
    In the Matter of Beth Chauvel, Appellant, v Ewald B. Nyquist, as Commissioner of Education of the State of New York, et al., Respondents.
    Argued October 12, 1977;
    decided November 17, 1977
    
      POINTS OF COUNSEL
    
      Rocco A. Solimando, Bernard F. Ashe and Richard C. Heffern for appellant.
    I. Appellant has tenure in the secondary area and not in a specific subject. (Matter of Becker v Board of Educ., 9 NY2d 111; Matter of Van Heusen v Board of Educ., 26 AD2d 721; Matter of Baer v Nyquist, 34 NY2d 291.) II. The order of priority among teachers whose positions have been abolished is seniority in a general tenure area, not as to a specific subject. (Matter of Siniapkin v Nyquist, 68 Misc 2d 214; Matter of Lynch v Nyquist, 41 AD2d 363, 34 NY2d 588; Matter of Amos v United Free School Dist. No. 9, 47 AD2d 711.) III. Subdivisions 2 and 3 of section 2510 of the Education Law have been construed in pari materia. (Matter of Mannix v Board of Educ., 21 NY2d 455; Matter of Kobylski v Agone, 37 Misc 2d 255, 19 AD2d 761; Matter of Lippold v Board of Educ,, 67 Misc 2d 499; Matter of Meliti v Nyquist, 41 NY2d 183; Matter of Steele v Board of Educ., 53 AD2d 674, 42 NY2d 840; Matter of Boyd v Collins, 11 NY2d 228.)
    
      Richard E. Clark for Board of Education of the Salmon River Central School District, respondent.
    I. The Legislature intentionally adopted wholly different criteria in subdivisions 2 and 3 of section 2510 of the Education Law. (Matter of Lynch v Nyquist, 41 AD2d 363, 34 NY2d 588; Matter of Albano v Kirby, 36 NY2d 526; Matter of Hogan v Culkin, 18 NY2d 330.) II. Petitioner’s right to reinstatement under subdivision 3 of section 2510 is only to a "corresponding or similar” position, not to any position within the general secondary tenure area. (Matter of Abrams v Ambach, 43 AD2d 883; Matter of Baron v Mackreth, 30 AD2d 810, 26 NY2d 1039; Matter of Howard v Wyman, 28 NY2d 434; Matter of Lezette v Board of Educ., 35 NY2d 272.) III. The instant case is distinguishable on its facts from the underlying facts of Matter of Amos v United Free School Dist. No. 9 (47 AD2d 711).
    
      Judith M. Hecker, Robert D. Stone and Louis H. J. Welch for Commissioner of Education, respondent.
    I. The decision of the commissioner is final unless arbitrary, unreasonable or an abuse of discretion. (Bullock v Cooley, 255 NY 566; Matter of Board of Educ. v Allen, 6 NY2d 127; Matter of Vetere v Allen, 15 NY2d 259; Matter of Sullivan County Harness Racing Assn, v Glasser, 30 NY2d 269; Matter of Pell v Board of Educ., 34 NY2d 222; Matter of Mishkoff v Nyquist, 57 AD2d 649.) II. Respondent board of education complied with the relevant provisions of section 2510 of the Education Law. (Matter of Lynch v Nyquist, 41 AD2d 363, 34 NY2d 588.) III. The commissioner’s construction of the statute in question is reasonable. (Bullock v Cooley, 225 NY 566; Matter of Mounting & Finishing Co. v McGoldrick, 294 NY 104; Rochester Tel. Corp. v United States, 307 US 125; Matter of Marsh [Catherwood], 13 NY2d 235; Matter of Willcox v Stern, 18 NY2d 195; Matter of Lezette v Board of Educ., 35 NY2d 272; Matter of Lynch v Nyquist, 41 AD2d 363, 34 NY2d 588.) IV. Petitioner has no statutory claim to a position for which she is not certified. V. The court decisions in Lynch and Amos are not controlling in this case. (Matter of Lynch v Nyquist, 41 AD2d 363, 34 NY2d 588; Matter of Amos v Union Free School Dist. No. 9, 47 AD2d 711.)
   OPINION OF THE COURT

Jones, J.

This is another of the several cases which collectively describe the maze which must be followed by teachers and boards of education alike through the interrelated provisions of the Education Law when the board in a bona fide retrenchment program finds it necessary to reduce teaching faculty.

In June, 1972 the Salmon River Board of Education abolished the junior high school French program and terminated the employment of appellant, Beth Chauvel, who had been a certified and tenured teacher of French in the program. She was informed that she would be placed on a preferred eligibility list and would be entitled to reinstatement if the program were re-established within the next four years. It appears that appellant did not at that time assert rights she may have had under subdivision 2 of section 2510 of the Education Law in consequence of the abolition of her position.

In May of 1974 appellant sought appointment to any teaching vacancy in the secondary tenure area pursuant to the provisions of subdivision 3 of section 2510. Thereafter the board hired three new teachers with less seniority than appellant for the school year beginning September, 1974, but denied appellant reinstatement. The new teachers were employed in positions in the secondary tenure area to teach English and science, in which they were certified but appellant was not.

Appellant thereupon appealed to the Commissioner of Education under section 310. of the Education Law. The commissioner, aware of the interpretation which had been placed by the courts on subdivision 2 of section 2510, nonetheless, at least in part because of the difference in diction, held that the right of reinstatement under subdivision 3 "is limited to a position which is 'corresponding or similar’ to the one previously held by the individual. As a result, boards of education are required to reinstate individuals only to positions for which they are qualified (certified)”, not to positions in the individual’s tenure area generally. Accordingly the commissioner upheld the Salmon River Board of Education and dismissed the appeal.

Appellant thereupon instituted the present article 78 proceeding to review the commissioner’s determination. Supreme Court upheld the commissioner, the Appellate Division unanimously affirmed, and we now state our agreement with the dispositions below.

At the outset we observe that since 1976 the standard for review of determinations of the Commissioner of Education is the customary test in article 78 proceedings (§ 310, as amd by L 1976, ch 857). Accordingly the inquiry on this appeal is whether the commissioner’s determination supporting the board of education and dismissing appellant’s appeal was arbitrary and capricious, i.e., whether there was no rational basis for his decision (CPLR 7803, subd 3).

While arguments may be made that subdivisions 2 and 3 of section 2510 should be given parallel interpretation and application, there are differences, as the commissioner noted, in terminology—thus subdivision 2: "seniority in the system within the tenure of the position abolished”, and subdivision 3: "office or position similar to the one which such person filled”. As noted at the Appellate Division the words "corresponding or similar positions” have consistently been interpreted by the commissioner and the courts to restrict the right of reinstatement to new positions the duties of which are similar to those performed by the individual in his previous position. There can be said to be differences, too, between the role of recall rights under subdivision 3 and that of rights on position abolition under subdivision 2.

We recognize that what appears to be an incongruity in interpretation and application between subdivisions 2 and 3 may work some unevenness in individual cases. A premium may be placed on the promptness of the teacher to assert her rights on abolition of her position, and, as to staff reductions which have already occurred, advantage may attach to alertness in having anticipated the course of determinations of the commissioner and decisions of the courts. Time and experience may be expected to produce uniformity in practice. Perhaps even more to the point, the result in this case underscores the invitation stated elsewhere to legislative review of the applicable sections of the Education Law (Matter of Amos v Board of Educ., 43 NY2d 706, decided herewith).

Accordingly, for the reasons stated the order of the Appellate Division should be affirmed, with costs.

Cooke, J. (dissenting).

The determination of the Commissioner of Education in this matter is arbitrary and capricious and should be annulled. Under the circumstances presented, there is simply no logical basis for the distinction made by the commissioner between subdivisions 2 and 3 of section 2510 of the Education Law. More significantly, the majority’s acceptance of this distinction ignores the underlying rationale of prior decisions of this court and changes course in its approach to what steps may be taken with respect to tenured teachers by financially troubled school boards. Disagreement and dissent are therefore registered.

Contrary to the commissioner’s position, the only rational interpretation of subdivisions 2 and 3 is that, with respect to a tenured teacher such as petitioner, the same degree of protection is afforded regardless of whether such teacher is seeking on the one hand to avoid dismissal or on the other hand to obtain reinstatement. Except as to subjects not involved herein, the requirement under subdivision 3 of section 2510 that a vacancy be filled by one formerly holding a "similar” position must be considered satisfied when a teacher tenured in the grade level area of secondary education seeks reinstatement to a vacancy occurring in a secondary education position. This is because tenure is not granted on the basis of subjects taught, except in certain specialized subjects such as art and music, but is merely descriptive of grade level, e.g., secondary education (see Matter of Baer v Nyquist, 34 NY2d 291). Hence, since petitioner is tenured in secondary education, there is no rational ground for concluding that her position was not similar to those positions for which a vacancy had occurred.

Apart from the principle expressed in Matter of Baer v Nyquist (supra), the commissioner concedes that in determining the right to reinstatement a liberal interpretation has been given to the term "similar” in order to safeguard the tenure rights of incumbents in abolished positions (Matter of Ward, 13 Ed Dept Rep 273, 275; see, also, Matter of Englert, 12 Ed Dept Rep 234, 235). The commissioner, however, explains that this interpretation does not permit a board of education to employ an individual in a position for which he is not certified. But this explanation ignores the facts of this case and allows a board of education to make use of certification requirements in a manner condemned by this court in prior decisions.

This is not a situation where a tenured teacher lacked any certification (see Matter of Meliti v Nyquist, 41 NY2d 183). In this matter, the record indicates that petitioner is certified to teach social studies as well as French. Despite its awareness of petitioner’s certification in another subject, the board of education made no suggestion that it would attempt to adjust the schedule to find a position for which she was certified rather than hiring teachers with less seniority. Instead, the board treated petitioner as if she were tenured in the narrow area of French rather than in the broader area of secondary education. The board in this sense was violating the principle that certification requirements may not be employed to erode the protections afforded tenured teachers (see Matter of Lynch v Nyquist, 41 AD2d 363, 365, affd 34 NY2d 588). Indeed, what occurred here is suggestive of the vertical tenure manipulations warned against in Matter of Baer v Nyquist (34 NY2d 291, 297-298, supra).

Even if one were to ignore the underlying rationale of the Baer and Lynch cases, there is a more fundamental reason for concluding that the commissioner erred in this matter. As a practical matter, it begs the question to resolve the right to reinstatement on the basis of whether a vacancy occurs in a "similar” position if similarity is determined on the basis of certification. The lack of a similar position may result from the fact that a board of education has the opportunity, through scheduling of subjects and teachers, to make sure that a vacancy does not occur in the area of certification of a tenured teacher whose position was recently abolished. In times of financial difficulties a board of education might quite naturally desire to fill vacancies with lower salaried teachers and thus there is an incentive to schedule in such a way that no vacancies occur which can be filled by higher salaried tenured teachers seeking reinstatement.

With respect to tenured teachers who might otherwise be dismissed, a board of education may be required where possible to adjust the schedule so that such teachers may retain their positions (see Matter of Steele v Board of Educ., 53 AD2d 674, affd 42 NY2d 840). There is no justification for not requiring, in the same manner, that schedules be rearranged to accommodate a teacher seeking reinstatement under subdivision 3 of section 2510. Moreover, the fact that a teacher such as petitioner did not assert any rights she may have had under subdivision 2 of section 2510 should not hurt her cause, since "[t]he tenure statutes are intended to protect the teacher and not become a trap to those not guileful enough to avoid it” (Matter of Baer v Nyquist, 34 NY2d 291, 299, supra). Hence, in the instant matter, the board of education should be required to attempt to adjust the teaching schedule to allow petitioner to teach in an area in which she is certified and only if this is impossible should it be allowed to hire those with less seniority (see Matter of Amos v Board of Educ., 54 AD2d 297, affd 43 NY2d 706.).

The majority concedes that "arguments may be made” for giving parallel interpretations to subdivisions 2 and 3 of section 2510 of the Education Law (see p 52) and recognizes that the commissioner’s interpretation "may work some unevenness in individual cases” (p 53). This manifests the arbitrariness of the commissioner’s interpretation and the need for judicial intervention. Accordingly, the order of the Appellate Division should be reversed, the determination of respondent commissioner annulled, and the matter remitted for a determination of whether it is possible to adjust the teaching schedule to allow petitioner to teach in an area in which she is certified.

Chief Judge Breitel and Judges Jasen, Gabrielli and Wachtler concur with Judge Jones; Judge Cooke dissents and votes to reverse in a separate opinion in which Judge Fuchsberg concurs.

Order affirmed. 
      
       Subdivisions 2 and 3 of section 2510 provide as follows:
      "2. Whenever a hoard of education abolishes a position under this chapter, the services of the teacher having the least seniority in the system within the tenure of the position abolished shall be discontinued.
      "3. If an office or position is abolished or if it is consolidated with another position without creating a new position, the person filling such position at the time of its abolishment or consolidation shall be placed upon a preferred eligible list of candidates for appointment to a vacancy that then exists or that may thereafter occur in an office or position similar to the one which such person filled without reduction in salary or increment, provided the record of such person has been one of faithful, competent service in the office or position he has filled. The persons on such preferred list shall be reinstated or appointed to such vacancies in such corresponding or similar positions in the order of their length of service in the system at any time within four years from the date of abolition or consolidation of such office or position.”
     