* Subsequent History: Matter of Klein v Mills; Supreme Court, Albany County, Special Term (Ceresia, J.); Judgment dismissed petition to review; December 6, 2004. *

Appeal of WENDI KLEIN from action of the Board of Education of the City School District of the City of Long Beach and Ronald L. Friedman, Superintendent, regarding tenure.

Decision No. 15,003

(December 12, 2003)

Louis J. Patack, Esq., attorney for petitioner

Ingerman Smith, L.L.P., attorneys for respondents, Christopher Venator, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the actions of the Board of Education of the City School District of the City of Long Beach (“the board”) and its superintendent appointing her chairperson of the science department at the district’s middle school for the 2002-2003 school year.  The appeal must be dismissed.

Petitioner has been employed by the district since 1980 and a tenured science teacher since 1984.  In or about June 1991, the board appointed petitioner chairperson of the middle school science department.  The parties agree that although petitioner spent the majority of her time on duties that were within the teacher tenure area, she was a member of the administrative bargaining unit (Long Beach Administrative, Supervisory and Pupil Personnel Group/SAANYS [“association”]).  Pursuant to the collective bargaining agreement (“CBA”) between the district and the association, petitioner received a stipend for serving as chairperson.

Petitioner continued to teach and serve as middle school science chairperson until June 1997, when the board

abolished the science chairperson position for grades 6-8 at the middle school, and the science chairperson position for grades 9-12 at the high school, and created a new position of science chairperson for grades 6-12.  The board appointed petitioner to the new position in July 1997.  In response to petitioner’s concerns, the superintendent at that time informed her that she would remain in the teacher tenure area.  Pursuant to the CBA, petitioner received a double stipend for serving as a chairperson in two buildings.

The board reappointed petitioner as chairperson for grades 6–12 for the 1998-1999 and 1999-2000 school years.  However, in June 1999, after negotiations on a new CBA eliminated the double stipend, petitioner submitted a letter stating she resigned from her chairperson position at the high school because “she did not want her position unless she could have the stipend.”  When an agreement was reached to restore the double stipend in September 1999, petitioner resumed the chairperson duties for grades 9-12.

The board continued to reappoint petitioner annually as science chairperson for grades 6-12 until March 2002, when the assistant superintendent informed petitioner that:  “relative to your position as chair next year, please be advised that we will recommend your annual reappointment to the position of chair of the Science Department in the Middle School for the 2002—03 school year.”  The record does not indicate whether the board eliminated the position of science chairperson for grades 6–12 or how it recreated a position limited to the middle school.  Respondents admit that when petitioner met with the superintendent on April 17, 2002, he verbally advised petitioner that, for the next school year (2002-03), she would be the science chairperson at the middle school only.

Petitioner contends that, pursuant to Education Law §2509(1)(b), the board was required to appoint her to a three-year probationary term as an administrator in June 1997 when she began spending the majority of her time on administrative duties.  In the absence of such a probationary appointment, she asserts that as of June 2000, she received tenure by estoppel in the tenure area of administration because she spent the majority of her time on administrative duties for more than three years.  She further contends that by appointing her science chairperson of the middle school only, the board has transferred her out of her administrative tenure area without her consent in violation of §30.9(b) of the Rules of the Board of Regents because she will spend less than 50% of her time on administrative duties.  Petitioner seeks an order directing the board to rescind the decision relieving her of her chairperson responsibilities for grades 9–12.

Respondents acknowledge that administrators may not be transferred outside their tenure area without their consent (see, e.g., Appeal of Elia, 30 Ed Dept Rep 105, Decision No. 12,402; Matter of Zamek, 19 id. 77, Decision No. 10,035).  Respondents deny, however, that petitioner has been transferred out of her tenure area.  Respondents state that the board never granted petitioner a probationary appointment as an administrator because she continued to serve as a teacher.  Her appointment to the position of science chairperson for grades 6-12 was made annually and carried a stipend in addition to her teacher’s salary.

Respondents also state that the board was not required to give petitioner a probationary appointment as an administrator because it never assigned her administrative responsibilities consisting of more than 50% of her overall responsibilities.  Respondents assert that they never intended to create an administrative tenure track appointment.  Instead, the board insured petitioner’s continued tenure and seniority as a science teacher by assigning her to teach 2.5 periods out of the 5-period teaching load.  Respondents state further that petitioner was given a 50% teaching load (2.5 periods) rather than the 60% teaching load (3 periods) assigned to other department chairpersons because she had responsibilities in two separate buildings.

Respondents also argue that petitioner is not entitled to tenure by estoppel because she did not serve as chairperson for grades 6-12 for more than three years.  Respondents assert that petitioner resigned from her high school position (grades 9-12) in June 1999 after two years, was reappointed in September 1999, and then served only three years until the end of the 2001-2002 school year.

Respondents further argue that even if petitioner acquired tenure by estoppel, the board was not required to assign petitioner to perform science chairperson duties for grades 9-12.  Respondents argue that to the extent petitioner may have acquired tenure in an administrative position, it would be in the broad tenure area of science chairperson, rather than the narrow area of high school science chairperson, and petitioner has no legal entitlement to perform chairperson duties for grades 9-12.

Finally, respondents maintain that the Commissioner lacks jurisdiction to hear this appeal because petitioner has already filed a grievance pursuant to the CBA.

I will first address the question of jurisdiction.  It is well established that a school employee who elects to submit an issue for resolution through a contractual grievance procedure may not bring an appeal to the Commissioner of Education for review of the same matter (Matter of Bd. of Educ., Commack UFSD v. Ambach, 70 NY2d 501; Appeal of Chichester, 39 Ed Dept Rep 470, Decision No. 14,286; Appeal of Mennella, 39 id. 306, Decision No. 14,245; Appeal of Czajkowski, 34 id. 589, Decision No. 13,418).  The record reflects that the association brought a grievance on petitioner’s behalf based on Article IX of the CBA on May 13, 2002, two days before petitioner served the petition.  There is nothing in the record indicating whether any action was taken on the grievance or whether a final determination was reached that would preclude the Commissioner’s review (see, e.g., Appeal of Coughlin, 41 Ed Dept Rep 484, Decision No. 14,751).  Moreover, contrary to respondent’s assertion, the mere fact that a grievance was filed does not automatically bar the instant appeal (Appeal of Chichester, supra).  Rather, the petition must be examined to determine whether petitioner raises the same claims here that are the subject of the grievance (Appeal of Chichester, supra; Appeal of Mennella, supra).

Petitioner argues that Article IX of the CBA, entitled “Transfers (Involuntary),” assumes that the district has the right to make an involuntary transfer within an appropriate transfer area and must comply with certain notice provisions, but does not address the central issues of whether petitioner actually acquired tenure as an administrator and the scope of the alleged administrative tenure area under the Education Law.  Respondents failed to brief this issue or submit arguments beyond the perfunctory assertion that the filing of a grievance precludes an appeal.

Although Article IX concerns involuntary transfers and is related to the issues raised in the petition, I am compelled to agree with petitioner that Article IX assumes that an individual has tenure and does not address whether petitioner in this case actually acquired tenure by acquiescence in an administrative tenure area.  Since the issue presented here is distinct from that argued in the grievance, I decline to dismiss the petition for lack of jurisdiction.

It is well settled that tenure may not be granted for part-time positions (Matter of Maine-Endwell Teachers Ass’n v. Maine-Endwell CSD, 92 AD2d 1052; Matter of Gates, 12 Ed Dept Rep 194, Decision No. 8,606; Matter of Charney, 12 id. 1, Decision No. 8,495).  As the Commissioner found in Matter of Gates, supra:

[T]here is a recognized distinction between a full-time position as department chairman in which a majority of an individual’s time is spent in administrative or supervisory duties and a part-time assignment as department chairman, made annually, and for which the incumbent receives additional compensation.  In the latter situation, the department chairman is a full-time teacher in his regular position, and is not eligible for tenure as department chairman.

The facts in the instant case clearly mirror the latter example in Gates.  The parties agree that petitioner did not work full-time as science chairperson and never received a probationary appointment as science chairperson, but rather was reappointed annually to a part-time assignment as department chairperson.  Moreover, there is nothing in the record indicating that the board ever created a separate administrative tenure area for department chairpersons.  To the contrary, the board asserts that all department chairpersons received annual appointments and stipends.  It thus appears that petitioner could not obtain tenure as science chairperson.

In some circumstances, however, an employee may be deemed to serve in an administrative tenure area where she both teaches and performs administrative duties.  Petitioner asserts that she should be deemed to have served in an administrative tenure area if she spent 50% of her time performing administrative duties.  However, the test of whether an employee should be deemed to serve in an administrative rather than a teacher tenure area requires that an employee spend over 50% of her time on administrative duties (Matter of Maine-Endwell Teachers Ass’n v. Maine-Endwell CSD, supra; Matter of Coates v. Ambach, 52 AD2d 261, aff’d 42 NY2d 846; Matter of Funnell, 19 Ed Dept Rep 448, Decision No. 10,207; Matter of Myers, 18 id. 198, Decision No. 9,804).

The parties agree that from June 1997 through the end of the 2000-2001 school year, the school day consisted of eight periods, a full teaching load consisted of five periods, and petitioner was assigned to teach 2.5 periods (a .5 teaching load).  They agree further that petitioner continued to teach 2.5 periods (a .5 teaching load) when the district changed to a 9-period day in the 2001-2002 school year.  The parties disagree, however, on how to quantify the time petitioner spent during those years performing administrative, rather than teaching, duties.

Petitioner asserts that as science chairperson for grades 6-12, she worked at both schools and spent the majority of her time performing administrative duties.  She states that when there were eight periods a day, she taught for 2.5 periods and under the CBA, was allotted one period for lunch and one-half period for preparation.  She argues that she not only devoted the other four periods to administration, but that she actually spent both her lunch period and preparation period on administrative work, and thus spent more than 50% of her time (5.5 of 8 periods) on administrative duties.  Thus, in the 2001-2002 school year, when there were nine periods per day, petitioner maintains that she actually spent 6.5 of 9 periods on administrative duties (including the lunch and preparation periods).

Alternatively, petitioner argues that even without counting her lunch and preparation periods, she still spent four out of eight periods or five out of nine periods on administration, versus 2.5 periods on teaching, and thus spent the majority of her time as an administrator.  Petitioner contends that by appointing her chair of the middle school only, the board effectively transferred her out of her administrative tenure area.

The board asserts that it was not required to give petitioner a probationary appointment as an administrator because it never assigned petitioner administrative duties consisting of more than 50% of her overall duties.  The board asserts that rather than assigning her the same 60% teaching load assigned to other department chairpersons, it consistently assigned petitioner a 50% teaching load (2.5 periods) in light of her responsibilities as chairperson in more than one building.In an appeal to the Commissioner of Education, petitioner has the burden of establishing the facts upon which relief is requested (8 NYCRR §275.10; Appeal of Beauman, 43 Ed Dept Rep ___, Decision No. 14,974; Appeal of McNamara, 41 id. 134, Decision No. 14,638, judgment granted dismissing petition to review, McNamara v. Mills, et al., Sup. Ct., Albany Co., Special Term (Kane, J.), January 10, 2002, n.o.r.) and the burden of demonstrating a clear legal right to the relief sought (Appeals of T.M., Sr., 42 Ed Dept Rep ___, Decision No. 14,855).  On the record before me, petitioner has failed to prove that she spent more than 50% of her time performing administrative duties.

As the court stated in Matter of Maine-Endwell Teachers Ass’n v. Maine-Endwell CSD, supra:

The fairest method of determining the tenure area to which an employee belongs appears to be by reference to the time of the normal workday spent teaching and that spent administrating.  Although both administrative and teaching duties require time spent on duties outside the regular working day, such outside time is difficult to quantify and for that reason should be excluded in making this determination.  In the case at bar, the proof revealed the fraction of time devoted by respondent coordinators to teaching and to administrative duties during a normal seven and one-half hour school day.  The teaching fraction was arrived at by determining the fraction of a full teaching load being carried that year, and the administrative fraction was found by subtracting the teaching fraction from 1.0.

Applying the Maine-Endwell test to the facts here, from 1997-2001, petitioner was assigned to teach 2.5 periods out of a 5-period teaching load, or 50%.  Subtracting that teaching fraction from 1.0 results in a determination that 50%, not the majority, of petitioner’s assigned time was spent on administrative duties.  The results are no different for the 2001-2002 school year, even though the district changed to a nine-period day (See, also, e.g., Matter of Bernreuther, 9 Ed Dept Rep 69, Decision No. 8,063 [position as guidance chairperson was not in administrative tenure area where petitioner’s counseling load was more than 50% of the case load handled by other guidance counselors; Matter of Engleson, 7 Ed Dept Rep 144, Decision No. 7,876 [petitioner’s claim to tenure as department chairman was rejected when a comparison of his teaching load with that of the other foreign language teachers showed that he carried more than half the normal teaching load; Matter of Angel, 3 Ed Dept Rep 238,Decision No. 7,391 [petitioner’s affidavit claiming that he spent most of his time on supervisory duties was rejected where respondent submitted affidavit showing that petitioner carried from 55.5 to 90% of the case load handled by other guidance counselors]).

In Maine-Endwell, as well as in Appeal of McNamara, supra, the parties were tenured administrators who sought tenure as teachers.  The parties were also required by contract to work a school year longer than a teacher’s school year, with the extra days being devoted exclusively to administrative duties.  The courts in those cases were able to quantify the amount of time the parties spent on administrative work and determined that since the administrators devoted the majority of their time to administrative duties, they were properly serving in administrative tenure areas.

In contrast, there is no dispute here that petitioner is a tenured teacher and has never been given an appointment an in administrative tenure area.  Petitioner’s circumstance is similar to that in Matter of Engelson, supra, where the Commissioner held that “since appellant appears to have served only part-time as department chairman, and since this is confirmed by the fact that he was paid as a teacher with a special extra stipend for this administrative part-time work, he could not acquire tenure in that position, and his appeal must fail.”  Since petitioner here has not met her burden of demonstrating that more than 50% of her assigned time was spent on administrative duties, her appeal must also fail.

In light of the determination that petitioner could not have obtained tenure as an administrator, I need not consider whether petitioner received tenure by estoppel or the effects of her resignation of the chairperson duties for grades 9-12 in June 1999.

THE APPEAL IS DISMISSED.

END OF FILE