Decision No. 14,645

(September 25, 2001)

MILLS, Commissioner.--Petitioner seeks relief enforcing my determinations in two prior appeals in which she prevailed: Appeal of Davis, 39 Ed Dept Rep 270, Decision No. 14,234, hereinafter the "Burnell" appeal or decision and Appeal of Davis, 39 id. 273, Decision No. 14,235, hereinafter the "Ferris" appeal or decision. The appeal must be sustained in part.

The facts are set forth in the prior decisions and will not be repeated here at length. As respondent correctly points out, petitioner"s part-time .6 psychologist position was abolished on March 6, 1997, effective at the end of the 1996-1997 school year. In neither the Burnell appeal (commenced November 10, 1997) nor the Ferris appeal (commenced October 9, 1997) did petitioner challenge the abolition of the .6 position; she challenged respondent board"s failure to appoint her to the new "positions" occupied by Burnell in October 1997 and Ferris in September 1997.

Following my decisions of October 25, 1999, it appears that the parties attempted, with only partial success, to agree upon the scope of reinstatement or the amount of back pay and benefits owed to petitioner. While a number of issues remained unresolved, it appears that petitioner was offered a .1 part-time position as a school psychologist, and has been employed as such since March 14, 2000.

Respondent has submitted an affidavit by the district treasurer and supporting documents which together illustrate the psychological and drug counseling services previously performed by petitioner during the period between September 1997 and March 14, 2000. With respect to psychological services performed by a school psychologist, during the 1997-1998 school year, respondent admits that Kristin Ferris worked 42 days as a psychologist between September 1997 and July 1999. During the 1998-1999 school year, respondent admits that a psychologist from BOCES worked 38 days, and an additional 16 days in the 1999-2000 school year, prior to petitioner"s return.

With respect to the other type of service previously performed by petitioner, drug counseling, it appears that Gene Burnell, pursuant to the district"s contract with Substance Abuse Prevention Team of Essex County, Inc., worked a total of 21 days during the 1997-1998 school year, up to and including March 17, 1998, when the contract terminated.

Petitioner seeks reinstatement to a .6 part-time school psychologist position retroactive to October 9, 1997, even though her .6 part-time position was abolished effective June 1997, and no longer exists. Claiming that the .1 part-time position she currently holds is not sufficient to perform the job duties expected of her, petitioner further seeks an order compelling respondent to increase the .1 part-time position to allow petitioner time to perform all of her duties. Petitioner further requests that she be assigned the drug counseling duties previously performed by Burnell, from the time those services ceased (March 17, 1998, to the present), and that she be compensated for those services both prior to and subsequent to March 17, 1998. Finally, petitioner seeks back pay for the school psychologist services performed by Ferris and BOCES retroactive to October 9, 1997. (A further claim, relating to medical and health insurance, has apparently been resolved and has been withdrawn by petitioner.)

With respect to the drug counseling services provided by Gene Burnell as an employee of Substance Abuse Prevention Team of Essex County, Inc., I find that petitioner is entitled to back pay. During the 1997-1998 school year, Mr. Burnell worked a total of 21 days out of a total of 120 school days from the beginning of the school year to March 17, 1998, when the contract terminated. Mr. Burnell therefore worked at the rate of .175 FTE. I find that petitioner is entitled to be compensated at that rate under the collective bargaining agreement in effect during the 1997-1998 school year for that portion of the school year through March 17, 1998. Respondent states in the first affirmative defense in its answer that such services are no longer performed. Petitioner has presented no persuasive authority which would indicate that respondent lacked authority to discontinue such services. I, therefore, find that petitioner is not entitled to a position to deliver such discontinued services.

With respect to psychological services, the calculation of back pay is somewhat more difficult. Respondent maintains that after the abolition of petitioner"s school psychologist position, it employed a per diem psychologist (Ferris) and a psychologist contracted through BOCES at a rate of .1 FTE. However, using respondent"s own figures, it appears that during the 1997-1998 school year, Ferris worked 34 of 185 school days, or approximately .19 FTE. During the 1998-1999 school year, it appears that Ferris and the BOCES psychologist worked a total of 42 of 185 school days, or approximately .23 FTE. During the beginning of the 1999-2000 school year, from September through December, the BOCES psychologist worked 1 day per week, or .20 FTE.

I find that petitioner is entitled to back pay for the 1997-1998 school year at the rate of .19 FTE, for the 1998-1999 school year at the rate of .23 FTE, and for the months of September through December 1999 at the rate of .20 FTE, pursuant to the collective bargaining agreements for each of these periods.

With respect to petitioner"s employment since returning to work on March 14, 2000, petitioner claims that the amount of work required of her cannot reasonably be performed as a .1 FTE employee. The record before me is not sufficient to make any determination in that regard, nor would I presume to do so.

Pursuant to Education Law "1709 (subdivisions 13, 16, and 33) local school boards are authorized to determine the type and level of services they choose to provide, and to determine the staffing levels necessary to provide those services. Respondent has determined that it requires a psychologist to perform psychological services at the rate of .1 FTE. While petitioner suggests that respondent "has not acted honorably in this situation" and "has not complied with the Commissioner"s orders," it is noteworthy that respondent apparently determined to substantially reduce psychological services as a logical consequence of its actions of March 6, 1997, and that this reduction in services was unrelated to my orders of October 25, 1999. Absent any evidence of bad faith, I decline to substitute my judgment for that of respondent with respect to petitioner"s employment since March 14, 2000.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent board pay petitioner for that portion of the 1997-1998 school year, up to and including March 17, 1998, at the rate of .175 FTE under the collective bargaining agreement in effect for that school year and;

IT IS FURTHER ORDERED that respondent pay petitioner for the 1997-1998 school year at the rate of .19 FTE, for the 1998-1999 school year at the rate of .23 FTE, and for that portion of the 1999-2000 school year from September through December 1999, at the rate of .20 FTE under the collective bargaining agreements in effect for those school years respectively.

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