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Performance in the tenure area is critical when determining an individual?s seniority in such tenure area the purposes of layoff

Performance in the tenure area is critical when determining an individual?s seniority in such tenure area the purposes of layoff
Appeal of Ralph Coviello against the Board of Cooperative Educational Services for the First Supervisory District of Erie County and John E. Snyder regarding layoff, Decisions of the Commissioner of Education, Decision No. 16,200

Ralph Coviello was certified to teach in electrical/electronic equipment occupations (repair and installation) and was granted a probationary appointment by BOCES on or about October 21, 1999 in the technical electronics tenure area.

John E. Snyder was certified to teach in the same tenure area, electrical/electronic equipment occupations (repair and installation), but was granted a probationary appointment by BOCES in the trade electricity tenure area on or about January 14, 2009, retroactive to September 22, 2008.*

In June 2010, BOCES voted to abolish one position in the technical electronics tenure area and advised Coviello that he was the least senior teacher in the technical electronics tenure area and that his employment was terminated. Coviello?s name was placed on a preferred eligibility list.

Coviello appealed, contending that he was improperly terminated in violation of Education Law §3013 and that he had greater seniority than Snyder, whose employment BOCES should have been terminated instead.

Addressing the merits of Coviello?s appeal, the Commissioner stated that Education Law §3013(2) provides that when a BOCES abolishes a position ?the services of the teacher having the least seniority in the system within the tenure of the position abolished shall be discontinued.? Section 30-1.1(f) of the Commissioner?s regulations defines seniority as ?length of service in a designated tenure area ....?

Here, BOCES abolished a position in the technical electronics tenure area. The principal issue in Coviello?s appeal is whether he was the least senior teacher in that tenure area.

The Commissioner, conceding that Coviello has been employed by BOCES for a longer period than Snyder, ruled that Coviello failed to demonstrate that Snyder served in the technical electronics tenure area. Coviello, in fact, contended that Snyder never taught any subjects in the area covered by his certification. BOCES confirmed this, stating that Snyder was appointed to the trade electricity tenure area and never performed any duties in the technical electronics tenure area.

In view of this, the Commissioner ruled that Coviello has failed to meet his burden of demonstrating that Snyder was the least senior teacher in the technical electronics tenure area because Snyder had never taught in that tenure area; Snyder had taught in the trade electricity tenure area, albeit without the requisite tenure area certification.

The Commissioner found that essentially Coviello argued that because the BOCES assigned Snyder to the trade electricity tenure area without regard to appropriate certification, ?it should now assign him to a full-time position similarly teaching courses outside his certification on the grounds that he would have obtained the required certification had he been notified that there was a tenure area in trade electricity.? The Commissioner ruled that there was no basis for granting such relief and dismissed Coviello?s appeal.

* The Commissioner explained BOCES? ?retroactive action? as follows: ?In June 2010, BOCES allegedly learned that in 2008 Snyder had applied for the wrong certificate to teach in the trade electricity tenure area and that the appropriate credential was the Initial Electrical 7-12 certificate. Upon notifying Snyder of this mistake, Snyder then applied for and was granted the Initial Electrical 7-12 certificate, effective September 1, 2010.?

As a coda to the decision the Commissioner said: ? I note, however, that [Coviello] has made serious allegations about BOCES? practices in assigning and retaining career and technical education teachers. BOCES acknowledges that it initially erred in assigning Snyder to teach trade electricity subjects without the appropriate certification and that it awarded him seniority credit in a tenure area for which he did not hold appropriate certification. I urge [BOCES] to review the certification of all of its career and technical education teachers and the tenure areas of such teachers to ensure compliance with Part 30 of the Rules of the Board of Regents and Part 80 of the Commissioner?s regulations.

The decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume50/d16200.htm

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Full post as published by New York Public Personnel Law on February 04, 2011 (boomark / email).