| Matter of Hellner v Board of Educ. of Wilson Cent. School Dist. |
| 2010 NY Slip Op 08472 [78 AD3d 1649] |
| November 19, 2010 |
| Appellate Division, Fourth Department |
| In the Matter of Janet Hellner, Appellant-Respondent, v Board ofEducation of Wilson Central School District et al., Respondents, and Board of Education ofOrleans/Niagara Board of Cooperative Educational Services et al.,Respondents-Appellants. |
—[*1] Hogdson Russ LLP, Buffalo (Ryan L. Everhart of counsel), for respondents-respondents. Wayne M. VanVleet, Medina, for respondents-respondents-appellants.
Appeal and cross appeal from a judgment (denominated order and judgment) of the SupremeCourt, Niagara County (Richard C. Kloch, Sr., A.J.), entered December 11, 2009 in a proceedingpursuant to CPLR article 78. The judgment directed respondents Wilson Central School District andOrleans/Niagara Board of Cooperative Educational Services to place petitioner on their preferredhiring lists, subject to review of her qualifications, and otherwise denied the petition.
It is hereby ordered that the judgment so appealed from is unanimously reversed on the law withoutcosts and the matter is remitted to Supreme Court, Niagara County, for further proceedings inaccordance with the following memorandum: Petitioner commenced this CPLR article 78 proceedingseeking, inter alia, to direct respondents to transfer her position as an occupational therapist fromrespondent Wilson Central School District (District) to respondent Orleans/Niagara Board ofCooperative Educational Services (BOCES) pursuant to Civil Service Law § 70 (2). Petitionerhad been employed by the District for 14 years when, as a result of budget constraints, the Districtabolished her position and entered into a cooperative services agreement (Agreement) with BOCES forthe provision of occupational therapy services. The [*2]collectivebargaining unit of which petitioner was a member demanded petitioner be afforded the "transfer of afunction" rights pursuant to section 70 (2), i.e., that the District certify petitioner's name to BOCES asthe employee to be transferred and that BOCES offer petitioner the position of occupational therapist.Both the District and BOCES refused to do so, whereupon petitioner commenced this proceeding.Supreme Court denied the petition and instead directed the District and BOCES to place petitioner'sname on their preferred hiring lists. Petitioner appeals and BOCES cross-appeals from the judgment.
We agree with petitioner that the Agreement for the provision of occupational therapy servicespreviously provided to the District by petitioner constitutes the "transfer of a function" within themeaning of Civil Service Law § 70 (2). Respondents contend, however, that Education Law§§ 3014-a and 1950 exclusively govern the issue of employee transfer rights inasmuch asBOCES took over the occupational therapy program from the District. We reject that contention.Neither Education Law statute provides for any transfer rights for non-teaching positions, and thusrespondents' contention is at odds with the decision of the Court of Appeals in Matter of VestalEmpls. Assn., NEA/NY, NEA v Public Empl. Relations Bd. of State of N.Y. (94 NY2d 409[2000]). In that case, the Court of Appeals expressly stated that the affected school district employee,who provided printing services and thus had a non-educational position (see id. at 413),nevertheless was "afforded certain protections upon the transfer of his functions pursuant to CivilService Law § 70 (2)" (id. at 416). Contrary to respondents' contention, that statementin Vestal is not mere dictum but, rather, it is a necessary element of the Court's analysis in thatcase.
We also reject respondents' contention that affording petitioner transfer rights would violate variousadministrative provisions applicable to BOCES and the District. Based on the Court's decision inVestal (94 NY2d at 416), we conclude that the transfer of occupational therapy services fromthe District to BOCES constitutes the transfer of a function pursuant to Civil Service Law § 70(2) and thus that petitioner, as the employee whose function was transferred, is afforded certainaffirmative rights upon the transfer. To the extent that the administrative provisions upon whichrespondents rely are inconsistent with section 70 (2), the statute controls (see generally Matter ofHarbolic v Berger, 43 NY2d 102, 109 [1977]). "[A]dministrative regulations are invalid if theyconflict with a statute's provisions or are inconsistent with its design and purpose" (Matter of City of New York v Stone, 11AD3d 236, 237 [2004]).
Although we agree with petitioner that she is entitled to protections afforded by Civil Service Law§ 70 (2), we are unable on the record before us to determine the scope of those protections.Unlike Education Law § 3014-a, which affords teachers with seniority the right to existingpositions in BOCES in the event that their positions purportedly are transferred there, Civil ServiceLaw § 70 (2) requires the transfer only of "necessary . . . employees who aresubstantially engaged in the performance of the function to be transferred." In the event that BOCEShad sufficient staff to provide the required occupational therapy services when petitioner's position wastransferred, petitioner thus would not be entitled to the relief that she seeks, i.e., immediate employmentat BOCES in that position (see Matter of De Pietro v Thom, 213 NYS2d 853 [1961]). Therecord is insufficient to enable us to determine whether BOCES had sufficient occupational therapy staffat the time of the Agreement, and we therefore reverse the judgment and remit the matter to SupremeCourt for further proceedings on the petition to determine that issue. In addition, we direct that, uponremittal, petitioner must join as necessary parties other occupational therapists whose employment maybe jeopardized as a result of the petition, although we reject respondents' contention that the court wasrequired to dismiss the petition based on petitioner's failure to join those parties in the first instance(see Matter of Basher v Town of Evans [appeal No. 1], 112 AD2d 4 [1985]; Matter ofGill v Dutchess County Bd. of Coop. Educ. Servs., 99 AD2d 836, 837 [1984]).Present—Martoche, J.P., Lindley, Sconiers, Pine and Gorski, JJ.