Continuation on leave of absence from a teaching position upon permanentappointment to a classified service position critical to educator’s right to reinstatementto the teaching positionFehlhaber v Board of Educ. of Utica City School Dist., 2012NY Slip Op 04904, Appellate Division, Fourth Department
Craig S. Fehlhaber was initially employed by the Utica CitySchool District as a tenured teacher. In 1997 the district appointed Fehlhaberas "Clerk of the Works" and later as Superintendent of Buildings andGrounds.
In 2010 the Board abolished the position of Superintendentof Buildings and Grounds and Fehlhaber asked to be "bump" verticallyinto the position of Maintenance Foreman or, in the alternative, to resume ateaching position. The Board denied both of these requests and Fehlhaber filed anArticle 78 petition seeking a court order directing the Board to place him inone of those positions. Supreme Court dismissed his petition and Fehlhaberappealed..
Initially the Appellate Division resolved a procedural issue.
Supreme Court had ruled that Fehlhaber had failed to file atimely notice of claim. However, the Appellate Division agreed with Fehlhaberthat “no notice of claim was required” in this instance.
Although, said the court, Education Law §3813(1) mandatesthat a notice of claim be filed when a claim is asserted against a board ofeducation, "the notice of claim requirement is inapplicable to cases whichseek to vindicate tenure rights which are legal rights guaranteed by State lawand in the public interest," citing Cowan v Board of Educ. of BrentwoodUnion Free School Dist., 99 AD2d 831 and other decisions.
That said, the Appellate Division held that Supreme Courthad properly dismissed the petition on the merits. Although Fehlhaber contended that he was entitled to a vertical"bump" into the position of Maintenance Foreman pursuant to CivilService Law §80(6), the court noted that the record established that the UticaMunicipal Civil Service Commission, after consulting with the New York StateCivil Service Commission, said that "[i]n order for the rights of bumping'to exist, the [Fehlhaber] would have to demonstrate a legal entitlement to thatbumping right.”
The Utica Commission, however, determined that Fehlhaber didnot have any such bumping right.
Here, said the court, in a case concerning anemployee's bumping rights under the Civil Service Law, Matter of Hughes v Doherty, 5 NY3d 100, the Court ofAppeals ruled that "judicial review of [the Commission's] classificationsystem and determinations are limited to whether there was a rational basis forthe agency's conclusion.... Unless the [Commission's] determinations werearbitrary or capricious, a court should not undermine its actions."
As the Appellate Division found that Fehlhaber failed toestablish that the Commission's determination was arbitrary or capricious, orthat there was no rational basis for its determination, it sustained theSupreme Court’s dismissal of his Article 78 petition on the merits.
Fehlhaber had raised an alternative theory -- that he ismerely on a leave of absence* from his tenured teaching position and was thusentitled to be reinstated to that position. The Appellate Division said that itagreed with Supreme Court that “[Fehlhaber] voluntarily abandoned his teaching positionand thereby relinquished his tenure rights, at the latest, upon leaving theposition for which the leave of absence was approved.”
Although it is well settled that "[t]he burden ofproving abandonment is upon the [Board] and must be established by clear andconvincing evidence that the [educator], by a voluntary and deliberate act,intended to relinquish [his or] her teaching position and forfeit [his or] hertenure rights," in this instance the Board granted Fehlhaber a leave ofabsence in 1997 "[t]o assume duties as Clerk of the Works."
When Fehlhaber left the Clerk of the Works position in 2002, he received a permanent appointment to the position of Superintendent ofBuildings and Grounds, a position in the classified service, and he failed toseek reinstatement as a teacher or an extension of his leave of absence when he received that permanent appointment.
* 4 NYCRR 5.2, Leaves of Absence applies to classified service employees of theState in the service as the employer. Subdivision (c) provides as follows: (c) Successive leaves of absence. Where a leave ofabsence without pay has been granted for a period which aggregates two years,or more if extended pursuant to subdivision (b) of this section, a furtherleave of absence without pay shall not be granted unless the employee returnsto his position and serves continuously therein for six months immediatelypreceding the subsequent leave of absence. Many local civil service commissionshave adopted a similar rule.
The decision is posted on the Internet at:http://www.courts.state.ny.us/reporter/3dseries/2012/2012_04904.htm
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