Appeal of MICHELLE PRONTI, from action of the Board of Education of the Groton Central School District, Gail Greiger, John/Jane Doe as a person to be subsequently named, and Superintendent James Abrams regarding an appointment and preferred eligibility rights.

Decision No. 16,698

(January 30, 2015)

School Administrators Association of New York State, attorneys for petitioner, A. Andre Dalbec, Esq., of counsel

Hogan, Sarzynski, Lynch, DeWind & Gregory, LLP, attorneys for respondents, Amy J. Lucenti, Esq., of counsel

BERLIN, Acting Commissioner.--Petitioner appeals the decision of the Board of Education of the Groton Central School District and Superintendent James Abrams (collectively referred to as “respondents”) to appoint Gail Greiger to the position of Committee on Special Education and Committee on Preschool Education Coordinator/K-12 Administrator (“CSE and CPSE Coordinator/K-12 Administrator” or the “newly-created position”).  The appeal must be dismissed.

Petitioner is a certified public school administrator who was employed in the district as a Director of Special Education and was granted tenure in the tenure area of Director of Special Education, effective July 1, 2009.  Apparently due to financial concerns, respondent district subsequently sought to consolidate and reorganize administrative duties.  Thereafter, at its May 7, 2012 meeting, respondent board voted to abolish two administrative positions, including one in the tenure area of Director of Special Education, and to approve the creation of an administrative position in the tenure area of CSE and CPSE Coordinator/K-12 Administrator.  As petitioner was the least senior in the tenure area of Director of Special Education, on March 1, 2012, she was notified that her employment would be terminated effective June 30, and that she would be placed on a preferred eligibility list with the right to recall in her tenure area of Director of Special Education.

The record indicates that petitioner received an email notification regarding the newly-created position and subsequently interviewed for such position.  On May 21, respondent Gail Greiger was appointed to this position.  After learning of Ms. Greiger’s appointment, by letter dated May 23, petitioner asserted that she was entitled to the newly-created position.  There is no indication in the papers submitted by either of the parties as to any response to such letter by respondents.  This appeal ensued and petitioner’s request for interim relief was denied.

Petitioner contends that the duties of her position as a Director of Special Education were substantially similar to the duties of the newly-created position and that she was therefore entitled to be appointed to that position under her “Preferred Eligibility List [PEL] rights.”  Petitioner appears to further contend in her reply papers that the two positions are in the same broad administrative tenure area and that respondent district has not provided evidence that it has established narrow tenure areas.

Respondents contend that the newly-created position was in the tenure area of CSE and CPSE Coordinator/K-12 Administrator, as shown in the minutes of respondent board’s May 7, 2012 meeting (“Board Minutes”).  Respondents further contend that petitioner has not served any time in the narrow tenure area of the newly-created position, CSE and CPSE Coordinator/K-12 Administrator and, therefore, is not entitled to the newly-created position as she does not have tenure within that area.  Additionally, respondents assert that, even if the positions were in the same tenure area, petitioner’s former Director position and the newly-created position are not similar within the meaning of Education Law §2510 and, therefore, petitioner is not entitled to appointment to the newly-created position.  For all of the above reasons, respondents assert that the appeal must be dismissed.

The Commissioner has consistently held that, in order to establish entitlement to appointment to a new position, petitioner must first establish that the two positions are in the same tenure area; petitioner would therefore have no rights under Education Law §2510(3) to be appointed to the newly-created position if it is in a different tenure area that her former position (see Kelley v. Ambach, 83 AD2d 733; Appeal of Barker and Pitcher, 45 Ed Dept Rep 430, Decision No. 15,375; Appeal of Heath, 37 id. 544, Decision No. 3,923).

Unlike tenure areas for educators, there are no clearly defined guidelines or parameters for administrative tenure areas.  A board of education may establish one district-wide administrative tenure area or multiple defined administrative tenure areas (see Bell v. Bd. of Educ. of Vestal Central School Dist., et al., 61 NY2d 149; Appeal of Caruana, 41 Ed Dept Rep 227, Decision No. 14,671).  The party seeking the benefit of a specific tenure area bears the burden of proving its existence (Matter of Bell v. Bd. of Educ. Vestal Central School Dist., et al., 61 NY2d 149, 152).  That party must demonstrate that the board of education has, in fact, established the narrow, specific, tenure area “consciously” and “by design” (id.) and that the employee has been sufficiently alerted to that fact (Steele v. Bd. of Educ. of the City of New York, 40 NY2d 456, 463; Matter of Boyer v. Bd. of Educ., West Seneca Cent. School District, 132 Misc2d 282, 285).

Additionally, Education Law §2510(3)(a), governing the rights of a terminated employee to re-employment, provides, in pertinent part:

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. 

Accordingly, an individual whose position is abolished has reinstatement rights only if the new position is “similar” to the former position (Greenspan v. Dutchess County BOCES, et al., 96 AD2d 1028; Appeal of Barker and Pitcher, 45 Ed Dept Rep 430, Decision No. 15,375; Appeal of Heath, 37 id. 544, Decision No. 13,923).  The test to determine whether the two positions are “similar” is whether more than 50 percent of the duties of the new position are those which were performed by the petitioner in her former position (Greenspan v. Dutchess County BOCES, et al., at 1028; Appeal of Heath, 37 Ed Dept Rep 544, Decision No. 13,923; Appeal of Elmendorf, 36 id. 308, Decision No. 13,733; Matter of Evans, 10 id. 156, Decision No. 8,252).  The burden of proving that a majority of the duties of the newly-created position are similar to those of her former position is on the petitioner (Appeal of Barker and Pitcher, 45 Ed Dept Rep 430, Decision No. 15,375; Appeal of Heath, 37 id. 544, Decision No. 13,923).  However, it should be noted that the standard of what is similar is flexible and is not to be applied mechanically (Appeal of Barker and Pitcher, 45 Ed Dept Rep 430, Decision No. 15,375; Appeal of Heath, 37 id. 544, Decision No. 13,923).

In this matter, respondents have the burden of proving the board’s intention to create narrow tenure areas for its administrators as it is respondents that seek the benefit of such a structure.  The Board Minutes from May 7, 2012 specifically indicate that the board approved of the creation of the position of CSE and CPSE Coordinator/K-12 Administrator in the administrative tenure area of CSE and CPSE Coordinator/K-12 Administrator, the elimination of a position in the tenure area of Director of Special Education and the elimination of a position in the tenure area of School Business Manager.  Thus, the Board Minutes clearly set forth specific tenure areas, thereby evidencing respondent board’s intention to establish a structure of narrow tenure areas for administrators.  Additionally, as petitioner’s own papers acknowledge that her former position was in the narrow, specific tenure area of “Director of Special Education” and such papers attach the above-referenced Board Minutes, I find that petitioner was provided with sufficient notice as to the existence of narrow tenure areas for administrators and respondent board’s intention to create such a structure.

It is worth noting that there is some inconsistency in petitioner’s papers with regard to tenure areas within the district.  The petition states that petitioner’s former position is in the tenure area of “Director of Special Education,” while petitioner’s verified reply asserts that respondent board never provided any evidence of narrow tenure areas for administrators.  To support this claim in her reply, petitioner relies on an incomplete quote from the May 7, 2012 Board Minutes when she states that the newly-created position is in the “administrative tenure area.”  In doing so, petitioner omits relevant portions of the sentence necessary for proper context and interpretation; taken as a whole, the statement clearly provides that the newly-created position is in the “administrative tenure area of Committee on Preschool Special Education Coordinator/K-12 Administrator.”  As the Commissioner has consistently held, and as set forth at length above, in order for an administrator to be entitled to a position under Education Law §2510, the two positions must not only be similar but they must also be in the same tenure area (see Appeal of Heath, 37 Ed Dept Rep 544, Decision No. 13,923).

On the record before me, petitioner has failed to meet her burden of establishing that the duties of the newly-created position are similar to those of the Director of Special Education, for purposes of Education Law §2510(3)(a).  Although there are some common management and supervisory skills required in both positions, the record before me reveals that the newly-created position involves substantially broader responsibilities, skills and experience than the Director of Special Education position.  For example, petitioner’s former position involved her oversight of two employees while the newly-created position requires the individual to supervise 32 employees; 100 percent of petitioner’s duties in her former position related to special education while only 40 percent of the duties of the newly-created position relate to special education, the remaining 60 percent relate to K-12 administration.  Petitioner has not met her burden of proving that the two positions are in the same tenure area or that they are similar within the meaning of Education Law §2510(3) and therefore, petitioner is not entitled to appointment to the position of CSE and CPSE Coordinator/K-12 Administrator.

THE APPEAL IS DISMISSED.

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