Appeal of ELIZABETH MARKOW-BROWN from action of the Board of Education of the Port Jefferson Union Free School District and Kristin Britt regarding preferred eligibility.

Decision No. 15,333

(December 21, 2005)

Bijesse & Belford, attorneys for petitioner, John L. Belford, Jr., Esq., of counsel

MILLS, Commissioner.--Petitioner appeals certain appointments by the Board of Education of the Port Jefferson Union Free School District ("respondent board"). The appeal must be dismissed.

In September 1985, respondent board appointed petitioner to a probationary position as a social worker and granted her tenure in September 1988. Petitioner worked in that capacity until June 1995, when her position was abolished and she was placed on a preferred eligibility list. In September 1998, respondent board created a half-time social worker position and hired William Polchinski ("Polchinski") after petitioner declined the position.

At the beginning of the 2000-2001 school year, respondent board created a civil service position for a half-time drug and alcohol counselor and appointed Polchinski to it, effective September 5, 2000. On December 22, 2000, petitioner commenced a CPLR Article 78 proceeding claiming that she was entitled to the two half-time positions occupied by Polchinski. By decision dated September 25, 2001, Supreme Court, Suffolk County, dismissed the proceeding, without prejudice, as premature because petitioner had not obtained a final determination from the Commissioner of Education. By decision and order dated January 27, 2003, the Appellate Division affirmed the Supreme Court's determination. Petitioner's application for leave to appeal to the Court of Appeals was denied by the Appellate Division on April 28, 2003 and by the Court of Appeals on September 18, 2003. Petitioner was served with a copy of the Court of Appeals order on September 24, 2003 and commenced this appeal on October 23, 2003.

In the meantime, Polchinski resigned from both positions in July 2003 and respondent board appointed respondent Britt ("Britt") to them. Thereafter, petitioner filed and served an amended petition adding Britt as a party.

Petitioner maintains that the combined duties of the social worker and the drug and alcohol counselor positions are the same as those she performed as a full-time social worker. Petitioner claims therefore, that respondent board was required to offer her both positions in September 2000, when it created the half-time drug counselor position and again upon Polchinski's resignation in July 2003.

Petitioner requests that I decline jurisdiction to allow her to renew her petition in Supreme Court and conduct discovery to establish the similarity between her former position and the two half-time positions. Alternatively, petitioner requests that I find that the positions are similar and direct respondent board to offer her the positions at the pay scale and with the benefits she would have had if she had filled the positions since September 2000. Furthermore, petitioner requests the differential between her salary as a school social worker at Smithtown Central School District and the salary she would have earned had respondent board appointed her to the two half-time positions from September 2000 through the end of the 2002-2003 school year.

Respondent board contends that the appeal is untimely. Respondent board also alleges, among other things, that it properly offered the half-time social worker position to Polchinski after petitioner declined it, and that it was not obligated to offer petitioner the half-time drug and alcohol counselor position because it is not similar to petitioner's former position because it is an unclassified position and has a different reporting line of authority. Respondent board further alleges that it was not obligated to offer either position to petitioner after Polchinski resigned in July 2003 because petitioner was no longer on the preferred eligibility list.

Initially, I will address the procedural matters. First, I decline to dismiss this appeal on jurisdictional grounds. The Commissioner clearly has the authority to adjudicate the issues raised in this appeal (seee.g.Appeal of Goldman, 43 Ed Dept Rep 338, Decision No. 15,011, Appeal of Donato, 41 id. 246, Decision No. 14,677).

As part of her reply, petitioner submits an affidavit from Polchinski addressing his duties while employed by respondent board in the two half-time positions. Respondent board objects to the affidavit. A reply is not meant to buttress allegations in the petition or to add belatedly assertions that should have been in the petition (Appeal of L.H., 43 Ed Dept Rep 315, Decision No. 15,005; Appeal of Gehl, et al., 42 id. 287, Decision No. 14,857). Because I find that the affidavit improperly buttresses allegations in the petition, I will not accept it and therefore, also decline to accept respondent board's sur-reply in response thereto (see 8 NYCRR ��275.3[b] and 275.14[a]).

An appeal to the Commissioner must be commenced within 30 days from the making of th e decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR �275.16; Appeal of O'Brien, 44 Ed Dept Rep 43, Decision No. 15,092; Appeal of Spina, 43 id. 354, Decision No. 15,016). Respondent board asserts that the petition is untimely because it was not commenced within 30 days of Polchinski's appointment to the half-time drug and alcohol counselor position.

An unsuccessful attempt to litigate a dispute in court which does not result in a final determination on the merits may be accepted as an excuse for failing to commence a timely appeal with the Commissioner, when the appeal is commenced within a reasonable time after the dismissal or abandonment of the court proceeding (Appeal of Debowy, 41 Ed Dept Rep 161, Decision No. 14,648; Appeal of R.W., 40 id. 671, Decision No. 14,580; Appeal of Goltz, 40 id. 623, Decision No. 14,571). In the instant case, petitioner was served with a copy of the Court of Appeals order denying her request for leave on September 24, 2003 and commenced this appeal on October 23, 2003. Because this appeal was brought within 30 days of petitioner's receipt of the Court of Appeals order, I will not dismiss the appeal as untimely.

The appeal must, however, be dismissed on the merits. Although the petition is somewhat unclear, it appears that petitioner does not challenge as improper Polchinski's appointment in September 1998 to the half-time social worker position. Rather, petitioner apparently asserts that when respondent board created a half-time drug and alcohol counselor position two years later, it was obligated to offer her both positions. I find no merit to petitioner's contention. Education Law �3013 accords employees whose positions have been abolished preferred eligibility for reinstatement to vacant positions that exist or may thereafter exist. It provides, in pertinent part:

3.(a) If an office or position is abolished or if it is consolidated with another position without creating a new position, the person filling such position at the time of its abolishment or consolidation shall be placed upon a preferred eligible list of candidates for appointment to a vacancy that then exists or that may thereafter occur in an office or position similar to the one which such person filled 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. The persons on such preferred list shall be reinstated or appointed to such vacancies in such corresponding or similar positions in the order of their length of service in the system at any time within seven years from the date of abolition or consolidation of such office or position (emphasis added).

Consistent with its obligation under this subdivision, respondent board offered petitioner the half-time social worker position it created in September 1998. However, once petitioner declined the position, respondent board was free to fill it, and did so by appointing Polchinski. Thus, when respondent board created the half-time drug and alcohol counselor position two years later, the half-time social worker position was lawfully occupied by Polchinski. Petitioner has, therefore, failed to establish as a threshold matter that the half-time social worker position was vacant in September 2000, and therefore, cannot establish her entitlement to both positions pursuant to Education Law �3013(3)(a).

Furthermore, both the social worker position previously held by petitioner and the half-time social worker position offered to petitioner were unclassified positions requiring educational certification, whereas the half-time drug and alcohol counselor position is a classified civil service position which does not require educational certification. "Where the board of education abolishes a position requiring certification as instructional or noneducational in nature and creates in lieu thereof a noneducational position which does not require educational certification, the former incumbent of the educational position has no claim on the newly created noninstructional position" (Ryan v. Ambach, 71 AD2d 719, 720; see alsoSmith, et al. v. Bd. of Educ. of the East Ramapo Cent. School Dist., et al., 97 AD2d 795; Bork, et al. v. City School Dist. of the City of North Tonawanda, et al., 60 AD2d 13). Therefore, petitioner had no claim to the drug and alcohol counsel position.

I also find no merit to petitioner's contention that respondent board was obligated to offer her the two half-time positions upon Polchinski's resignation in July 2003. Petitioner's position was abolished in June 1995 and the vacancies created by Polchinksi's resignation did not occur until July 2003, more than seven years later, when petitioner was no longer on the preferred eligibility list. At that time, petitioner had no right to appointment.

In light of this disposition, I need not address whether the duties of the two half-time positions combined are similar to those of petitioner's social worker position.

THE APPEAL IS DISMISSED.

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