Appeal of RITA KAABE from action of the Board of Education of the Hempstead Union Free School District, Denitza Appelbaum, Mary Molinari, and Beth Ann Randazzo regarding the abolition of a position.

Decision No. 18,216

(December 13, 2022)

Starvaggi Law Offices, PC, attorneys for petitioner, Michael A. Starvaggi, Esq., of counsel

The Scher Law Firm, LLP, attorneys for respondent, Austin Graff, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals the action of the Board of Education of the Hempstead Union Free School District (“respondent”) in abolishing her position of library media specialist.  She joins respondents Denitza Appelbaum, Mary Molinari, and Beth Ann Randazo, whom she asserts are necessary parties.  The appeal must be sustained to the extent indicated.

Petitioner was a tenured teacher employed in the district as a library media specialist.[1]  On June 18, 2020, respondent adopted a resolution abolishing, among others, a library media specialist position, effective June 30, 2020.  Respondent identified petitioner as the least senior person in the tenure area of library media specialist. 

This matter was originally commenced as a proceeding pursuant to Article 78 of the Civil Practice Law & Rules in Supreme Court, Nassau County.  Respondent filed a pre-answer motion to dismiss, arguing that the Commissioner of Education had primary jurisdiction over petitioner’s claim.  By Order dated July 2, 2021, Supreme Court dismissed petitioner’s proceeding based upon the primary jurisdiction of the Commissioner.  This appeal ensued.

Petitioner argues that she was not the least senior person within the tenure area of library media specialist.  She alleges that Ms. Applebaum, Ms. Molinari, or Ms. Randazzo should have been discontinued as each has less seniority and was assigned to, or performed job duties consistent with, the library media specialist tenure area.  For relief, petitioner requests reinstatement to her position with pay and benefits from July 1, 2020.

Respondent argues that the petition must be dismissed as untimely.  Respondent further contends that petitioner’s prior attempt to seek relief through the union grievance procedure constitutes an election of remedies that bars the instant proceeding.  On the merits, respondent argues that it appropriately determined that petitioner was the least senior person within the library media specialist tenure area. 

First, I must address the procedural issues.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR 275.3, 275.14).  A reply is not meant to buttress allegations in the petition or belatedly add assertions that should have been raised in the petition (Appeal of Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of Caswell, 48 id. 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

With respect to timeliness, an appeal to the Commissioner must be commenced within 30 days from the decision or act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR 275.16; Appeal of Saxena, 57 Ed Dept Rep, Decision No. 17,239; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).  The Commissioner has previously held that an unsuccessful attempt to litigate a dispute in court that does not result in a final determination on the merits constitutes good cause for failing to commence a timely section 310 appeal so long as the appeal is commenced within a reasonable time after the dismissal or abandonment of the court proceeding (Appeal of Quattrone, 58 Ed Dept Rep, Decision No. 17,601; Appeal of Ferencik, 49 id. 142, Decision No. 15,981, judgment granted dismissing petition to review, Sept. 15, 2011, Sup Ct, Albany County; Appeal of Devente and Jesenof, 48 id. 150, Decision No. 15,822).  Petitioner commenced the instant appeal less than 30 days after Supreme Court dismissed the Article 78 petition.  Accordingly, I find that the appeal is timely.

With respect to petitioner’s prior pursuit of a union grievance, the commencement of an action or proceeding in another forum for the same or similar relief as sought in an appeal pursuant to Education Law § 310 generally constitutes an election of remedies that precludes the Commissioner from considering the appeal (Appeal of Fraser, 60 Ed Dept Rep, Decision No. 17,927; Appeal of Campbell, 57 id., Decision No. 17,266; Appeal of Hinson, 48 id. 437, Decision No. 15,908). 

Supreme Court dismissed the Article 78 proceeding based on the understanding that petitioner would have an opportunity to pursue her claim in this forum.  The court reasoned that “[t]he resolution of petitioner’s claims requires the specialized knowledge and expertise of the ... Commissioner of Education to resolve the factual issues regarding petitioner’s tenure area, tenure rights, [and] seniority ....”  Thus, the court “decline[d] to exercise ... jurisdiction over th[e] matter and defer[red] to the Commissioner of Education.”  In its order, the petition was denied “without prejudice to renew [the claim] before the Commissioner of Education.”

Given this language, it would be inconsistent with the court’s decision to dismiss this Education Law § 310 appeal based on an election of remedies.[2]  Moreover, respondent successfully moved to dismiss the Article 78 petition on the ground of primary jurisdiction.  Respondent filed its motion approximately four months after petitioner’s union declined to pursue a grievance.  Thus, respondent had the opportunity to move to dismiss the Article 78 petition based on election of remedies but chose not to do so.  As such, I decline to dismiss the appeal based on election of remedies at this stage of the dispute.

Turning to the merits, at the time of a probationary appointment or appointment on tenure, a board of education must identify “the tenure area or areas in which [a] professional educator will devote a substantial portion of [her or] his time” (8 NYCRR 30-1.3).  An educator may be assigned to any tenure area to which she devotes a “substantial portion” of her time, defined as “40 percent or more of [her] total time spent … in the performance of [her or] his duties …” (8 NYCRR 30.1 [g]).  An educator with appropriate certification may be assigned to one or more tenure areas (see 8 NYCRR 30-1.9 [d], 30-1.13). 

Education Law §§ 2510 (2) and 3013 (2) provide that when a board of education abolishes a position, “the services of the teacher having the least seniority in the system within the tenure [area] of the position abolished shall be discontinued.”  If the least senior educator has tenure in another tenure area,[3] she or he “shall be transferred to such other tenure area in which he has greatest seniority and shall be retained … if there is a professional educator having less seniority …” (8 NYCRR 30-1.13 [c]).

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she seeks relief (8 NYCRR 275.10; Appeal of P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).

Given the limited and ambiguous information in the record, it is impossible to determine which employee’s services should have been discontinued.  Below is a summary of the information in the record concerning each individual’s tenure area:

• Petitioner does not assert that her tenure area was library media specialist—although her job title (Library Media Specialist) and certifications (School Media Specialist [Library] and Home Economics) make this the most reasonable assumption. 
• Applebaum asserts that she was appointed to the tenure area of Elementary Education, Grades 1-6 “before the 2017-2018 school year.”  Two copies of board minutes, however, indicate that her job title was “Media Specialist” (May 23, 2019) and “Library Media Specialist” (July 25, 2019);
• Molinari asserts that she was appointed to the tenure area of “Education Technology Specialist ... before the 2019-2020 school year,” but no such tenure area exists.  Educational Technology Specialist is a certificate title but is not a tenure area identified in Part 30 of the Rules of the Board of Regents.[4] 
• Randazzo, like Molinari, identifies herself as an “Educational Technology Specialist” but does not indicate the tenure area to which she was appointed.  As indicated above, this certification title does not have a corresponding tenure area in Part 30 of the Rules of the Board of Regents.

Petitioner has submitted copies of the board resolutions appointing Applebaum, Molinari, and Randazzo.  None of these resolutions indicate the tenure area to which the employees were appointed.

While the question of who was appointed to what tenure area(s) (and when) remains unclear, petitioner has sufficiently proven two conditions that necessitate remand of this appeal.  First, petitioner has produced evidence suggesting that, at least for a time, respondent may have considered Ms. Applebaum within the library media specialist tenure area.  As indicated above, two copies of 2019 board minutes describe Ms. Applebaum’s position as “Media Specialist” and “Library Media Specialist,” respectively.  Petitioner also submits a screenshot from a district website dated October 29, 2020 whereby Ms. Applebaum identified herself as “the library media specialist” at one of the district’s elementary schools.[5]

Respondent has not sufficiently rebutted this evidence on appeal.  Indeed, respondent admits that Ms. Applebaum “taught technology and typing to the students in the [l]ibrary” during the 2017-2018 and 2018-2019 school years.  While Ms. Applebaum asserts that respondent assigned her to teach a first grade class at a district elementary school upon her return from leave in the 2020-2021 school year, this is inconsistent with her identification, as of October 2020, as a library media specialist on the district’s website.

Second, petitioner has demonstrated that Ms. Molinari and Ms. Randazzo were appointed to the non-existent tenure area of “Educational Technology Specialist.”  The remedy for this error is for respondent to retroactively appoint both employees to the tenure area(s) that most closely reflect the duties that they performed during the time period under dispute (Education Law §§ 2510 (2); 3013 (2); Matter of Thorenz v Board of Educ. of the Monticello Cent. Sch. Dist., 101 AD3d 1563 [3d Dept 2012]; Matter of Abrantes v Board of Educ. of Norwood-Norfolk Cent. School Dist., 233 AD2d 718 [3d Dept 1996], lv denied 89 NY2d 812).  In this respect, the record reflects that Ms. Molinari and Ms. Randazzo were hired to replace two library media specialists whose positions had been discontinued.  However, I cannot conclude, based on the limited information before me, that library media specialist is the tenure area that most closely reflects their duties during the relevant time period.

Finally, I admonish respondent to comply with Part 30 of the Rules of the Board of Regents in appointing individuals to tenure-eligible positions.  It is unacceptable that respondent was unable to produce a single document establishing the tenure area(s) to which petitioner, Applebaum, Randazzo, or Molinari were appointed.  Respondent’s failure to identify this information, which is required by 8 NYCRR 30-1.3, now necessitates a recreation of its institutional thought process from several years ago—all while the employment of one or more people hangs in the balance.

In light of this determination, I need not address the parties’ remaining contentions.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that, respondent determine petitioner’s seniority rights as of June 30, 2020, in accordance with this decision and, if it is determined that petitioner was not the least senior teacher in the Library Media Specialist tenure area, that petitioner be reinstated with back pay and benefits, effective June 30, 2020.

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