Appeal of MARY MCSWEENEY from action of the Board of Education of the Johnsburg Central School District regarding a teaching assignment.Decision No. 13,141 (April 1, 1994)
Bernard F. Ashe, Esq., attorney for petitioner, Kevin H. Harren, Esq., of counsel
Judge & Duffy, Esqs., attorneys for respondent, H. Wayne Judge, Esq., of counselSOBOL, Commissioner.--Petitioner, a tenured teacher, appeals her assignment to an in-school restriction room. The appeal must be sustained in part.
Petitioner has been employed by the Board of Education of the Johnsburg Central School District ("respondent") since 1968. Petitioner became a probationary teacher in the elementary tenure area on September 10, 1968 and acquired tenure effective March 3, 1971. She holds a permanent teaching certificate in the area of "nursery, kindergarten and common branch subjects".
On May 1, 1993, respondent advised petitioner that her tentative teaching assignment for the 1993-94 school year was the fourth grade. On August 8, 1993, respondent voted to create an in-school restriction room (ISR) and transfer petitioner to that assignment. Petitioner was provided with the job description of the ISR teacher, which involved providing educational services to students in kindergarten through twelfth grade. Since petitioner began that assignment on September 8, 1993, however, all the students in the ISR room have been in seventh through twelfth grades.
On September 13, 1993, respondent found probable cause to prefer charges against petitioner under Education Law '3020-a. This appeal ensued. Petitioner's request for interim relief pending a final determination on the merits of her appeal was denied on October 1, 1993.
Petitioner alleges that the change in her teaching assignment from the fourth grade to the in-school restriction room violated her tenure rights because the students in the ISR room are secondary students, and she had not consented to an assignment outside of the elementary tenure area. Respondent acknowledges that in the first few days of school, it is not uncommon to see older students in the ISR room, but because ISR serves kindergarten through twelfth grades, the assignment does not fall outside petitioner's tenure area.
It is clear that a teacher may not be assigned outside his or her tenure area without the teacher's consent to the assignment (Appeal of Elia, 30 Ed Dept Rep 105; Matter of Daly, 23 id. 226; Matter of Sammon, 20 id. 335; Matter of Singer, 19 id. 297; Matter of O'Connor, 19 id. 213). In this matter, the record indicates that petitioner is spending most of her professional time providing education services to secondary school students. Moreover, there is no evidence that petitioner consented to this apparent change in assignment. Therefore, respondent violated petitioner's tenure rights by assigning her outside of her tenure area.
Respondent also contends that since petitioner is now the subject of disciplinary charges, instituted pursuant to Education Law '3020-a, it may assign her outside of her tenure area. Under '3020-a(2) a teacher may be suspended with pay pending resolution of such charges. In this case, the charges against petitioner are significant, and if proven, may indicate that she is unfit to teach. Respondent was, therefore, not obligated to maintain petitioner in her fourth grade assignment and could assign her to administrative duties pending resolution of the '3020-a charges (Adlerstein v. Board of Education, 64 NY2d 90, 485 NYS2d 1 (1984); Appeal of Middleton, 16 Ed Dept Rep 368). However, petitioner is correct in asserting that the in-school suspension room is not an administrative assignment, but is actually a teaching assignment outside her tenure area. There is no statutory, regulatory or decisional authority which authorizes a board of education to unilaterally assign a teacher outside of his or her tenure area while suspended pending resolution of '3020-a charges. Under the circumstances, therefore, respondent should reassign petitioner to administrative duties pending a final determination on the '3020-a charges.
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that respondent reassign petitioner to an assignment consistent with the terms of this decision.
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