Appeal of KARMEN MCEVOY from action of the Board of Education of the City School District of the City of Schenectady and Kiante Jones regarding an assignment of duties.

Decision No. 17,198

(September 27, 2017)

Starvaggi Law Offices, P.C., attorneys for petitioner, Michael A. Starvaggi, Esq., of counsel

Harris Beach, PLLC, attorneys for respondents, Douglas Gerhardt, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the decision of the Board of Education of the City School District of the City of Schenectady (“respondent board”, collectively with respondent Kiante Jones, “respondents”) to assign petitioner to a position outside her tenure area.  The appeal must be dismissed.

On July 1, 2006, petitioner was appointed to a probationary appointment as a middle school principal in respondent’s district.  Petitioner was granted tenure in the middle school tenure area, effective July 1, 2008.  Petitioner served as the middle school principal of the Oneida Middle School from July 1, 2006 through June 30, 2012, when the school closed.[1]  Pursuant to a memorandum of agreement between the Schenectady City School District (“the district”) and the Schenectady Administrators Association (“the Association”) dated May 2, 2012, it was agreed that petitioner would be assigned to the alternative middle-level program housed at Mont Pleasant Middle School beginning with the 2012-2013 school year and serve in the middle school principal tenure area.  On July 1, 2012, petitioner was appointed to be the middle school principal of Success Academy until January 2013.  The district and the Association entered into a subsequent memorandum of agreement wherein it was agreed that petitioner would be temporarily appointed to serve as the Interim Coordinator of Fine Art from February 2, 2013 through June 30, 2013.  Thereafter, petitioner was on a leave of absence from October 2, 2013 through October 13, 2014 for medical reasons.  Commencing on October 14, 2014, petitioner was appointed to serve in the middle school tenure area as a principal on special assignment during the 2014-2015 school year.  By letter dated August 13, 2015, petitioner’s counsel requested that petitioner’s assignment for the 2015-2016 school year include her current duties along with the supervision of administrative matters in the re-opening of the Oneida Middle school, which was scheduled to be re-opened in the 2016-2017 school year and that, when it was reopened, petitioner would then become the principal of the Oneida Middle School.  This appeal ensued.

Petitioner alleges that respondent board assigned her to duties outside her tenure area without her prior written consent, in violation of 8 NYCRR §30-1.9(c) of the Rules of the Board of Regents.  Petitioner further asserts that she has more seniority than respondent Kiante Jones in the middle school tenure area and requests that she be reinstated as principal of the Mont Pleasant Middle School.

Respondents assert that the petition must be denied for failure to set forth a claim upon which relief may be granted and as untimely.  Respondents further assert that the petition must be dismissed as academic since petitioner continues to accrue seniority in her tenure area as a middle school principal and has not been adversely affected by respondent board’s actions and the Oneida Middle School was not open at the time the appeal was commenced. 

I must first address the timeliness issue.  Respondents contend that the appeal is untimely as it was not commenced within 30 days of the effective date of petitioner’s reassignment on October 14, 2014 to principal on special assignment.  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). 

Petitioner contends that respondent board’s assignment of duties to petitioner that are outside of her tenure area constitute a continuing wrong and therefore the appeal is timely.  The continuing wrong doctrine applies when the ongoing action is itself an unlawful action, such as the unlawful employment of an unqualified individual (Appeal of Kippen, 48 Ed Dept Rep 469, Decision No. 15,919), unlawful appointments to a district’s shared decision-making team (Appeal of Sadue-Sokolow, 39 Ed Dept Rep 6, Decision No. 14,155), an improperly constituted professional development team (Appeal of Copenhagen Teachers’ Association, et al., 45 Ed Dept Rep 459, Decision No. 15,381) or certain ongoing expenditures under an austerity budget that did not comply with the law (Appeal of Aarseth, 32 Ed Dept Rep 506, Decision No. 12,901).  The doctrine does not apply where the specific action being challenged is a single action, inaction or decision and the resulting effects are not intrinsically unlawful (Application of Ayers, 48 Ed Dept Rep 350, Decision No. 15,883; Appeal of a Student with a Disability, 48 id. 146, Decision No. 15,821, judgment granted dismissing petition to review, April 8, 2009, Sup.Ct., Albany Co. [Zwack, J.]).  Since the assignment of an administrator to devote a substantial portion of his/her time to duties outside of his/her tenure area without his/her prior written consent in violation of 8 NYCRR §30-1.9(c) would be intrinsically unlawful, I find that there is a continuing wrong and the appeal is timely. 

I must also reject respondents’ contention that the appeal must be dismissed because there is no current case or controversy and petitioner is seeking an advisory  opinion on an issue before it becomes justiciable.  Respondents argue that petitioner continues to receive her full salary and accrue seniority in her tenure area as a middle school principal and respondent board has taken no action that could give rise to a case or controversy.  The Commissioner will not render an advisory opinion on an issue before it becomes justiciable (Appeal of B.R. and M.R., 48 Ed Dept Rep 291, Decision No. 15,861; Appeal of Lachler, 47 id. 455, Decision No. 15,752).  However, the August 13, 2015 letter from petitioner’s counsel formally requests that petitioner be returned to a middle school principal position.  While respondents are correct that petitioner continues to accrue seniority in the middle school principal tenure area, her claim is premised on her allegations that she continues to be assigned duties outside of her tenure area, in violation of 8 NYCRR §30-1.9(c).  Although there is no indication in the record that respondent board took action in response to such letter, I find that respondent board’s failure to act in response to petitioner’s request to return to a middle school principal position presents a sufficient case or controversy to maintain this appeal.  I therefore decline to dismiss this appeal as premature.

I must also reject respondents’ contention that the appeal must be dismissed because petitioner is seeking an advisory opinion to the extent she seeks to be placed in the Oneida Middle School principal position because such school was not open at the time this appeal was commenced.  Since petitioner requests that I declare her to have more seniority than respondent Jones and that I reinstate her to the position of principal of the Mont Pleasant Middle School, I find that petitioner is not seeking an advisory opinion as respondents suggest, and the appeal need not be dismissed as premature.  However, the appeal must be dismissed to the extent petitioner seeks a declaratory ruling that she has more seniority in the middle school principal tenure area than respondent Jones.  It is well established that the Commissioner does not issue advisory opinions or declaratory rulings in an appeal pursuant to Education Law §310 (Appeal of a Student with a Disability, 48 Ed Dept Rep 411, Decision No. 15,899; Appeal of Waechter, 48 id. 261, Decision No. 15,853).

Turning to the merits, petitioner claims that she continues to be assigned to a position outside of her tenure area without her consent in violation of §30-1.9(c) of the Rules of the Board of Regents and that she is entitled to reinstatement to a middle school principal 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).

Administrative tenure areas are not governed by Part 30 of the Rules of the Board of Regents (see Matter of Cowan v. Bd. of Ed. of Brentwood Union Free School Dist., et al., 99 AD2d 831; Matter of Coates v. Ambach, 52 AD2d 261, aff’d 42 NY2d 846).  Rather, administrative tenure areas are determined by individual school districts (Appeal of Alexander and Gonzalez, 54 Ed Dept Rep, Decision No. 16,731; Appeal of Murray, 48 id. 517, Decision No. 15,934).  School administrators may be transferred within their tenure areas, but may not be transferred outside their tenure areas involuntarily (Matter of Bell v. Bd. of Ed. of Vestal Central School Dist., 61 NY2d 149; Appeal of Rabeler, 46 Ed Dept Rep 382, Decision No. 15,539; Appeal of Caruana, 41 id. 227, Decision No. 14,671).  The crux of the issue before me is whether the duties assigned to petitioner are within the middle school principal tenure area as established by the district. 

Section 30-1.9(c) of the Rules of the Board of Regents provides as follows:

No professional educator, whether on tenure or in probationary status, may be assigned to devote a substantial portion of his time in a tenure area other than that in which he has acquired tenure or is in probationary status, without his prior written consent.

Petitioner argues that, as applied to administrators, however, a “substantial portion of his time” as used in §30-1.9(c) is more than 50 percent.  I agree with petitioner that it is well-settled that an administrator will be considered to be in a new tenure area if the administrator will devote more than 50 percent of his or her time to new or different duties within that new tenure area (Matter of Coates v. Ambach, 52 AD2d 261, aff’d 42 NY2d 846; Matter of Maine-Endwell Teachers Association, et al. v. Maine-Endwell Central School Dist., 92 AD2d 1052; Appeal of Pearse, 50 Ed Dept Rep, Decision No. 16,159).  Therefore, the definition of “substantial portion of his time” in 8 NYCRR §30-1.1(g) does not apply to administrators.[2]  As noted above, under established case law, administrators cannot be transferred to another tenure area without their consent, and in the case of an administrator the 50 percent rule is used to determine whether the administrator has been transferred to a new tenure area in violation of his or her tenure rights.

Petitioner alleges that respondent assigned her to a majority of duties that are outside of the middle school principal tenure area.  However, a board of education has broad discretion in assigning members of its professional staff, so long as the employee's tenure rights are not infringed upon (Matter of Van Heusen v. Bd. of Ed., City School District of the City of Schenectady, et al., 26 AD2d 721; Appeal of Dillon, 43 Ed Dept Rep 333, Decision No. 15,010; Appeal of Garry, 19 id. 359, Decision No. 10,166). It is clear from the record before me that in her special assignment petitioner will continue to accrue tenure and seniority credit in the middle school principal tenure area.

In petitioner’s affidavit, she asserts that her duties included, “overseeing the 1003a grant for all but two elementary buildings, the four K-8 buildings and Mont Pleasant Middle School”; working with “principals in all grade levels to make sure they are following their building improvement plans and monitor the spending from the allocations awarded to each building”; working with the elementary coders to make sure they are coding related services correctly for the students in their individual buildings, overseeing the elementary building scheduling and overseeing two special education grants.  However, she provides no documentation to support her description of her duties.

Respondents deny petitioner’s allegations relating to her duties, and submit an affidavit from the District Director for Planning and Accountability, who asserts that petitioner’s duties included master scheduling, coordinating grant activities, addressing matters of school improvement and engaging in school improvement planning for schools including the middle school(s).  In addition, respondents provide a document listing the expectations/duties for the position of middle school principal on special assignment, and state that petitioner’s duties were consistent with those expectations.

While petitioner generally claims that the majority of her duties have nothing to do with the middle school grades, petitioner has provided no evidence to refute respondent’s contention that the duties she performed were within the middle school principal tenure area.  Petitioner has provided no job description for her position and/or a detailed list of duties she is performing with the amount of time spent performing each of such duties or affidavits from other administrators/district personnel indicating that the duties she performed were outside of the middle school principal tenure area.  Thus, while it is clear from the record that petitioner’s duties include services provided to elementary schools as well as middle schools, I find no basis in this record for determining the percentage of time petitioner spends performing duties that are clearly within the middle school principal tenure area and duties that are outside of such tenure area.  Moreover, in the August 13, 2015 letter, petitioner’s attorney clearly states that petitioner’s special assignment in the 2014-2015 school year was within petitioner’s tenure area and, if continued until the opening of a principal position at the Oneida Middle School, “such assignment would continue to be within Ms. McEvoy’s tenure area.”  This directly contradicts the allegations in the petition that petitioner is being unlawfully assigned outside of her tenure area.  Moreover, petitioner’s own work history in the middle school principal tenure area appears to indicate that she performed similar duties while serving as a middle school principal.  Therefore, I find that petitioner has failed to meet her burden of demonstrating that she has been assigned duties that she could have been assigned while remaining in the middle school principal tenure area, and thus that respondents’ actions were unlawful (see generally Appeal of Debowy, 41 Ed Dept Rep 161, Decision No. 14,648; Matter of Monaco, 24 id. 48, Decision No. 11,311; Matter of Angelos, 14 id. 254, Decision No. 8,958).

Nor do I find on the record before me that petitioner's assignment to these duties was merely a thinly disguised attempt at disciplinary action (cf. Appeal of Irving, 39 Ed Dept Rep 761, Decision No. 14,373). In Irving, the district cited incidents of alleged misconduct that immediately preceded the administrator's transfer and were the subject of a counseling letter given to her on the day before the transfer. In contrast, petitioner here has framed her complaint as an involuntary transfer outside of her tenure area that followed a voluntary transfer and has failed to establish that the transfer was used as a subterfuge to discipline her for alleged misconduct.

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

THE APPEAL IS DISMISSED.

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