* Subsequent History: Matter of Soriano v Elia; Supreme Court, Albany County (Platkin, J.); Judgment dismissed petition to review; August 18, 2016; affd 155 AD3d 1496 (3d Dept 2017); lv denied 31 NY3d 913 (2018). *

Appeal of CHARLES R. SORIANO from action of the Board of Education of the East Hampton Union Free School District regarding tenure and employment rights.

Decision No. 16,849

(November 18, 2015)

Hamburger, Maxson, Yaffe, Knauer & McNally, LLP, attorneys for petitioner, Richard Hamburger, Esq., of counsel

Kevin A. Seaman, Esq., attorney for respondent

Elia, Commissioner.--Petitioner appeals the decision of the Board of Education of the East Hampton Union Free School District (“respondent board”) to reduce his salary and benefits following a transfer of position.  The appeal must be dismissed.

Petitioner is a tenured administrator who was employed in the district as an assistant superintendent of schools until he was transferred, within his tenure area of “Administrator,” to the position of middle school principal.

With respect to his position as assistant superintendent, petitioner entered into an Employment Agreement with respondent board, dated June 23, 2003, to fix his salary and benefits for a four-year period.  The Employment Agreement was subsequently amended by addenda dated January 20, 2006, July 1, 2007, and July 6, 2010, including an extension of its term through July 1, 2012.  Together with the addenda, the Employment Agreement included a salary schedule with annual increases as well as several other benefits tied to petitioner’s salary such as a deferred tax annuity contribution from the district, life insurance in the amount of three and one half times petitioner’s annual salary, and sell-back options for unused vacation and sick time at a pro-rata share of petitioner’s annual salary. 

At its June 19, 2012 meeting, respondent board approved a reorganization of the administrative staff within the district.  This reorganization included the appointment of petitioner to the position of middle school principal, effective July 1, 2012.  Thereafter, on July 3, 2012, respondent board approved an annual salary of $180,000 for petitioner, over his objections.  Petitioner insisted that his then-current annual salary of over $205,000 be continued in accordance with respondent board’s legal obligations and further asserted that such a decrease in his compensation was unreasonable and constituted discipline.  In a letter from board president Laura Anker-Grossman, dated June 29, 2012, respondent board declined to reinstate petitioner’s previous salary, reasoning that the new salary was an adjustment which was appropriate under the circumstances, not a disciplinary action.  This appeal ensued.

Petitioner contends that, as a tenured administrator, his salary and benefits may not be reduced except as a result of a disciplinary action.  Petitioner argues that the decrease in his salary upon appointment to the new position constitutes discipline and he therefore should have been afforded the protections of Education Law §3020 and the procedures of §3020-a.  Petitioner further contends that, despite its expiration on June 31, 2012, the Employment Agreement must still be followed and, thus, he is entitled to the compensation and benefits set forth therein.  Finally, petitioner asserts that, even if the Association Agreement, the collective bargaining agreement for the East Hampton School Administrators’ Association (“EHSAA”), were applicable, petitioner is not a new administrator and he did not negotiate a “first year entrance salary” with respondent board; therefore, petitioner argues, he is entitled to a salary equal to that of his prior position.  Petitioner seeks restoration of his salary and benefits, retroactive to July 1, 2012, as well as salary increases at increments prescribed in the Association Agreement and any benefits exceeding those provided to him in the 2011-2012 school year.

Respondent contends that petitioner’s salary reduction was not arbitrary or capricious, rather it was reasonable under the circumstances.  Respondent further contends that the Employment Agreement is not binding in the instant matter as it had expired on June 30, 2012.  Respondent argues that, even if the Employment Agreement had not expired, it would be considered void as against public policy as one board cannot bind a successor board by a contract extending beyond the term of the contracting board.  Finally, respondent board contends that the tenure statutes and broad administrative tenure area of the district do not require an administrator to maintain a prior salary when being transferred to a new position within the tenure area.  The board maintains that petitioner’s argument that a salary may never be decreased absent a disciplinary hearing is illogical and unsustainable.  For all of the above reasons, respondent asserts that the appeal must be dismissed.

I must first address two procedural issues. In respondent’s memorandum of law, respondent raises the point that petitioner was required to file a grievance through the EHSAA and exhaust the administrative remedies prior to filing this appeal.  As respondent failed to raise this argument in its answer as an affirmative defense, I find that the defense has been waived by respondent.

Secondly, because the case of Stokes v. City of Mount Vernon, submitted by petitioner for consideration by letter dated October 3, 2012, was available prior to filing of petitioner’s memorandum of law, it has not been considered as part of petitioner’s argument.

Turning to the merits, §3020(1) of the Education Law provides that no person enjoying the benefits of tenure may be disciplined or removed during a term of employment except for just cause and in accordance with the procedures specified in Education Law §3020-a or an alternative procedure agreed upon by the parties as a result of collective bargaining.  When a salary reduction is disciplinary in nature it may only be effected by way of the procedures set forth in §3020-a (Appeal of Trono, 18 Ed Dept Rep 344, Decision No. 9,871; Appeal of Cadicamo, 15 id. 274, Decision No. 9,167). In Appeal of Trono, the school board substantially reduced the appellant’s salary due to dissatisfaction with the appellant’s work without following the procedure set forth in §3020-a; the decision states:

[a] salary reduction based on a school board’s dissatisfaction with a principal’s work is a disciplinary action, for which action Education Law 3020-a provides the exclusive procedure with respect to tenured school district employees. Until that procedure has been followed, a salary reduction of the magnitude and for the reason stated in this appeal is arbitrary and capricious and must be set aside.

 

Unlike the petitioner in Trono, in the instant matter, petitioner’s salary was not decreased as a result of dissatisfaction with his performance or as a disciplinary action.  Minutes of respondent’s July 3, 2012 board meeting reflect board approval of petitioner’s salary without noting any disciplinary reason.

The Commissioner noted in Appeal of Cadicamo that such a salary decrease cannot fall below an individual’s starting salary: “[w]hile the salary of an employee may be reduced, it may not be reduced to a point below that at which the employee was induced to join the system” (Appeal of Cadicamo, 15 Ed Dept Rep 274, Decision No. 9,167; aff’d sub nom Bd. of Ed., Mt. Sinai UFSD v. Nyquist, Sup. Ct., Albany Co., [Cobb, J.], June 23, 1976, n.o.r.).  The record in this case reveals that petitioner’s previous employment agreements include a starting salary, in 2003 for the position of assistant superintendent, of $140,000.  Petitioner’s current salary of $180,000 is neither below that starting salary nor below the minimum level for a middle school principal position within the district.  Absent some showing that respondent’s actions were disciplinary in nature, I cannot find that the salary reduction was contrary to law.

Petitioner argues that, in a parallel situation under the Civil Service Law, a lateral transfer of a tenured civil service employee that results in a reduction of salary constitutes disciplinary action that may only be imposed after a hearing under Civil Service Law §75 (see e.g. Matter of Bailey v. Susquehanna Valley Cent. School Dist. Board of Educ., 276 AD2d 963; Matter of Borrell v. County of Genessee, 73 AD2d 386).  Petitioner urges that the principle of those Civil Service Law cases be extended to tenured teachers under the Education Law, relying in part on dictum in Matter of McElroy v. Board of Educ. of Bellmore-Merrick Cent. High School Dist., 5 Misc3d 321, a case involving reassignment of tenured teachers who were high school football coaches to non-classroom duties with no change in salary.  The court in Matter of McElroy ruled that the transfers did not constitute discipline and were within the statutory authority of the superintendent of schools under Education Law §1711(2)(e) and the board of education under Education Law §1709(33).  The issue of whether a tenured teacher or administrator may be transferred within his or her tenure area without a hearing pursuant to Education Law §§3020 and 3020-a where that transfer results in a reduction in salary was not before the court under the facts of Matter of McElroy, supra.

In any event, I do not agree with petitioner that the principle articulated in the cases under the Civil Service Law should be applied on these facts to confer upon petitioner a right to retain his salary and benefits as assistant superintendent upon transfer within his tenure area.  To begin with, Civil Service Law §75 prohibits imposition of a disciplinary penalty without a hearing and Civil Service Law §75(3) specifically provides that a “reduction in grade or title” is a disciplinary penalty that can be imposed.  There is no comparable language in Education Law §§3020 or 3020-a and thus no explicit statutory requirement that a demotion with reduction in pay be considered a disciplinary action.  In contrast, as indicated above, prior Commissioner’s decisions have held that a tenured teacher’s salary may be reduced where the salary reduction was not a disciplinary action  (see Appeal of Trono, 18 Ed Dept Rep 344, Decision No. 9,871; Appeal of Cadicamo, 15 id. 274, Decision No. 9,167; aff’d sub nom Bd. of Ed., Mt. Sinai UFSD v. Nyquist, Sup. Ct., Albany Co., [Cobb, J.], June 23, 1976, n.o.r.).

Significantly, at the time of his transfer, petitioner was an assistant superintendent, a contract employee whose Employment Agreement had expired.  Petitioner’s belief that the Employment Agreement entered into in 2007 entitles him to the negotiated salary and benefits set forth therein is misplaced.  The Employment Agreement, which is attached to petitioner’s papers, clearly states that it expired on June 30, 2012.  “[W]hen parties set down their [contract] in a clear, complete document, their writing should ... be enforced according to its terms" (Vermont Teddy Bear Co. v. 538 Madison Realty Co., 1 NY3d 470, 475 [2004]; quoting, W.W.W. Assoc. v. Giancontieri, 77 NY2d 157, 162 [1990]).  Thus, petitioner’s argument that the Employment Agreement remained in effect absent an extension or new agreement, juxtaposed with the expiration date plainly set forth therein, is unpersuasive.  The Employment Agreement cannot bind respondent board beyond its stated expiration date of June 30, 2012.  As the Employment Agreement was not binding on respondent board, I find that petitioner was not entitled to the salary contained therein beyond the expiration of his employment contract.

Respondent board states, and petitioner offers no evidence to refute, that petitioner’s salary was set after consideration of multiple factors, including the salaries for comparable positions, salary reductions for other administrators in the district, recent budget cuts, and the economic constraints of the district.  Respondent board adds that petitioner’s salary was set in the same manner as salary designations for other administrators.  On these facts, I cannot find that the setting of petitioner’s salary constituted discipline nor was it arbitrary or capricious.

I turn next to the parties’ contentions regarding the applicability of section 6.12 of the Association Agreement, entitled “Compensation and Related Matters.”  The Association Agreement provides that the district may negotiate the “first year entrance salary for new administrators.”  In his petition, petitioner concedes that 

he is not a new administrator within the meaning of the Association Agreement, acknowledging that he was granted tenure as an administrator in August 2006.  Although respondent board generally denies the allegations of that paragraph of the petition, respondent board does not offer any evidence to contradict petitioner’s claim.  Given that petitioner specifically concedes the inapplicability of that section of the Association Agreement and respondent board makes no arguments to the contrary, I find that petitioner is not a new administrator within the meaning of the Association Agreement.  As such, I need not address the merits of petitioner’s arguments as to his rights arising out of section 6.12 of the Association Agreement.

Upon review of the record before me, I find that petitioner has failed to meet his burden of establishing that the salary and benefits designated by respondent board were arbitrary and capricious or that such action was disciplinary in nature and therefore required the district to proceed in accordance with the procedures set forth in §3020-a of the Education Law.  Therefore, petitioner is not entitled to have his salary and benefits restored to that which he received as Assistant Superintendent of Schools during the 2011-2012 school year.

In light of this disposition, I need not address the parties’ remaining arguments.

THE APPEAL IS DISMISSED.

END OF FILE