June 09, 2009 The ABCs of Staff Reduction

KEEPING YOU INFORMED…

The current economic climate has forced school boards to make difficult cost cutting decisions.  One measure being considered by many school boards is the excessing of professional staff members.  For this reason, it is important to review the applicable rules that apply to staff reductions.  This memorandum is designed to provide a general overview of a very complicated area.  We recommend that school boards consult with us prior to implementing a staff reduction.   

A school board has broad latitude to abolish, reorganize, or consolidate administrative and teaching positions. However, the board must have a bona fide reason to abolish a position, and abolition must not be used as a subterfuge to terminate unwanted tenured teachers and administrators.  A school board must act in good faith and with reasonable judgment in abolishing positions for economic or educational reasons.

Teachers

When a school board abolishes a teaching position for economic reasons, it must discontinue the services of the teacher with the least seniority within the tenure area of the position abolished.  Seniority rights are determined by calculating the length of actual paid service within a tenure area in the school district or BOCES.  Regular substitute service rendered any time prior to a probationary appointment should be included when computing a teacher’s seniority.  Time spent on an unpaid leave of absence may not be included when calculating seniority.   

Where the full time service of two teachers is equal, the teachers’ respective appointment dates should be used to determine their seniority.  If two teachers have equal seniority, and the same appointment date, a school board may use any reasonable method to establish seniority.  A teacher may accrue seniority in more than one tenure area at the same time, provided that the teacher spends at least 40 percent of his/her time in each tenure area. 

Tenure areas differ based upon a teacher’s date of hire.  Teachers hired before August 1, 1975 are governed by the old tenure areas, also known as “horizontal tenure areas.”  These areas include categories such as elementary, middle school, and high school, regardless of particular subject areas.  Tenure areas for teachers hired on or after August 1, 1975 are governed by Part 30 of the Rules of the Board of Regents.  These tenure areas are known as “vertical” or subject tenure areas, and include elementary and secondary academic areas (e.g., Social Studies 7-12) and special subject areas (e.g., Special Education K-12). 

Before abolishing a teaching position, a school board must consider adjusting teaching schedules in order to continue the services of a teacher within his/her area of certification.  However, the board is not required to shuffle the schedules of teachers outside the tenure area of the particular teacher whose position is being abolished. 

Finally, a formal resolution must be adopted, identifying the position to be abolished by tenure area, and the least senior teacher within that tenure area must be provided notice that his/her position is being abolished.

Teachers appointed pursuant to Part 30 of the Rules of the Board of Regents have “bumping rights.”  This means that if a teacher whose position is eliminated accrued seniority based on prior service in a different tenure area, that teacher can “bump” back to his/her previous position and displace another teacher who has less seniority in the prior tenure area.

If a district creates a new position at the same time as it abolishes an existing position, the teacher who would have been excessed must be hired at his/her existing salary for the new position if the duties performed in both positions are similar, and the teacher has a record of being faithful and competent in the prior position.  Two positions are considered similar if more than 50 percent of the functions to be performed in the new position are the same as those performed in the old position.  A teacher who claims entitlement to a new position based upon its similarity to his/her old position is entitled to a pre-termination hearing to offer proof of the similarity of the positions. 

The Education Law does not require that a teacher whose position is abolished be provided with advance notice of termination.  However, notice requirements may be contained in the applicable collective bargaining agreement. 

An excessed teacher must be placed on a preferred eligible list of candidates for appointment to a similar position.  The teacher is entitled to have his/her name remain on the list for seven years following the abolition of his/her position.  A teacher on the list is entitled to reappointment to a position within the tenure area in which (s)he served, with no reduction in salary or increment.  A teacher on the list must be offered any available regular substitute position that is to last at least five months.  Where the list includes several different teachers, reappointment must be offered in order of seniority.  Please note that seniority for recall purposes is determined by total length of service within the district rather than service in a specific tenure area.

Administrators

As is the case with teachers, when a board of education abolishes an administrator’s position, the board must terminate the administrator with the least seniority within the tenure area of the position to be abolished. 

There are no defined guidelines for determining administrative tenure areas.  Part 30 does not delineate administrative tenure areas.  Instead, administrator tenure areas are determined by each school board.  A board may maintain a single “district-wide administrator” tenure area or it may establish more defined administrative tenure areas.  Personnel practices, board policies and board appointment resolutions should be reviewed to determine what administrator tenure area(s) have been established.  In addition, the following factors should be considered when determining whether more than one administrative tenure area has been established:  the notice provided to administrators as to their tenure status; the duties of the various positions; the adverse practical impact of non-recognition of a particular area; membership in collective bargaining units and whether the positions share more than 50 percent of the same duties. 

An administrator whose position is abolished may be entitled to another tenure-bearing position in the district or BOCES.  While administrators are not afforded the same bumping rights as Part 30 teachers, an administrator may have a right to a newly created position without a reduction in salary, provided that the new position is created in the same tenure area as the abolished position, the two positions have similar duties and the employee has a record of being a faithful employee and providing competent service.  Two positions are similar if 50 percent or more of the actual performed job duties in the new position are common with those of the abolished position.  The actual duties performed must be analyzed, and not just those listed on a job description.  Where there is a possibility that the duties of the position being abolished and the duties of a newly created position are similar, the administrator has the right to a pre-termination hearing.   

An administrator whose position is abolished has the right to be placed on a preferred eligible list of candidates for appointment to a similar position within the administrator’s tenure area.  The administrator is entitled to be called back from the preferred eligible list for reinstatement for up to seven years after his/her position was abolished.

Please do not hesitate to contact us if you have any questions regarding excessing procedures.

THIS MEMORANDUM IS MEANT TO ASSIST IN GENERAL UNDERSTANDING OF THE CURRENT LAW.  IT IS NOT TO BE REGARDED AS LEGAL ADVICE.  THOSE WITH PARTICULAR QUESTIONS SHOULD SEEK THE ADVICE OF COUNSEL.

© Lamb & Barnosky, LLP, 2009