Individuals may simultaneously accrue tenure, seniority as teacher, administrator |
On Board Online • November 22, 2010
By Kimberly A. Fanniff
Associate Counsel
In a recent decision, the commissioner of education addressed an issue of first impression – whether an individual may accrue tenure and seniority credit in both administrative and teacher tenure areas simultaneously. The answer is yes, provided the individual performs more than 50 percent of their duties in an administrative tenure area and at least 40 percent of their duties in a teacher tenure area.
In Appeal of Pearse, the petitioner challenged the determination of the district to abolish the portion of her position as a foreign language teacher, arguing she was not the least senior in that tenure area. Pearse had been appointed in 2005 to a probationary position in the tenure area of dean of students where she spent 60 percent of her time as dean and 40 percent as a foreign language teacher. In 2008 she was granted tenure in the administrative tenure area of dean of students. After the board abolished her teaching position in 2009, Pearse claimed she acquired tenure by estoppel as a foreign language teacher and the district’s actions violated her tenure and seniority rights.
Under Part 30 of the commissioner’s regulations, teachers are deemed to serve in a tenure area if they spend at least 40 percent of their time teaching in that tenure area. There are not similarly defined rules for the administrative tenure area because boards of education have discretion in determining the parameters of administrative tenure areas (i.e. a single administrative tenure area or multiple defined administrative areas). Prior cases have established that an individual will be deemed to serve in an administrative tenure area if the individual spends over 50 percent of his or her time on administrative duties.
The district argued that Pearse could not accrue tenure and seniority rights as a foreign language teacher as she was not a “professional educator” as defined in the regulations. A professional educator is an individual appointed to a full-time position on the professional staff in a position certified by the commissioner of education as educational in nature and in which position tenure may be acquired. The commissioner determined the regulation “does not require an individual to be employed solely in a full-time teaching position.” Moreover, both positions of school administrator and foreign language teacher are educational in nature and eligible for tenure.
The district also argued Pearse could not simultaneously serve in administrative and teacher tenure areas. However, a professional educator may simultaneously hold tenure and earn seniority in more than one teacher tenure area under the regulations. Additionally, public policy favors the protection of tenure rights of both teachers and administrators. Building upon these two principles, the commissioner found that an educator should be able to serve in both an administrative and teacher tenure area at the same time and receive seniority credit and tenure in both areas provided the educator spends at least 50 percent of his or her time on administrative duties and at least 40 percent teaching.
While Pearse’s formal appointment only designated the administrative tenure area, prior cases have held a teacher assigned to spend 40 percent of his or her time in a second tenure area may acquire tenure by estoppel in the second tenure area despite not being formally appointed to such position.
Furthermore, Pearse’s performance as a teacher was evaluated every year and she was listed on the district’s seniority list as accruing tenure and seniority rights in both foreign language and administrative tenure areas. Based on this, the commissioner found Pearse had acquired tenure by estoppel as a foreign language teacher. He ordered the district to calculate her seniority as a foreign language teacher and thereafter make a new determination as to whether she is entitled to be restored to the teaching position with back pay and retroactive benefits.