Amos v. Board of Ed. of Cheektowaga-Sloan Union Free School Dist.

• Decision Date: 12 November 1976
• Docket Number: CHEEKTOWAGA-SLOAN
• Parties: In the Matter of Grace AMOS, Petitioner, v. BOARD OF EDUCATION OFUNION FREE SCHOOL DISTRICT, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 435

388 N.Y.S.2d 435

54 A.D.2d 297

In the Matter of Grace AMOS, Petitioner, v. BOARD OF EDUCATION OF CHEEKTOWAGA-SLOAN UNION FREE SCHOOL DISTRICT, Respondent.

Supreme Court, Appellate Division, Fourth Department.

Nov. 12, 1976.

Bernard F. Ashe, Albany, for petitioner (Richard C. Heffern, Albany, of counsel).

Albert J. Rydzynski, Buffalo, for respondent.

Before MARSH, P.J., and MOULE, CARDAMONE, SIMONS and GOLDMAN, JJ.

GOLDMAN, Justice:

Petitioner Grace Amos commenced this article 78 proceeding seeking judgment directing the Board of Education of Cheektowaga-Sloan Union Free School District (Board) to reinstate her to her position as a tenured teacher in the respondent school district.

Petitioner began teaching in the district in 1966 and in 1970 received permanent certification from the New York State Education Department to teach French in grades 7 to 12. Her teaching schedule in each school year from 1966 to 1971 included not only French but also at least one course in Mathematics or English or Introduction to Business. By letter dated April 7, 1971 petitioner was notified by Dr. Joseph Gizinski, respondent's Superintendent of Schools, that due to a decline in student enrollment in French courses it was necessary to abolish one French teaching position and that petitioner, as 'the individual with the least tenure', would be released. By resolution of the respondent Board, petitioner's position was abolished effective June 30, 1971, and she was placed on a 4-year preferred eligible list (see Education Law, § 2510, subd. (3)).

In the summer of 1972, petitioner learned that the respondent had hired individuals who had less seniority than she and had assigned them to teach subjects formerly taught by her. By letter dated August 11, 1972 petitioner demanded that respondent reinstate her to her position as a tenured teacher. In reply to that letter Supt. Gizinski acknowledged that respondent had hired a Mathematics teacher and an English teacher 'within the grade area of 7 to 12'. He explained that petitioner had not been considered for either position because she, unlike the newly-hired teachers, lacked certification in Mathematics and English. Petitioner then commenced an article 78 proceeding which culminated in this court's decision of February 28, 1975 (Matter of Amos v. Union Free School District, 47 A.D.2d 711, 364 N.Y.S.2d 640), which reversed Special Term and granted petitioner reinstatement with back pay as of September, 1971. ¹

By letter to petitioner's attorney, dated April 7, 1975, respondent's attorney stated that respondent would not appeal this court's decision. The letter continued, in part, as follows:

'The Board has instructed me to be completely frank to you and Mrs. Amos. We have discussed the Education Law requirements of certification and we don't see how we can get around the requirements of Article 61 and the pertinent sections in that article. Therefore the Board of Education will re-instate Mrs. Amos to comply with the Court order and will pay her for any difference in wages that is due to her. Further please be advised that charges will be placed against her immediately thereafter for incompetency because of lack of certification to teach English, the position that she would have to assume under the tenure requirements. We shall follow the opinion of the Appellate Division opinion which stated

'If petitioner is unqualified for a position because of lack of certification in a particular subject, she must be removed pursuant to Education Law, sec. 3012 and 3020--a'.'

The plan to appoint petitioner to an English position never materialized, but in May, 1975, Supt. Gizinski did offer her a part-time French teaching job. Her attorney rejected the offer on grounds that it would not accord petitioner the full reinstatement required by this court's decision. He stated that there were at least ten teachers in the secondary tenure area with less seniority than petitioner. It appears also that petitioner had a full-time teaching job in Niagara Falls when the part-time offer was made.

Respondent's next offer came on June 12, 1975, when Supt. Gizinski informed petitioner by letter that she had been appointed as a Social Studies teacher effective September 1, 1975. The letter requested petitioner to produce a New York State Education Department Secondary School Social Studies Certificate by June 27, 1975. Petitioner was not certified in Social Studies, and when she failed to produce the certificate Supt. Gizinski immediately filed incompetency charges.

On July 1, 1975 the respondent Board found probable cause for the following charge against petitioner:

'That you are unqualified and incompetent to teach Social Studies as a secondary school teacher on the grounds that you are not certified to teach Social Studies by the New York State Department of Education or the Commissioner of Education.'

A hearing pursuant to Education Law, § 3020--a was held on September 4, 1975. Supt. Gizinski testified that the incompetency charge was based solely on petitioner's lack of a Social Studies certificate, and had nothing to do with her actual past performance, the quality of which was not questioned. Other evidence suggested that respondent never fully explored the possibility of adjusting schedules so that petitioner could be reinstated as a French teacher.

The hearing panel never resolved the issue of petitioner's alleged incompetency. The panel declared itself unable to agree on whether lack of certification in Social Studies was prima facie evidence of incompetency, and stated that the question was one for the courts or Legislature. Believing none of the penalties available under Education Law, § 3020--a was appropriate, the panel recommended that the Board consider the following alternatives:

'A. Effect an adjustment of current staff assignments in such a manner as to allow Mrs. Amos to teach subjects in which she is currently certified.

'B. Provide Grace Amos with a paid leave of absence to complete certification in another subject and upon completion of the requirements reassign her to teach subjects in which she is certified. ²

'C. Request the Bureau of Certification to reconsider its position on issuance of an excuse of default for Mrs. Amos in view of the Appellate Division's decision and the recommendation of this panel.' ³

Respondent rejected the hearing panel's recommendations and, by resolution adopted December 10, 1975, found petitioner 'unqualified and incompetent to teach Social Studies' and dismissed her from her employment. The instant proceeding followed.

Petitioner argues that respondent acted arbitrarily and illegally in appointing her to a Social Studies position for which she was uncertified and then bringing incompetency charges against her. Respondent purported merely to be obeying this court's prior decision in this matter, where it was stated: 'If petitioner is unqualified for a position because of lack of certification in a particular subject, she must be removed pursuant to sections 3012 and 3020--a of the Education Law' (Matter of Amos v. Union Free School District, 47 A.D.2d 711, 712, 364 N.Y.S.2d 640, 641, Supra, citing Matter of Lynch v. Nyquist, 41 A.D.2d 363, 343 N.Y.S.2d 179, affd. on op. below, 34 N.Y.2d 588, 354 N.Y.S.2d 948, 310 N.E.2d 544). Lynch involved a tenured teacher who taught Latin, English and Social Studies, although certified only in Latin. When Latin was eliminated from the curriculum she was dismissed and her English teaching duties were assigned to a provisionally certified English teacher of lesser seniority. The Board contended that Education Law, § 2510, subd. (2) was inapplicable to a teacher who, although tenured, was not certified in the particular subject in question because continuation of the uncertified teacher's services would violate statutory proscriptions against the employment of unqualified teachers (viz., Education Law, §§ 3009, 3010). The Third Department rejected that contention, stating:

'Certification requirements, however, may not be employed to erode the protections afforded tenured teachers, since the tenure statutes provide the exclusive method for dismissal for those teachers (Matter of Kobylski v. Agone, 37 Misc.2d 255, 234 N.Y.S.2d 907, affd. 19 A.D.2d 761, 242 N.Y.S.2d 630). The board cannot circumvent this rule by following the procedure employed herein. The only two courses of action open to it were to discontinue the services of the teacher having the least seniority within the tenure of the position abolished, pursuant to subdivision 2 of section 2510 of the Education Law, or to discontinue petitioner's services for legal incompetence due to lack of certification by following the procedure mandated by the tenure statutes including the granting of a hearing, pursuant to sections 3012 and 3020--a of the Education Law (see Matter of Mannix v. Board of Educ. of City of N.Y., 21 N.Y.2d 455, 288 N.Y.S.2d 881, 235 N.E.2d 892; Matter of Glass v. Board of Educ. of City of N.Y., 21 A.D.2d 891, 251 N.Y.S.2d 805, affd. 16 N.Y.2d 982, 265 N.Y.S.2d 294, 212 N.E.2d 779; Matter of Feingold v. Lynch, 31 A.D.2d 969, 299 N.Y.S.2d 606).' (41 A.D.2d p. 365, 343 N.Y.S.2d p. 182.)

The foregoing language was quoted with approval by this court in Matter of Silver v. Bd. of Educ., 46 A.D.2d 427, 432, 362 N.Y.S.2d 638, 643.

A further question, answered neither by Lynch nor Silver nor by this court's prior decision in the instant matter, is whether lack of certification in a subject to which a teacher is assigned is by itself conclusive on the issue of 'incompetence' to teach that subject. We answer that question in the affirmative, ⁴ in light of the statutory duty of a Board of Education not to employ an unqualified teacher (see Education Law, § 3004 (authorizing Commissioner of Education to prescribe regulations governing examination and certification of teachers); section 3009 (prohibiting the use of school funds to pay...