Appeal of GARY CIESLA, from action of the Highland Falls-Fort Montgomery Central School District, Dr. Debra Jackson as Superintendent, Cecilia Taylor, Dana Pizzuto-Franchini, Stacy Corso and Kelly Hall, regarding termination of employment.

Decision No. 16,480

(April 29, 2013)

New York State United Teachers, attorneys for petitioner,Richard E. Casagrande, Esq., of counsel

Shaw, Perelson, May & Lambert, LLP, attorneys for respondents Board of Education of the Highland Falls-Fort Montgomery Central School District and Superintendent Dr. Debra Jackson, David S. Shaw and Julie M. Shaw, Esqs. of counsel

KING, JR., Commissioner.--Petitioner challenges various actions of the Board of Education of the Highland Falls-Fort Montgomery Central School District (“respondent board” or “board”) and Superintendent Dr. Debra Jackson("superintendent” or collectively referred to with the board as “respondents”) relating to the termination of his employment. The appeal must be dismissed.

Petitioner holds a permanent certificate as a teacher of special education. At a board meeting held on August25, 2005, the board appointed petitioner to the position of “special education teacher aide” in the high school, effective September 1, 2005. At its meeting on December 7,2006, the board approved the appointment of petitioner as the Special Education Department Coordinator. At its meeting on May 22, 2008, the board granted tenure to petitioner in the special education tenure area, effective September 2, 2008. On May 20, 2010, the board adopted a resolution to abolish two special education positions in the special education tenure area, effective June 30, 2010.By letter dated May 21, 2010, petitioner was notified by the superintendent that he was one of the least senior persons in the special education tenure area and that his services were being discontinued, effective June 30, 2010and that he would be placed on a preferred eligibility list. This appeal ensued.

Petitioner asserts that he was improperly terminated in violation of Education Law §§2510 and 3013 and that he was more senior than five other teachers in the special education tenure area. Petitioner seeks annulment of the district’s determination to terminate his services and requests that he be reinstated as a full-time teacher of special education, with back pay and benefits.

Respondents allege that petitioner has failed to meet his burden of demonstrating that he was not one of the least senior teachers in the special education tenure area. Specifically, respondents argue that petitioner is not entitled to seniority in the special education tenure area because he did not spend at least 40% of his workday teaching in the special education tenure area. Respondents also assert that petitioner’s termination was consistent with Education Law §3013 and Part 30 of the Rules of the Board of Regents and as such, the district’s determination must be upheld.

Respondents ask that I reject any new material and exhibits contained in 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.

In addition, by letter dated September 15, 2010, respondents submitted a sur-reply for consideration. Additional affidavits, exhibits and other supporting papers may be submitted with the Commissioner’s permission (8 NYCRR §276.5). A sur-reply, however, may not improperly buttress allegations that should have been asserted in an answer (see Appeal of Kadukara, 51 Ed Dept Rep, Decision No. 16,345; Appeal of Butler and Dunham, 50 Ed Dept Rep, Decision No. 16,103). As noted above, I have not considered any portion of petitioner’s reply that is not responsive to new material or affirmative defenses in the answer. To the extent that any portion of the sur-reply is in response to claims improperly in the reply, I decline to accept or consider respondent’s sur-reply affirmation.

Turning to the merits, Education Law §3013(2) provides that when a board of education 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 Rules of the Board of Regents defines seniority as follows: “Seniority means length of service in a designated tenure area ....” The principal issue in this appeal is whether petitioner was one of the two least senior teachers in the special education tenure area.

In general, seniority may be accrued in a given tenure area only if the service of the teacher in such area constitutes 40% or more of the total time spent in the performance of instructional duties (8 NYCRR §30-1.1 [f]and [g]). Petitioner has not established that the work he performed was in the tenure area of special education. Subpart 30-1 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 special education, §30-1.8(a)(7)provides:

(a) A professional educator who is employed to devote a substantial portion of his time to instruction in one or more of the following subjects shall be deemed to serve in a special subject tenure area or areas encompassing such subject: ...

(7) Education of children with handicapping conditions-general special education tenure area (education of emotionally disturbed children; mentally retarded children; physically handicapped children; multiply handicapped children; and children with specifically defined learning disabilities)

Although petitioner holds permanent certification in special education and, as discussed below, was granted tenure in the special education tenure area, the record reveals that petitioner never devoted at least 40% of his work time to instruction in special education. To the contrary, the record indicates that during the 2005-2006,2006-2007, 2007-2008 and 2008-2009 school years, petitioner’s assignment comprised one special education resource room class and alternative education classes in English, mathematics, social studies and global history and that during the 2009-2010 school year, petitioner’s assignment included five alternative education classes and no special education classes. The superintendent avers that “the majority (at least 80%) of petitioner’s teaching assignments” during each year of his employment with the district was as a “content area High School Alternative Education Teacher.” The superintendent also stated in her affidavit that most of the classes taught by petitioner during these school years, other than resource room classes, contained no special education students, with the exception of a small number of classified students in his2008-2009 and 2009-2010 period eight math classes and one classified student in a few of his English classes over the duration of his employment. In addition, in each instance, the special education students were mainstreamed into these regular education classes, consistent with their IEPs, and the special education students never constituted a majority of the students in any of petitioner’s classes.

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., 48id. 348, Decision No. 15,882). Petitioner has failed to submit any lesson plans or any other evidence to demonstrate that he spent more than 40% of his time in the special education tenure area during any of these school years. As such, I find that petitioner never served in the special education tenure area.

Nor does the prohibition contained in §30-1.9 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. From the inception of his employment by the board, petitioner never devoted a substantial portion of his time within the special education tenure area and therefore was not a professional educator entitled to the protection of§30-1.9 (Appeal of Devente and Jesenof, 48 Ed Dept Rep 150,Decision No. 15,822). Accordingly, petitioner cannot now claim that he has more seniority in special education than respondents Taylor, Pizzuoto-Franchini, Corso or Hall.

While the record indicates that petitioner was assigned to teach two alternative classes in English each year at the secondary level and therefore does appear to have spent a substantial portion of his time in the English academic subject tenure area, he has not raised that issue in this appeal or sought reinstatement to a position in that tenure area. Even if he had, he was never inprobationary status in that tenure area so §30-1.9 does not apply and, in any case, reinstatement with back pay to a position for which he is not qualified would be unlawful(Education Law §§ 3001, 3009).

Although I am constrained to dismiss this appeal, Inote that when petitioner commenced his employment with the district, respondent board lacked the authority to offer him a tenured position as a special education teacher.remind respondent board of the need to follow all pertinent provisions of the Civil Service Law, Education Law §3014and Part 30 of Rules of the Board of Regents.

THE APPEAL IS DISMISSED.

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