Appeal of KEELY DUNSHEE from action of the Board of Education of the Malone Central School District, Wayne C. Walbridge, Superintendent of Schools, and John Scheidegger, regarding an administrative appointment.

Decision No. 15,216

(April 26, 2005)

Louis J. Patack, Esq., attorney for petitioner

Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C., attorneys for respondents, David W. Larrison, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges her appointment by the Board of Education of the Malone Central School District ("respondent board" or "board") to the position of co-principal of Franklin Academy High School. The appeal must be dismissed.

Petitioner was first employed by respondent board on January 21, 1998 as interim principal of Malone Middle School, and was subsequently appointed principal of the middle school on July 1, 1998. In the Malone Central School District, only two tenure areas have been historically identified for secondary building administrators - "secondary principal" and "secondary assistant principal." Petitioner received tenure in the secondary principal tenure area, effective January 19, 2001.

At its May 25, 2004 meeting, respondent board appointed petitioner as "co-principal" of Franklin Academy High School, effective July 1, 2004. Respondent board also appointed respondent Scheidegger as interim principal of Malone Middle School, effective July 1, 2004. Prior to the effective date of his appointment as interim principal, respondent Scheidegger was assistant principal of the high school.

On June 8, 2004, petitioner received a letter, dated June 1, 2004, from respondent superintendent of schools advising of her appointment as co-principal. The letter further stated that she would maintain tenure in the secondary principal tenure area, that the current principal of the high school would be the "principal in-charge," and that it was expected that petitioner would fulfill those duties previously carried out by respondent Scheidegger.

Petitioner commenced this appeal on June 21, 2004. She contends that her appointment as a co-principal to allegedly perform assistant principal duties constitutes, in effect, an involuntary transfer from her secondary principal tenure area to a secondary assistant principal tenure area. Petitioner requests that her appointment be rescinded and that she be returned to her tenured position of middle school principal.

Respondents deny petitioner's allegations and contend that no involuntary transfer has occurred because petitioner's appointment to co-principal is within the secondary principal tenure area and petitioner will be performing the duties of co-principal within such tenure area. Respondents further contend that the appeal is premature, and object to petitioner's reply memorandum of law.

I will first address the procedural issues. Respondents contend that petitioner's reply memorandum of law fails to comply with �276.4(a) of the Commissioner's regulations. Under that provision, reply memoranda of law may be accepted only with the prior approval of the Commissioner (Appeal of Schadtle, 40 Ed Dept Rep 60, Decision No. 14,421). By cover letter dated October 19, 2004, petitioner requested that I accept and consider the reply memorandum as it addresses arguments advanced by respondents in their memorandum of law. However, I find that the reply memorandum also raises new allegations and issues not included in the petition. A reply memorandum of law may not be used to belatedly add new assertions that are not part of the pleadings (Appeal of Kirschenbaum, 43 Ed Dept Rep 366, Decision No. 15,020; Appeal of T.M., 41 id. 443, Decision No. 14,470; Appeal of Muench, 38 id. 649, Decision No. 14,110). Therefore, while I have reviewed petitioner's submissions, I have not considered those portions containing new allegations.

Respondents contend that the appeal is premature since a determination of the actual duties to be performed by petitioner as co-principal will not be made until on or after the opening of the 2004-2005 school year. However, the gravamen of petitioner's appeal is her appointment to the position of co-principal. An appeal to the Commissioner must be instituted within 30 days from the making of the decision or the performance of the act complained of (8 NYCRR �275.16). Since petitioner commenced her appeal within 30 days of respondent board's appointment action on May 25, 2004, I do not find the appeal to be premature.

In an appeal to the Commissioner of Education, petitioner has the burden of establishing the facts upon which relief is requested (8 NYCRR �275.10; Appeal of Beauman, 43 Ed Dept Rep 212, Decision No. 14,974; Appeal of McNamara, 41 id. 134, Decision No. 14,638, judgment granted dismissing petition to review, McNamara v. Mills, et al., Sup. Ct., Albany Co., Special Term (Kane, J.), January 10, 2002, n.o.r.) and the burden of demonstrating a clear legal right to the relief sought (Appeals of T.M., Sr., 42 Ed Dept Rep 281, Decision No. 14,855). Section 30.9(b) of the Commissioner's regulations states:

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 alleges that she will be performing the duties of an assistant principal. However, according to the affidavit of respondent superintendent, the actual duties to be performed by petitioner during the 2004-2005 school year will be developed during the school year based upon some division of responsibilities between the co-principals, as need requires.

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). Although petitioner disputes respondents' assertions regarding the duties to be assigned to her as co-principal, it is clear that petitioner will maintain tenure in the secondary principal tenure area as a co-principal. Petitioner has otherwise failed to demonstrate that she has been involuntarily transferred to a position outside her tenure area or that her tenure rights have been otherwise infringed by her appointment as co-principal.

Nor do I find on the record before me that petitioner's appointment as co-principal was merely a thinly disguised attempt at disciplinary action (compare 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 and has failed to establish that the transfer was used as a subterfuge to discipline her for alleged misconduct (seeAppeal of Dillon, supra).

THE APPEAL IS DISMISSED.

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