
    [778 NE2d 540, 748 NYS2d 890]
    In the Matter of Maxine Davis, Appellant, v Richard P. Mills, as Commissioner of Education of the State of New York, et al., Respondents.
    Argued May 1, 2002;
    decided June 6, 2002
    
      POINTS OF COUNSEL
    
      Kevin H. Harren, Albany, and James R. Sandner for appellant.
    The court below erred by confirming the arbitrary and capricious determination of the Commissioner of Education that the school district’s newly-created position of elementary counselor was not similar to appellant’s former position of school psychologist. (Greenspan v Dutchess County Bd. of Coop. Educ. Servs., 96 AD2d 1028; Matter of Anderson v Board of Coop. Educ. Servs., 128 AD2d 614; Matter of Field Delivery Serv. [Roberts], 66 NY2d 516; Matter of Baer v Nyquist, 34 NY2d 291; Matter of Robins v Blaney, 59 NY2d 393; Matter of Lezette v Board of Educ., Hudson City School Dist., 35 NY2d 272; Matter of Brewer v Board of Educ. of Plainview-Old Beth-page Cent. School Dist., 51 NY2d 855; Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451; Mairs v Board of Educ. of Is. Park Union Free School Dist., 82 Misc 2d 989; Ricca v Board of Educ., 47 NY2d 385.)
    
      Eliot Spitzer, Attorney General, Albany (Frank Brady, Caitlin J. Halligan, Daniel Smirlock and Peter H. Schiffot counsel), for Richard P. Mills, respondent.
    The Commissioner’s conclusion that the positions of school psychologist and school counselor are not “similar” within the meaning of Education Law § 2510 was a rational determination because (1) the positions require different certifications, (2) fall within different subject tenure areas, and (3) the jobs are not functionally equivalent. (Matter of Kransdorf v Board of Educ. of Northport-E. Northport Union Free School Dist., 81 NY2d 871; Matter of Board of Educ. of Monticello Cent. School Dist. v Commissioner of Educ., 91 NY2d 133; Matter of Robins v Blaney, 59 NY2d 393; Matter of Gundrum v Ambach, 55 NY2d 872; Matter of Chauvel v Nyquist, 43 NY2d 48; Matter of Ward v Nyquist, 43 NY2d 57; Steele v Board of Educ. of City of N.Y., 40 NY2d 456; Matter of Lezette v Board of Educ., Hudson City School Dist., 35 NY2d 272; Matter of Casey v Tieman, 110 AD2d 167, 67 NY2d 601; Matter of Kelley v Ambach, 83 AD2d 733.)
    
      Law Firm of Frank W. Miller, East Syracuse (Frank W. Miller of counsel), for Board of Education of the Westport Central School District, respondent.
    I. The issue of the abolition of appellant’s position is not before the Court. (Matter of Young v Board of Educ., 35 NY2d 31; Flagg v Nichols, 307 NY 96; Persky v Bank of Am., 261 NY 212.) II. Appellant’s fact-based arguments are not appropriately before this Court for review. (Cohen v Hallmark Cards, 45 NY2d 493; Alpert v 28 Williams St. Corp., 63 NY2d 557.) III. The Commissioner’s interpretation of the Education Law must be afforded great weight and deference. (Matter of Lezette v Board of Educ., Hudson City School Dist., 35 NY2d 272; Matter of Union Free School Dist. No. 2 of Town of Cheektowaga v Nyquist, 38 NY2d 137; Matter of Mugavin v Nyquist, 48 AD2d 727, 39 NY2d 1003; Matter of Eisenstadt v Ambach, 79 AD2d 839, 53 NY2d 601; Kelley v Ambach, 83 AD2d 733; Matter of Chauvel v Nyquist, 43 NY2d 48.) IV. Appellant advocates a fundamentally flawed interpretation of Education Law § 2510 (3) as differences in certification are a valid basis to declare positions dissimilar. (Matter of Winter v Board of Educ. for Rhinebeck Cent. School Dist., 79 NY2d 1; Matter of Ward v Nyquist, 43 NY2d 57; Matter of Schimmel v Board of Educ., S. Kortright Cent. School Dist., 111 AD2d 966; Matter of Brown v Board of Educ., Morrisville-Eaton Cent. School Dist., 211 AD2d 887; Matter of Mohr v Board of Educ. of Salamanca City School Dist., 267 AD2d 983.) V. The difference in tenure areas between the two positions at issue constitutes a valid and compelling reason for denying appellant recall rights to the position. (Matter of Rippe v Board of Educ., 64 NY2d 281; Kelley v Ambach, 83 AD2d 733; Matter of Schimmel v Board of Educ., S. Kortright Cent. School Dist., 111 AD2d 966; Matter of Leggio v Oglesby, 69 AD2d 446; Matter of Cohoes City School Dist. v Cohoes Teachers Assn., 40 NY2d 774; Matter of Cowan v Board of Educ. of Brentwood Union Free School Dist., 99 AD2d 831, 62 NY2d 602; Matter of Maine-Endwell Teachers Assn. v Maine-Endwell Cent. School Dist., 92 AD2d 1052; Matter of Chauvel v Nyquist, 43 NY2d 48; Matter of Ward v Nyquist, 43 NY2d 57.) VI. Appellant’s reliance upon Leggio v Oglesby to substantiate her argument that tenure areas are not relevant in the discussion of similarity is misplaced. (Matter of Leggio v Oglesby, 69 AD2d 446; Matter of Ward v Nyquist, 43 NY2d 57.) VII. The Commissioner has consistently applied the appropriate test of similarity. (Greenspan v Dutchess County Bd. of Coop. Educ. Servs., 96 AD2d 1028; Matter of Ward v Nyquist, 43 NY2d 57; Matter of Brown v Board of Educ., Morrisville-Eaton Cent. School Dist., 211 AD2d 887; Matter of Schimmel v Board of Educ., S. Kortright Cent. School Dist., 111 AD2d 966; Matter ofBork v City School Dist. of City 
      
      of N. Tonawanda, 60 AD2d 13; Matter of Board of Educ. [Barker Teachers Union], 209 AD2d 945, 85 NY2d 807; Kelley v Ambach, 83 AD2d 733; Matter of Anderson v Board of Coop. Educ. Servs., 128 AD2d 614; Matter of Baer v Nyquist, 34 NY2d 291.)
    
      Jay Worona, Latham, and John A. Miller for New York State School Boards Association, Inc., amicus curiae.
    Two teaching
    positions are not “similar” within the meaning of Education Law § 2510 when (a) the positions require different certification; (b) the positions are in different tenure areas; and (c) there are substantive differences between the duties entailed by the two positions. (Matter of Brewer v Board of Educ. of Plainview-Old Bethpage Cent. School Dist., 51 NY2d 855; Matter of Ward v Nyquist, 43 NY2d 57; Matter of Chauvel v Nyquist, 43 NY2d 48; Matter of Winter v Board of Educ. for Rhinebeck Cent. School Dist., 79 NY2d 1; Matter of Brown v Board of Educ., Morrisville-Eaton Cent. School Dist., 211 AD2d 887; Matter of Levy v Board of Educ. of Freeport Union Free School Dist., 275 AD2d 459; Kelley v Ambach, 83 AD2d 733; Matter of Schimmel v Board of Educ., S. Kortright Cent. School Dist., 111 AD2d 966; Matter of Board of Educ. [Barker Teachers Union], 209 AD2d 945, 85 NY2d 807; Matter of Leggio v Oglesby, 69 AD2d 446.)
   OPINION OF THE COURT

Rosenblatt, J.

The Board of Education of the Westport Central School District abolished petitioner’s position as a school psychologist and replaced it with a new elementary school counselor position. The issue in this appeal is whether Education Law § 2510 (1) gives petitioner a right to be re-employed in the new position. As petitioner was not certified as an elementary school counselor, we conclude that the Commissioner of Education did not abuse his discretion in determining that petitioner is not entitled to re-employment under Education Law § 2510 (1).

Petitioner served as a school psychologist for the District between 1990 and 1995. In 1995, the District reduced her full-time psychologist position to part-time, then abolished it completely in March 1997 and terminated petitioner. That month, the District created a part-time position of elementary school counselor and assigned to it some duties of the former psychologist position. The District then appointed someone else to the new position. Petitioner challenged neither the abolition of her psychologist position nor the creation of the counselor position. In December 1997, the District expanded the counselor position to full-time.

Petitioner brought an administrative petition before the District Board of Education claiming a right under Education Law § 2510 (1) to be re-employed in the newly-created position. That statute provides that when a “board of education abolishes an office or position and creates another office or position for the performance of duties similar to those performed in the office or position abolished,” the employee who served in the former position has a right to be re-employed in the new position (Education Law § 2510 [1] [emphasis added]). After a hearing, the District denied petitioner re-employment.

On administrative appeal, the Commissioner of Education held that petitioner was not entitled to re-employment because the former psychologist position and new elementary school counselor position were not “similar” within the meaning of the statute. In support of that conclusion, the Commissioner noted that the two positions were in different tenure areas and required different certifications, petitioner was not certified as a school counselor, and the counselor’s duties excluded many duties previously assigned to the school psychologist.

Petitioner brought this CPLR article 78 proceeding to annul the Commissioner’s determination as arbitrary and capricious, and to assert her right to re-employment under section 2510. Supreme Court dismissed the petition, and the Appellate Division affirmed (285 AD2d 703, 703-704 [2001]). We now affirm.

The right to re-employment under section 2510 is essential to safeguard teacher tenure against administrative circumvention (see e.g. Matter of Chauvel v Nyquist, 43 NY2d 48, 54-55 [1977] [Cooke, J., dissenting]). However, the statutory right to re-employment is not absolute. “When seeking re-employment rights [under section 2510] the threshold question must be one of certification to teach in the position sought. Absent such certification, re-employment rights cannot attach” (Matter of Ward v Nyquist, 43 NY2d 57, 63 [1977]; see also Winter v Board of Educ. for Rhinebeck Cent. School Dist., 79 NY2d 1, 8 [“The suggestion * * * that Education Law § 2510 requires a school district to reassign a teacher whose position has been abolished to teach a subject that (s)he is uncertified to teach finds no support in the statute”], rearg denied 79 NY2d 978 [1992]).

In the case before us, the Commissioner determinéd — and it is not disputed — that petitioner is not certified as an elementary school counselor. Thus, under Ward, the Commissioner’s determination denying petitioner re-employment was neither arbitrary nor irrational, and this Court will not disturb it (see e.g. Matter of Kransdorf v Board of Educ. of Northport-E. Northport Union Free School Dist., 81 NY2d 871, 874-875 [1993]).

Notwithstanding Ward, petitioner argues that the former psychologist position and new counselor position are “similar” under section 2510 (1) because the former position encompassed the duties of the new one. Petitioner also argues that she is entitled to re-employment in the new position because she is “qualified” to perform its duties, as shown by her unquestioned authority to perform them as former school psychologist. We decline petitioner’s invitation to supplant the certification requirement of Ward with a fact-intensive assessment of fitness for re-employment under section 2510. The Commissioner determined that school counselors must be certified and that, as a prerequisite to certification, applicants must have specific field experience distinct from petitioner’s field experience as a psychologist. For example, a school counselor must complete “30 semester hours * * * in the field of school counseling, including supervised practice in guidance” (8 NYCRR 80-2.3 [b] [1] [i]), while a school psychologist must complete a graduate-level “supervised internship in the field of school psychology” (8 NYCRR 80-2.3 [e] [1]). As petitioner does not challenge the validity of these regulations, she may not rely on her experience or qualifications as a psychologist to substitute for obtaining certification as a school counselor.

Moreover, this Court treads gently in second-guessing the experience and expertise of state agencies charged with administering statutes and regulations (see e.g. Ward, 43 NY2d at 63; see also Steele v Board of Educ. of City of N.Y., 40 NY2d 456, 463 [1976]). It is for the Commissioner in the first instance, and not for the courts, to establish and apply criteria to govern the selection and retention of qualified educators and staff. Particularly where petitioner does not challenge the certification requirement, we defer to the Commissioner’s sound discretion in applying that criterion.

Accordingly, the order of the Appellate Division should be affirmed, without costs.

Chief Judge Kaye and Judges Smith, Levine, Ciparick, Wesley and Graffeo concur.

Order affirmed, without costs.  