Bd. of Educ. of the Minisink Valley Cent. Sch. Dist. v. Elia

• Decision Date: 28 March 2019
• Docket Number: 526754
• Citation: 170 A.D.3d 1472,97 N.Y.S.3d 745
• Parties: In the Matter of BOARD OF EDUCATION OF the MINISINK VALLEY CENTRAL SCHOOL DISTRICT et al., Appellants, v. MaryEllen ELIA, as Commissioner of Education, et al., Respondents, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

170 A.D.3d 1472

97 N.Y.S.3d 745

In the Matter of BOARD OF EDUCATION OF the MINISINK VALLEY CENTRAL SCHOOL DISTRICT et al., Appellants,

v.MaryEllen ELIA, as Commissioner of Education, et al., Respondents, et al., Respondents.

526754

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: February 11, 2019

Decided and Entered: March 28, 2019

Shaw, Perelson, May & Lambert, LLP, Poughkeepsie (David S. Shaw of counsel), for appellants.

Letitia James, Attorney General, Albany (Joseph M. Spadola of counsel), for Commissioner of Education, respondent.

Robert T. Reilly, New York State United Teachers, Latham (Jacquelyn Hadam of counsel), for Amanda DeRosa, respondent.

Timothy G. Kremer, New York State School Boards Association, Inc., Latham (Jay Worona of counsel), for New York State School Boards Association, Inc., amicus curiae.

Before: Garry, P.J., Lynch, Clark, Devine and Pritzker, JJ.

MEMORANDUM AND ORDER

Devine, J.Respondent Amanda DeRosa is certified in elementary education and special education and, beginning in 2007, worked for the Minisink Valley Central School District in a variety of probationary and substitute roles. One of those roles was probationary elementary education teacher and, when that position was abolished in 2010, her name was placed on "a preferred eligible list of candidates" from which to draw candidates should a similar position open in the future ( Education Law § 3013[3][a] ). A vacancy for an elementary education teacher arose in 2013 that was offered to individuals on the preferred list "in the order of their length of service in the system" ( Education Law § 3013[3][a] ). Respondents Kristen Daly and Jeni Galligan, whose elementary education teaching positions had also been eliminated in 2010, were found to have greater seniority than DeRosa because her full-time regular substitute work as a special education teacher and elementary school librarian could not be counted toward her length of service. Petitioner Board of Education of the Minisink Valley Central School District (hereinafter the Board) appointed Galligan to the position.

DeRosa challenged the service calculation in a CPLR article 78 proceeding that was dismissed due to respondent Commissioner of Education having primary jurisdiction over the dispute; DeRosa then petitioned the Commissioner for relief (see Education Law § 310 ). The Commissioner concluded that DeRosa should have been credited for her long-term substitute work, granted the petition and ordered that the Board appoint her to the position of elementary education teacher with back pay and benefits as of September 1, 2013. Petitioners – the Board and the school district Superintendent – commenced this CPLR article 78 proceeding seeking to annul the Commissioner's determination. Supreme Court dismissed the proceeding and petitioners appeal. We affirm.

To begin, "we may not substitute our judgment for that of the Commissioner unless we conclude that such determination was ‘arbitrary and capricious, lacked a rational basis or was affected by an error of law’ " ( Matter of Donato v. Mills , 6 A.D.3d 966, 967, 774 N.Y.S.2d 846 [2004], quoting Matter of Board of Educ. of Monticello Cent. School Dist. v. Commissioner of Educ. , 91 N.Y.2d 133, 139, 667 N.Y.S.2d 671, 690 N.E.2d 480 [1997] ; see Matter of Donlon v. Mills , 260 A.D.2d 971, 972, 689 N.Y.S.2d 260 [1999], lv denied 94 N.Y.2d 752, 700 N.Y.S.2d 426, 722 N.E.2d 506 [1999] ). In assessing whether such is the case, we "tread[ ] gently in second-guessing the experience and expertise of state agencies charged with administering statutes and regulations," knowing that "[i]t is for the Commissioner in the first instance ... to establish and apply criteria to govern the selection and retention of qualified educators and staff" ( Matter of Davis v. Mills , 98 N.Y.2d 120, 125, 748 N.Y.S.2d 890, 778 N.E.2d 540 [2002] ; see Matter of Donato v. Mills , 6 A.D.3d at 968, 774 N.Y.S.2d 846 ). Deference is therefore afforded to the Commissioner's determination where, as here, it is based upon her expertise in applying an ambiguous statutory and regulatory framework (see Matter of Davis v. Mills , 98 N.Y.2d at 125, 748 N.Y.S.2d 890, 778 N.E.2d 540 ; Matter of Kransdorf v. Board of Educ. of Northport–E. Northport Union Free School Dist. , 81 N.Y.2d 871, 874, 597 N.Y.S.2d 631, 613 N.E.2d 537 [1993] ; cf. Matter of Madison–Oneida Bd. of Coop. Educ. Servs. v. Mills , 4 N.Y.3d 51, 59, 790 N.Y.S.2d 619, 823 N.E.2d 1265 [2004] ).

"Where a teaching position is consolidated or abolished, ‘the services of the teacher having the least seniority in the system within the tenure of the position abolished shall be discontinued’ " ( Matter of Seney v. Board of Educ. of the E. Greenbush Cent. Sch. Dist. , 103 A.D.3d 1022, 1023, 962 N.Y.S.2d 397 [2013], quoting Education Law §§ 2510[2] ; 3013[2]; see Matter of Cronk v. King , 130 A.D.3d 1415, 1417, 14 N.Y.S.3d 581 [2015], lv denied 26 N.Y.3d 912, 2015 WL 7374335 [2015] ). In contrast, when a similar vacant position arises, teachers are recalled "in the order of their length of service in the system" without reference to the tenure area in which that service was performed ( Education Law § 3013[3][a] ). Courts have not addressed these differences in the provisions of Education Law § 3013, but have done so with regard to the "nearly identical" provisions of a statute governing abolition and recall in school districts for cities with fewer than 125,000 inhabitants ( Matter of Madison–Oneida Bd. of Coop. Educ. Servs. v. Mills , 2 A.D.3d 1240, 1241, 770 N.Y.S.2d 443 [2003], affd 4 N.Y.3d 51, 790 N.Y.S.2d 619, 823 N.E.2d 1265 [2004] ; see Education Law § 2510 ), concluding that the statutory language and underlying policy dictate a calculation of recall rights using "any and all service within the system, not just within the specific tenure area at issue" ( Matter of Freeman v. Board of Educ. of Hempstead School Dist. , 205 A.D.2d 38, 41, 616 N.Y.S.2d 911 [1994] ; see Matter of Mahony v. Board of Educ. of Mahopac Cent. School Dist. , 140 A.D.2d 33, 39–40, 532 N.Y.S.2d 390 [1988], lv denied 73 N.Y.2d 703, 537 N.Y.S.2d 491, 534 N.E.2d 329 [1988] ; Matter of Cole v. Board of Educ., S. Huntington USFD , 90 A.D.2d 419, 427–429, 457 N.Y.S.2d 547 [1982], affd for reasons stated below 60 N.Y.2d 941, 471 N.Y.S.2d 84, 459 N.E.2d 193 [1983] ; Matter of Leggio v. Oglesby , 69 A.D.2d 446, 449, 419 N.Y.S.2d 118 [1979], appeals dismissed 48 N.Y.2d 882 [1979], 53 N.Y.2d 704 [1981] ). The Commissioner interpreted, and reasonably so, the analogous provisions of Education Law § 3013 in the same manner.

Long-term substitute work is counted toward "seniority in the system within the tenure of the position" for layoff purposes if it was performed in that tenure area prior to the teacher's probationary appointment in the same tenure area ( Education Law § 3013[2] ; see Education Law § 3012 ; 8 NYCRR 30–1.1 [f], [h]; 30–1.2[a]; ...