Appeal of MICHAEL J. OUIMET from action of the Board of Education of the City School District of the City of Troy regarding a personnel matter.

Decision No. 15,843

(October 24, 2008)

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

MILLS, Commissioner.--Petitioner seeks an order compelling the Board of Education of the City School District of the City of Troy (“respondent”) to pay him the sum of $862.50 as a final salary payment.  The appeal must be dismissed.

Respondent and petitioner executed an employment contract (“contract”) dated January 29, 2007 providing for petitioner’s appointment as an assistant superintendent for business and support services.  The contract provided that the rate of reimbursement for each day of unused vacation, up to the maximum allowable per year, would be his daily rate of pay, equal to his base salary divided by 260.

On August 10, 2007, petitioner left respondent’s district.  By letter dated August 31, 2007, petitioner notified respondent’s superintendent that he believed he had been underpaid in the amount of $862.50 for the 131 days he had worked.  Petitioner based his calculation on a 240-day year.

By letter dated October 17, 2007, respondent’s counsel advised petitioner that his salary was prorated using 260 days in accordance with respondent’s practice and petitioner’s employment contract.

Petitioner contends that respondent incorrectly prorated his salary by using a 260-day year, rather than a 240-day year, and that he was therefore underpaid by $862.50.  Petitioner also contends that respondent’s practice of calculating salary entitlement is inconsistent with Education Law §3101, Appeal of Swaim, et al. (9 Ed Dept Rep 23, Decision No. 8031), Appeal of Garrity (26 Ed Dept Rep 490, Decision No. 11,829) and guidance on prorating salaries provided by the New York State Education Department.  Finally, petitioner maintains that the provision in his contract regarding calculation of amounts due for unused vacation time is inapplicable to the proration of his salary for time worked.

Respondent contends that service of the petition was improper and that petitioner fails to state a claim upon which relief may be granted.  Respondent alleges that petitioner incorrectly relies on Education Law §3101 and Appeal of Swaim, et al. and that his prorated salary entitlement should be calculated by dividing his annual salary by 260.

Section 275.8(a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent.  If a school district is named as a respondent, service upon the school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service (8 NYCRR §275.8[a]).  Petitioner’s affidavit of service indicates that on November 11, 2007, the petition was served on respondent’s superintendent of schools.  Respondent does not dispute this.  Therefore, I decline to dismiss the appeal for improper service.

Education Law §3101(3) provides that for purposes of prorating the salary of a teacher (defined to include associate or other superintendents) serving for less than the 10-month school year, the monthly rate for services rendered shall be at least 1/10 of the salary and the daily rate at least 1/200 of the salary.  If any teacher is required to serve beyond 10 months, compensation for additional services shall be at least the monthly or daily rate used in prorating the salary.

It is clear from a reading of the Legislative history of this act that the primary purpose of [Chapter 859 of the Laws of 1955] was to change the manner of computing a teacher’s salary from a 12-month basis to a 10-month basis and to establish a rate of compensation for a teacher not rendering all the service required during a school year or during any month in such year (Appeal of Swaim, et al. at 24).

Indeed, a review of the Legislative history reflects that the purpose of this section is to relate the payment of a teacher’s salary to the period of the school year that the teacher is required to work and cites inequities that result when this is not the case.

Appeal of Swaim, et al. (9 Ed Dept Rep 23, Decision No. 8031) cited by petitioner, interpreted Education Law §3101 to deal with prorating salary fairly in factual situations in which months have fewer or more than 20 working days.  Appeal of Garrity (26 Ed Dept Rep 490, Decision No. 11,829) extends this concept to an 11-month employee.  Petitioner argues that the provisions of §3101 apply to a 12-month employee, thus resulting in a 240-day year for the purposes of computing salary.

I find that the standard set forth in Education Law §3101 does not apply to petitioner.  Unlike employees employed pursuant to a union agreement for 10 months, petitioner, an assistant superintendent, was a full-time employee, employed pursuant to a contract between himself and respondent for a period of 52 weeks per year (260 days less any vacation time which he uses with pay).  Education Law §3101 was intended to address irregularities that arise from those employed for less than a full year.  Petitioner does not fall within this category.

Moreover, petitioner’s employment contract provides that he should be reimbursed for each day of unused, earned vacation leave (up to a maximum of 10 days of earned vacation per year) - at his “daily rate of pay, present base salary divided by 260.”  It would be incongruous to use two different methodologies to calculate petitioner’s “daily rate of pay,” one for unused vacation days (present base salary divided by 260) and another for a day of work (present base salary divided by 240).  Therefore, I find that the construction of Education Law §3101 urged by petitioner is not justified.

THE APPEAL IS DISMISSED.

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