Appeal of SANDRA STRONG from action of the Board of Education of the City School District of the City of Norwich and Stephen Bliss regarding an administrative appointment.

 

Decision No. 14,735

(June 7, 2002)

 

Louis J. Patack, Esq., School Administrators Association of New York State, attorney for petitioner

 

Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C., attorney for respondents, Marc H. Reitz and Norman H. Gross, Esqs., of counsel

 

MILLS, Commissioner.--Petitioner appeals the actions of the Board of Education of the City School District of the City of Norwich ("respondent board") relating to the abolition of her position as Director of Technology and Instructional Support, and refusal to appoint her to the newly created position of Assistant Superintendent for Curriculum, Instruction and Technology. The appeal must be dismissed.

Respondent board appointed petitioner to the position of Director of Technology and Instructional Support in July 1987. At that time, respondent board also created the position of Coordinator of Staff Development which was later renamed Director of Staff and Organizational Development. Effective with the beginning of the 2001-2002 school year, however, respondent board abolished these two positions and created the single position of Assistant Superintendent for Curriculum, Instruction, and Technology. In addition, respondent board created new Humanity Coordinator (K-12) and Math-Science-Health Coordinator positions reporting to the new assistant superintendent. Respondent board then selected the former Director of Staff and Organizational Development, Stephen Bliss, to fill the assistant superintendent position. This appeal ensued. Following the commencement of this appeal, respondent board appointed Mr. Bliss to the assistant superintendent position, and I permitted his joinder as a party.

Petitioner asserts that she should be appointed to the assistant superintendent position because its duties are similar to the duties of the abolished Director of Technology and Instructional Support position. She requests an order appointing her to the new position at the same salary and benefits received by the incumbent and, in any case, no less than the salary and benefits which she had received in her previous title. In the alternative, petitioner requests an order rescinding respondent board's creation of the assistant superintendent position and restoring her to her former position.

Respondents assert that the two positions are not similar, and that even if they were similar, petitioner would not be entitled to appointment to the assistant superintendent position because it is a non-tenured position.

Education Law "2510(1) governing the rights of a person whose position has been abolished to a newly created position provides, in pertinent part:

If the board of education abolishes an office or position and creates another office or position for the performance of duties similar to those performed in the office or position abolished, the person filling such office or position at the time of its abolishment shall be appointed to the office or position thus created without reduction in salary or increment, provided the record of such person has been one of faithful, competent service in the office or position he has filled.

Thus, petitioner is entitled to appointment to a newly created position only if the new position is similar to that of her former position (Greenspan v. Dutchess County BOCES, 96 AD2d 1028). The test of whether the two positions are in fact "similar" is whether more than 50 percent of the duties of the new position are those which were performed by petitioner in her former position (Greenspan, supra; Appeal of Debowy, 41 Ed Dept Rep ___, Decision No. 14,648; Appeal of Heath, 37 id. 544, Decision No. 13,923). Petitioner has the burden of proving that a majority of the duties of the new position are similar to those of her former position (Appeal of Jordan, 37 Ed Dept Rep 487, Decision No. 13,910, judgment granted dismissing petition to review, Sup. Ct., Albany Co., [Keegan, J.], March 30, 1999, n.o.r.; Appeal of Schwarz, 28 id. 101, Decision No. 12,045; Appeal of Gworek, 21 id. 501, Decision No. 10,769). In addition, the Commissioner has consistently held that the two positions must be in the same tenure area (Kelly v. Ambach, 83 AD2d 733; Appeal of Debowy, supra; Appeal of Heath, supra).

Petitioner asserts that she spent all of her time in her former position planning, coordinating and implementing the district's multi-million dollar technology program. She therefore concludes that more than fifty percent of the duties of the newly created position will be devoted to the district's technology program. Respondent board's superintendent, however, avers that the assistant superintendent position was created as part of an administrative reorganization intended to integrate technology, curriculum and instruction and will encompass only about one-third of the job duties of petitioner's former position. The record also contains the job description for the Assistant Superintendent for Curriculum, Instruction and Technology position which describes functions that would assist the superintendent in the achievement of general district-wide objectives. Therefore, I must conclude that petitioner's conclusory allegation concerning the amount of time that the assistant superintendent will devote to the district"s technology program is insufficient to meet her burden of proving that a majority of the duties of the new position are similar to those of her former position.

There is another reason for determining that petitioner is not entitled to the assistant superintendent position. The right to reappointment under the provisions of "2510 is statutory and applies only to positions to which appointments on tenure may be made (Appeal of Merz, 21 Ed Dept Rep 449, Decision No. 10,748). Although Education Law "2509(1)(b) provides that certain members of the supervising staff of small city school districts are eligible for appointment on probation and tenure, the position of assistant superintendent is expressly excluded. Moreover, petitioner acknowledges that she is seeking appointment to a non-tenured position with district-wide responsibilities which reports directly to the superintendent of schools.

Petitioner attempts to distinguish her appeal from Merz, supra, by arguing that in Merz, the individual who was seeking to move from a non-tenured to a tenured position had no expectation that he would be protected by Education Law "2510. However, petitioner cannot argue that the duties of her former position as technology director are similar to the duties of an assistant superintendent unless her former position was also ineligible for tenure.

Therefore, I must conclude that petitioner's former position as Director of Technology and Instructional Support is not similar to the newly created position of Assistant Superintendent for Curriculum, Instruction and Technology within the meaning of Education Law "2510. I further conclude that petitioner is not entitled to reappointment because the reappointment provisions are not applicable to an assistant superintendent position in a small city school district. Finally, petitioner provides no legal basis upon which to grant her request that I rescind respondent board's creation of the new assistant superintendent position.

 

THE APPEAL IS DISMISSED.

END OF FILE

 

 

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