Appeal of ROSE ANN BRADLEY, from action of the Board of Education of the City School District of the City of Mechanicville and Michael McCarthy, as Superintendent of Schools, regarding the abolishment of a position.

Decision No. 17,018

(December 20, 2016)

School Administrators Association of New York State, attorneys for petitioner, Jennifer L. Carlson, Esq., of counsel

Girvin & Ferlazzo, P.C., attorneys for respondents, James E. Girvin, Esq., of counsel

ELIA, Commissioner.--Petitioner challenges various actions of the Board of Education of the City School District of the City of Mechanicville (“board”) and Michael McCarthy, as Superintendent of Schools (“Superintendent”) (collectively referred to as “respondents”), relating to the abolishment of her position.  The appeal must be dismissed.

Petitioner is a certified public school administrator who was appointed to a two-year probationary appointment as Director of Special Education for the district, effective January 8, 2007.  At a board meeting on July 7, 2008, petitioner’s job title was changed to Director of Pupil Personnel Services, effective July 1, 2008.  At a board meeting held on January 7, 2010, petitioner was awarded tenure in the tenure area of Director of Pupil Personnel Services, effective January 8, 2010. By letter dated January 8, 2010, the Superintendent notified petitioner of her tenure appointment. At its September 1, 2011 meeting, the board abolished petitioner’s position as Director of Pupil Personnel Services, effective September 2, 2011.  The minutes reflect that at that same meeting, the board created the position of Director of Special Education, effective September 2, 2011 and petitioner was appointed to this new position.  She was appointed to a probationary appointment for a term of 1.5 years from September 2, 2011 to March 2, 2013, crediting her for her prior service as the Director of Special Education (from January 2007 to June 2008).  This appeal ensued and petitioner’s request for interim relief was denied on October 14, 2011. 

Petitioner asserts that her position as Director of Pupil Personnel Services was improperly abolished to circumvent her tenure rights.  She requests reinstatement to her previous position as Director of Pupil Personnel Services, with tenure and seniority rights. In the alternative, petitioner seeks an order declaring that she acquired tenure by estoppel as Director of Special Education on either January 8, 2009 or January 8, 2010 or an order that she is entitled to retain tenure in the area of Director of Pupil Personnel Services while serving in her position of Director of Special Education on the basis that the new position consists of more than 50 percent of the same job duties as her previously held position as Director of Pupil Personnel Services. 

Respondents contend that petitioner has failed to meet her burden of proof that respondents violated her tenure rights and has failed to demonstrate a clear legal right to the relief requested.  Respondents further assert that the position of Director of Pupil Personnel Services was abolished for reasons of economy and efficiency and that petitioner’s claims to tenure in the area of Director of Special Education are untimely. 

 An appeal to the Commissioner must be commenced within 30 days from the making of the 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 Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879).

To the extent that petitioner seeks an order  declaring that petitioner has acquired tenure by estoppel in the tenure area of Director of Special Education on either January 8, 2009 or January 8, 2010, those claims must be dismissed as untimely.  Respondents submit minutes of a board meeting dated January 7, 2010, wherein the board appointed petitioner to tenure in the area of Director of Pupil Personnel Services, effective January 8, 2010.  While objections were raised at the board meeting to her appointment to this tenure area, petitioner failed to commence an appeal to the Commissioner within 30 days from the date of the board meeting to challenge her tenure appointment.  Accordingly, these claims must be dismissed as untimely.

Nevertheless, even if her claim to entitlement to tenure by estoppel in the tenure area of Director of Special Education was not dismissed as untimely, it would be dismissed on the merits. By accepting her tenure appointment in the area of Director of Pupil Personnel Services in January 2010, petitioner cannot now claim that she obtained tenure by estoppel in the tenure area of Director of Special Education, by using seniority credit for her service in the position of Director of Pupil Personnel Services (the same service which resulted in her obtaining tenure in the tenure area of Director of Pupil Personnel Services).  Even if petitioner is correct that the board action on January 8, 2009, resulted in merely a change in title and not a change in tenure area, it is undisputed that petitioner was granted tenure effective January 8, 2010 in the tenure area of Director of Pupil Personnel Services.  Respondent board subsequently abolished that position and created a new narrower position of Director of Special Education.  Petitioner offers no explanation of why respondent board would not have authority to narrow an existing tenure area following an abolition, as long as the abolition itself was lawful. 

Moreover, petitioner has failed to demonstrate that these two positions are in the same tenure area.  While respondents admit that the appointments of its administrators were flawed in that they did not indicate a tenure area, at its October 6, 2011 board meeting, the district made formal tenure appointments for its administrators, with alleged agreement from each administrator, including petitioner, to accurately reflect the tenure area in which they are serving.  Respondents also submitted affidavits from each of the district’s administrators noting that even though it was not clear from their appointment, they knew that they would be serving in a tenure area that coincided with their position title.  Therefore, petitioner has failed to demonstrate that these two positions were in the same tenure area.  On the contrary, the record reflects that petitioner knew the two positions were in separate tenure areas on or before January 2010, when she accepted the tenure appointment to the area of Director of Pupil Personnel Services.

Petitioner’s claims that the board improperly abolished her Director of Pupil Personnel Services position must be dismissed.  A board of education may abolish and/or consolidate positions for sound economic reasons, so long as the decision is not motivated by bad faith (Education Law §2510 [16] and [33]; Matter of Young v. Bd. of Educ. of Central School Dist. No. 6, Town of Huntington, et al., 35 NY2d 31, 34 [abolition of attendance teacher position]; Matter of Cohen v. Crown Point Central School Dist., et al., 306 AD2d 732 [abolition of civil service business manager position]; Matter of Currier v. Tompkins-Seneca-Tioga Bd. of Coop. Educ. Services, 80 AD2d 979 [abolition of Director of Department of Continuing Education position]).  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).

In this case, the Superintendent submitted an affidavit asserting that the Director of Pupil Personnel Services position was abolished as a result of a larger reorganizational scheme designed to achieve a cost savings in the district, streamline efficiency in special education and increase services available to students.  The record reveals that the reorganizational scheme included the redistribution of job duties and the elimination of several positions in the district, including the middle school principal position and numerous teaching positions.

Where, as here, respondents have demonstrated that petitioner’s position was abolished for economic and academic reasons, the burden shifts to petitioner to eliminate the board’s bona fide reasons for its action, show that no savings were accomplished, or show that someone was hired to replace her, in order to sustain her claims (Matter of Cohen v. Crown Point Central School Dist., et al., 306 AD2d 732).

Petitioner asserts that her position was abolished by respondent board in bad faith because her August 2011 evaluation by the Superintendent states: “I am reviewing the abolishment of the Director of Pupil Services position in order for you to focus on your main job responsibilities as Director of Special Education”.  However, this statement is consistent with respondents’ reasoning that job duties were reassigned throughout the district to achieve efficiencies and to focus on the special education needs of students in the district.  Petitioner’s conclusory allegations that respondents acted in bad faith are not supported by evidence in the record, and petitioner has failed to meet her burden of proving bad faith.

I must also reject petitioner’s claim that she must be reappointed to the Director of Special Education position without loss of pay and with tenure and seniority rights in the Director of Pupil Personnel Services tenure area.  Education Law §2510 governs the rights of a former employee of a city school district to re-employment and provides, in pertinent part, as follows:

If the board of education abolishes an office or position and creates another office or position for the performance of duties similar to those performed in the office or position abolished, the person filling such office or position at the time of its abolishment shall be appointed to the office or position thus created 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.

While petitioner was reappointed to the Director of Special Education position, I do not find that she was required to be appointed to that position under Education Law §2510.  In order for petitioner to be entitled to appointment to a vacant position, the position must be similar to that of her former position (Greenspan v. Dutchess County Bd. of Coop. Educ. Services, et al., 96 AD2d 1028; Appeal of Barker and Pitcher, 45 Ed Dept Rep 430, Decision No. 15,375).  The test to ascertain whether the two positions are “similar” is whether more than 50 percent of the duties of the vacant position are those which were performed by petitioner in her former position (Greenspan v. Dutchess County Bd. of Coop. Educ. Services, et al., 96 AD2d 1028; Appeal of Barker and Pitcher, 45 Ed Dept Rep 430, Decision No. 15,375; Appeal of Debowy, 41 id. 161, Decision No. 14,648).  Petitioner has the burden of proving that a majority of the duties of the vacant 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 Debowy, 41 id. 161, Decision No. 14,648).  However, 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).  Additionally, the two positions must be in the same tenure area (see Kelley v. Ambach, 83 AD2d 733; Appeal of Barker and Pitcher, 45 Ed Dept Rep 430, Decision No. 15,375; Appeal of Debowy, 41 id. 161, Decision No. 14,648).

As explained above, petitioner has not met her burden of demonstrating that the two positions are in the same tenure area.  Therefore, petitioner has no rights under Education Law §2510(3) to be appointed to the Director of Special Education position with the same salary as her previous position and/or to receive tenure and seniority rights in the area of Director of Pupil Personnel Services area while serving her position as Director of Special Education (see Kelley v. Ambach, 83 AD2d 733; Appeal of Barker and Pitcher, 45 Ed Dept Rep 430, Decision No. 15,375; Appeal of Debowy, 41 id. 161, Decision No. 14,648).

Even if the two positions were in the same tenure area, the appeal would be dismissed because petitioner has failed to demonstrate that more than 50 percent of her duties as Director of Pupil Personnel Services fall within the duties of her position as Director of Special Education.  A review of the job descriptions reveals that the position of Director of Pupil Personnel Services is a supervisory position, which among other things, requires direct supervision over the Curriculum Coordinator and the Professional Development Plan Coordinator.  It also includes the additional duties of providing leadership and support for gifted and talented education, the student cumulative record system, the guidance department and school nurses, as well as overseeing residency determinations.

In contrast, the position of Director of Special Education focuses exclusively on the special education needs of the district.  According to the job description, the duties of the Director of Special Education include: serving as chairperson of the Committee on Special Education (“CSE”)/ Committee on Pre-School Special Education (“CPSE”); participating in the recruitment and reassignment of special education staff and overseeing compliance with §504 of the Rehabilitation Act of 1973.

The degree of comparable skills and experience required to carry out the duties of the two positions must also be considered (Appeal of Debowy, 41 Ed Dept Rep 161, Decision No.14,648, Appeal of Jordan, 37 id. 487, Decision No. 13,910, judgment granted dismissing petition to review, Sup. Ct., Albany Co., [Keegan, J.], March 30, 1999; n.o.r.).  Although there are some common management and supervisory skills required in both positions, the record before me reveals that the position of Director of Pupil Personnel Services involves substantially broader responsibilities, skills and experience than that of Director of Special Education.  Thus, I find that respondents’ determination that the two positions are not in the same tenure area was proper and even if they were, petitioner has not met her burden of proving that the two positions are similar within the meaning of Education Law §2510(3)(a).  Therefore, petitioner is not entitled to appointment to the position of Director of Special Education with the same salary and tenure rights or reinstatement to her former position.

In light of the foregoing, I need not address petitioner’s remaining contentions. 

THE APPEAL IS DISMISSED.

END OF FILE