
    In the Matter of Greta E. Brewer, Appellant, v Board of Education of Plainview-Old Bethpage Central School District et al., Respondents.
    Argued September 9, 1980;
    decided October 16, 1980
    
      APPEARANCES OF COUNSEL
    
      Stanley A. Immerman and Irving Perlman for appellant.
    
      Gregory J. Guercio for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs.

Petitioner, who had been employed as a junior high school language teacher, lost her job in 1976, when her position was abolished. In accordance with subdivision 3 of section 2510 of the Education Law, petitioner’s name was promptly placed upon a "preferred eligible list”, entitling her to reinstatement in the event that a "vacancy” occurred "in an office or position similar to the one which [she previously] filled”. As a "preferred eligible”, petitioner had a right to be appointed to fill the next available "vacancy”, provided that there were no other teachers on the "preferred eligible list” with similar teaching experience who had greater "length of service in the system” prior to having been terminated (see Education Law, § 2510, subd 3).

An opening occurred in the junior high school language department, in which petitioner had previously served, in September of 1977, when one of the teachers within that department decided to take a temporary leave of absence. Despite petitioner’s status as a "preferred eligible”, the school district bypassed petitioner and offered the open position to a Ms. Griffith, who had been employed within the district since 1958. Ms. Griffith had taught foreign languages, primarily in the district’s senior high school, until 1975, at which time she accepted a provisional appointment as department chairperson. She was forced to vacate that position in 1977, however, presumably as a result of her inability to obtain the necessary certification.

Contrary to the arguments advanced by respondents, we are unable to conclude that Ms. Griffith was entitled to be appointed to the open position as a consequence of her senior status on the “preferred eligible list”. Subdivision 3 of section 2510 of the Education Law, which mandates the creation of a “preferred eligible list”, expressly provides that such lists are reserved for those whose positions have been abolished or consolidated with another position. The purpose of the statute is to provide a mandatory preference in rehiring for those unfortunate school employees who lose their positions through the practice of “excessing”. Were' we to permit school districts to place on the “preferred eligible list” individuals such as Ms. Griffith, who lost her position for reasons other than “abolishment” or “consolidation”, we would effectively be diluting the preference that the Legislature intended to confer upon “ex-cessed” employees. A contrary conclusion would frustrate the clear language as well as the evident purpose of subdivision 3 of section 2510, and we thus hold that the “preferred eligible” status contemplated by that statute is available only to school employees whose former positions have been abolished or consolidated.

We recognize, as did the Appellate Division, that school employees such as Ms. Griffith may be somewhat hesitant to accept provisional promotions if they know that they will not be given preferred access to vacancies in their former tenure areas in the event that their provisional appointments are terminated. That this potential difficulty exists, however, does not furnish a sound basis for disrupting the operation of a legislative measure that was designed specifically to protect “excessed” school employees. A solution to the problem identified by the Appellate Division, if indeed such a problem exists, must come directly from the Legislature in the form of a separate enactment. We may not, under the guise of our judicial authority to interpret legislation, permit school districts to utilize subdivision 3 of section 2510 to benefit a class of employees not contemplated by that statute at the expense of those employees who were clearly the intended beneficiaries of the measure.

We are also aware that the Commissioner of the Department of Education has taken the position that employees who have lost their jobs for reasons other than “excessing” may avail themselves of the “preferred eligible lists” mandated by subdivision 3 of section 2510 (Matter of Fitzgibbons, 8 Ed Dept Rep 205, 208). Inasmuch as the commissioner’s view in this matter "runs counter to the clear wording of [the] statutory provision”, however, "it should not be accorded any weight” (Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451, 459).

Our analysis, however, cannot end with this conclusion, for the preferential rights conferred by subdivision 3 of section 2510 upon "excessed” school personnel are triggered only when a "vacancy” arises "in an office or position similar to the one” previously occupied. If the open position in question in this case cannot be considered a "vacancy” within the meaning of the statute, it would necessarily follow that petitioner’s status as a "preferred eligible” was of no significance, and the school district was privileged to fill the open position by appointing an employee such as Griffith, who was not qualified for the "preferred eligible list”.

The Legislature has provided no definition of the term "vacancy” as it is used in subdivision 3 of section 2510, and there are few, if any, judicial decisions which elucidate the meaning of that term. Under the circumstances of this case, however, we think it fair to conclude that the position at issue was not "vacant” within the meaning of the statute. The term "vacancy” when used in this context connotes a position or office for which there is no incumbent. Viewed in this light, it is evident that the term does not encompass a position that is temporarily open because the present incumbent has taken a short-term leave of absence. Indeed, it would be somewhat anomalous to treat a position as though it were "vacant” when there exists an incumbent who has a clear right to reclaim the position upon return from his leave.

In short, we conclude that the teaching position which petitioner seeks was not a "vacancy” within the coverage of subdivision 3 of section 2510 of the Education Law. Accordingly, her rights under that provision were not violated when the school district ignored her status as a "preferred eligible” and appointed Ms. Griffith as a "regular substitute” to fill the opening. Inasmuch as petitioner’s claim for relief was predicated solely upon her rights under subdivision 3 of section 2510, her petition was properly dismissed.

Jasen, J.

(concurring). While I agree with the result reached by the majority, I do so for the reasons stated in the opinion at the Appellate Division.

By its decision today, this court has abolished an interpretation given to section 2510 of the Education Law by the Commissioner of Education. On more than one occasion, the commissioner has stated that where a "teacher’s service in [a] new [tenure] area is terminated during [a] new probationary period, he is entitled to be placed on a preferred eligible list and to be reappointed on tenure in the area where he originally acquired tenure as soon as a vacancy occurs in that area.” (Matter of Fitzgibbons, 8 Ed Dept Rep 205, 208.) Such a practice sought to encourage qualified teachers to seek promotions without the fear of losing their tenure in their previous area should they fail to achieve permanent certification in their new positions for reasons unrelated to their ability to teach. The majority does away with this commendable practice which previously had been sanctioned by the Commissioner of Education without even affording the commissioner an opportunity to be heard.

Moreover, I cannot agree with the majority that where, as here, a teacher takes a sabbatical leave for one year, a "vacancy” is not created within the coverage of subdivision 3 of section 2510 of the Education Law. While no definition of the term "vacancy” is specifically provided by statute, I believe the majority overly restricts the definition of the term by excluding openings in regular substitute positions from the protection afforded by the Education Law. Section 2510 is designed to ensure that tenured teachers whose positions have been terminated will be reassigned to other positions for which they are qualified as vacancies occur.

In my view, the statute was intended to apply to temporary as well as permanent position vacancies. It does not distinguish between a temporary position vacancy created as a result of a sabbatical leave for a lengthy period of time and a permanent position vacancy brought about by death, resignation or removal. All that the statute requires is that a "vacancy” occur. Therefore, the duration of the vacancy is not in and of itself determinative of the applicability of section 2510.

This is not to say that a temporary indefinite absence of short duration — for example, a day or week due to illness or personal leave — should necessarily be considered a vacancy within the meaning of the statute. However, where, as here, an opening arises due to a prearranged sabbatical leave for a significant period of time, it should be considered a "vacancy” and should be filled by a tenured teacher pursuant to subdivision 3 of section 2510. To exclude reassignment to such a person merely because an incumbent will at some fixed future time return to that position is, I believe, an unduly restrictive view, contrary to the spirit of the statute.

Jones, J.

(concurring). I agree that there should be an affirmance, but on the limited ground that in this case there was no vacancy within the meaning of subdivision 3 of section 2510 of the Education Law to give rise to the application of that subdivision. I reach that conclusion for precisely the reasons articulated in the majority opinion.

Inasmuch as this appeal can properly be disposed of on the ground that no vacancy existed to trigger the application of subdivision 3 of section 2510, I perceive no necessity to address the further question as to whether the benefits of that subdivision extend to individuals who have lost their position for reasons other than abolition or consolidation of the position. The Commissioner of Education, charged with responsibility for administration of this and related statutory provisions, expressly held in 1969 that the benefits of the statute were not restricted to instances where a position was abolished or consolidated (Matter of Fitzgibbons, 8 Ed Dept Rep 205). This construction has subsequently been followed by him.

Although I must confess to some doubt as to whether the commissioner’s construction is not erroneous in view of the language of subdivision 3, I think it inappropriate and unwise categorically to reject the commissioner’s construction of the statute in a case in which we have not had the benefit of an exposition of the commissioner’s position and it is not necessary to reach the issue to resolve the case. Not only are we unacquainted with the reasoning which lies behind the commissioner’s determination, but we have no measure of the outstanding instances in which boards of education, teachers and others may have acted in good faith reliance on the rulings or guidance of the commissioner. We have no way of knowing what ripple effects our decision may occasion. The circumstance that the parties may have vigorously contested the issue in their arguments made to us in no way obligates us in the circumstances of this case to indulge in the resolution of a question that it is not only unnecessary but unwise for us to reach.

Chief Judge Cooke and Judges Gabrielli, Wachtler, Fuchsberg and Meyer concur in memorandum; Judges Jasen and Jones concur in separate concurring opinions.

Order affirmed.  