Appeal of ANGELA ALEXANDER and MADELINE GONZALEZ from action of the Board of Education of the East Ramapo Central School District, Augustina West and Dionne Olamiju regarding termination of employment.

Decision No. 16,731

(April 2, 2015)

Starvaggi Law Offices, P.C., attorneys for petitioners

Minerva & D’Agostino, PC, attorneys for respondent Board of Education of the East Ramapo Central School District

BERLIN, Acting Commissioner.--Petitioners Angela Alexander (“Alexander”) and Madeline Gonzalez (“Gonzalez”) appeal the decisions of the Board of Education of the East Ramapo Central School District (“respondent” or “board”) to terminate their services as administrators.  The appeal must be sustained.

At a meeting of the board on August 20, 2002, Alexander was appointed to a probationary position in the tenure area of “Assistant Principal.”  By letter dated August 26, 2002, Alexander was notified of her appointment to the probationary position of “Assistant Principal.”  At a board meeting held on May 3, 2005, Alexander was then granted tenure in the tenure area of “Elementary Assistant Principal,” effective August 19, 2005.  By letter dated August 19, 2005, Alexander was notified that she had been granted tenure in the “Elementary Assistant Principal” tenure area.

Similarly, at a board meeting on July 2, 2002, Gonzalez was appointed to a probationary position in the tenure area of “Assistant Principal.”  By Notice of Appointment dated July 8, 2002, Gonzalez was notified of her probationary appointment to serve as an “Assistant Principal,” effective September 1, 2002.  At a board meeting held on May 3, 2005, Gonzalez was then granted tenure in the tenure area of “Elementary Assistant Principal,” effective July 1, 2005.  By letter dated May 4, 2005, Gonzalez was notified that she had been granted tenure in the “Elementary Assistant Principal” tenure area.

During the 2011-2012 school year, the district excessed all elementary assistant principals as well as the two least senior secondary principals, effective June 30, 2012.  By letters dated June 14, 2012, Alexander and Gonzalez were notified that their positions as Elementary Assistant Principals were abolished and that their employment was terminated, effective June 30, 2012.  Thereafter, petitioners filed a proceeding pursuant to Article 78 of the Civil Practice Law and Rules (“CPLR”) in Supreme Court, Rockland County, seeking a determination that they were improperly terminated from their positions as Assistant Principals. By decision and order dated January 28, 2013, the court dismissed the petition on the grounds that the Commissioner of Education had primary jurisdiction over the dispute (Alexander and Gonzalez v. Bd. of Educ. of East Ramapo Cent. School Dist., et al., Supreme Court, Rockland County, Index No.1722/2012).   This appeal ensued. 

Petitioners assert that they hold tenure in the broader “Assistant Principal” tenure area and that respondent wrongfully granted them tenure in the more narrow area of “Elementary Assistant Principal” without their written consent.  Petitioners further assert that the board’s decision to excess principals according to their seniority using the narrower tenure area violates applicable law.  They claim that, in view of their alleged broader “Assistant Principal” tenure area, they are more senior than respondents West and Olamiju and request that they be reinstated with back pay.[1]

Respondent counters that petitioners fail to state a claim for which relief can be granted; that the appeal is untimely and that petitioners’ allegations are barred by the doctrines of estoppel and laches. 

First, I must address the timeliness of this appeal.  Petitioners first sought review of the board's decision by timely commencing a proceeding under Article 78 of the CPLR in Supreme Court, Rockland County. Upon dismissal of that proceeding on January 28, 2013 for lack of jurisdiction, petitioners commenced this appeal, pursuant to Education Law §310, on February 19, 2013. 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 file a timely appeal to the Commissioner, when the appeal is commenced within a reasonable time after the dismissal or abandonment of the court proceeding (Appeal of
Ferencik, 49 Ed Dept Rep 142, Decision No. 15,981, judgment granted dismissing petition to review, September 15, 2011, Sup.Ct., Albany Co.; Appeal of Devente and Jesenof, 48 id. 150, Decision No. 15,822; Appeal of Markow-Brown, 45 id. 315, Decision No. 15,333).  Because petitioners commenced this appeal within 30 days of the Supreme Court’s decision on January 28, 2013, I find the appeal is timely (see Appeal of Ferencik, 49 Ed Dept Rep 142, Decision No. 15,981, judgment granted dismissing petition to review, September 15, 2011, Sup. Ct., Albany Co.). 

Turning to the merits, Education Law §3013(2) governs the abolition of positions in respondent’s school district and provides, in pertinent part:

Whenever a trustee, board of trustee,[2] board of education or board of cooperative educational services abolishes a position under this chapter, the services of the teacher having the least seniority in the system within the tenure of the
position abolished shall be discontinued.

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. Bd. of Educ. of Vestal Cent. School Dist., et al., 61 NY2d 149; Appeal of Caruana, 41 Ed Dept Rep 227, Decision No. 14,671).  Public policy favors the protection of employees’ seniority rights (see Ricca v. Bd. of Educ. of the City of New York, et al., 47 NY2d 385; Matter of Boyer v. Bd. of Educ., West Seneca Cent. School Dist., 132 Misc 2d 282).  “As tenure areas narrow, seniority rights become less meaningful. As tenure areas broaden, seniority rights take on greater significance ...” (Matter of Boyer v. Bd. of Educ., West Seneca Cent. School Dist., 132 Misc 2d 282).  Consequently, 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 Cent. School Dist., et al., 61 NY2d 149).  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; Matter of Boyer v. Bd. of Educ., West Seneca Central School Dist., 132 Misc 2d 282).

In this matter, respondent carries the burden of proving the board’s intention to create narrower, multiple defined tenure areas for its administrators and that petitioners were sufficiently alerted to the fact.  To establish that the petitioners belonged in the tenure areas claimed by the board, it must be adequately demonstrated that at the time of their appointments, the two categories had “traditionally been treated separately” by the district, and that petitioners were “sufficiently alerted to the fact [that] they were entering ... entirely separate and independent” areas, apart from that of the broad “Assistant Principal” tenure area (see Matter of Zubal v Ambach, 103 AD2d 927, 928, citing Waiters v. Board of Educ., 46 NY2d 885; Steele v. Bd. of Educ., 40 NY2d 456). 

The board submits an affidavit from its Assistant Superintendent of Personnel/Secondary Education (“Assistant Superintendent”), who is responsible for maintaining personnel files for the district.  In his affidavit, the Assistant Superintendent avers that, since 2000, the district has granted tenure to assistant principals only in the administrative tenure areas of “Secondary Assistant Principal” and “Elementary Assistant Principal.”  Prior to 2000, assistant principals were granted tenure in the following tenure areas: “High School Assistant Principal,” “Junior High School Assistant Principal” and “Elementary Assistant Principal.” In support of this position, the Assistant Superintendent also submitted a copy of a May 2000 agreement between the district and the East Ramapo Building Administrators Association (ERBAA), petitioners’ recognized collective bargaining unit, whereby 11 administrative members then serving in the high school assistant principal tenure area and the junior high school assistant principal tenure area agreed to be placed in the new secondary assistant principal tenure area.  However, this agreement does not apply to petitioners or the narrower tenure area of “Elementary Assistant Principal.” In light of the foregoing, this documentation fails to demonstrate that petitioners were sufficiently alerted of the district’s alleged determination not grant tenure in the “Assistant Principal” tenure area after 2000. 

Respondent also submits a copy of a Memorandum of Understanding between ERBAA and petitioner Gonzales wherein Gonzalez acknowledges she was “serving in the position of Elementary Assistant Principal” and there was an agreement to adjust her salary; however, nowhere in this document does Gonzalez consent to serving in the “Elementary Assistant Principal “tenure area”, which is the issue in this case.  Therefore, I also find this documentation to be unpersuasive to demonstrate petitioner Gonzalez’ consent to change tenure areas.

Upon the totality of the evidence presented, the board’s actions fail to support a determination that, upon hiring, Alexander or Gonzalez were either apprised that their tenure area would be the “Elementary Assistant Principal” tenure area, or that they acquiesced to placement within a new tenure area (see Matter of Kilmer v Bd. of the City School District of Rochester, 154 Misc 2d 649).  Tenure areas are fixed at the time a person is appointed and cannot be applied retroactively (Matter of Cole v Bd. of Educ., 90 AD2d 419, Waiters v. Bd. of Educ., 46 NY2d 885), without the person’s consent.   The board minutes and petitioners’ letters of probationary appointment clearly state that they were appointed to probationary positions in the “Assistant Principal” tenure area.  While the 2005 board minutes and Notices of Tenure served on petitioners state that each was appointed to tenure in the “Elementary Assistant Principal” tenure area, respondent has not met its burden of demonstrating that petitioners were sufficiently alerted to their appointment in the “Elementary Assistant Principal” tenure area at the time of appointment or that they consented to a change in tenure area after such appointment.   Based on the foregoing and in light of the fact that public policy favors the protection of employees’ seniority rights (see Ricca v. Bd. of Educ. of the City of New York, et al., 47 NY2d 385, 391; Matter of Boyer v. Bd. of Educ., West Central School Dist., 132 Misc 2d 282, 285; Appeal of Cipriano, 32 Ed Dept Rep 302, Decision No. 12,837), I must sustain this appeal. 

In abolishing the elementary assistant principal positions, the board was required to excess the administrator(s) “having the least seniority in the system within the tenure of the position abolished” (Education Law §§2510[2] and 3013[2]).  In accordance with my findings in this decision, petitioners did not serve in the Elementary Assistant Principal tenure area.  Therefore, I must remand this matter to respondent for a determination of petitioners’ seniority rights in the assistant principal tenure area and, based on such seniority, their right to reinstatement in the district as assistant principals on July 1, 2012, in accordance with this decision.

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

THE APPEAL IS SUSTAINED.

IT IS ORDERED that, within 30 days of the date of this decision, respondent calculate petitioners’ seniority rights in the assistant principal tenure area and make a new determination as to whether they are entitled to be restored to tenured positions as an “Assistant Principal”, effective July 1, 2012, with back pay and retroactive benefits.

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