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Decision No. 14,373

Appeal of MOZELLA IRVING from action of the Board of Education of the Enlarged City School District of the City of Troy and Armand Reo, Superintendent, regarding an involuntary transfer.

Decision No. 14,373

(May 25, 2000)

James G. Doyle, Esq., attorney for petitioner

Ruberti, Girvin & Ferlazzo, PC, attorneys for respondents, James A. P. McCarthy, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals her involuntary transfer in October 1999 from principal of School #2 to assistant principal of School #14. The appeal must be sustained.

Petitioner is an administrator employed by the Board of Education of the Enlarged City School District of the City of Troy ("respondent board"). She became the principal of School #2 on June 5, 1996, and gained tenure in the tenure area of Administrator K-12 on August 11, 1998.

During the time petitioner served as principal of School #2, respondent Armand Reo ("Reo") was serving as executive principal of the Troy High School, a position he held from 1976 to 1999. Reo states that during school years 1997-1998 and 1998-1999 he became aware of complaints allegedly made by certain employees working at School #2, through the district’s staff safety supervisor, as to alleged mistreatment by petitioner. These complaints were apparently never put in writing, and, as executive principal of the high school, Reo had no responsibility for dealing with these matters. In June 1999, while he was still executive principal of the high school, Reo received a letter from a parent, Carla Pompey, complaining that she had been mistreated by petitioner in April 1999.

Reo became superintendent on July 1, 1999. Two days before his appointment became effective, he met with petitioner and discussed the content of the Pompey letter with her. At some time prior to the opening of school in September 1999, Reo received a letter from another parent, Paula Hopping, complaining about her daughter’s alleged mistreatment as a student at School #2. Reo received another critical letter, apparently in early October 1999, from Tammy Kulzer, outlining problems she had had with petitioner. (Petitioner and her assistant principal had advised Mrs. Kulzer in May 1999 that she was no longer a welcomed visitor to School #2, as a result of alleged property damage and reckless driving on the part of Mrs. Kulzer.) Reo further states that, at a meeting in September 1999, petitioner exhibited a lack of support for an after-school program which had operated at School #2 for several years, and that Reo was disappointed with her attitude. (Petitioner had no connection with, or responsibility for, the program.)

Following the receipt of these letters and complaints, Reo reviewed petitioner’s personnel file to assess her annual evaluations. On October 6, 1999, at a meeting of respondent board, it appears that a member of the public was permitted to criticize petitioner publicly. Petitioner claims that this occurred in violation of board policies 1230 and 1440, which state that verbal attacks on individual board members or staff members at board meetings will not be tolerated. Reo states that he spoke with the board during executive session that same evening, and advised board members that he was contemplating transferring petitioner.

The following day, October 7, petitioner again met with Reo. He handed her what he describes as a "letter of counseling" dated October 7, 1999, a copy of which was also placed in her personnel file, and read as follows:

Since I have assumed the position of Superintendent of Schools in July, I have received several complaints from parents at School 2 covering issues which cause me to write this letter of counseling.

Among the complaints are that you were confrontational with parents, that you lack the necessary communication skills to appropriately interact with parents and generally do not display the sensitivity necessary to properly administer an elementary school building. During our meeting of October 7, 1999 at 2 p.m., you did not wish to discuss these allegations with me. As Superintendent I find it disturbing that you admitted to me and Dr. Rizzo that you have David Dupree, a hall monitor, listen to telephone calls in your office from parents or other individuals who call you to discuss their concerns. These allegations, iftrue, indicate an inability to properly interact with parents of our students or to foster an atmosphere where the parents feel that their children are in good hands while at School 2. (Emphasis added.)

You are hereby counseled that in future dealings with the parents of our students you must avoid a confrontational attitude and should exhibit the patience necessary to act as a professional educator. You are further counseled that you should display the sensitivity necessary to interact with parents and avoid making rude or inappropriate comments to parents, and you should generally make every attempt to accommodate reasonable requests form[sic] parents. Building principals, especially those in charge of an elementary school, must be even [sic] mindful and sensitive to the concerns of the parents of these tender aged students.

If you feel the need to ask me for guidance or if I can be of assistance to you in guiding you how to best interact with parents please feel free to contact me at any time. Do not hesitate to contact my office if there is any question in your mind how to handle a particular situation.

On the evening of October 7, Reo again discussed the matter with respondent board in executive session at a special meeting, and he claims that board members were unanimously in support of transferring petitioner out of School #2. The following day, Reo again met with petitioner and handed her a "letter of transfer" dated October 8, 1999, which read:

You are hereby advised that it is necessary and in the best interest of the School District to transfer you to the position of Assistant Principal at School 14 effective Tuesday, October 12, 1999.

Petitioner claims that the superintendent’s action in transferring her involuntarily from the position of principal at School #2 to assistant principal at School #14 was disciplinary in nature, and that she was illegally deprived of the protections afforded her by a hearing pursuant to Education Law "3020-a. Respondent Reo claims that the transfer was "in the best interest of the School District" and was within his authority as superintendent pursuant to the powers granted to superintendents by Education Law ""1711 and 2508.

The appeal must be sustained. Based upon all of the facts before me, I conclude that petitioner’s involuntary transfer was based upon the superintendent’s conclusion that her actions as principal of School #2 constituted misconduct, and justified his immediate action. Such action might have been permissible, if the involuntary transfer and alteration of duties did not constitute discipline, within the meaning of Education Law ""3020 and 3020-a, as amended by L.1994, c. 691. However, this record convinces me that disciplinary action was taken, and that petitioner was deprived of her rights under Education Law "3020-a.

Respondents rely heavily on Education Law ""1711 and 2508 for the proposition that a school superintendent has the legal authority to transfer teachers and administrators as necessary. They also rely heavily on Holt v. Board of Education of the Webutuck CSD, 52 NY2d 625 (1981), for the proposition that the October 7 letter was a permissible criticism by the superintendent, and cannot be considered a reprimand, which would have to result from a disciplinary proceeding pursuant to Education Law "3020-a.

I agree with respondents that Education Law ""1711 and 2508 authorize a school superintendent to transfer personnel from school to school. I also agree that Holt permits a senior administrator to issue a letter critical of a teacher or administrator’s performance, and to place a copy in the individual’s personnel file, without bringing a disciplinary proceeding pursuant to Education Law "3020-a, where the document deals with a relatively minor shortcoming and urges or directs better performance in the future. If the October 7, 1999 letter were viewed in isolation, and no further action occurred, there might be a plausible argument that it did not violate the principles established in Holt.

However, the letters of October 7 and October 8 cannot be viewed in isolation. After the delivery of the second letter, petitioner was not merely warned and urged to do better in her position in the future, as in Holt, but removed from her position as principal, involuntarily transferred to another school, and made the subordinate of another principal. In Matter of Richardson (24 Ed Dept Rep 104, Decision No. 11,333), a similar situation arose. Petitioner, a tenured teacher serving as a school nurse at Yonkers High School, was given a letter that accused her of failing to perform specific duties and responsibilities, removed her from her position, and transferred her to a different high school in the district. The transfer did not result in an assignment outside the teacher’s tenure area, nor was her salary reduced. Commissioner Ambach nevertheless concluded that the action was disciplinary in nature, and violated petitioner’s rights under Education Law "3020-a. He sustained the appeal, and ordered that the offending letter be removed from petitioner’s file, "without prejudice to any further action which may be appropriate under the terms of this decision."

I conclude that the involuntary transfer in this matter likewise constitutes improper discipline. It is clear from the superintendent’s affidavit that, after he had received the hearsay allegations of staff mistreatment during the two years prior to his becoming superintendent, and after receiving the Pompey and Hopping letters, he was contemplating the transfer of petitioner from School #2. It is also clear that after learning that petitioner did not support the after-school program held at School #2, and after receiving the Kulzer letter in early October, he had made up his mind to transfer petitioner. These allegations of staff mistreatment and parental mistreatment are, in fact, the only reasons stated anywhere in this record for petitioner’s transfer. It is obvious that the October 6 board meeting, the October 7 letter, the October 7 board meeting, and the October 8 letter of transfer are all part of a single process, and it is inescapable that the sole reason for petitioner’s transfer was her alleged misconduct as principal. In these circumstances, as a tenured administrator, petitioner was entitled to the protections of Education Law "3020-a, including the right to contest formal charges, and those rights have been violated here.

I am further persuaded by the fact that all the materials submitted by respondents in this appeal are directed toward demonstrating misconduct on the part of petitioner, and are, therefore, exactly the type of proof that respondents would be expected to introduce in a hearing pursuant to Education Law "3020-a. If respondents had some permissible rationale for petitioner’s involuntary transfer that would not implicate petitioner’s rights under "3020-a, they have not demonstrated it in this record.

Respondents’ argument that petitioner’s transfer was for the good of the district, and therefore was not disciplinary in nature, misses the mark. Indeed, one would hope that every school district disciplinary action or proceeding, taken in good faith, is for the good of the district. The concepts are certainly not mutually exclusive.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the letters dated October 7, 1999, and October 8, 1999, be removed from petitioner’s personnel file.

IT IS FURTHER ORDERED that the transfer of petitioner from the position of principal of School #2 to assistant principal of School #14 be annulled, without prejudice to any further action which may be appropriate under the terms of this decision.

END OF FILE