3 No. 74
In the Matter of Maxine Davis,
Appellant,
v.
Richard P. Mills, as Commissioner of Education of the State of New
York, et al.,
Respondents.
_________________________________________________________________
2002 NY Int. 68
June 6, 2002
This opinion is uncorrected and subject to revision before publication
in the New York Reports.
Kevin H. Harren, for appellant.
Frank Brady, for respondent State Commissioner.
Frank W. Miller, for respondent school district.
New York State School Boards Association, Inc., amicus curić.
_________________________________________________________________
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
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
SNIPPETS:
This opinion is uncorrected and subject to revision before publication in the New York
Kevin H. Harren, for appellant.
Frank Brady, for respondent State Commissioner.
New York State School Boards Association, Inc., amicus curić.
The Board of Education of the Westport Central School District abolished petitioner's
The issue in this appeal is whether Education Law § 2510gives petitioner a right to be
In 1995, the District reduced her full-time psychologist position to part-time, then
the District created a part-time position of elementary school counselor and assigned to it
That statute provides that when a "board of education abolishes an office or position and
the Commissioner of Education held that petitioner was not entitled to re-employment because
In support of that conclusion, the Commissioner noted that the two positions were in
Petitioner brought this article 78 proceeding to annul the Commissioner's determination as
We now affirm.
"When seeking re-employment rights, the threshold question must be one of certification to
Absent such certification, re-employment rights cannot attach" (Ward v Nyquist,, 43 NY2d 57,
Thus, under Ward, the Commissioner's determination denying petitioner re-employment was
We decline petitioner's invitation to supplant the certification requirement of Ward with a
For example, a school counselor must complete "30 semester hours * * * in the field of school
As petitioner does not challenge the validity of these regulations, she may not rely on her
Moreover, this Court treads gently in second-guessing the experience and expertise of State
Chief Judge Kaye and Judges Smith, Levine, Ciparick, Wesley and Graffeo concur.
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