Appeal of RALPH COVIELLO from action of the Board of Cooperative Educational Services for the First Supervisory District of Erie County and John E. Snyder regarding termination of employment.

Decision No. 16,200

(January 27, 2011)

Mark R. Walling, Esq., attorney for petitioner

David A. Hoover, Esq., attorney for the Board of Cooperative Educational Services for the First Supervisory District of Erie County

STEINER, Commissioner.--Petitioner challenges various actions of the Board of Cooperative Educational Services for the First Supervisory District of Erie County (“BOCES”) relating to the termination of his employment.  The appeal must be dismissed.

Petitioner is certified to teach in electrical/electronic equipment occupations (repair and installation) and was granted a probationary appointment by BOCES on or about October 21, 1999 in the technical electronics tenure area.  Respondent John E. Snyder (“Snyder”) also is certified in electrical/electronic equipment occupations (repair and installation) and was granted a probationary appointment by BOCES in the trade electricity tenure area on or about January 14, 2009 retroactive to September 22, 2008.[1] At its meeting on June 23, 2010, BOCES voted to abolish one position in the technical electronics tenure area.  By letter dated June 24, 2010, petitioner was notified that he was the least senior teacher in the technical electronics tenure area and that his employment was terminated. His name was placed on a preferred eligibility list.  This appeal ensued.

Petitioner asserts that he was improperly terminated in violation of Education Law §3013 and that he had greater seniority than Snyder, whose employment should have been terminated.  Petitioner alleges that BOCES illegally created a new tenure area in trade electricity without notifying him of the creation of such tenure area. Petitioner also alleges that respondent BOCES acted illegally in employing Snyder to provide instruction outside his certification area.

BOCES alleges that petitioner was the least senior teacher in the technical electronics tenure area and that its decision to terminate his services was proper.  BOCES also maintains that Snyder’s service in the trade electricity tenure area under an incorrect certificate did not result in petitioner accruing any right to a position in that tenure area.  BOCES further requests that I reject petitioner’s reply to the extent that it adds new allegations or exhibits. 

At the outset, I must address the objection to petitioner’s reply.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No 15,901).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

Turning to the merits, Education Law §3013(2) provides that when a board of cooperative educational services abolishes a position “the services of the teacher having the least seniority in the system within the tenure of the position abolished shall be discontinued.”  Section 30-1.1(f) of the Commissioner’s regulations defines seniority as “length of service in a designated tenure area ....”  Here, BOCES abolished a position in that tenure area.  The principal issue in this appeal is whether petitioner was the least senior teacher in that tenure area. 

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 Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882). 

Petitioner asserts that by virtue of the certificate he held at the time of his employment, Snyder should have been considered as serving in the technical electronics tenure area, rather than the trade electricity tenure area and, as such, petitioner has greater seniority than Snyder.  While it is true that petitioner has been employed by BOCES for a longer period than Snyder, petitioner has failed to demonstrate that Snyder served in the technical electronics tenure area.  Indeed, petitioner maintains that Snyder never taught any subjects in the area covered by his certification.  BOCES asserts that Snyder was appointed to the trade electricity tenure area and never performed any duties in the technical electronics tenure area.  Snyder reiterates in an affidavit that he has exclusively taught in the trade electricity tenure area since the commencement of his employment with BOCES.  Therefore, I find that petitioner has failed to meet his burden of demonstrating that Snyder was the least senior teacher in the technical electronics tenure area.   

I must also reject petitioner’s argument that Snyder’s service in the trade electricity tenure area under an incorrect certificate caused petitioner to accrue a legal right to employment in the trade electricity tenure area and/or rendered petitioner more senior than Snyder in the technical electronics tenure area.  Petitioner has failed to demonstrate how his certification in electrical/electronic equipment operations (Repair & Installation) authorizes him to teach courses in trade electricity.  Indeed, he admits that he lacks appropriate certification for such assignment, and it is undisputed that he has exclusively taught courses in the technical electronics tenure area.  In essence, he argues that because the district allegedly assigned Snyder to the trade electricity tenure area without regard to appropriate certification, it should now assign petitioner to a full-time position similarly teaching courses outside his certification on the grounds that he would have obtained the required certification had he been notified that there was a tenure area in trade electricity.  There is no basis for such relief.

Based on the record before me, I find that petitioner was the least senior teacher in the technical electronics tenure area and was appropriately terminated. 

In light of this determination, I need not address the parties’ remaining contentions.  I note, however, that petitioner has made serious allegations about BOCES’ practices in assigning and retaining career and technical education teachers.  BOCES acknowledges that it initially erred in assigning Snyder to teach trade electricity subjects without the appropriate certification and that it awarded him seniority credit in a tenure area for which he did not hold appropriate certification.  I urge respondent to review the certification of all of its career and technical education teachers and the tenure areas of such teachers to ensure compliance with Part 30 of the Rules of the Board of Regents and Part 80 of the Commissioner’s regulations.

THE APPEAL IS DISMISSED.

END OF FILE.