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Decision No. 13,733

Appeal of DEBORAH ELMENDORF from action of the Board of Education of the Windham-Ashland-Jewett Central School District and Janette Bain regarding administrative tenure.

Decision No. 13,733

(February 19, 1997)

Beverly R. Hackett, Esq., (School Administrators Association of New York State), attorney for petitioner, James R. Greene, Esq., of counsel

Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C., attorney for respondents, Norman H. Gross, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals respondent's termination of her services as building principal and denial of her appointment to the newly created position of assistant superintendent. The appeal must be dismissed.

In February 1990, petitioner was employed as building principal by the Board of Education of the Windham-Ashland-Jewett Central School District ("respondent" or "respondent board"). The district consists of one building for approximately 500 students, grades kindergarten through 12. Petitioner received tenure in 1992 upon the recommendation of former Superintendent Ronald Matthews, who rated petitioner outstanding. In late 1992, a new superintendent was hired. He did not rate petitioner satisfactorily and petitioner alleges that their relationship was acrimonious.

In the spring of 1993, respondent created a new position of curriculum coordinator. Some of petitioner's elementary level duties were transferred to this new position. In the spring of 1994, district residents presented respondent with a petition with 545 signatures requesting that the coordinator position be abolished. In April 1995, respondent directed its superintendent to examine the district's service to children and respond to taxpayer concerns relating to the proposed reduction of one administrator.

On May 3, 1995, the district's school budget was narrowly defeated by 199 to 160. On May 5, 1995, the superintendent released his administrative needs study. Respondent board adopted that report on May 25, 1995 and recommended that the positions of curriculum coordinator and building principal be abolished and replaced by the position of assistant superintendent. Respondent board requested a variance under 8 NYCRR 100.2(a) from the State Education Department (SED) from that regulation's requirement that each school building have a full-time principal.

A second budget was put before the voters on June 14, 1995, and was again defeated, this time by a vote of 262 to 127. On June 15, 1995, district residents presented a petition with 400 signatures to respondent, opposing the restructuring that eliminated the building principal position. On June 16, 1995, petitioner was notified that her position was being abolished effective June 30, 1995. On June 20, 1995, petitioner wrote to respondent opposing the elimination of the building principalship and asserting that she was entitled to the newly created position of assistant superintendent. Thereafter, respondent conducted a search for the assistant superintendent position, but petitioner was not interviewed. Respondent appointed Janette Bain ("respondent Bain") to the position on August 17, 1995. This appeal ensued. Petitioner's request for interim relief pending a determination on the merits of this appeal was denied on July 28, 1995. In the meantime, SED had granted respondent board's variance request on July 27, 1995. Petitioner challenged the variance in a proceeding brought pursuant to Article 78 of the Civil Practice Law and Rules in New York State Supreme Court, which was dismissed on procedural grounds on February 2, 1996.

In this appeal, petitioner alleges that she is the senior excessed administrator in the administrative tenure area, that the newly created position of assistant superintendent is similar to the position she previously held and that, consequently, she is entitled to appointment to the newly created position. She requests appointment to that position effective July 1, 1995. Petitioner further alleges that respondent violated her due process by failing to provide her with a hearing prior to termination from her former position. Petitioner also claims that respondent board's variance request was improper and should not have been granted. Respondent contends that petitioner is not entitled to appointment to the position of assistant superintendent because that position is not similar to the position she held previously; the duties of the assistant superintendent are substantially different from petitioner's duties as building principal. Respondent denies that petitioner was entitled to a pretermination hearing and also maintains that the variance granted by SED to the district was in all respects proper.

Education Law '2510(1) provides, in pertinent part:

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.

To establish entitlement to appointment to the new position, petitioner must first establish that the two positions are in the same tenure area (Appeal of Schwarz, supra). There is no dispute in this case that both the principal position and the newly created assistant superintendent position fall in the administrative tenure area.

Moreover, the law is clear that petitioner is entitled to appointment to a newly created position only if the new position is similar to that of her former position (Greenspan v. Dutchess Co. BOCES, 96 AD2d 1028). In prior cases comparing the similarity of teaching positions, the test of whether the duties of the two positions are in fact similar is whether more than 50% of the functions to be performed by the incumbent of the new position are those which were performed by petitioner in her old position (Greenspan at 1029). Petitioner has the burden of proving that a majority of the duties of the new position are similar to those of his or her former position (Matter of Coates v. Ambach, 52 AD2d 261; Appeal of Schwarz, 28 Ed Dept Rep 101; Appeal of Gworek, 21 id. 501). Additionally, in comparing the similarity of the two positions, the degree of comparable skill and experience required to carry out the duties and responsibilities for each position must be considered. The comparison in this case is made difficult by the fact that the positions are administrative in nature, and thus do not easily lend themselves to the same analysis used under '2510 with respect to teaching positions. SeeMatter of Klein v. Deer Park Union Free School District, et al., 110 Misc 2d 332 (1981). I find unpersuasive respondent's attempts simply to allocate percentages of duties and create a mathematical formula to calculate the similarities of duties between the two positions as contained in Appendix B of respondent's memorandum of law.

In comparing the two positions, I have reviewed the respective job descriptions. Petitioner has submitted a copy of her original job description from 1990 for the building principal position. The record also contains a job description for the building principal position, which was revised in 1993 after the curriculum coordinator position was created. I have also examined the job description of the K-6 elementary coordinator/K-12 reading coordinator and the job description of the newly created assistant superintendent position. Finally, I have examined the descriptions of administrative configurations contained in the district's Administrative Needs Study.

My review indicates that, although there are several areas in which petitioner had responsibility that were transferred to the new title of assistant superintendent, the new position includes several functions which differ significantly from those of a building principal. For example, the duties common to the two positions which petitioner previously had responsibility include:

! curriculum development and instructional procedures

! teacher evaluation program

! program for community relations

! selection and supervision of staff

! assist in preparation of the annual budget

! assist in development of programs for professional growth

! supervisory responsibility for support staff

! supervisory responsibility for the faculty handbook

! responsibility for preparation and filing for all state reports

! coordinate BEDS data information

! responsibility for student discipline

! participation in the committee on special education and supervisory responsibility for special education

! extraclassroom and extracurricular programs

! assist in the periodic audit of the total school program

However, as noted above there are four major areas of responsibility and accountability for the assistant superintendent position that were not previously petitioner's responsibility, either under her original job description or the revised version after the establishment of the curriculum coordinator position. The areas in which the two positions differ are of no small significance including: supervisory responsibility for the business office, district purchasing agent duties, responsibility for the elementary compensatory education program and supervisory responsibility for the home instruction program. Unlike the duties of a building administrator, these functions are district-wide in scope and responsibility and require skills of a higher degree of training and certification. Accordingly, respondent asserts that the differences in New York State certification required for the two positions (the building principal requires only School Administrator and Supervisor [SAS] certification and the assistant superintendent requires School District Administrator [SDA] certification) demonstrate a great distinction between the two positions. I agree with respondent's position.

In Brown v. Bd. of Educ., Morrisville-Eaton Central School District, 211 AD2d 887 (1995), the court observed that "certification is a statutory requirement of no small significance in determining whether the new position is similar to the old one." Here, the assistant superintendent position requires a higher level of State certification than the building principal position [8 NYCRR 80.4(a)]. As noted, the new assistant superintendent position has broad responsibility for a number of school district management functions which are district-wide in nature. Unlike the limited scope of a building principal's duties, the assistant superintendent acts on behalf of the entire district in supervising the business office and as purchasing agent for the school district. Such fiscal responsibilities require greater knowledge and management skills with respect to budgeting, fiscal policy, and fiscal management, requiring a higher degree of training and accountability than that of a building administrator. The assistant superintendent must also supervise all aspects of the district's home instruction program for all children in the district receiving such instruction. He or she must also oversee the district's entire elementary compensatory education program. The higher level of skills and accountability required of any administrator having district wide responsibilities is evidence by the more rigorous certification requirements in obtaining the necessary SDA. The fact that petitioner in this instance happens to hold the higher level certification not dispositive since the threshold issue is whether the positions are similar, creating an entitlement to appointment pursuant to Education Law '2510(1). Upon the above analysis, I cannot find that the assistant superintendent position is similar to that of building principal. Therefore, petitioner is not entitled under Education Law '2510(1) to appointment to the newly created assistant superintendent position and that part of petitioner's appeal is dismissed.

I agree, however, with petitioner's assertion that she was entitled to a pre-termination hearing regarding her right to the newly created assistant superintendent position. Procedural due process rights are owed to a tenured public school administrator when the administrator has a colorable claim under Education Law '2510 [Fairbairn v. Board of Education, 876 F. Supp. 432 (E.D.N.Y. 1995); Goldberg v. Board of Education, 777 F. Supp. 1109 (E.D.N.Y. 1991); DeSimone v. Board of Education, 612 F. Supp. 1568 (E.D.N.Y. 1985)]. I find unpersuasive respondent's argument that these decisions are not applicable to the instant dispute, since the cases cited above all involve the discontinuance of an employee's services where a claim to a newly created position existed. I agree with petitioner that as a senior excessed administrator with a colorable claim to the position, respondent had an obligation to provide her with a due process hearing. At such hearing the above analysis regarding the similarity of the two positions would have been addressed. However, respondent's apparent violation of petitioner's due process rights alone does not mean she is entitled to the position. Moreover, as the court in DeSimone, supra, noted:

When official policy results in a person being deprived of property or liberty without procedural due process and such deprivation would have taken place even if a proper hearing had been held, then the person is not entitled to compensatory damages for the deprivation itself. Carey v. Piphus, 435 U.S. 247, 260, 98 S.Ct. 1042, 1050, 55 L.Ed.2d 252 (1978). The person is entitled only to nominal damages for the denial of due process, id., 435 U.S. at 266-267, 98 S.Ct. at 1053-54, unless the person demonstrates actual injury attributable to the denial of due process rather than to the deprivation, id., 435 U.S. at 263, 98 S.Ct. at 1052 (emphasis in original).

In this matter, the facts indicate that respondent deprived petitioner of her position without procedural due process by discontinuing petitioner's services without a pre-termination hearing. Based on the record, that violation is deminimis and petitioner appears to be entitled only to nominal damages. However, it is well settled that the Commissioner lacks authority to award such damages (Appeal of Rackley, 35 Ed Dept Rep 5; Appeal of Martin, 32 id. 381).

Finally, I note that petitioner's challenge to the variance granted by SED is moot since petitioner elected to litigate that issue in an Article 78 proceeding in Supreme Court. That matter was dismissed on procedural grounds on February 2, 1996. Additionally, I have previously held that an appeal to the Commissioner of Education may not be brought to review a determination of the State Education Department (Appeal of Regent, et al., 27 Ed Dept Rep 398).

In view of the foregoing disposition, I will not address the parties' remaining contentions.