Abrantes v. Board of Education

165 Misc. 2d 658, 630 N.Y.S.2d 220, 1995 N.Y. Misc. LEXIS 325
CourtNew York Supreme Court
DecidedJune 23, 1995
StatusPublished

This text of 165 Misc. 2d 658 (Abrantes v. Board of Education) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Abrantes v. Board of Education, 165 Misc. 2d 658, 630 N.Y.S.2d 220, 1995 N.Y. Misc. LEXIS 325 (N.Y. Super. Ct. 1995).

Opinion

OPINION OF THE COURT

David Demarest, J.

This is a special proceeding brought pursuant to CPLR article 78 by petitioner (Abrantes), a former full-time tenured teacher, against her former employer, the Board of Education of the Norwood-Norfolk Central School District (Board of Education), to review her termination on June 30, 1994.

SEQUENCE OF EVENTS

On June 14, 1988 the Board of Education appointed [659]*659Abrantes "computer science teacher 7-12” for a three-year probationary period effective September 6, 1988. Apparently, Abrantes was in possession of a provisional certification from the New York State Education Department as a nursery, kindergarten and grades 1-6 teacher. It is undisputed that during the school years: 1988-1989, 1989-1990, 1990-1991, Abrantes taught computer classes to students in grades 7 through 12. Thereafter, and upon expiration of her probationary period, on June 25, 1991, Abrantes was granted tenure as a "computer teacher K-8”.

There is some dispute as to Abrantes’ duties during the 1991-1992 school year. It is petitioner’s contention she was assigned a full-time class load of elementary students. Respondent alleges Abrantes’ duties continued to be teaching computer classes to students in grades 7 through 12. In September 1992 petitioner received her permanent K-6 certification "nursery, kindergarten & grades 1-6”. There exists a minor dispute as to petitioner’s duties during the 1992-1993 school year. Petitioner avers she taught second, fourth, fifth and sixth graders while it is respondent’s position she taught fourth, fifth and sixth graders in the area of computers. In any event, these duties were at the elementary level. During Abrantes’ final year, 1993-1994, it appears both parties agree she taught computer classes to fifth and sixth grade students as well as one class each day of seventh grade students. On February 1, 1994 Abrantes was awarded her permanent certification in "Art”. Thereafter, on April 19, 1994 Abrantes was advised that her "position was being terminated for the 1994-95 school years”. (See, Watkins’ letter, Apr. 19, 1994, para 2.)

Taking into consideration this brief history several issues must be addressed respecting tenure rights afforded by statute. Specifically, it is petitioner’s position that Education Law § 2510 (2) and § 3013 (2) prohibited respondent from excessing her since "the services of the teacher having the least seniority in the system within the tenure of the position abolished” (emphasis added) should have been excessed, and Abrantes was not the least senior teacher.

TENURE

This appears to be a case of first impression, on this very specific issue, and, therefore, the court has drawn from the Education Law, part 30 of the Rules of the Board of Regents (8 NYCRR), case law, and the general history and rationale [660]*660surrounding the theory of tenure. Tenure is a "legislative expression of a firm public policy determination that the interests of the public in the education of our youth can best be served by a system designed to foster academic freedom in our schools and to protect competent teachers from the abuses they might be subjected to if they could be dismissed at the whim of their supervisors. In order to effectuate these convergent purposes, it is necessary to construe the tenure system broadly in favor of the teacher, and to strictly police procedures which might result in the corruption of that system by manipulation of the requirements for tenure * * * Even 'good faith’ violations of the tenure system must be forbidden, lest the entire edifice crumble from the cumulative effect of numerous well-intentioned exceptions.” (Ricca v Board of Educ., 47 NY2d 385, 391 [1979].)

It is noteworthy that, effective August 1, 1975, the Board was required to make probationary and tenure appointments in accordance with the provisions of part 30 of the Rules of the Board of Regents, which set forth tenure areas (see, 8 NYCRR 30.2 [a]; Matter of Nagel v Board of Educ., 83 AD2d 852 [2d Dept 1981]; Matter of Kohler v Board of Educ., 122 AD2d 878, 879 [2d Dept 1986]). In the case at bar it is undisputed that the Board of Education did not place Abrantes in a recognized tenure area pursuant to part 30 of the Rules of the Board of Regents.

In Matter of Boron v Sobol (205 AD2d 28 [3d Dept 1994]), the Third Department reviewed the Commissioner’s recharacterization of the Board of Education’s redesignation of a teacher’s tenure area. Specifically, the teacher (Feltz) was employed by the Board, accepting a tenure appointment in the "methods analyst” area effective September 1980. Six years thereafter she was advised by the Board that "Part 30 Regulations of the Board of Regents do not authorize probationary appointment of 'methods analyst’ ” and the superintendent advised her he was going to recommend the Board redesignate her tenure appointment to that of "elementary education”, assigning her the responsibilities of "Reading/Language Arts Specialist, K-12”. (205 AD2d, at 29, supra.) Further, she was informed that the redesignation would not alter any of her past or future seniority so that her seniority would be accrued in the area of "Elementary Education.” (Supra.) She formally acknowledged and consented, in writing, to the redesignation; and, the Board approved the alteration, confirming her past and future seniority would be computed in the "elementary [661]*661education” area. In 1992, a second teacher (Boron) was informed her employment would be terminated since the Board decided to "eliminate one position in the tenure area of reading”. (Supra, at 30.) At the same time, Feltz was advised her duties would be instructing reading at the elementary and high school levels. Boron challenged Feltz’s tenure area as being an improper designation. The Commissioner found the Board of Education "merely corrected its 'bookkeeping’ error to now place her in the special subject tenure area of remedial reading.” (Supra [emphases added].) The Third Department, after reviewing Feltz’s 14 years of lesson plans and her 10 years of evaluations, disagreed and found her duties to be in the area of "elementary education” rather than "remedial reading”. (Supra, at 32.)

Boron (supra) is instructive in the instant case because, like Feltz, Abrantes accepted a tenure appointment in an area which was not recognized by part 30 of the Rules of the Board of Regents. It is undisputed that the tenure area to which an employee belongs should be determined not by an employee’s job description title, but rather by reference to the nature of the employee’s work. (Matter of Boron v Sobol, supra; Matter of Maine-Endwell Teachers Assn. v Maine-Endwell Cent. School Dist., 92 AD2d 1052 [3d Dept 1983].) Although the Norwood-Norfolk Central School District Board of Education did not, on its own initiative, correct its improper tenure appointment, correction of such "bookkeeping” error has been implicitly authorized by the Third Department.

In making such a correction the Board of Education is to look to the nature of the teacher’s work, not her job description/title. In doing so, it is compelling that she served her three-year provisional appointment by teaching computer science to seventh through twelfth graders and, notwithstanding the 7-12 grade appointment, was granted tenure in teaching computer science in kindergarten through eighth grade.

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Related

Winter v. Board of Education
588 N.E.2d 32 (New York Court of Appeals, 1992)
Ricca v. Board of Education
391 N.E.2d 1322 (New York Court of Appeals, 1979)
Nagel v. Board of Education
83 A.D.2d 852 (Appellate Division of the Supreme Court of New York, 1981)
Maine-Endwell Teachers Ass'n v. Maine-Endwell Central School District
92 A.D.2d 1052 (Appellate Division of the Supreme Court of New York, 1983)
Kohler v. Board of Education, South Huntington Union Free School District
122 A.D.2d 878 (Appellate Division of the Supreme Court of New York, 1986)
Boron v. Sobol
205 A.D.2d 28 (Appellate Division of the Supreme Court of New York, 1994)

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Bluebook (online)
165 Misc. 2d 658, 630 N.Y.S.2d 220, 1995 N.Y. Misc. LEXIS 325, Counsel Stack Legal Research, https://law.counselstack.com/opinion/abrantes-v-board-of-education-nysupct-1995.