Cole v. Board of Educ., South Huntington USFD
| Decision Date | 20 December 1982 |
| Citation | 457 N.Y.S.2d 547,90 A.D.2d 419 |
| Parties | , 8 Ed. Law Rep. 771 In the Matter of Dorothy M. COLE et al., Respondents, v. BOARD OF EDUCATION, SOUTH HUNTINGTON USFD et al., Appellants. |
| Court | New York Supreme Court — Appellate Division |
Winick, Ginsberg, Ehrlich, Reich & Hoffman, Garden City (Lawrence W. Reich, Garden City, of counsel), for appellant Board of Educ.
Frederic Block, P.C., Smithtown (Eugene L. Wishod, Smithtown, of counsel), for respondents.
McGivern, Shaw & O'Connor, Albany (Norman H. Gross, Albany, of counsel), for the New York State School Boards Ass'n, Inc., amicus curiae.
Before MOLLEN, P.J., and DAMIANI, TITONE and BRACKEN, JJ.
A school district which abolishes a position for economic reasons is required by statute to discontinue "the services of the teacher having the least seniority in the system within the tenure of the position abolished" (Education Law, § 2510, subd. 2; § 2585, subd. 3 1; Steele v. Board of Educ., 40 N.Y.2d 456, 462, 387 N.Y.S.2d 68, 354 N.E.2d 807). After the appellant school district restructured its schools prospectively so that subjects formerly included in separate horizontal tenure areas at the junior (grades 7-9) and senior (grades 10-12) high school levels are now encompassed in separate vertical special subject tenure areas covering all grade levels (kindergarten to grade 12), it was forced by the need for retrenchment to abolish teaching positions in its junior high schools. Whether the district complied with the statutory mandate in calculating the competing seniority rights where one of the teachers is tenured in the former horizontal tenure area at the junior high school level and the other in the vertical special subject area at the high school level, and the only available position in that subject is in the senior high school, is the subject of this appeal.
Part 30 has "only prospective effect" (Steele v. Board of Educ., 40 N.Y.2d 456, 463, 387 N.Y.S.2d 68, 354 N.E.2d 807, and n. 2, supra; 8 NYCRR 30.2[a] ). Following
the enactment of Part 30, the petitioners continued to teach full-time in the junior high schools for a number of years. However, their positions have now been reduced to part-time positions in the junior high schools. The district continues to employ full-time in its senior high school, teachers of the same subjects who were appointed after August 1, 1975 (individual appellants Lewi and Johnson). 3
Petitioner Margaret Shepherd commenced her employment with the school district on September 1, 1973 as a part-time teacher of home economics at the junior high school level (grades 7-9). Later she received a full-time teaching position, effective September 1, 1974, and was assigned to teach home economics in a junior high school.
Pursuant to resolution of the district dated August 24, 1977 she was granted a permanent tenure appointment in the "teaching area General Secondary 7-9", commencing September 1, 1977. She continued to teach home economics at the junior high school level on a full-time basis through June 30, 1979. Thereafter, her position was reduced to that of part-time teacher of home economics at the junior high school level.
Appellant Lois Lewi was initially employed by the school district on September 17, 1975 when she received a probationary appointment as a "Home Economics-General (K-12) teacher", retroactive to September 1, 1975. She was assigned to teach home economics at the senior high school (grades 10-12). She received tenure in the "teaching area Special Subjects K-12 (Home Economics)", effective September 1, 1978, and has continued as a full-time teacher in that position at the senior high school.
Petitioner Dorothy M. Cole was initially employed by the school district on September 1, 1971 to teach social studies at the senior high school while the regular teacher was on sabbatical leave. Pursuant to resolution of the school district dated September 20, 1972, she was granted a probationary appointment as a "Social Studies teacher", retroactive to September 1, 1972, and was assigned to teach full-time at a junior high school. She continued in that teaching assignment for the required probationary period. Pursuant to resolution of the school district dated June 26, 1975, she was granted a permanent tenure appointment in the "teaching area Social Studies 7-9", commencing September 1, 1975.
By letter dated May 24, 1976, the school district notified Cole that her teaching services would be terminated as of June 30, 1976 because of staffing curtailments. By letter dated June 25, 1976, the school district rescinded the termination letter of May 24, 1976, and advised her that "your seniority in the district entitled you to bumping rights over other staff members with less seniority in the 7-9 general secondary tenure area." By letter dated August 26, 1976, the school district notified her that she had been "reassigned" to the junior high schools as a "Business Education teacher" effective September 1, 1976, a position for which she was and is fully certified. She served as a full-time teacher of business education in the school district's junior high schools until June 30, 1980, when her position was reduced to that of part-time teacher of business education in the junior high schools.
Appellant Irwin Johnson was first employed by the school district on November 16, 1977 when he received a probationary appointment as a "Special Subject K-12 (Business) teacher", retroactive to October 27, 1977. He was assigned to teach business education at the senior high school and he continues to serve in that full-time position.
In support of this article 78 proceeding to compel the school district to restore the petitioners to their prior status as full-time teachers, petitioners make the following two-pronged argument. They contend that the tenure area of the position abolished should first be identified in accordance with the classification in effect at the time the position is abolished or reduced, and that a teacher appointed prior to August 1, 1975, who is currently teaching a subject which is now classified in a special subject area, "must be deemed by operation of law to have acquired an additional or substitute tenure area commencing on the first date of service in that subsequently recognized special subject area". Specifically, the petitioners claim that since there was a reduction in business education and home economics classes, the positions abolished were in the special subject areas for those two subjects; that Cole acquired tenure in business education one year earlier than Johnson, on September 1, 1979; and that Shepherd achieved tenure in home economics at the same time as Lewi, on September 1, 1978. The petitioners assert that therefore Cole is senior to Johnson; and Shepherd, by virtue of her service as a teacher of home economics prior to August 1, 1975, is senior to Lewi.
The appellants maintain that the positions abolished are in the junior high school tenure area and that the petitioners were the two least senior teachers in that area. They claim that it was merely fortuitous that the petitioners "were teaching the two subject matter courses that were abolished".
Special Term directed that petitioners be reinstated to full-time teaching positions in "their respective special tenure areas". "To rectify" what it termed "a harsh and inequitable situation", Special Term held that by continuing to teach home economics after August 1, 1975, Shepherd received "a probationary appointment (without the necessity of a formal appointment by the Board of Education) in the new vertical tenure area"; that when Cole was assigned to teach business education after the enactment of Part 30, she "received her probationary appointment in her new vertical special subject tenure area of Business Education". Imputing knowledge of these "probationary appointments" to the school district and commenting that the petitioners "continued to teach well beyond the expiration of their probationary period", Special Term concluded that Shepherd and Cole acquired tenure "by acquiescence and estoppel". To resolve the question of seniority between Shepherd and Lewi, both of whom received their "probationary appointments" on September 1, 1975 and were "granted tenure on September 1, 1978", Special Term held that Shepherd "is entitled to seniority based upon her longevity within the school district".
We disagree with Special Term's reasoning and conclusions.
The petitioners' contentions and the ruling at Special Term are contrary to public policy and judicial and administrative interpretation of the statutory scheme. Public policy mandates that a " 'board of education evaluate the requisite competence and merit of a teacher before the conferral of tenure' " (...
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