Decision No. 12,837

(November 19, 1992)

Beverly R. Hackett, Esq., attorney for petitioners, Denise M. Verfenstein, Esq., of counsel

James M. Shaw, Esq., attorney for respondent

SOBOL, COMMISSIONER.--Petitioners appeal from the abolition of their administrative positions. The appeal must be sustained.

On July 1, 1987, respondent board of education ("the board") appointed petitioner Cipriano to the position of Director of Personnel and Purchasing. She received tenure in that position on May 17, 1989. On November 21, 1991, respondent appointed petitioner Romanowski, a former guidance counselor, to the position of Principal of Pupil Personnel Services and Transportation. At the time of the events giving rise to this appeal, Romanowski had not completed his probationary period in that position.

On July 25, 1992, the board adopted its budget for the 1992-93 school year, specifically abolishing the positions of "Director of Personnel and Purchasing" and "Principal of Pupil Personnel Services and Transportation," effective July 31, 1992. On August 6, 1992, petitioners commenced this appeal, challenging the abolition of their positions. Their request for interim relief was denied on August 18, 1992.

The Education Law provides:

Petitioners contend that administrative positions in the Lackawanna City School District are encompassed within a single administrative tenure area. They argue, therefore, that respondent violated '2510 by abolishing their positions, instead of the positions of the two least senior administrators in the administrative tenure area. Asserting that administrative positions in Lackawanna are not encompassed within a single administrative tenure area, respondent contends that the abolition of petitioners' positions was proper because, in its view, petitioners served in individual, position-specific tenure areas.

Both parties have submitted evidence to support their respective positions. Petitioners' evidence includes: the board's resolution, approved May 17, 1989, appointing petitioner Cipriano to the position of Director of Personnel and Purchasing in the "administrative" tenure area; seven board resolutions appointing other individuals to various principal positions, all in the "administrative" tenure area; and a letter from the superintendent of schools to petitioner Romanowski, dated November 26, 1991, informing him of his appointment to the position of Principal for Pupil Personnel Services and Transportation, indicating that his probationary period would be in the "administrative" tenure area. Petitioners also submit an affidavit from the superintendent of schools stating that, based on conversations with a former superintendent, "[i]t is my understanding as Superintendent, and as a former teacher and principal in the District, that administrators are in one general tenure area." The affidavit of another long-time administrator in the district states that, in his experience, there is only one tenure area for administrators in the Lackawanna City School District. A current school board member, also in an affidavit, states the board had discussed and agreed that district administrators would all serve in the same tenure area.

Petitioners also contend that the district's practice of transferring administrators from one position to another supports the existence of a single administrative tenure area. To support this contention, they submit a memorandum dated August 1, 1991 and a letter dated November 20, 1991 assigning petitioner Cipriano to administrative duties outside her job description. Respondent admits that it has transferred other individuals freely among administrative positions.

Respondent submits the following evidence in support of its contention that Lackawanna administrators serve in position-specific tenure areas: a letter from the former superintendent of schools to the board of education, dated May 16, 1989, recommending that petitioner Cipriano be granted tenure, and listing her tenure area as "Director of Personnel and Purchasing;" and a letter from the former superintendent to petitioner Cipriano, dated June 1, 1989, stating, "I am pleased to inform you that ... the board of education granted you tenure as Director of Personnel and Purchasing." Respondent also submits undated minutes of the board of education granting tenure to petitioner Cipriano. The words "Director of Personnel and Purchasing" appear next to her name, but there is no indication whether those words were intended to designate her position or her tenure area. Respondent also provides the affidavits of three district administrators, who state they have no knowledge of a single administrative tenure area. Further, an affidavit from the president of the board of education admits to ongoing debate and confusion regarding the issue of administrative tenure area(s).

Public policy favors the protection of employees' seniority rights (Ricca v Board of Educ., 47 NY2d 385, 391; Matter of Boyer v Board of Educ., 132 Misc 2d 282, 285; see, Matter of Roloff, 16 Ed Dept Rep 274, 275). "As tenure areas narrow, seniority rights become less meaningful. As tenure areas broaden, seniority rights take on greater significance ..." (Matter of Boyer v Board of Educ., supra, at 285). Consequently, the party seeking the benefit of a narrow tenure area bears the burden of proving its existence (Matter of Bell v Board of Educ., 61 NY2d 149, 152). That party must demonstrate that the school district has, in fact, established the narrow tenure area "consciously" and "by design" (id.) and that the employee has been sufficiently alerted to that fact (Steele v Board of Educ., 40 NY2d 456, 463; Matter of Boyer v Board of Educ., 132 Misc 2d 282, 285, supra). Descriptive terms used "inadvertently" by the board of education are not sufficient to prove the existence of narrow, specific tenure areas (Matter of Bell v Board of Educ., supra, at 152).

The district bears the burden of proof on this issue (Matter of Bell v Board of Educ., 61 NY2d 149, supra). The Commissioner of Education has held, moreover, that, "[s]ince it is within the power of the school authorities to avoid questions of this nature by clear and unambiguous appointments, an ambiguous appointment should be resolved in favor of the employee" (Matter of Durso, 19 Ed Dept Rep 72, 73). On the record before me, I find that respondent has not met its burden of proof. Coupled with petitioners' evidence, the board president's admission to ongoing confusion compels a ruling in favor of petitioners (id.). Based on the evidence before me, therefore, I conclude that there is a single administrative tenure area in the Lackawanna City School District, and that respondent's failure to identify the least senior members in that tenure area violated Education Law '2510. Insofar as the board's July 25, 1992 resolution abolished petitioners' positions, therefore, it is hereby annulled and petitioners shall be restored to their positions.

Petitioners also contend that the district abolished their positions in bad faith. In light of the foregoing, however, I need not address this issue.

Respondent argues that, regardless of the tenure question, petitioner Romanowski is not entitled to reinstatement due to his probationary status. This is incorrect. The Court of Appeals has held that abolishing an employee's position does not otherwise terminate the individual's employment rights under Education Law '2510 (Matter of Lezette v Board of Educ., 35 NY2d 272, 278). To the contrary, abolishing an employee's position merely makes the incumbent "available for another similar position in the district" (id.). To terminate the employment rights of a probationary employee, the board of education must take specific action pursuant to Education Law '2509 (id.). There is nothing in the record before me to suggest that respondent has taken any action to terminate petitioner Romanowski's probationary service, as required by '2509. Consequently, he must be reinstated.

Finally, respondent argues that the petition should be dismissed because petitioners have not joined other district administrators whose rights may be adversely affected by a determination favorable to petitioners. Although petitioners have not joined other administrators, their petition seeks permission to do so, if necessary (8 NYCRR 275.1). In light of my determination herein, however, I find that it is unnecessary to join other parties.

Now that the proper tenure area has been identified, the board of education should make an initial determination of petitioners' relative seniority (Matter of McNamara v Board of Educ., 54 AD2d 467, 476, supra). If, in light of this decision, respondent still chooses to abolish administrative positions, those whom the district deems least senior in the administrative tenure area have the right to appeal to the Commissioner of Education (id.).

THE APPEAL IS SUSTAINED.

IT IS ORDERED that, insofar as respondent's July 25, 1992 resolution abolished petitioners' positions, it is hereby annulled; and

IT IS FURTHER ORDERED that petitioners be restored to their positions, with full back pay and benefits retroactive to July 31, 1992.

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