Kaufman v. Fallsburg Central School District, 84 N.Y.2d 57 (1994)
A teacher may knowingly waive the consent requirement of 8 NYCRR 30.9(b) to receive seniority credit for an out-of-tenure area assignment, especially when strict application of the regulation would be detrimental to the teacher.
Summary
Kaufman, an elementary school teacher, challenged the seniority credit granted to Foreman, another teacher, arguing that Foreman was improperly given credit for a year she taught sixth grade while holding a special education appointment, without proper notification or consent for an out-of-tenure assignment. The New York Court of Appeals affirmed the lower courts’ decision, holding that Foreman was entitled to the seniority credit because she devoted a substantial portion of her time to teaching elementary subjects, and the consent requirement of 8 NYCRR 30.9(b) could be waived to avoid penalizing the teacher for the school district’s oversight.
Facts
Foreman was initially appointed in the special education tenure area in November 1990. In the 1991-1992 school year, she taught sixth grade subjects to a mixed class of regular and special education students. In September 1992, she received an additional appointment in the elementary tenure area and taught fourth grade. Kaufman also received a probationary appointment in the elementary tenure area on September 1, 1992. Due to budget cuts in June 1994, Kaufman’s position was eliminated based on her having the least seniority in the elementary tenure area.
Procedural History
Kaufman initiated a CPLR article 78 proceeding, claiming she was entitled to additional seniority credit. The school district conceded Kaufman was entitled to some additional credit but argued that Foreman was also entitled to additional credit for the 1991-1992 school year. Supreme Court dismissed the petition. The Appellate Division affirmed. The New York Court of Appeals granted Kaufman leave to appeal.
Issue(s)
1. Whether the record sufficiently established that Foreman served in the elementary tenure area during the 1991-1992 school year.
2. Whether the school district was legally barred from granting Foreman seniority credit in the elementary tenure area for the 1991-1992 school year because she was not formally notified that her assignment was outside her special education tenure area, nor did she provide written consent.
Holding
1. Yes, because the record showed Foreman devoted a substantial portion of her time (over 40%) to teaching common branch subjects in the sixth grade, satisfying the requirements of 8 NYCRR 30.5.
2. No, because the consent requirement of 8 NYCRR 30.9(b) is designed to protect teachers and can be waived if its strict application would be detrimental to the teacher.
Court’s Reasoning
The court found ample evidence that Foreman spent over 40% of her time teaching common branch subjects such as reading, science, arithmetic, and language arts. The fact that some students were learning-disabled did not change this determination. Regarding the lack of formal notification and consent, the court emphasized that 8 NYCRR 30.9(b) is meant to protect teachers from involuntary out-of-tenure assignments or from unknowingly serving in such assignments to their detriment. The court reasoned that the regulation should not be used to prevent a teacher from receiving seniority credit that they would have otherwise been entitled to. Citing Matter of Baer v. Nyquist, 34 NY2d 291, 299, the court stated, “[t]he tenure statutes are intended to protect the teacher and not become a trap to those not guileful enough to avoid it.” The court distinguished Matter of Boron v. Sobol, 205 AD2d 28, disapproving of it to the extent it conflicted with this holding. The court emphasized that the consent requirement is a safeguard personal to the teacher and is waivable if enforcement would be detrimental to the teacher. The Court explicitly stated that prior decisions such as Matter of Baer v Nyquist and Waiters v Board of Educ., 46 NY2d 885, which prohibit retroactive reclassification of tenure areas do not prevent a school district from correcting its records to give proper seniority credit pursuant to 8 NYCRR 30.5 to a teacher who has, in fact, been employed to serve in an existing elementary tenure area, despite an initial appointment in another tenure area.