Decision No. 14,234

(October 25, 1999)

MILLS, Commissioner.--Petitioner seeks to annul an action of the Board of Education of the Westport Central School District ("respondent board") in procuring the services of respondent Gene Burnell as a "personnel-student support counselor" or "student support counselor." Petitioner demands employment in that position, together with back pay and benefits. The appeal must be sustained.

Prior to the 1995-1996 school year petitioner was employed as a full-time school psychologist at Westport. During the 1995-1996 and 1996-1997 school years, petitioner served as Westport's school psychologist in a part-time, 60 percent position.

On March 6, 1997, respondent board abolished the part-time school psychologist position occupied by petitioner, effective at the end of the 1996-1997 school year. At its March 27, 1997 meeting, respondent board approved the creation of a "part time elementary counselor" for the 1997-1998 school year, and further determined to contract with a school psychologist on a per diem basis.

Petitioner applied for the part-time elementary counselor position, but was not hired.

Petitioner presents a faculty meeting agenda for October 9, 1997, which contains this notation: "New Personnel - Student Support Counselor - Mr. Gene Burnell." From this agenda, petitioner concludes and alleges that respondent Burnell had become a district employee in that newly created position. Respondent board, however, alleges that it contracted with the Substance Abuse Prevention Team of Essex County, Inc., for the provision of alcohol and substance abuse counseling and related educational services for the 1997-1998 school year, and that Mr. Burnell is an employee of that organization as a "student support counselor."

Petitioner alleges that all of the duties performed by respondent Burnell were formerly performed by her as the district's school psychologist, both prior to the abolition of her full-time position in June 1995, and prior to the abolition of her part-time position in June 1997. Petitioner therefore alleges that pursuant to Education Law ""2510 and 3013, she is entitled to be employed by the district to perform the services presently being provided by Burnell.

Respondents claim that the board has properly entered into a contract with the Substance Abuse Prevention Team of Essex County, Inc., and that such contract is fully authorized by law and by a prior Commissioner's decision. Respondents further argue that the services performed by Burnell are not similar to those provided by petitioner, and that no vacancy occurred within the meaning of Education Law ""2510(3) and 3013(3).

Papers submitted by respondents indicate that the services provided by Mr. Burnell include counseling services to students with existing alcohol, tobacco, or other drug abuse concerns. Additional services are provided in the areas of individual counseling, student assessment, family contacts, recommendations for referrals to other needed services in the community, student support groups such as Banana Splits and Students Against Drunk Drivers (SADD), peer mediation or related training, faculty, staff, parent training, and assistance with planning and carrying out positive alternative activities.

Petitioner claims that, as a full-time school psychologist from 1990 to 1995 at Westport, she regularly performed each of the specific duties currently being performed by respondent Burnell. Prior to petitioner's employment by Westport, the same services were provided by the Substance Abuse Prevention Team of Essex County, Inc. Beginning in petitioner's second year of full-time employment, the district no longer contracted with the Team, but opted instead to have petitioner provide these counseling services. Petitioner claims that during the years 1991 through 1995, she was the primary provider of such services and that most of those services were discontinued when her full-time position was reduced to part time for the 1995-1996 and 1996-1997 school years. While respondents argue that the duties were not similar, they do not directly refute petitioner's claim that the duties performed by the Team prior to 1991 were the same as the duties provided by petitioner from 1991 through 1995, and are the same duties performed by respondent Burnell pursuant to contract commencing in 1997.

Upon careful review of the record, I conclude that the duties performed by respondent Burnell and by petitioner were similar within the meaning of Education Law ""2510 and 3013, and were, indeed, virtually identical. By contracting for services formerly performed by petitioner, the district has in effect created a new position (Mairs v. Board of Education, 82 Misc.2d 989; Appeal of Spataro, 25 Ed Dept Rep 206, Decision No. 11,549; Matter of Friedman, 19 id. 522, Decision No. 10,236). Respondent board may not ignore the tenure rights of its employees by attempting to contract with an independent contractor to perform the same services previously performed by its tenured staff (Appeal of Spataro, supra, at 209).

Despite respondents' assertions, I do not find Appeal of Barbara P. (30 Ed Dept Rep 198) to the contrary. In that case, Commissioner Sobol addressed a claim that the use of alcohol counselors violated 8 NYCRR "100.2(j)(1)(ii)(c) and (d). Commissioner Sobol found that the contractual arrangement between the Dutchess County Council on Alcoholism and Chemical Dependency, Inc., and the Wappingers Central School District was legally permissible. Petitioners in that appeal relied on Matter of Friedman, supra, for their argument that only certified counselors, certified school psychologists, or certified social workers could provide any counseling services in a school. Commissioner Sobol rejected that position, determining that the services provided by the district through its drug assistance program served to supplement the existing guidance program rather than supplanting it and that, under such circumstances, certification was not a prerequisite for the provision of such supplemental services. Commissioner Sobol further observed that "unlike the case in Friedman, petitioners do not contend that their positions were abolished in violation of "2510(1) of the Education Law." As a result, Appeal of Barbara P., supra, is not inconsistent with Matter of Friedman, supra, and is not inconsistent with the result reached herein.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent board reinstate petitioner as of October 9, 1997, to the part-time position of school psychologist with back pay and benefits in accordance with its current collective bargaining agreement, less any income she may have had from other employment during such period.

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