Decision No. 13,559

(March 6, 1996)

Joan Stern Kiok, Esq., attorney for petitioners

MILLS, Commissioner.--Petitioners appeal respondents' two-tiered system for New York City high school principals. The appeal must be dismissed.

Petitioners are principals of alternative high schools in the New York City school system. They appeal on behalf of themselves and all principals similarly situated. Petitioners allege that the Board of Education of the City School District of the City of New York ("respondent board") maintains a two-tiered system of licenses and pay scales for high school principals. Respondent board's structure provides the titles and licenses "Principal, Independent Alternative Day High School" and "Principal, Day High School."

All New York City public high schools are administered by respondent board's Division of High Schools. All high schools fall under one of the following superintendencies: Bronx, Brooklyn, Brooklyn/Queens, Queens, Manhattan and Alternative High Schools/Special Programs. Respondent board's Division of High Schools determines, on a case-by-case basis, which high schools are properly classified as alternative high schools. The following factors are considered in this determination: school size; school administrative structure; size and composition of pedagogical staff; physical plant and special needs of the student body.

The Council of Supervisors and Administrators (CSA) is the duly recognized collective bargaining agent for respondent board's 4,200 pedagogical supervisory and administrative employees. Pursuant to the collective bargaining agreement in place between respondent board and its administrators, all principals employed by respondent board are not paid a uniform salary. Recognizing this disparity in salaries, a memorandum of understanding (MOU) was implemented between respondent board and the CSA which somewhat reduced the salary differential between these two groups. Petitioners filed this appeal because they believe that insufficient progress has been made to equalize the salaries of these two groups.

Petitioners contend that respondent board's two-tiered system of principalships is antiquated and that there is no difference between the tasks and duties of the two titles so there should be no differentiation in pay scales. Petitioners also contend that there should be no difference in principals' salaries since there are no salary differences for assistant principals and teachers assigned to alternative or day high schools. Petitioners further contend that the size of the high school is no longer relevant in determining whether it is a day or alternative high school. Petitioners believe that this categorization is arbitrary and seek an order directing respondents to set the same salary for all high school principals. Petitioners also seek other relief directing respondent to adjust petitioners' salaries prospectively to reflect the higher salaries of the day high school principals. Finally, petitioners seek retroactive relief to adjust salaries from October 2, 1994 and also seek costs and attorney's fees.

Respondents contend that the Commissioner of Education lacks jurisdiction in this matter because the Taylor Law provides that employees are bound to agreements made by their union. Respondents raise a number of procedural objections asserting that petitioner may not bring a class appeal, that the appeal is untimely and that petitioners fail to state a claim that respondents have acted arbitrarily, capriciously or in violation of law. Finally, respondents contend that the Commissioner may not award the costs or attorney's fees sought by petitioners.

Before reaching the merits, I will address respondents' procedural arguments. Respondents contend that the appeal is untimely because the decision to designate petitioners' high schools as alternative was made by respondent over a decade ago. An appeal to the Commissioner of Education must be commenced within 30 days of the making of the decision or the act complained of, except for good cause shown (8 NYCRR 275.16). Nonetheless, I find petitioners' appeal timely to the extent that it challenges continuing wrongs of improper classification of high school principals within respondent board's schools. Therefore, I decline to dismiss the appeal as untimely (Appeal of a Student with a Disability, 33 Ed Dept Rep 101; Appeal of Aarseth, 32 id. 506; Application of a Child with a Handicapping Condition, 30 id. 293; Appeal of the Town of Smithtown, 28 id. 337).

Respondents also contend that petitioners may not bring this appeal as a class appeal on behalf of all alternative high school principals similarly situated. A class appeal is permitted "only where the class is so numerous that joinder of all members is impracticable and where all questions of fact and law are common to all members of the class" (8 NYCRR 275.2[a]). Petitioners have not established that the class is so numerous that joinder would be impracticable since the record indicates that there are 52 alternative high school principals in respondent board's school system. While petitioners claim that the appeal was "ratified" by all 52 alternative principals who authorized it and contributed to legal expenses, these actions are insufficient to maintain a class appeal. Class status, therefore, is denied.

Turning to the merits, petitioners claim that respondents' classification system is arbitrary and capricious and that there is no basis to continue a dual system of principalships since the distinctions between alternative and day high schools in New York City are minimal. Respondents argue that the Commissioner lacks jurisdiction in this matter because the collective bargaining agreement between respondent board and the CSA establishes a multi-level salary structure for principals that may not be disturbed unless a statutory provision explicitly and definitely prohibits the board from making an agreement as to the particular term or condition of employment.

Petitioners contend that this appeal revisits issues originally raised in Matter of Greenberg, et al., 18 Ed Dept Rep 580. In that decision, respondent was found to be in violation of 8 NYCRR 100.3, which requires each school to employ a principal. Respondent had appointed "assistant principals" as chief administrative officers of alternative high schools. In Greenberg, respondent board was ordered to designate those individuals as principals, but was permitted to modify the title over an appropriate term. Subsequent to that decision, respondent board assigned the title "principal-alternative high school." Petitioners claim that this appeal is an expansion of that decision and request that I dismantle respondents' current high school principal licensing structure and equalize salaries.

While petitioners may not believe that respondents' high school system and their assignment to differing superintendencies has any legitimate basis and is arbitrary and capricious, they have failed to meet their burden of proof. It is clear that respondents' high school system has undergone significant change and that some of the district's day and alternative high schools are similar. However, based on the record before me, I find no basis to declare respondents' system of designating high schools arbitrary and capricious. Furthermore, I am persuaded by respondents' arguments that petitioners are in reality seeking salary changes that are more appropriately the subject of collective bargaining (Appeal of Capozza, 33 Ed Dept Rep 622; Appeal of Beres, et al., 24 id. 86). Based on the record before me, I cannot grant the relief petitioners seek.

Finally, petitioners' request for costs and attorney's fees must also be denied. The Commissioner of Education lacks authority to award attorney's fees and costs in an appeal under Education Law '310 (Appeal of Stewart, 34 Ed Dept Rep 193; Appeal of Ferguson, 32 id. 494; Application of a Child with a Handicapping Condition, 31 id. 212).

I have considered the parties' remaining contentions and find them without merit.

THE APPEAL IS DISMISSED.

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