Opinion
July 11, 1983
Appeal from the Supreme Court, Cattaraugus County, Crowley, J.
Present — Dillon, P.J., Callahan, Doerr, Boomer and Moule, JJ.
Order unanimously affirmed, with costs. Memorandum: The central issue on appeal is whether public policy is violated by having an arbitrator, as opposed to a court, decide whether petitioner has created a separate tenure area for the position of guidance counselor. Respondent concedes that layoff procedures must conform to subdivision 2 of section 2510 Educ. of the Education Law despite any contract provisions to the contrary (see Honeoye Falls-Lima Cent. School Dist. v Honeoye Falls-Lima Educ. Assn., 49 N.Y.2d 732). Nevertheless, respondent asserts that it is a question of fact whether the area of guidance counselor was created as a separate area, i.e., whether it "was traditionally treated as a separate and distinct tenure area by the board" ( Waiters v Board of Educ., 46 N.Y.2d 885, 887) and that persons hired for the position "were sufficiently alerted to the fact that in leaving their classrooms and taking on the duties of guidance counselors they were entering an entirely independent tenure area, one in which their previous * * * teaching experience would not be relevant in determining seniority" ( Steele v Board of Educ., 40 N.Y.2d 456, 463; see, also, Matter of Mitchell v Board of Educ., 40 N.Y.2d 904; Matter of Neer v Board of Educ., 61 A.D.2d 1014). We agree and see no reason why public policy would be violated if this question is submitted to arbitration rather than to a court (cf. Board of Educ. v Glaubman, 53 N.Y.2d 781 [permitting arbitration of disputes concerning layoffs and recall of a teacher]).