Opinion
No. 14–740.
09-18-2014
In the Matter of the Application of Jennifer CRONK, Petitioner, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules, v. John B. King, as Commissioner of Education of the State of New York, Board of Education of the Valhalla Union Free School District; Laura E. Booth–Fredo; Steve P. D'Ascoli and Andrew R. Tripaldi, Respondents.
Richard E. Casagrande, Esq., (Deborah A. Milham, Esq., of Counsel), Latham, Attorneys for Petitioner. Shaw, Perelson, May & Lambert, LLP, (Mark C. Rushfield, Esq., of Counsel), Poughkeepsie, Attorneys for Respondents Board of Education of the Valhalla Union Free School District. Eric T. Schneiderman, (C. Harris Dague, Assistant Attorney General, of Counsel), Department of Law, Albany, Attorney General of New York State Attorney for Respondent John B. King, as Commissioner of Education of the State of New York.
Richard E. Casagrande, Esq., (Deborah A. Milham, Esq., of Counsel), Latham, Attorneys for Petitioner.
Shaw, Perelson, May & Lambert, LLP, (Mark C. Rushfield, Esq., of Counsel), Poughkeepsie, Attorneys for Respondents Board of Education of the Valhalla Union Free School District.
Eric T. Schneiderman, (C. Harris Dague, Assistant Attorney General, of Counsel), Department of Law, Albany, Attorney General of New York State Attorney for Respondent John B. King, as Commissioner of Education of the State of New York.
MICHAEL H. MELKONIAN, J.
Petitioner Jennifer Cronk ("petitioner") commenced this action pursuant to CPLR Article 78 against respondents the Board of Education of the Valhalla Union Free School District ("the Valhalla Board of Education") and John B. King, as Commissioner of Education of the State of New York ("the Commissioner") (collectively referred to herein as "respondents"), alleging respondents acted arbitrarily and capriciously when making a determination terminating her employment. Petitioner requests an order directing respondents to reinstate her to a full-time position in the English (7–12) tenure area, nunc pro tunc, along with benefits incident to such reinstatement. Respondents seek dismissal of the petition as barred by failure to exhaust administrative remedies, failure to state a cause of action, and failure to join necessary parties.
Petitioner received a probationary appointment from the Valhalla Board of Education as a full-time teacher "assigned to Computer Program VMS/HS" "in the English—tenure area," effective September 1, 2000. Effective June 17, 2003, petitioner received tenure in the English (7–12) tenure area. Commencing with the 2000–2001 school year, petitioner taught students on a full-time basis as a classroom teacher in "Computer Applications" and "Advanced Computer Applications" until 2011, when she was notified that the Valhalla Board of Education determined that it was necessary to eliminate two full-time teaching positions in the English 7–12 tenure area and that she was being terminated based upon her seniority status within that tenure area. The petitioner was laid-off by the Valhalla Board of Education, effective June 30, 2011.
"VMS/HS" is the Board of Education's shorthand for "Valhalla Middle School and High School."
On June 22, 2011, petitioner challenged the determination of the Valhalla Board of Education by appealing her termination to the Commissioner.
On October 16, 2013, the Commissioner dismissed petitioner's appeal because, inter alia, she "... neither sought nor received permission to join any additional parties as Respondents ..." and because she "... failed to demonstrate that she devoted at least 40% of her work time to instruction in English and/or instructional support services."
Initially, the Court rejects respondents' argument that the petition should be dismissed for failing to join necessary parties. In her initial petition, petitioner named only one respondent—the Board of Education—and served only the Board of Education and Andrew R. Tripaldi. However, on July 22, 2011, after being retained, petitioner's current counsel wrote to the Commissioner and requested permission to add Laura E. Booth–Freda and Steven P. D'Ascoli as respondent parties to her appeal to the Commissioner as required by § 275.1 of the Commissioner's Regulations. Petitioner's counsel also enclosed a proposed amended notice of petition and proposed amended petition. The new caption of the proposed amended notice of petition and petition identified those two teachers as well as Andrew R. Tripaldi.
On August 4, 2011, the Commissioner responded to petitioner's requests stating:
"This is in reply to your July 22, 2011 application, on behalf of petitioner, to file a substitution of attorney and additional pleading (amended petition) in the above-referenced appeal. Please be advised that we have substituted Richard E. Casagrande, Esq., as attorney for petitioner. In addition, the amended petition has been accepted for consideration. Respondents are advised that a response to the amended petition must be served no later than August 25, 2011 and filed with this office, along with proof of service."
This letter "cc-ed" Laura E. Booth–Freda, Steven P. D'Ascoli and Andrew Tripaldi.In this regard, this Court's review is limited to whether, on the record before him, the Commissioner's dismissal of petitioner's administrative appeal on the basis of failure to join necessary parties was arbitrary and capricious or affected by an error of law (see, Matter of Board of Educ. of Monticello Cent. School Dist. v. Commissioner of Educ., 91 N.Y.2d 133, 139 ; Matter of Scherbyn v. Wayne–Finger Lakes Bd. of Coop. Educ. Servs., 77 N.Y.2d 753, 757–758 ). Contrary to respondents' contentions, in his letter, petitioner's counsel specifically requested the Commissioner's permission to add Laura E. Booth–Freda and Steven P. D'Ascoli as respondent parties to her appeal citing § 275.1 of the Commissioner's Regulations. In response, the Commissioner stated the amended petition was "accepted" and even went so far as to "cc" Laura E. Booth–Freda and Steven P. D'Ascoli on the letter. Accordingly, this Court rejects respondents' argument based on necessary parties.
Likewise, the petition should not be dismissed because petitioner failed to exhaust her administrative remedies. Respondents assert that petitioner has failed to exhaust her administrative remedies by neglecting to "reopen" the Commissioner's decision dismissing her appeal. However, where, as here, a petitioner alleges violations of her statutory rights, direct resort to the courts is permissible (Application of Cohn v. Board of Ed. of the Hammondsport Central School, 58 A.D.2d 977, 978 ; Matter of Sokol v. Granville Cent. School District Bd. of Educ., 260 A.D.2d 692, 694 ).
Turning to the merits of the petition, "[i]t is axiomatic that a teacher's tenure area is fixed when he is appointed and may not be altered retroactively by redesignation of the nature of that teacher's tenure area" (Matter of Zappulla, 25 Ed.Dept.Rep. 54, 59; see, Matter of Waiters v. Board of Educ., Amityville Union Free School Dist., 46 N.Y.2d 885 ). As the Commissioner has determined, "an assignment outside of a teacher's tenure area requires the teacher's consent" (Matter of Lawrence, 32 Ed.Dept .Rep. 398, 401). Such holding has been codified in 8 NYCRR § 30.9(b) which provides "[n]o professional educator, whether on tenure or in probationary status, may be assigned to devote a substantial portion of his time in a tenure area other than that in which he has acquired tenure or is in probationary status, without [her] prior written consent " (8 NYCRR § 30.9[b] [emphasis supplied] ).
Importantly, 8 NYCRR § 30.9(b) was promulgated pursuant to a legislative tenure scheme designed "to protect competent teachers from the abuses they might be subjected to if they could be dismissed at the whim of their supervisors" (Ricca v. Board of Educ., 47 N.Y.2d 385, 391 ; see, Matter of Kaufman v. Fallsburg Cent. School Dist. Bd. of Educ., 91 N.Y.2d 57 ; see also, Matter of Speichler v. Board of Coop. Educ. Servs., Second Supervisory Dist., 90 N.Y.2d 110, 118 ["tenure rules ... should be read so as to discourage a board's use of technical obstacles and manipulable labels that can deprive a qualified teacher of tenure rights"] ). Indeed, "[t]he tenure statutes are intended to protect the teacher and not become a trap to those not guileful enough to avoid it" (Matter of Baer v. Nyquist, 34 N.Y.2d 291, 299 ). Thus "the underlying purpose of 8 NYCRR § 30.9(b) is not fulfilled by applying that provision to block a teacher from receiving seniority credit which would have been received by reason of actual service in an out-of-tenure area. Rather, the regulation has a twofold protective purpose personal to the reassigned teacher. Initially, it protects teachers from being required involuntarily to accept assignments outside of their designated tenure areas (see, Matter of Sammon, 20 Ed. Dept. Rep. 335 [sustaining teacher's appeal of out-of-area assignment as made outside her tenure area without her consent]; Matter of O'Connor, 19 Ed. Dept. Rep. 213 [same] ). Secondly, it protects teachers from being deprived of credit in a previously appointed tenure area if they unwittingly accept, and serve in, out-of-area assignments (see, Matter of Maine–Endwell Teachers Assn. v. Maine–Endwell Cent. School Dist., 92 A.D.2d 1052 [teachers originally appointed as coordinators were entitled to seniority credit for out-of-area assignments because district failed to inform them that such assignments were outside their designated tenure area]; Matter of Lawrence, 32 Ed. Dept. Rep. 398 [tenured teacher assigned outside designated tenure area, without consent and notice, entitled to seniority credit in original tenure area for time served in the out-of-area assignment] )" (see, Kaufman v. Fallsburg Cent. School Dist. Bd. of Educ., 91 N.Y.2d 57 ).
Here, it is undisputed that there is no academic tenure area that applies to courses such as "computer applications," nor, indeed, any certificate for teaching such subjects. More importantly, however, there is simply no evidence whatsoever that petitioner was clearly and explicitly informed that her assignment to teach "computer applications" within the district was outside of her tenure area or that her approximately 11 years of continuous and dedicated service would not be relevant in determining seniority within such area of tenure. Said differently, there is simply nothing in the record that would have led petitioner to believe that she failed to remain in her tenure area with her seniority preserved. Accordingly, based upon 8 NYCRR § 30.9(b), this Court finds that absent express notification and consent by petitioner that the work to which she was assigned was apparently not in her appointed tenure area, her approximately 11 years of service must be deemed, as a matter of law, to constitute service in her appointed tenure area (English).
The Court has reviewed all additional contentions raised by the parties and find them to be without merit. The Court therefore annuls the Commissioner's determination as arbitrary and capricious (see, Matter of Zubal v. Ambach, 103 A.D.2d 927 ).
Accordingly it is ADJUDGED, ORDERED, and DECREED, that based upon the foregoing, respondents acted arbitrarily and capriciously in terminating petitioner's employment; and the petition is granted. The Board of Education's determination is annulled. Since it is unclear from the record whether petitioner was the most senior teacher in the English (7–12) tenure area on June 30, 2011, it is appropriate to remand this matter to respondents for a determination of petitioner's seniority rights in the English (7–12) tenure area and, based on her seniority, her right to reinstatement as a teacher, in accordance with this decision, with back pay, interest, and such other and further benefits as would have accrued, for the period between her termination by the respondents and her reinstatement (see, Matter of Walters v. Amityville Union Free School Dist., 251 A.D.2d 590 ; Matter of Kohler v. Board of Educ. of S. Huntington Union Free School Dist., 142 A.D.2d 676 ).
This constitutes the Decision and Order of the Court. This Decision and Order is returned to the attorney for the petitioner. All other papers are delivered to the Supreme Court Clerk for transmission to the County Clerk. The signing of this Decision, Order and Judgment shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provisions of this rule with regard to filing, entry and Notice of Entry.
SO ORDERED.
Papers Considered:
Notice of Petition dated February 7, 2014;
Petition dated February 7, 2014, with exhibits annexed;
Memorandum of Law;
Answer dated March 13, 2014;
Memorandum of Law;
Answer dated April 28, 2014, with exhibits annexed;
Memorandum of Law.