Leggio v. Oglesby

OPINION OF THE COURT Per Curiam. In this proceeding pursuant to CPLR article 78, petitioner seeks to compel her reinstatement to the position of remedial reading teacher. Special Term directed appellants to reinstate petitioner. We agree and therefore affirm the judgment. Section 2510 of the Education Law generally focuses on two major aspects of abolishing a position in a school system: (1) which employee should be terminated; and (2) the rights of the terminated employee to re-employment (cf. Matter of Ward v Nyquist, 43 NY2d 57). In dealing with which employee should be terminated, subdivision 2 of section 2510 provides that "the services of the teacher having the least seniority in the system within the tenure of the position abolished shall be discontinued” (emphasis supplied). Pertaining to the rights of the terminated employee, subdivision 3 essentially provides that the terminated employee shall be placed on a preferred eligible list "for appointment to a vacancy that then exists or that may thereafter occur in an office or position similar to the one which such person ñlled”. (Emphasis supplied.) To the same effect is subdivision 1, which deals with the coincidental abolition of one position and creation of another position which involves the performance of similar duties. The issue on appeal is whether the concept of "similar positions” as used in subdivisions 1 and 3 for purposes of enunciating the re-employment rights of a terminated employee, should be further restricted by requiring that the similar position also be within the same tenure area. The relevant facts have been stipulated to by the parties and may be briefly stated. On August 17, 1976 the petitioner was advised that effective September 1, 1976 she had been approved for tenure in the elementary tenure area. A notice of "Probationary Appointment”, also dated August 17, 1976, advised the petitioner that for the 1976-1977 school year, she had received a probationary appointment to a position as an "Elementary (Reading F/F)” teacher. In fact, for the 1976-1977 school year, the petitioner’s sole duties were as a reme [448] dial reading teacher. Effective June 30, 1977, the petitioner’s position as an elementary teacher was abolished and, pursuant to subdivision 2 of section 2510 and section 2585 of the Education Law, she was excessed. Also in June, 1977, the appellants hired several persons who had never before worked in the Island Trees school district, to teach remedial reading. Some of these newly appointed teachers are performing the identical duties that the petitioner performed during the 1976-1977 school year. It is further conceded that the petitioner is. qualified and certified to teach remedial reading. The petitioner argues that since she was teaching reading and there were reading positions available involving similar, indeed identical, duties, she was entitled to be appointed to such a similar positiqn in preference to someone who has no seniority in the school system. The appellants counter that the petitioner is not entitled to a preference because the reading positions, although functionally similar, are nevertheless in a different tenure area. Citing that part of Matter of Chauvel v Nyquist (43 NY2d 48, 53), which suggests that the term "corresponding or similar positions” refers to the duties to be performed in the position, Special Term granted the petition. We agree. The phrases "tenure” and "tenure area” are terms of art which signify specific, albeit imprecise, conditions of employment. To a large extent tenure, like seniority, is a means of providing job security. However, tenure is also a means of isolating areas of instruction providing the teacher with an opportunity to advance in a particular sphere of educational expertise, and providing the school administrators with a manageable and efficient means of implementing instructional programs and allocating resources. Generally, the duties performed in one tenure area are not similar to the duties performed in a different tenure area. Furthermore, there may be disparate positions, with grossly different duties, within the same tenure area. This is particularly so in the horizontal tenure areas such as secondary education, where the duties associated with one area of instruction are not similar to those associated with a different subject matter (e.g., a foreign language and science) (see Matter of Chauvel v Nyquist, supra). When a position is abolished, the teacher with the least seniority in the tenure area of the abolished position must be excessed (Education Law, § 2510, subd 2). This system gives [449] effect to both the employees’ interest in job security in their particular area of educational appointment and to the school board’s interest in efficient administration. Obviously, if a drop in enrollment justifies the abolition of an elementary teaching position, it is of no utility or logic to discharge a high school teacher who may have less seniority than any of the elementary school teachers. Consequently, the concept of tenure is necessary in the determination of who should be discharged when a teaching position is abolished. It is in this context that tenure constitutes a qualification on the more general concept of seniority as meaning length of service. Other interests are involved when a vacancy must be filled. Here the factors of tenure must be secondary to the more pervasive principle of seniority. The Education Law reflects the basic public policy that qualified persons who have served in a particular school system should generally be preferred for purposes of re-employment. Certainly, this public policy requires that the individual only be rehired for positions for which the person is qualified. Subdivisions 1 and 3 of section 2510 of the Education Law further restrict the broad policy by requiring similarity of position. Presumably, the concept of similarity is linked to considerations of experience and qualifications. However, there is no further restriction that the similar position be in the same tenure area. On the contrary, in view of the specific and technical meaning of the phrase "within the tenure of the position abolished” as used in subdivision 2 of section 2510 (cf. Matter of Lezette v Board of Educ., 35 NY2d 272), the absence of such language in subdivisions 1 and 3 indicates that considerations of tenure were not to be evaluated in determining whether a vacant position is similar to the position occupied by the excessed employee. Nor is there any other indication that the phrase "similar position” should have anything other than its ordinary meaning (i.e., similarity of duties). In the present case, the appellants are seeking to use the petitioner’s designated tenure area as a sword to prevent her from being appointed to a remedial reading position wherein she would perform the identical duties as those which she performed in the guise of an elementary teacher. However, the concept of tenure was never contemplated to be used as a means of diminishing a teacher’s right to employment in favor of one who has less seniority within the school district who would perform the same duties as the dismissed employee. [450] The general pattern that different tenure areas involved the performance of dissimilar duties must give way to the realities of the present situation, where, as a result of overlapping tenure areas, there is no distinction whatsoever between the duties performed by the petitioner during her appointment to the position of "elementary (reading)”, and the duties now being performed by the newly hired remedial reading teachers. The contrary and formalistic interpretation urged by the appellants is both inequitable and contrary to the fundamental principles of seniority rights. Thus far, we have presumed that the petitioner was serving as a permanent appointee in the elementary tenure area for the 1976-1977 school year. However, if the notice of appointment is taken at face value, the petitioner was appointed as only a probationary employee. As a probationary employee, her devotion of a substantial portion of her time to the instruction of remedial reading results in her being deemed, by operation of law, as having served in the special subject tenure area of remedial reading (see 8 NYCRR 30.8). Although this may result in a loss of seniority vis-á-vis the elementary tenure area, it would certainly entitle the petitioner to reinstatement as a remedial reading teacher in the instant circumstances. Subdivision 3 of section 2510 of the Education Law includes only two factors as affecting an excessed teacher’s right to reemployment: (1) that the vacant position be similar and (2) that the preferred eligible list be ranked in accordance with seniority, i.e., length of service. Both of these criteria have been satisfied in the instant case. No further qualification of service in a particular tenure area is statutorily mandated and we perceive no compelling policy consideration that would cause us to judicially infer such a restriction on basic seniority rights. Therefore, the judgment granting the petition for reinstatement should be affirmed.