Decision No. 12,849

(December 21, 1992)

Lawrence F. Spirn, Esq., attorney for petitioner

Allen M. Smith, Esq., attorney for respondent, Patricia A. Dempsey, Esq., John L. Ciarelli, Esq., and Jonathan Brown, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals respondent's decision to abolish, effective February 5, 1992, the position of Assistant Superintendent of Schools and terminate his services in that capacity. The appeal must be dismissed.

Respondent appointed petitioner to a probationary position as Assistant Superintendent of Schools on August 4, 1990. Petitioner alleges that starting in July 1991, when the position of Assistant to the Superintendent for Curriculum and Instruction became vacant, he performed the duties of his own position as well as those of the vacant position.

On November 6, 1991, respondent adopted a resolution, effective "January 2, 1991", which abolished the position of "Assistant to the Superintendent" (as compared to petitioner's position of "Assistant Superintendent"), transferred $35,000 from the amount budgeted for that position to the amount budgeted for the Assistant Superintendent of Curriculum; and transferred the balance of $15,000 to a "Legal Expenses" account "to cover possible legal fees arising out of present litigation and any future law suits that come up." The resolution further provided that "Mr. Smith has the right to appeal." Petitioner alleges that the vote to abolish petitioner's position was designed to create a fund under the "Legal Expenses" account to cover the legal expenses of one of respondent's trustees who was being sued in an unrelated action for defamation in his individual capacity, and who was thus ineligible for indemnification by respondent. At the November 6, 1991 meeting, respondent adopted a resolution appointing special counsel to represent the trustee in the action. Petitioner alleges that the trustee voted in favor of both the motion to appoint special counsel and the motion abolishing petitioner's position and transferring the salary amount to the legal defense fund.

Respondent's superintendent then contacted school district counsel to obtain his opinion on whether the November 6th resolution was vague or otherwise defective. The superintendent also requested information as to petitioner's rights under Education Law '2510 in the event that respondent created a new position of Assistant Superintendent for Curriculum. By letter dated November 22, 1991, counsel advised the superintendent that if there was any uncertainty as to which position was being abolished, the best course of action would be for the board of education to adopt another resolution to clarify the situation.

Thereafter, respondent, at a special meeting held on December 27, 1991, adopted a new resolution "clarifying" the November 6th resolution. The December 27th resolution abolished "effective January 27, 1991" the position of Assistant Superintendent; terminated petitioner's services and placed him on a preferred eligibility list; abolished "effective January 2, 1992" the vacant position of Assistant to the Superintendent for Curriculum; provided that the superintendent shall distribute "those necessary duties previously performed by the Assistant Superintendent" to existing school district administrators; and transferred $35,000 from the amount budgeted to the position of Assistant to the Superintendent for Curriculum to another account.

Petitioner alleges that respondent abolished the position of Assistant to the Superintendent for Curriculum because of its concern that petitioner could claim entitlement to such position pursuant to Education Law '2510. Petitioner also alleges that on January 23, 1992, respondent postponed the effective date of the abolition of petitioner's position to February 5, 1992. Petitioner alleges that one purpose of the postponement was to allow respondent time to create a new position of "Assistant to the Superintendent for Curriculum Development and Grant Writing," but that the duties of such position were to be deliberately fashioned to prevent any claim to that position by petitioner under Education Law '2510. On February 9, 1992, over the objections of its superintendent, respondent abolished petitioner's position. No other administrative position was created.

Petitioner commenced this appeal by serving a copy of the petition on respondent on February 14, 1992. By letter dated February 25, 1992, petitioner's request for interim relief was denied.

Petitioner contends that respondent's abolition of petitioner's position is a nullity because it was done retroactively; that respondent never effectively terminated petitioner's employment, because it failed to provide the notice required by Education Law '3019-a; that respondent violated Education Law '3012(1)(b) by terminating petitioner's probationary appointment without the recommendation of the superintendent of schools; and that respondent abolished petitioner's position in bad faith. Petitioner seeks an order immediately restoring him to his position of Assistant Superintendent of Schools.

Respondent contends that its decision to abolish petitioner's position was made in good faith and for valid economic and personnel reasons. Respondent also contends that the appeal is untimely.

Section 275.16 of the Regulations of the Commissioner of Education requires that an appeal must be instituted within 30 days from the making of the decision or the performance of the act complained of, but that the Commissioner may excuse a failure to commence a timely appeal for good cause shown. Respondent contends the appeal is untimely because the petition was served on February 14, 1992 and the action challenged was taken on November 6, 1991, and clarified by a subsequent resolution on December 27, 1991.

However, it appears from the record that on January 23, 1992, respondent postponed the effective date of the abolition until February 5, 1992. The time to appeal has traditionally been measured from the date that a board's decision has an impact upon an individual (Matter of Halayko, 23 Ed Dept Rep 384; Matter of Carbone, 21 id. 429). Petitioner commenced his appeal by serving a copy of the petition upon respondent on February 14, 1992. Since the petition was served within 30 days of the effective date of respondent's action, I find the appeal to be timely commenced (Appeal of Pecorale, et al., 31 Ed Dept Rep 493).

Petitioner contends that the abolition is a legal nullity since it was done retroactively. While the December resolution does indicate a "1991" effective date, as I have previously noted, the record further indicates that on January 23, 1992 respondent postponed the effective date of abolition to February 5, 1992. Therefore, the abolition was not retroactive.

Petitioner also contends that the abolition is a nullity because he was never given written notice pursuant to Education Law '3019-a and the superintendent never recommended the termination of petitioner's probationary appointment, as required by Education Law '3012(1)(b). However, petitioner has misconstrued respondent's actions. Respondent has abolished petitioner's position pursuant to Education Law '2510(2). There is no statutory provision requiring that employees be given notice of termination of employment by reason of an abolition of a position prior to abolition and Education Law '3019-a is inapplicable to an abolition of position (Appeal of Sroka, 31 Ed Dept Rep 513). Furthermore, a decision to abolish a position pursuant to Education Law '2510(2) does not require a recommendation of the superintendent pursuant to Education Law '3012(1)(b) (Appeal of Pecorale, et al., supra; Appeal of McGraw, 31 id. 451).

Petitioner contends that his position was abolished in bad faith. Abolition of positions must be done in good faith for a bona fide reason, such as cost reduction, and abolition may not be used as a subterfuge to fire teachers or administrators (Bd. of Ed. of Niagara-Wheatfield v. Niagara-Wheatfield Teachers Assoc., 54 AD2d 281; Currier v. BOCES, 80 AD2d 979; Weimer v. Bd. of Ed., 74 AD2d 574; Matter of Dixon, 20 Ed Dept Rep 31). The burden of proving bad faith rests with petitioner (Matter of Van Orman, 22 Ed Dept Rep 359).

Petitioner alleges that respondent's creation of a new position at a salary of $60,000 would result in a savings of $12,000 measured against petitioner's salary over the six months remaining in the year. From that $12,000 "savings", the district would have to pay $6000 in unemployment insurance on petitioner's behalf, thus reducing the "savings" to only $6,000. Since a $7500 grant was available to defray $7500 of petitioner's salary, petitioner argues, there would be no savings in abolishing his position. However, petitioner's argument is flawed because it fails to consider the cost savings respondent will realize beyond the first year of abolition.

Petitioner next alleges that respondent is hostile to the superintendent because the superintendent provided his affidavit, in a proceeding before the Commissioner, which bore negatively upon a board member's entitlement to indemnification under Education Law '3811. In the present appeal, the superintendent indicates in an affidavit that the issue of abolition of petitioner's position was never discussed either in a public or executive meeting during the 1991-92 school year, and he first learned of the matter at the November 6, 1991 board meeting, at the time the resolution was introduced. Petitioner alleges some board members must have met surreptitiously prior to the board meeting to discuss the issue. Petitioner offers the affidavit of a board trustee in support of his allegations. The board trustee alleges that abolition was never discussed prior to the motion being introduced on November 6, 1991 and that, in violation of board policy, there was no consultation or research done by the board to consider the impact of the abolition of petitioner's position.

As I indicated in a previous decision involving the same position discussed here (see Appeal of Pecorale, supra), there is no requirement that a board of education discuss an issue a specified length of time before acting or that a board must accept the advice of its superintendent regarding an issue before it, and in view of the board's review of the issue, subsequent to its November 6 meeting, on December 27, 1991, January 23, 1992, and February 5, 1992, there is no basis for me to conclude that respondent has not given due consideration to the matter. Moreover, there is no proof in the record to support petitioner's allegation that respondent abolished petitioner's position in retaliation for the superintendent's participation in an unrelated proceeding involving a board member's entitlement to indemnification.

The superintendent alleges in his affidavit that respondent is fully aware that the abolition of petitioner's position will create an unmanageable condition in the district and, as evidence of respondent's knowledge and bad faith, the superintendent alleges that respondent is attempting to create a new administrative position focusing on curriculum, but that respondent has indicated that the position must be created in such a manner as to insulate the position from being claimed by petitioner as a "similar position" under Education Law '2510. However, I note that respondent has not created a new administrative position since the abolition of petitioner's position.

The superintendent also alleges petitioner's position is being abolished as part of a plan to create a situation where the superintendent will be unable to discharge his duties. Respondent contends that it employs a sufficient number of building principals, assistant principals and department chairpersons to insure that the educational needs of its students are met, and that the abolition of petitioner's position will not negatively impact on the delivery of services. Upon the record before me, I cannot conclude that the superintendent will be unable to discharge his duties.

Respondent contends that petitioner's position was abolished in good faith for economic reasons. Respondent alleges the number of students attending its schools has declined 27 percent since the 1980-81 school year, the number of teachers employed has declined 21 percent, the number of administrators has declined 35 percent, and the number of central office administrators has declined 33 percent, given the elimination of the position of the assistant superintendent. Respondent also alleges that State aid was reduced by $650,000 during the 1990-91 school year, almost $5,000,000 in the 1991-92 school year, and that projections indicate a reduction of $1,130,000 in 1992-93. Upon the record before me, I find that respondent's decision to abolish petitioner's position was made for economic reasons and that petitioner has failed to sustain his burden of proof that such decision was made in bad faith.

Finally, there is no proof, beyond petitioner's allegation, that respondent misused district funds to provide legal services to the board trustee. The record is insufficient to establish whether the litigation involving the trustee is related to his duties as school board member or solely to the trustee's individual capacity. Furthermore, petitioner has failed to join the trustee as a necessary party (Appeal of Kriaris, 31 Ed Dept Rep 353).

THE APPEAL IS DISMISSED.

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