Labor & Employment Law

Abolishment of positions by a BOCES

Abolishment of positions by a BOCES

Appeal of Christopher Curtis and G. Michael Newell from action of the Otsego-Northern Catskill Board of Cooperative Educational Services, Decisions of the Commissioner of Education, Decision No. 15,831

Christopher Curtis and G. Michael Newell appealed BOCES? decision eliminate two positions of ?English Teacher? in the Alternative Education Department effective September 1, 2004, because of a reduced request for services, contending that the stated reason for the abolition of their positions was unsupported by the facts.

With respect to Newell, BOCES argued that his appeal is moot because he retired from his position and that the Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest.?

The Commissioner agreed in part. He said ?[r]etirement constitutes a formal and presumably permanent withdrawal from the teaching profession? and ruled that Newell?s petition is moot to the extent he seeks reinstatement to his former position. In contrast, the Commissioner said that Newell?s claim that seeks back salary and benefits ?is not entirely moot because he alleges that BOCES abolished their positions improperly and unlawfully assigned others to teach English classes prior to the effective date of his retirement.?

As to the claim that BOCES abolished their positions in bad faith in violation of the Education Law, the Commissioner pointed out that Education Law Section 3013(1) provides that if a position is abolished and a similar position is created, the person who filled the abolished position must be appointed to the new position. However, neither Curtis nor Newell claimed that BOCES created similar positions and failed to appoint them to those positions. Rather they contend that BOCES ?effectively created? two positions by redistributing their workload.

The Commissioner said that, in general, a board of education, acting in good faith, may abolish positions and consolidate the duties of the former positions among existing positions, citing Education Law §§1709[16] and [33]. Similarly, said the Commissioner, a board of cooperative educational services may abolish a position and consolidate it with another without creating a new position, pointing to Education Law §3013[3][a].

Noting that the record reflects that the elimination of two full-time English positions in BOCES? Alternative Education Department was for economic and administrative reasons, the Commissioner concluded that Curtis and Newell failed to meet their burden of showing that BOCES acted in bad faith in abolishing their positions. Accordingly, the Commissioner ruled that neither is entitled to the requested reinstatement or back pay and dismissed their appeal.

[N.B. Concerning another aspect of this appeal, i.e., arguments regarding teacher certification, the Commissioner commented that BOCES bases its position, in part, on an internal guidance memorandum issued by SED ?a decade ago concerning certification requirements for alternative education.? The Commissioner cautioned ?This memorandum must be read in conjunction with the requirements of the federal ?No Child Left Behind Act of 2001? (?NCLB?)(P.L. 107-110, 20 U.S.C.A. 6301 et seq.) and conforming state regulations (see 8 NYCRR §120.6). Those provisions now require public school teachers to be certified and, in addition, a certified public teacher who teaches a core academic subject (such as English) or, who teaches a core academic subject in an alternative education program leading to a credit-based diploma, must also be ?highly qualified,? as defined by NCLB and the Commissioner?s regulations (8 NYCRR §120.6).? The Commissioner advised BOCES to review its policies and practices to ensure its compliance with current law.]

The full text of the Commissioner?s decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume48/d15831.htm

Full post as published by New York Public Personnel Law on September 24, 2008 (boomark / email).