Appeal of KATHARINE WAITE, from action of the Board of Education of the Perry Central School District, Superintendent of Schools William Stavisky, and John/Jane Doe regarding her seniority and preferred eligibility rights.

Decision No. 16,801

(August 3, 2015)

School Administrators Association of NYS, attorneys for petitioner, A. Andre Dalbec, Esq., of counsel

Harris Beach, PLLC, attorneys for respondents, Laura M. Purcell, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the decision of the Board of Education of the Perry Central School District (“respondent board”) and Superintendent William Stavisky (collectively “respondents”) not to appoint petitioner to the secondary principal position, following the abolishment of her position as middle school principal.  The appeal must be dismissed.

Petitioner is a duly certified public school administrator and was employed by the Perry Central School District (“district”) as middle school principal through the 2013-2014 school year.  For economic reasons, on February 24, 2014 respondent board voted to abolish the position of middle school principal, effective June 30, 2014.  The secondary principal position was to become vacant July 1, 2014 when the individual in that position moved to a new position as superintendent of schools; therefore, a notice was posted regarding the open position of secondary principal, starting July 1, 2014.  By letter dated February 25, 2014, petitioner asserted her right to the open secondary principal position.  Respondents advised petitioner that she would not automatically be appointed to the position.  At the time of this appeal, the position of secondary principal had not yet been filled.  This appeal ensued.  Petitioners’ request for interim relief was denied on April 8, 2014.

Petitioner argues that she is entitled to the position of secondary principal because the position is substantially similar to her abolished position of middle school principal and in the same general tenure area of “principal.”  Additionally, plaintiff contends that she is being terminated without due process in violation of Education Law §§ 3012, 3020, and 3020-a.

Respondents argue that petitioner has failed to meet her burden of proof in showing that the district has a general tenure area of principal and that she is the senior administrator in that tenure area such that she is entitled to the position of secondary principal.  Respondents further argue that petitioner has failed to show that the district acted in bad faith by abolishing the position of middle school principal and thus her due process claim must fail and that respondent has failed to join the elementary principal, as a necessary party.  For all of the above reasons, respondents argue that the appeal must be dismissed.

I must first address one procedural issue.  A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879).  Joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense (Appeal of Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879).  I am not persuaded by respondent’s argument that the rights of the elementary principal, Steven Haynes, would necessarily be adversely affected by petitioner’s appeal.  The relief sought by petitioner is placement in the secondary principal position and a declaration that she was appointed in the general tenure area of “principal”.  There is no evidence that Mr. Haynes is the individual appointed to the secondary principal position and it appears from the record that he was appointed in 2010, which would make him less senior than petitioner.  On these facts, respondent has not met its burden of proving that the elementary principal would be adversely impacted if petitioner prevailed.  Therefore, I decline to dismiss the appeal for failure to join the elementary principal.

Turning to the merits, I have consistently held that, in order to establish entitlement to appointment to the new position, petitioner must first establish that the two positions are in the same tenure area (Kelley v. Ambach, 83 AD2d 733; Appeal of Debowy, 41 Ed Dept Rep 161, Decision No. 14,648; Appeal of Heath, 37 id. 544, Decision No. 13,923).  There are no clearly defined guidelines for determining the parameters of administrative tenure areas.  A board of education may establish one district-wide administrative tenure area or multiple defined administrative tenure areas (see Bell v. Bd. of Educ. of Vestal Central School Dist., et al., 61 NY2d 149; Appeal of Caruana, 41 Ed Dept Rep 227, Decision No. 14,671).  Consequently the party seeking the benefit of a specific tenure area bears the burden of proving its existence (Bell v. Bd. of Educ. Vestal Central School Dist., et al., 61 NY2d 149, 152).  That party must demonstrate that the board of education has, in fact, established the narrow, specific, tenure area “consciously” and “by design” (id.) and that the employee has been sufficiently alerted to that fact (Steele v. Bd. of Educ. of the City of New York, 40 NY2d 456, 463; Matter of Boyer v. Bd. of Educ., West Central School Dist., 132 Misc 2d 282, 285).

Petitioner asserts that she is entitled to the position of secondary principal because it is similar to her previously abolished middle school principal position and in the same general principal tenure area.  However, on the record before me I find that respondent has demonstrated that the board of education has established narrow tenure areas with regard to principals within the district, not one general principal tenure area as petitioner argues.  Respondent admits that it has not been consistent in its appointment of elementary principals, with past appointment resolutions referencing the elementary principal tenure area but the appointment of the current elementary principal referring to a principal tenure area.  However, on this record, it appears that respondent has otherwise consistently applied narrow administrative tenure areas and this appears to be an error with respect to one employee rather than a conscious decision to revert to a general principal tenure area for all principals.

Therefore, I find that respondent has provided sufficient documentation to show both a pattern of utilizing this specific design of narrow tenure areas and sufficient notice to the petitioner through the appointment notices issued to individuals upon hiring.  The resolution appointing petitioner on probation and the resolution appointing her on tenure very explicitly appointed her to the Middle School Principal tenure area.  Therefore, as respondent has met its burden of proof in showing that the district has narrow tenure areas for the principal position, I find that the secondary principal position is not in the same tenure area as petitioner’s abolished position. Therefore, petitioner is not entitled to appointment to the secondary principal position.  As petitioner cannot establish that the two positions are in the same tenure area, I need not address the similarity of the duties of the two positions.

Finally, I find that petitioner has failed to meet her burden of proving that she was terminated without due process.

Respondent has explained that the abolition of petitioner’s position resulted from a reorganization of its schools to a pre-kindergarten through sixth grade and seventh grade through twelfth grade configurations that would result in cost savings to the district at a time of fiscal difficulties.  Petitioner has not demonstrated that she was denied due process when her position was abolished, so such claim must also be dismissed.

THE APPEAL IS DISMISSED

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