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Appointment from a preferred list

By Harvey Randall, Esq.

Appointment from a preferred list
Appeal of Deborah Cooper from action of the Board of Education of the Hempstead Union Free School District
Commissioner of Education Decision No. 15,708, January 14, 2008

The Commissioner dismissed Deborah Cooper?s appeal claiming that the school district should have appointed her to a Coordinator of Student Support Services position while she was on a preferred eligible list.

The Commissioner said that Cooper?s appeal must be dismissed for a number of technical reasons, including her failure to name a necessary party in her appeal.[1]

As to the merits of Cooper?s appeal, the Commissioner said that even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits, noting that Education Law §3013[3][a], in pertinent part, provides:

If an office or position is abolished or if it is consolidated with another position without creating a new position, the person filling such position at the time of its abolishment or consolidation shall be placed upon a preferred eligible list of candidates 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 filled without reduction in salary or increment, provided the record of such person has been one of faithful, competent service in the office or position he or she has filled.

Here, said the Commissioner, the School District abolished Cooper?s position effective June 30, 2007. Under the Education Law, therefore, Cooper is entitled to appointment only to a position that existed on June 30, 2007 or thereafter. Because the position to which Cooper seeks to be appointed was created and filled by August 2006, she is not entitled to appointment thereto.
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[1] A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such.

Full post as published by New York Public Personnel Law on January 29, 2008 (boomark / email).