Appeal of NIKKI SLATER from action of the North Syracuse Central School District, Board of Education of the North Syracuse Central School District, Alicia Pizzuto, and Kim Dyce-Faucette as superintendent of schools regarding an appointment and preferred eligibility rights.

Decision No. 17,006

(December 6, 2016)

School Administrators Association of New York State, Office of General Counsel, attorneys for petitioner, Arthur P. Scheuermann and Robert T. Fullem, Esqs., of counsel

Bond, Schoeneck & King, PLLC, attorneys for respondents, Subhash Viswanathan and Christa R. Cook, Esqs., of counsel

ELIA, Commissioner.--Petitioner appeals the decision of the Board of Education of the North Syracuse Central School District (“respondent board”) and Superintendent Kim Dyce-Faucette (“respondent superintendent”) (collectively referred to as “respondents”) to appoint Alicia Pizzuto to the position of Director of Educator Effectiveness, Training and Library Media.  The appeal must be dismissed.

 Petitioner is a certified school district administrator who was employed in the district as Director of Professional Development (“former Director position”), effective July 1, 2009.  The appointment was subject to a three year probationary period, from July 1, 2009 through June 30, 2012.  Due to budget constraints, respondent board abolished the former Director position, terminated petitioner’s employment effective June 30, 2010, and placed her on a preferred eligibility list for recall.  Thereafter, respondent board appointed petitioner to the position of Associate Principal at Gillette Road Middle School (“Associate Principal”), effective July 1, 2010, for a period of one year at a salary comparable to that which she received in the former Director position.  On June 20, 2011, respondent board again appointed petitioner to the Associate Principal position, effective July 1, 2011, but at a reduced salary.[1]

During the 2011–2012 academic year, the administrative structure of the district was reorganized and, at its July 23, 2012 meeting, as part of the reorganization, respondent board created the position of Director of Educator Effectiveness, Training and Library Media (“new Director position”).  In July 2012, in response to an internal “Vacancy Notice” seeking applicants for the new Director position, respondent Pizzuto submitted her application.  According to the record, respondent Pizzuto was the only applicant for the position.  By letter to respondent superintendent dated August 21, 2012, the School Administrators Association of New York State (“SAANYS”) asserted that petitioner was entitled to the new Director position, contending that it was similar to the former Director position in that “the new and abolished positions share over fifty percent similar duties.”  The district responded through its attorney by letter dated August 23, 2012, stating that petitioner was not entitled to the new Director position because the positions were not more than 50 percent similar and, additionally, because petitioner did not meet the minimum qualifications for the new Director position. On August 28, 2012, respondent board appointed Pizzuto to the new Director position, effective September 1, 2012.  This appeal ensued.

Petitioner contends that the duties of the new Director position are more than 50 percent similar to those of her former position as Director of Professional Development and, therefore, pursuant to Education Law §2510, she is entitled to be appointed to the new Director position.  Petitioner relies heavily on a task shared by the two positions - developing and carrying out the agenda for the annual early September superintendent’s conference days.  Petitioner’s verified reply also refers to tasks of the new Director position related to training administrators and organization of the professional staffs’ professional development and contends that petitioner was responsible for those duties in her former Director position.  Petitioner seeks an order directing her appointment to the new Director position and retroactive salary.

Respondents contend that petitioner has not demonstrated that the duties of the new Director position are more than fifty percent similar to petitioner’s former Director position.  Respondents maintain that the new Director position, which they assert was created primarily to assist respondent district in compliance with the State requirements such as the Annual Professional Performance Review (“APPR”) mandates, could not be similar to petitioner’s former Director position because such state requirements had not previously existed.  Additionally, respondent district asserts that it required, as a minimum qualification for the new Director position, that individuals applying for such position be certified as a trainer with Teaching Learning Solutions, a New York State Education Department-approved training company.  As petitioner lacked such certification, respondents contend that she did not meet the minimum qualifications for the new Director position.  For all of the above reasons, respondents maintain that the appeal must be dismissed.

Before turning to the merits, there is one procedural issue I must address.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836).  I take administrative notice from the record in a second appeal brought by petitioner, Appeal of Slater, Appeal No. 19,873, that on September 23, 2013, respondent board abolished the position of Director of Educator Effectiveness, Training and Media.  Therefore, to the extent petitioner requests appointment to that position or seeks an award of back pay for the period after such position was abolished, there is no such vacancy and this appeal must be dismissed as moot.  However, to the extent petitioner seeks back pay from August 27, 2012 until September 23, 2013 based on respondents’ failure to appoint her to that position from the preferred eligibility list, I find that this appeal is not moot.

On the merits, Education Law §§2510(3) and 3013(3) govern the rights of a terminated school district teacher or administrator to recall from a preferred eligibility list.  Paragraph (a) of §3013(3), which applies to a central school district such as respondent, 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, but only if the new position is "similar" to the former position.  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 petitioner in her former position (Greenspan v. Dutchess County BOCES, 96 AD2d 1028; Appeal of Elmendorf, 36 Ed Dept Rep 308, Decision No. 13,733; Matter of Evans, 10 id. 156, Decision No. 8,252).  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 Barker and Pitcher, 45 Ed Dept Rep 430, Decision No. 15,375; Appeal of Heath, III, 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 Debowy, 41 id. 161, Decision No. 14,648).

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).

On this record, I find that petitioner has failed to meet her burden of proving that the responsibilities and duties of petitioner’s former Director position constitute more than 50 percent of the responsibilities and duties of the new Director position. 

Respondents deny that the job description attached to petitioner’s appeal papers is the full and accurate description of the new Director position, but admit that it is a draft job description submitted to respondent board when it created the position.  As such, it is highly probative of the nature of the duties of the new Director position and respondents fail to provide an alternate job description or offer any proof that the tentative job description is in fact inaccurate.  Accordingly, I accept the documentation provided by petitioner as a description of the duties of the new Director position.  As shown in the tentative job description, the new Director position is comprised of duties and responsibilities from several other positions, including Professional Development, Library Media, Math Instruction (Academic Intervention Services and Math [K-12]) and Multicultural Education.  Neither party has provided evidence of the percentage of time to be spent by respondent Pizzuto on the various tasks of the new Director position.  It is undisputed that the new Director of Educator Effectiveness, Training and Library Media assumed the duties of the Director of Professional Development with respect to oversight of professional development, including planning and coordination of superintendent’s conference days, developing professional development activities for teachers and certain administrative staff, and maintaining a library of professional development materials.  However, there are substantial differences between the duties of the two positions.

Based on the affidavits of respondent Pizzuto and respondent district’s Assistant Superintendent for Educator Effectiveness and Human Resources, it appears that respondent Pizzuto spends a majority of her time in the new Director position on tasks related to the new State APPR mandates.  Contrary to respondents’ arguments, however, it does not automatically follow that because the APPR requirements for the evaluation of classroom teachers and building principals did not exist when petitioner was Director of Professional Development, the two positions cannot be determined to be similar based on duties relating to evaluation of teachers.  Similarly, I reject respondents’ argument that petitioner did not meet the minimum requirements of the new Director position as she did not possess the requisite certification as a trainer with Teaching Learning Solutions at the time that the position was created.  In any case, the internal “Vacancy Notice” soliciting applications for the position did not list such a requirement and respondent has not provided any documentation evidencing such a minimum qualification requirement.  Petitioner holds a certificate as a School District Administrator and the fact that she has not yet completed a specialized training course is not determinative of the similarity of the positions involved (see Appeal of Barker and Pitcher, 45 Ed Dept Rep 430, Decision No. 15,375).  For example, petitioner could have acquired such certification if appointed to the position and respondent district could have made her appointment contingent upon acquiring the requisite certification.

However, I also reject petitioner’s argument that because petitioner’s duties included evaluation duties, all of the new Director position’s duties with respect to APPR implementation necessarily are similar to those of the Director of Professional Development.  The job duties of the Director of Professional Development, as set forth in the job description, included teaching personnel “as assigned” and supervising and evaluating professional developers.  In contrast, both the tentative job description and respondent Pizzuto’s affidavit indicate that the duties of the new Director position went beyond conducting evaluations and included various district-wide responsibilities.  Those district-wide responsibilities included: planning and roll-out of the APPRs; training and certifying principals as lead evaluators; participating in the Peer Assistance Review Panel; implementing the Student Learning Objectives (SLOs) for the district and serving on the district’s Network Team, which is responsible for attending State Education Department training programs; coordinating the district’s APPR implementation; and monitoring district-wide progress in meeting state professional development requirements.  Petitioner has not proven that the duties of the Director of Professional Development included such district-wide responsibilities for the development and implementation of the teacher evaluation system.

The new Director position also included duties relating to instruction that were not included in the duties of the position of Director of Professional Development at all.  Among the new Director’s duties is responsibility for implementation and training relating to the Common Core Learning standards.  In addition, the new Director retained responsibility for math instruction, and the record does not indicate that petitioner holds the requisite certification to qualify her to provide such math instruction.

In addition, the record indicates that the new Director was assigned responsibility for multi-cultural education, specifically for overseeing compliance with the Dignity for All Students Act (DASA).  No counterpart to these duties exist in the duties of the former Director position.

Finally, the new Director position included duties relating to library media which were not among the duties of the former Director position.  Such duties include district-wide supervision of eleven librarians in ten school buildings, including hiring, firing, disciplining and evaluating the librarians, as well as various other functions relating to oversight of library services.

While there are some common tasks, responsibilities, and supervisory skills required in both positions, the record before me indicates that the new Director position involved substantially broader, district-wide responsibilities and several functions from other pre-existing positions for which there is no counterpart in the duties of the former Director position.

Upon review of the record before me, I find that petitioner has failed to meet her burden of establishing that the duties of the position of Director of Educator Effectiveness, Training and Library Media are similar to those of petitioner’s former abolished position of Director of Professional Development, for purposes of Education Law §3013(3)(a).

THE APPEAL IS DISMISSED.

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