Appeal of GWENDOLYN GINGRICH, CINDY INGLUT and KYLE MACK, from action of the Board of Education of the West Seneca Central School District, Scott Page, Kiernan Terranova and Penny Valvo, regarding abolition of their positions.

Decision No. 17,190

(September 22, 2017)

Robert T. Reilly, Esq., New York State United Teachers, attorneys for petitioners, Claire T. Sellers, Esq., of counsel

Harris Beach, LLP, attorneys for respondent Board of Education of the West Seneca Central School District, Tracie L. Lopardi, Esq., of counsel

ELIA, Commissioner.--Petitioners appeal the decision of the Board of Education of the West Seneca Central School District (“respondent” or “board”) to abolish their positions.  The appeal must be dismissed.

On June 16, 2008, petitioners and 14 other elementary education teachers, including respondents Scott Page (“Page”), Kiernan Terranova (“Terranova”) and Penny Valvo (“Valvo”), received appointments to positions in the elementary education tenure area, effective September 1, 2008.  On June 16, 2015, respondent board abolished eight positions in the elementary education tenure area, including petitioners’ positions, effective July 1, 2015.   Petitioners thereafter commenced an Article 78 proceeding challenging the district’s decision to abolish their positions.  By order dated December 18, 2015, the New York State Supreme Court, Erie County, granted the district’s motion to dismiss for lack of primary jurisdiction.  This appeal ensued.

Petitioners assert that the district improperly abolished their positions because they were not the least senior persons in the elementary tenure area.  Specifically, petitioners assert that respondent erroneously credited Page, Terranova and Valvo with more seniority credit than petitioners by providing them with seniority credit for prior interrupted substitute service.  Petitioners request a determination declaring that the district violated Education Law §§2510(2) and 3013(2) and request reinstatement of petitioners to their prior positions with back pay, lost seniority credit, pension credits and other emoluments of the positions.

Respondent asserts that the petition must be dismissed as untimely.  Respondent also avers that petitioner has failed to demonstrate a clear right to the relief requested.

I must reject respondent’s contention that the appeal is untimely.  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 Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879). Respondent abolished petitioners’ positions on June 16, 2015 and, thereafter, petitioners commenced an Article 78 proceeding.  In circumstances, similar to those presented here, where a petitioner has first commenced an action in the courts which has been dismissed on some basis not involving the merits, the date of dismissal is generally regarded as the equivalent of the date of the "making of the decision or the performance of the act” complained of for purposes of §275.16 of the Commissioner’s regulations.  Previous decisions have allowed an appeal to the Commissioner within 30 days after such dismissal (Appeal of Alexander and Gonzalez, 54 Ed Dept Rep, Decision No. 16,731; Appeal of Ferencik, 49 id. 142, Decision No. 15,981, judgment granted dismissing petition to review, September 15, 2011, Sup.Ct., Albany Co.; Appeal of Devente and Jesenof, 48 id. 150, Decision No. 15,822).  Petitioners’ Article 78 proceeding was dismissed on December 18, 2015.  This appeal was commenced on January 14, 2016.  Therefore, the appeal is timely.

Turning to the merits, it is undisputed that petitioners were continuously employed by respondent from September 1, 2008 through July 1, 2015 and that Page, Terranova and Valvo were each appointed by respondent on June 16, 2008.  The record also reflects that the district credited Page for regular substitute service from April 1, 2008 through June 12, 2008 (the school year ended on June 20, 2008); Terranova for regular substitute service from February 26, 2008 through June 13, 2008 (the school year ended on June 20, 2008); and Valvo for regular substitute service from April 6, 2006 to June 30, 2006, August 30, 2006 through June 30, 2007 and September 10, 2007 through November 16, 2007; thereby crediting these respondents with more seniority credit.

The question presented in this appeal is whether respondent board properly credited respondents Page, Terranova and Valvo for substitute service that was not immediately prior to their June 16, 2008 probationary appointments for purposes of calculating seniority credit for the abolition of a position under Education Law §§2510(2) and 3013(2) where it appears from the record that respondents Page and Terranova’s service ended a week prior to their probationary appointment and respondent Valvo’s service ended more than a year before her probationary appointment. 

Education Law §§2510(2) and 3013(2) govern the rights of individuals with regard to an abolition of positions.  Education Law §§2510(2) and 3013(2) relate to a teacher’s abolition rights and provide, in pertinent part, as follows:

Whenever a trustee, board of trustee, board of education or board of cooperative educational services abolishes a position under this chapter, the services of the teacher having the least seniority in the system within the tenure of the position abolished shall be discontinued.

It is well-settled that for purposes of determining the seniority rights of teachers when a position is abolished, it is the teacher having the least seniority in the tenure area of the position abolished whose services must be discontinued (Matter of Mahony v. Bd. of Educ. of Mahopac Cent. School Dist., 140 AD2d 33, appeal denied 73 NY2d 703).  It is also well-settled that seniority credit for full-time substitute teaching under Education Law §2510(2) need not immediately precede full-time probationary experience (Kransdorf v. BOE, Northport-East Northport UFSD, 81 NY2d 871; Matter of Ducey, et al., 65 St Dept Rep 65; Appeal of Carey, 31 Ed Dept Rep 394, Decision No. 12,678).

In Kransdorf v. BOE, Northport-East Northport UFSD, the Court of Appeals accepted the Commissioner’s interpretation in Appeal of Carey, 31 Ed Dept Rep 394, Decision No. 12,678, that a teacher whose full-time regular substitute service was interrupted could nonethelesss receive seniority credit for such service, holding that:

In Carey, the Commissioner, in interpreting Education Law §2510, cited Brewer, holding, in effect, that the section’s salutary purpose is furthered by allowing seniority credit for full-time substitute teaching even though interrupted.  The Commissioner thus stated:  “Teachers lose their seniority rights when they sever service with the school district (Matter of Ducey, St Dept Rep 65, 68, supra).  A teacher whose full-time service is interrupted by part-time service in the same district, however, does not lose the right to claim such prior full-time service for purposes of seniority” (Carey, supra, at 396 [citing Matter of Walsh, 17 Ed Dept Rep 434; Matter of Blanchard, 14 Ed Dept Rept 250]).

The Commissioner cited as additional support for the holding 8 NYCRR 30.1(f) which, in pertinent part, reads:  “length of service in a designated tenure area, rather than the length of service in the district; such service need not have been consecutive but shall during each term for which seniority credit is sought, have constituted a substantial portion of the time of the professional educator” (emphasis added).

Because Education Law §2510, on its face, requires interpretation and the Commissioner’s interpretation is neither irrational nor unreasonable, it should be accepted (see, Matter of Robins v. Blaney, 59 NY2d 393, 397 [citations omitted]).

In both Kransdorf and Carey, the teachers were credited for prior full-time substitute service that did not immediately precede their probationary appointment.  However, petitioners attempt to distinguish Kransdorf and Carey from the present case, asserting that here, Page, Terranova and Valvo did not have continuous employment with the district.

However, the issue of whether full-time regular substitute service should be credited to a teacher’s seniority when the teacher has not had continuous employment with a district was addressed in a prior Commissioner’s decision, Appeal of Lamb, 42 Ed Dept Rep 406, Decision No. 14,895.[1]  In Appeal of Lamb, the petitioner was employed as a part-time teacher between her full-time substitute service and the start of her probationary period.  In that case, the Commissioner held:

Teachers lose their seniority rights when they sever service with the school district [citing Matter of Ducey, supra].  A teacher whose full-time service is interrupted by part-time service in the same district, however, does not lose the right to claim such prior full-time service for purposes of seniority ....

I find that for seniority purposes, it is reasonable to distinguish between interrupted service and severed service.  For example, it is clear that when a teacher retires or resigns, the teacher affirmatively severs his or her service with the district and no longer has recall rights pursuant to Education Law §§2510 or 3013 (Appeal of Morehouse, 37 Ed Dept Rep 428, Decision No. 13,896, judgment granted dismissing petition to review, Sup. Ct., Albany Co., [Bradley, J.], November 5, 1998; n.o.r.; aff’d 268 AD2d 767; lv to appeal den 95 NY2d 751).  In contrast, when a teacher is involuntarily excessed, Education Law §3013 specifically provides a mandatory rehiring preference for that teacher by his or her placement on a preferred eligible list.  In the first instance, the teacher has acted to sever his or her service, whereas, in the latter, service has been involuntarily interrupted in contemplation of future reemployment.  Such interruption is not dissimilar to the circumstances where full-time service prior to a probationary appointment is interrupted by part-time service (emphasis added) (Appeal of Lamb, 42 Ed Dept Rep 406, Decision No. 14,895).

Based on this decision, the relevant consideration is whether Page, Terranova and Valvo’s employment in the district was severed by the teacher or the district.  Based on the record before me, I find that petitioners have failed to meet their burden of proving that respondents Page, Terranova and Valvo voluntarily severed their employment with the district.  All that is established on the current record is that each of these respondents had a regular substitute position that terminated prior to their probationary appointments, which suggests that their substitute service was terminated by the district.  Therefore, based on the record before me and the reasoning in Appeal of Lamb, I find that respondent properly treated respondents Page, Terranova and Valvo’s prior regular substitute service as interrupted rather than severed service and properly credited them for their prior regular substitute service in the district.

THE APPEAL IS DISMISSED.

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