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Employees? rights upon the take-over of a BOCES program

By Harvey Randall, Esq.

Employees? rights upon the take-over of a BOCES program
Matter of Valentine, Commissioner?s decision 13977

Elizabeth Valentine, a tenured ?general special education teacher,? was at Step 9 of the BOCES salary schedule when the North Tonawanda City School District decided to ?take-back? some of its students and expand its special education program.

Valentine, whose name was placed on a preferred list, was told that she would be appointed by North Tonawanda in accordance with Section 3014-b of the Education Law,[1] subject to the approval of the school board.

On August 23, 1996 BOCES wrote Valentine to advise her that she would recalled from the preferred list effective September 1, 1996. Valentine, however, declined BOCES? offer.

On September 11, 1996, North Tonawanda, advised Valentine that the board voted (1) to appoint her as a probationary special education teacher; (2) to place her in Step 7 of its salary plan, which was less than BOCES Step 9, and (3) would not ?carry-over? her 82.5 days of sick leave credit. She signed the notice of probationary appointment sent to her by North Tonawanda, with the notation ?[m]y signature does not waive any rights I may have under 3014-b.?

Valentine appealed to the Commissioner, contending under Section 3014-b that she was entitled to be appointed as a tenured teacher at Step 9 and that North Tonawanda should transfer over all of her accumulated sick leave credits because the district ?took back a program formerly operated by BOCES? and her employment by North Tonawanda was the consequence of that decision. North Tonawanda, on the other hand, argued that BOCES had recalled Valentine prior to September 1, 1996, which appointment she declined to accept, and thus her employment by North Tonawanda was not pursuant to Section 3014-b, but as a new probationary employee, and that it had so advised her.

The Commissioner ruled that Valentine became an employee of the North Tonawanda City School District ?by virtue of its take back of the BOCES program and that [Valentine?s] status as a Section 3014-b hire was not extinguished by BOCES? August 23, 1996 recall letter.? The Commissioner pointed out that Section 3014-b is triggered by two events: first, a take back by a district of a BOCES service or program and, second, a layoff of a BOCES teacher whose position is eliminated because of the take back.[2]

According to the ruling, Valentine enjoyed this ?vested? benefit in May 1996 when the District decided to take back its students [or June 30, 1996, at the latest, Valentine?s last day of service with BOCES] and no action by the school board was required to effect her appointment.

Whether Valentine should be paid at Step 9 or at Step 7 involved other considerations, however. The district argued that Valentine should be credited only with her six years of actual service with BOCES and not with the ?prior service at another school district? that BOCES had credited and thus it was only required to pay her at the Step 7 level.

The Commissioner disagreed, noting that ?the statute does not say length of service in such [BOCES], it specifically uses the word ?credited.? This, he said, is exactly what happened in this situation -- BOCES credited Valentine with an extra two years of service. He ruled that the District had to recognize Valentine?s status as a tenured teacher, at Step 9, and credit her with her BOCES accumulated sick leave credits.

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[1] Section 3014-b provides that an excessed BOCES teacher shall retain his or her former salary grade, tenure status and sick leave credits.

[2] Section 3014-b provides that ?at the time of such takeover by the school district [the teacher] shall be considered an employee of such school district, with the same tenure status he maintained in such board of cooperative education services.?

Full post as published by New York Public Personnel Law on January 30, 2008 (boomark / email).