Decision No. 14,671

(December 20, 2001)

MILLS, Commissioner.--Petitioner appeals his involuntary transfer from Director of Special Education to Administrator of Special Education Instructional Services. The appeal must be sustained.

Petitioner is an administrator employed by the Board of Education of the City School District of the City of Utica ("respondent board"). In August 1992, petitioner moved from his tenured position as a secondary principal to accept a special assignment as Acting Director of Pupil Personnel Services. In July 1993, respondent board granted petitioner a probationary appointment as Director of Pupil Personnel Services and Special Education with a tenure eligibility date of August 1995. Over time, the title for that position changed and it is now known as Director of Special Education.

Petitioner served as Director of Special Education until respondent board approved respondent superintendent"s recommendation to involuntarily transfer him to the position of Administrator of Special Education Instructional Services, effective September 20, 2000. There is no dispute that the transfer occurred without petitioner"s consent. Respondent Diane V. Mancuso replaced petitioner as Director of Special Education.

Petitioner contends that he was improperly transferred out of his tenure area without his consent and in violation of law and public policy. Petitioner seeks an order annulling the transfer and restoring him to the position of Director of Special Education.

Respondents submit that the two positions are within the same tenure area and that the involuntary transfer was legal and in accordance with provisions of the applicable collective bargaining agreement. Respondents further contend that petitioner has not been harmed by the transfer because his compensation and benefits remain the same. They argue that petitioner never received tenure as Director of Special Education and that the transfer was necessary to address concerns within the district"s Special Education Department.

I will first address the issue of whether petitioner obtained tenure as Director of Special Education. James R. Salamy, who was hired as the district"s Acting Director of Personnel in 1996, states in an affidavit that petitioner was denied tenure by a final vote of the board of education on July 11, 1995. In contrast, Stephen Schiavi, a former board member who was present at the July 1995 board meeting and who voted "no" on granting petitioner tenure at that meeting, states that the board"s July 1995 action was a preliminary vote on tenure for petitioner. Mr. Schiavi further states that, because respondent board wanted petitioner to continue as Director of Special Education, it took no action in August 1995 to allow petitioner to obtain tenure by operation of law. The minutes of the July 1995 board meeting do not indicate whether that vote was preliminary or final.

Respondents' papers conflict on this issue and their actions toward petitioner do not support a finding that petitioner was not tenured as Director of Special Education. For example, in their amended answer, respondents admit the assertions contained in paragraph 5 of the petition which state that petitioner was involuntarily transferred from his "tenured position as Director of Special Education/Pupil Personnel Service to the position of Administrator of Special Education Instructional Services (emphasis supplied)." In addition, in a letter to petitioner dated September 20, 2000, notifying petitioner of the involuntary transfer, respondent superintendent states that, in accordance with the applicable collective bargaining agreement, petitioner"s "salary, seniority and tenure remain intact (emphasis added)." Finally, there is no dispute that petitioner continued to serve as the district's Director of Special Education for over five years after the July 1995 meeting.

In contrast, Mr. Schiavi"s statements are consistent with the process to be followed when a board of education votes to reject a superintendent"s recommendation to grant tenure to an individual pursuant to Education Law "3031(b). Under such circumstances, the initial vote is considered advisory and the school board must reconsider the issue at a second meeting. Therefore, based on the record before me, I find that petitioner obtained tenure as Director of Special Education.

The next issue that must be resolved is whether the positions of Director of Special Education and Administrator of Special Education Instructional Services are within the same tenure area. There are no clearly defined guidelines for determining the parameters of administrative tenure areas. A board of education may establish one district-wide administrative tenure area or multiple defined administrative tenure areas (see, Bell v. Board of Education of Vestal Central School District et. al., 61 NY2d 149 [1984]). The parties agree that respondent board established more than one administrative tenure area. The issue is whether the two positions are within the same administrative tenure area.

Respondents are inconsistent in identifying the tenure area in which they claim both positions exist. For example, in their original answer, they take the position that the two positions are in the district"s "Special Education Tenure Area." In one of Mr. Salamy's affidavits, they take the position that individual administrators are granted tenure in concurrence with the administrative groupings set forth in the collective bargaining agreement. The agreement sets forth four groupings, namely, elementary principals, assistant principals, administrators and secondary principals. There is no mention of a special education tenure area. In their amended answer, respondents refer to an "Administrative Tenure Area (Special Education)." Minutes from board meetings indicate that respondent board has specifically identified "Director of Special Education" and "Administrator for Special Education Instructional Services" under the column designated "tenure area." This belies respondents" assertion that all special education administrative positions are in the broad tenure area of Administrative Tenure Area (Special Education).

My Office of Counsel sought clarification from respondents with respect to their position that the two positions are within the same tenure area and provided respondents with the opportunity to provide additional evidence in support of their position. Included in their response, respondents acknowledged that one other individual, Mr. Albert Shaw, had been transferred between the two positions in 1987. A fact critical to this appeal is that when respondent board transferred Mr. Shaw from Administrator of Special Education to Director of Special Education, he was granted a new probationary appointment. This is entirely inconsistent with respondents" position that the two positions are within the same tenure area. If they were within the same tenure area, there would have been no need to appoint Mr. Shaw to a new probationary period when he was transferred from Administrator of Special Education to Director of Special Education. I find this persuasive evidence that respondent board established two separate tenure areas for these positions. Furthermore, there is no evidence that respondent board took any valid and legal action to change their administrative tenure areas during the six years that elapsed between Mr. Shaw"s appointment as Director of Special Education to the time petitioner was subsequently appointed to that same position.

Therefore, based on the record before me, I find that the two positions are not within the same administrative tenure area.

I also find that the collective bargaining agreement provision pertaining to involuntary transfers does not support respondents" position that the involuntary transfer should be upheld. In construing contractual provisions, the appropriate standard is not whether a particular clause is susceptible of a different interpretation, but whether the school board"s interpretation is unreasonable or otherwise arbitrary or capricious (Appeal of Lilly, 39 Ed Dept Rep 601, Decision No. 14,324; Appeal of Bodnar, et al., 29 id. 516, Decision No. 12,369).

First, the plain language of the agreement does not clearly address involuntary transfers outside of tenure areas. Article VIII, "8:02 of the collective bargaining agreement provides:

To the extent respondents assert that the collective bargaining agreement authorizes transfers outside of tenure areas, I find no such authority in the plain language of the agreement.

Moreover, respondents have repeatedly asserted in their papers that an involuntary transfer is acceptable as long as it does not abridge an individual"s tenure rights. This is inconsistent with respondents" own purported reading of the collective bargaining agreement. For example, in its amended answer, respondents state that the district "always reserved the right to transfer administrators in compliance with said administrator"s Collective Bargaining Agreement and tenure rights" (emphasis supplied) and that in this instance "there was no change in tenure, Tenure Area and all collective bargaining rights were complied with." Thus, respondents have simultaneously taken the position that tenure rights are to be preserved separate and apart from the collective bargaining agreement. Therefore, I do not find that the language of the collective bargaining agreement supports respondents" position.

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

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the transfer of petitioner from the position of Director of Special Education to Administrator of Special Education Instructional Services be annulled and that he be restored to the position of Director of Special Education.

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