Teacher tenure areas and seniority rights of certified employees are governed by state law and regulation. A recent Commissioner of Education decision provides a good reminder of the obligation to follow these requirements.
In Appeal of Kaabe, Decision No. 18,216 (December 13, 2022) [http://www.counsel.nysed.gov/Decisions/volume62/d18216], a library media specialist position was abolished by board of education resolution on June 18, 2020. The petitioner was accordingly laid off from employment, as the school district determined she was least senior in the library media specialist tenure area. Petitioner challenged the district’s action and named three other employees of the district in her appeal (referred to here as A, B and C.) According to the petitioner, A, B and C worked as library media specialists and were less senior.
The Commissioner found the facts in the record related to tenure area sparse. A summary of the record concerning each individual’s tenure area was:
- ‘A’ asserted being appointed to the tenure area of Elementary Education, Grades 1-6 “before the 2017-2018 school year.” Copies of board minutes indicate a job title as “Media Specialist” (May 23, 2019) and “Library Media Specialist” (July 25, 2019);
- ‘B’ asserted being appointed to the tenure area of “Education Technology Specialist … before the 2019-2020 school year.” The Commissioner noted that no such tenure area exists. The Commissioner explained that while Educational Technology Specialist is a certificate title, it is not a tenure area identified in Part 30 of the Rules of the Board of Regents.
- ‘C’ identified as an “Educational Technology Specialist” (not a recognized tenure area) but did not indicate the tenure area to which she was appointed.
Petitioner submitted copies of the board resolutions appointing A, B and C. None of the resolutions indicate the proper tenure area. As a result, the Commissioner determined the question of who was appointed to which tenure area(s) remained unclear. She found, however, the petitioner sufficiently proved two key conditions necessitating the school district re-evaluate petitioner’s abolishment.
First, she found petitioner demonstrated A was at least for some time in the media specialist tenure area. Second, the Commissioner agreed that the petitioner demonstrated B and C were appointed to a non-existent tenure area. The remedy for that error is to retroactively appoint each to the tenure area most closely fitting their duties. That is likely the library media specialist tenure area.
Based on these findings, the Commissioner remanded the case back to the district to make decisions consistent with the above findings. In so doing, the Commissioner, admonished the district to comply with Part 30 of the Rules of the Board of Regents in appointing individuals to tenure-eligible positions. She stated it is unacceptable the district was unable to produce a single document establishing the tenure areas to which petitioner and the other professional educators were appointed, despite that a Board of Regents regulation specifically requires that the appointing resolution must contain this information.
The Commissioner’s admonishment (‘follow the law’) may be intuitive, but serves as a good reminder. Teacher tenure areas are clear and well-defined in Part 30 of the Commissioner’s regulations. They leave no ambiguity. While it is possible that certification areas do not match up with Part 30 tenure areas, it is critical not to conflate the two. The Part 30 tenure area has “must” be listed in every appointment, even when the certification area is something slightly different.
When a school district makes a new appointment, it must be sure each resolution meets regulatory requirements and includes the following information:
- the name of the appointee;
- the tenure area or areas in which the professional educator will devote a substantial portion of time;
- the date of commencement of probationary service or service on tenure in each such area;
- the expiration date of the appointment, if made on a probationary basis (including any conditional tenure language required for those subject to APPR); and
- the certification status of the appointee in reference to the position to which such individual is appointed.
Corollary to this is maintaining up-to-date and accurate seniority lists. That way, if abolishing positions becomes necessary, seniority and who is least senior is clear and unambiguous. Periodically conferring with unions on seniority lists can further help avoid conflict or questions.
For questions about this subject or the matters contained in this alert please contact Douglas Gerhardt at email@example.com & (518) 701-2738, or Sara Visingard at firstname.lastname@example.org & (585) 419-8748 or the Harris Beach attorney with whom you work most closely.
This alert is not a substitute for advice of counsel on specific legal issues.
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