Decision No. 12,872

(December 30, 1992)

Cuddeback, Onofry & Schadt, Esqs., attorneys for respondent, Robert A. Onofry, Esq.,

of counsel

SOBOL, Commissioner.--Petitioner appeals from respondent's action abolishing her position as a guidance counselor and its determination not to reassign her as a middle school science teacher or elementary assistant principal. The appeal must be dismissed.

Petitioner was employed as a guidance counselor in the Port Jervis City School District from September 1984 to June 1991. She was granted tenure in guidance in May 1986. In addition, petitioner also worked during two summer sessions in respondent's district as a secondary summer school principal. Petitioner is also certified to teach science.

On May 21, 1991, in an effort to reduce costs, respondent adopted a resolution abolishing twenty-six professional and nonprofessional positions, including two guidance counselor positions. Pursuant to district procedures, respondent determined that petitioner was one of the two least senior teachers serving in the guidance tenure area. Therefore, in accordance with the provisions of Education Law '2510, respondent terminated petitioner's services and placed her on a preferred eligibility list for recall.

In September 1991 respondent sought applicants for two positions in the middle school science tenure area and one as an elementary assistant principal. Petitioner applied for each position but was not hired. This appeal ensued.

Petitioner claims that respondent's action excessing her from her position was arbitrary and capricious. First, she challenges respondent's economic rationale for abolishing two guidance positions. Petitioner also asserts that, because the board's procedures for calculating seniority resulted in her being the least senior teacher in her tenure area, the board's procedures are unreasonable. Finally, petitioner claims that she was entitled to an appointment in one of the two available science positions because she is certified as a science teacher. Alternatively, she argues that, because she was employed by respondent as a secondary summer school principal during two summer sessions, she should have been appointed to the elementary assistant principal position.

Respondent asserts that, in abolishing petitioner's position as guidance counselor, it acted in accordance with Education Law '2510. Respondent also contends that petitioner had no legal entitlement to either the science or assistant principal positions. Respondent is correct in both respects.

Petitioner offers no evidence to support her contention that respondent used economic hardship as a pretence to abolish the two positions in the guidance counselor tenure area. Respondent, on the other hand, presents evidence - budget calculations, projected state aid reductions and the savings anticipated from the abolished positions - to support its determination that staff reductions were necessary. I note, moreover, that staff reductions were not limited to petitioner's tenure area, but occurred district-wide. Among the positions abolished were nursing staff, gifted and talented coordinator, elementary writing and art teachers, driver education instructors, teachers' aids, elementary teachers, food service director, school lunch cook and district cleaner. Consequently, I do not find that respondent acted arbitrarily when it abolished petitioner's position (see, Appeal of McGraw, 31 Ed Dept Rep 451).

I also find that respondent acted in compliance with Education Law '2510 in determining which teachers' services to terminate. Section 2510(2) requires that:

To comply with '2510, respondent adopted a procedure to ascertain which teachers were least senior in affected tenure areas. Although petitioner asserts generally that the procedure respondent adopted was both unreasonable and untimely, she does not challenge any particular aspect of the procedure and offers no evidence to support her assertions. I have reviewed respondent's procedures and do not find them arbitrary or in violation of law. Absent evidence that respondent acted in bad faith, I find no basis in the record to support petitioner's claim.

Finally, petitioner claims that, because she is certified in science, she was entitled to an appointment to fill one of the two vacancies in the middle school science tenure area. Education Law '2510 entitles an excessed teacher to preferred eligibility for a vacancy in the office or position similar to the one from which the teacher was excessed - in this case, the area of guidance counseling. However, the law does not confer entitlement to employment in another tenure area, regardless of whether the excessed teacher holds certification in the other tenure area (Appeal of Hilow, 31 Ed Dept Rep 78). Similarly, petitioner was not entitled to the assistant principal position, even though she had worked part-time as a principal.

I note that petitioner also states that her claims are based not on legal grounds, but on moral grounds. In an appeal to the Commissioner of Education, the petitioner bears the burden of demonstrating a clear legal right to the relief requested (Appeal of Singh, 30 Ed Dept Rep 284; Appeal of DiMicelli, 28 id. 327; Appeal of Amoia, 28 id. 150). Petitioner offers no legal basis to support her claim of entitlement to either the science teacher or assistant principal positions. Also, in reviewing the actions of a board of education, I am constrained to determine only whether the board acted legally and rationally. Unless it is determined that respondent acted arbitrarily or failed to comply with the requirements of law, I may not substitute my judgment. In this instance, the board of education acted reasonably and consistent with legal requirements in abolishing petitioner's position and discontinuing her services pursuant to Education Law '2510.

THE APPEAL IS DISMISSED.

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