Matter of Kwasnik v King
Annotate this CaseDecided on September 30, 2013
Supreme Court, Albany County
In the Matter of the Application of Erika Kwasnik, Petitioner, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules,
against
John B. King, as Commissioner of Education of the State of New York, BOARD OF EDUCATION OF THE NORWICH CITY SCHOOL DISTRICT, GERARD O'SULLIVAN, as Superintendent of the Norwich City School District, and SARAH L. PARKER, Respondents.
13-659
NYSUT
Office of General Counsel
Richard E. Casagrande, Esq., General Counsel
Attorneys for Petitioner
(Marilyn Raskin-Ortiz, Esq., of Counsel)
800 Troy-Schenectady Road
Latham, New York 12110
Hogan, Sarzynski, Lynch, DeWind & Gregory, LLP
Attorneys for Respondents Board of Education of the Norwich City School District, Gerard O'Sullivan, as Superintendent of the Norwich City School District
(William L. Gibson, Jr., Esq., of Counsel)
P.O. Box 660
Binghamton, New York 13902-0660
Hon. Eric T. Schneiderman
Attorney General of New York State
Attorney for Respondent John B. King, as Commissioner of Education of the State of New York
(Colleen Galligan, Assistant Attorney General,
of Counsel)
Department of Law
The Capitol
Albany, New York 12224
Sarah L. Parker
Respondent Pro Se
Michael H. Melkonian, J.
Petitioner Erika Kwasnik ("petitioner") commenced this action pursuant to CPLR Article 78 seeking, inter alia, to annul a determination of respondent John B. King, as Commissioner of Education of the State of New York, denying petitioner's request to reinstate her employment as a tenured English teacher. Respondents the Board of Education of the Norwich City School District ("the Board of Education"), Gerard O'Sullivan, as Superintendent of the Norwich City School District ("Superintendent O'Sullivan"), John B. King, as Commissioner of Education of the State of New York ("the Commissioner") and Sarah L. Parker ("Ms. Parker") (collectively referred to herein as "respondents") oppose.
The Board of Education initially appointed petitioner to a three-year probationary term as a full-time teacher in the English tenure area on January 8, 2001, effective January 29, 2001. After successfully completing this probationary term, petitioner received tenure and continued as a full-time English teacher until she resigned on July 15, 2005. In this regard, petitioner alleges that in or about June 2005, Interim School District Superintendent Robert Cleveland approached her and asked her to leave her position teaching English to take a position as a "Library Media Specialist" in the high school library. According to petitioner, Interim Superintendent Cleveland told her that the high school library program need "rejuvenation" and he strongly urged her to accept the position. Petitioner alleges that she expressed reluctance about leaving her English position outright and that she requested an opportunity to take a leave of abscence from her position as an English teacher, but Interim Superintendent Cleveland told her that she could not do so because "the District did not believe it could attract a sufficiently qualified replacement for the English position if the position were encumbered..." Petitioner further alleges that Interim Superintendent Cleveland told her that "the only way she would be able to take on the duties of a Library Media Specialist" would be to resign from her position as an English teacher. According to petitioner, she reluctantly agreed to provide a letter "resigning" her position teaching English because she wanted to act in accordance with the District's wishes.
One July 12, 2005, effective September 6, 2005, petitioner was appointed to a two-year probationary term in the tenure area of Library Media Specialist. Petitioner was advised of the [*2]appointment by letter from Superintendent O'Sullivan, dated July 13, 2005. The Record of Probationary Appointment indicates that, at the time of the appointment, petitioner was not certified as a Library Media Specialist, but that her certification was pending. That same day, July 15, 2005, petitioner tendered a resignation letter to Superintendent O'Sullivan in which she stated:
"[i]t is my intention that this letter serve as official notification of my resignation from my position as seventh grade ELA teacher in the Norwich Middle School. It has been a purely pleasurable experience, and one that I will treasure. However, I look forward to serving the district in my new capacity as Library Media Specialist in the Norwich High School."
On July 18, 2005, petitioner accepted the probationary appointment as a Library Media Specialist. On August 16, 2005, effective August 31, 2005, the Board of Education passed a resolution accepting the resignation of petitioner from the tenure area of English. By letter dated August 17, 2005, Superintendent O'Sullivan advised petitioner that the Board of Education had accepted her resignation. Petitioner became certified as a Library Media Specialist in or about September 2005. Petitioner was employed by the School District in the position of Library Media Specialist from September 6, 2005 through June 30, 2010. On April 28, 2010, however, the Board of Education acted to abolish a Library Media Specialist position. Petitioner was the least senior teacher serving in the Library Media Specialist tenure area on the effective date of abolition. On April 29, 2010, Superintendent O'Sullivan advised petitioner that her position would be eliminated.
On July 22, 2012, petitioner challenged the determination of the School District by appealing her termination to the Commissioner. In her appeal, petitioner claims that she was improperly terminated and that the School District was obligated to transfer her to the English tenure area pursuant to §30-1.13 (c) of the Rules of the Board of Regents. Petitioner claims that as of June 30, 2010, Ms. Parker, who had been appointed to her position on September 2, 2008, was the least senior English teacher in the district and that petitioner had a right to Ms. Parker's position. On October 5, 2012, petitioner's appeal was denied. The Commissioner noted that "[t]here is no dispute that petitioner, after her appointment to the library media specialist position, provided a letter of resignation from her English teacher position which was accepted by the Board." The Commissioner determined that "although petitioner continued to work in the district and her benefits accrued without interruption...her resignation from her position as a tenured English teacher constituted a relinquishment of her tenure and seniority rights to an English teacher position."
On February 4, 2013, petitioner commenced the instant CPLR article 78 proceeding.CPLR § 7803(3) provides that the standard of judicial review of any administrative action or determination is "whether a determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion * * *" (See e.g., Board of Education of Monticello Central School District v Commissioner of Education, 91 NY2d 133, 139). The Court of Appeals has defined arbitrary and capricious as being "without sound basis in reason and * * * without regard to the facts" (Pell v Board of Education, 34 NY2d 222, 231). Therefore, a rule, policy or action is arbitrary and capricious if it is determined to be irrational by the reviewing court (See e.g., New York State Association of Counties v Axelrod, 78 NY2d 158, 166). However, such a rule, policy or action should be upheld if it has a rational [*3]basis and is supported by the record (See e.g., Cellular Telephone Co. v Rosenberg, 82 NY2d 364, 370). When the evidence of opposition is limited and the record reflects the denial was rendered without findings or limited findings, based upon community pressure (which is impermissible), the petition must be granted and the matter remanded to respondent (See, Buckley v Amityville Village Clerk, 264 AD2d 732).
A teacher who voluntarily severs all of his or her professional relationship with a school district through retirement or resignation forfeits his or her seniority rights under Education Law § 2510 (see, Matter of Girard v Board of Educ. of City School Dist. of City of Buffalo, 168 AD2d 183, 185; Matter of Hilow, 31 Ed. Dept. Rep. [Decision No. 12574]). "Public policy [, however,] favors the protection of employees' seniority rights" (Matter of Petkovsek, 48 Ed. Dept. Rep. 513, 517; see, generally, Board of Educ., Lakeland Cent. School Dist. of Shrub Oak v Lakeland Fedn. of Teachers, Local 1760, Am. Fedn. of Teachers, AFL—CIO, 51 AD2d 1033, 1034). Thus, while an employee may relinquish his or her seniority rights through, inter alia, resignation or retirement (see, Matter of Morehouse v Mills, 268 AD2d 767, 768; Matter of Girard v Board of Educ. of City School Dist. of City of Buffalo, 168 AD2d 183, 184), such a relinquishment must be knowing and voluntary, i.e., the employee must take "affirmative steps" to terminate all aspects of his or her employment by a school district (Matter of Petkovsek, 48 Ed. Dept. Rep. 513, 516; cf., Matter of Gerson v Board of Educ. of Comsewogue Union Free School Dist., 214 AD2d 732, 732—733; see, generally, Matter of Gould v Board of Educ. of Sewanhaka Cent. High School Dist., 81 NY2d 446, 451—452). " [T]he burden of proving abandonment is upon the [Board] and must be established by clear and convincing evidence that the petitioner, by a voluntary and deliberate act, intended to relinquish her teaching position and forfeit her tenure rights'" (Ciccarelli v Board of Educ. of W. Seneca Cent. School Dist., 107 AD2d 1050, 1050).
The Court concludes that respondents failed to meet their burden. Here, the record is devoid of any intent or affirmative act by petitioner to sever all aspects of her employment relationship with the District and thereby relinquish her seniority rights (cf. Matter of Morehouse v Mills, 268 AD2d 767, 767—768; Matter of Gerson v Board of Educ. of Comsewogue Union Free School Dist., 214 AD2d 732, 732—733; Matter of Girard v Board of Educ. of City School Dist. of City of Buffalo, 168 AD2d 183, 185—186; Matter of Middleton, 16 Ed. Dept. Rep. 50, 51). Indeed, petitioner averred that she tendered her resignation in July 2005 in order to preserve her continued employment with the District. According to petitioner, when she expressed her reluctance about leaving her English position outright, and asked if she could simply take a leave of absence from English, Interim Superintendent Cleveland told her that she could not do so because the District did not believe it could attract a sufficiently qualified replacement for the English position if the position were encumbered and the replacement would be serving on a substitute basis. Petitioner thus agreed to "resign." The circumstances in this case do not evince an intent by either petitioner or the District to sever their professional relationship. There was no actual break in petitioner's service to the District as a result of her "resignation" (see, Matter of Zurn, 34 Ed. Dept. Rep. 479, 483; see, also, Matter of Lindsey v Board of Educ. of Mt. Morris Cent. School Dist., 72 AD2d 185, 186—189). In this regard, when she commenced her duties as a Library Media Specialist, the District gave her the raise that was due to teachers who served continuously from the prior school year, and it carried over the sick leave and personal business [*4]leave she had accrued while she was an English teacher. In 2008, the District gave her the longevity increase reflecting her seven years of service. In 2009, the District listed her as one of the employees entitled to receive a certain payment upon retirement, pursuant to a collective bargaining agreement provision under which an employee would become ineligible for the payment if he or she "voluntarily severs his or her employment with the District after September 7, 2004" and before reaching retirement age.Accordingly it is ADJUDGED, ORDERED, and DECREED, that based upon the foregoing, respondents acted arbitrarily and capriciously in terminating petitioner's employment; and the petition is granted. The Board of Education's determination is annulled. Petitioner is reinstated her to her tenured position as an English teacher, with back pay, interest, and such other and further benefits as would have accrued, for the period between her termination by the respondents and her reinstatement (see, Matter of Walters v Amityville Union Free School Dist., 251 AD2d 590; Matter of Kohler v Board of Educ. of S. Huntington Union Free School Dist., 142 AD2d 676).
This constitutes the Decision and Order of the Court. This Decision and Order is returned to the attorney for the petitioner. All other papers are delivered to the Supreme Court Clerk for transmission to the County Clerk. The signing of this Decision, Order and Judgment shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provisions of this rule with regard to filing, entry and Notice of Entry.
SO ORDERED.
ENTER.
Dated: Troy, New York
September 30, 2013
_________________________________
MICHAEL H. MELKONIAN
Acting Supreme Court Justice
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