at least 40% of their duties in a teacher tenure area.

Under Part 30 of the Commissioner’s regulations, teachers are deemed to serve in any tenure area in which they spend at least 40% of their time.  There are, however, no clearly defined guidelines for determining the parameters of administrative tenure areas.  A board of education may establish one district-wide administrative tenure area or multiple defined administrative tenure areas (seeAppeal of Wills, 49 Ed Dept Rep 147, Decision No. 15,982; Bell v. Bd. of Educ. of Vestal Central School Dist., et al., 61 NY2d 149; Appeal of Caruana, 41 Ed Dept Rep 227, Decision No. 14,671).  The test of whether an employee should be deemed to serve in an administrative tenure area is whether an employee spends over 50% of his or her time on administrative duties (Matter of Maine-Endwell Teachers Ass’n v. Maine-Endwell CSD, 92 AD2d 1052; Matter of Coates v. Ambach, 52 AD2d 261, aff’d 42 NY2d 846; Matter of Funnell, 19 Ed Dept Rep 448, Decision No. 10,207; Matter of Myers, 18 id. 198, Decision No. 9,804).

Respondents argue that petitioner cannot accrue tenure and seniority rights in a teacher tenure area because she is not a professional educator as defined in Part 30 of the Commissioner’s regulations.  I disagree.  Section 30-1.1(e) of the Commissioner’s regulations defines professional educator as follows:

Professional educator means an 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 section 35-g of the Civil Service Law and in which position tenure may be acquired in accordance with the provisions of the Education Law (emphasis added). 

Petitioner’s probationary appointment recommended on March 18, 2005 reveals that she was appointed to a full-time position, assigned to perform 60% of her time on administrative duties and 40% of her time as a foreign language teacher.  Section 30-1.1(e) requires that the educator be appointed to a full-time position on the professional staff of the district, but does not require an individual to be employed solely in a full-time teaching position. 

Moreover, the Commissioner has certified to the State Civil Service Commission that the positions of school administrator and foreign language teacher are educational in nature and the Education Law authorizes an individual to accrue tenure in each of these capacities (see Education Law §3012[1][a] and [b]).  Therefore, I reject respondents’ argument that petitioner is not a professional educator as defined in Part 30 of the Commissioner’s regulations. 

I must also reject respondents’ argument that an educator cannot accrue tenure and seniority rights in both an administrative and teacher tenure area simultaneously.  Part 30 of the Commissioner’s regulations, clearly permits a professional educator to simultaneously hold tenure and earn seniority in more than one teacher tenure area (see 8 NYCRR §30-1.9[d]).  Consistent with this approach, I find that an educator should be able to serve in both an administrative and teacher tenure area at the same time and receive seniority credit and tenure in both tenure areas provided that the individual performs more than 50% of his or her duties in the administrative tenure area and at least 40% of his or her duties in a teacher tenure area.  Public policy favors the protection of the tenure rights of both teachers and administrators (Ricca v. Bd. of Educ. of the City of New York, et al., 47 NY2d 385, 391; McManus v. Bd. of Educ. of the Hempstead Union Free School Dist., 87 NY2d 183, 187) and I find that such public policy supports this result.

It is undisputed that petitioner spent at least 40% of her work time as a foreign language teacher and more than 50% of her time as a dean of students from September 2005 through June 2009.  While petitioner’s formal probationary appointment only reflects an appointment to the administrative tenure area of dean of students, prior cases have held that a teacher assigned to spend 40 percent or more of his or her time in a second tenure area may acquire tenure by estoppel in the second area despite a district’s failure to give him or her a formal probationary appointment (Freeman v. Bd. of Educ., 205 AD2d 38; Kaufman v Fallsburg CSD Bd. of Educ., 91 NY2d 57).  Tenure by estoppel “results when a school board fails to take the action required by law to grant or deny tenure and, with full knowledge and consent” permits an employee to serve beyond the expiration of the probationary term (Matter of Gould v. Bd. of Educ. of Sewanhaka Cent. High School Dist., et al., 81 NY2d 446; citingMatter of Lindsey v. Bd. of Educ. of Mount Morris Cent. School Dist., et al., 72 AD2d 185).  To determine whether petitioner is entitled to tenure by estoppel in the foreign language teacher tenure area, I must first determine the correct length of her probationary term.

It is undisputed that petitioner consistently taught a .4 teaching load in foreign language in addition to her administrative duties from March 18, 2005 until her teaching position was abolished on June 23, 2009.  Moreover, the record reveals that the district knowingly evaluated petitioner each year as a teacher and continued her employment as a foreign language teacher.  She was also listed on the district’s seniority list as accruing tenure and seniority rights in both the foreign language tenure area and the administrative tenure area of dean of students until January 2009.  Accordingly, I find that petitioner acquired tenure by estoppel in the foreign language teacher tenure area on March 19, 2008.   Since it is unclear from the record whether petitioner was the most senior teacher in the foreign language tenure area on June 23, 2009, it is appropriate to remand this matter to respondents for a determination of petitioner’s seniority rights in the foreign language teacher tenure area and, based on her seniority, her right to reinstatement as a teacher of foreign language on June 23, 2009, in accordance with this decision.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that, within 30 days of the date of this order, respondents calculate petitioner’s seniority rights in the foreign language teacher tenure area and make a new determination as to whether she is entitled to be restored to a tenured position as a teacher of foreign language effective June 23, 2009, with back pay and retroactive benefits.

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