New York State United Teachers (Kevin H. Harron of counsel), for petitioners.
Ferrara, Fiorenza, Larrison, Barrett & Reitz, P. C. (Henry F. Sobota of counsel), for respondents.
Robert F. Julian, J.
This is a CPLR article 78 proceeding requesting a determination of whether or not a layoff of employees by the respondent Board of Cooperative Educational Services (BOCES) violates the rules and regulations of the New York State Education Department and thus, was arbitrary, capricious, and an abuse of discretion.
The court invokes the doctrine of primary jurisdiction and refers certain issues to the Commissioner of Education to be decided within four months from filing. The court directs the parties to file the necessary petitions and answers to the Commissioner of Education within 10 days of the receipt of this decision and order. This proceeding is stayed for four months and 10 days pending a decision on issues by the Commissioner of Education.
All parties agree that the issues raised herein are of first impression.
The petitioners, teaching assistants for the respondent BOCES, claim to have been incorrectly subjected to layoff during a workforce reduction by the respondent effective for the 2001-2002 school year. The petitioners claim that pursuant to 8 NYCRR 30.8 (d) the position of teaching assistant is a special tenure category which requires all teaching assistants to be classified into the same BOCES-wide tenure area. Section 2510 (2) and section 3013 (2) of the Education Law each require a layoff process that would discontinue the employment of least senior persons " within the tenure of the position abolished." The petitioners assert that teaching assistant is a special tenure area, and that persons less senior than they were retained in the layoff. Petitioners claim, therefore, that the layoff process was arbitrary, capricious, an abuse of discretion and violative of law. They seek reinstatement with back pay.
The respondent BOCES contends in its answer that layoffs were conducted consistently with the above-cited sections of the Education Law. The respondent claims that pursuant to the Education Law and regulations 8 NYCRR 30.8 (c) and 80-5.6 (b) (2) the tenure areas for teaching assistants are more refined and specific. The respondent further asserts that the teaching assistants retained during the reduction in force were within a number of specialized categories including but not limited to case manager, upward bound, English and cosmetology. According to the respondent, petitioners functioned within different areas of specialization than those who were not laid off. In respondent's judgment the areas in which
petitioners worked required layoffs. The areas were: special education, career exploration, community based occupation ...