Appeal of MICHAEL MURRAY from action of the Board of Education of the Mount Morris Central School District and Renee Garrett, Superintendent, regarding tenure.

Decision No. 15,934

(June 26, 2009)

School Administrators Association of New York State, attorneys for petitioner, Arthur P. Scheuermann and A. Andre Dalbec, Esqs., of counsel

David W. Lippitt, Esq., attorney for respondents

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Mount Morris Central School District (“board”) to transfer him to a newly created position outside his tenure area.  The appeal must be dismissed.

According to respondents, on June 24, 2004, the board appointed petitioner to the position of assistant principal in the tenure area of secondary administration.  In 2006, the board reorganized its administrative structure and petitioner became the assistant principal for grades 6-8 within the same tenure area.  The board granted petitioner tenure in June 2007.

On August 15, 2007, the board again reorganized its administrative staffing.  Among other things, it abolished the position of assistant principal 6-8, laid off petitioner with recall rights, and then appointed him to a three-year probationary term in a vacant position as principal 9-12 in the administrative tenure area of high school principal 9-12.  Petitioner was subsequently granted tenure in that position.  The principal 9-12 position was vacant because the incumbent in that position, Mark Valentino (“Valentino”) had accepted a recreated position of principal K-12 for student affairs within the administrative tenure area of K-12 principal for student affairs (seeAppeal of Valentino, 48 Ed Dept Rep ___, Decision No. 15,851).

On July 9, 2008, the board reorganized and restructured its administrative staffing yet again by eliminating the positions of K-8 elementary school principal; principal K-12 for student affairs (laying off Valentino with recall rights); and 9-12 high school principal (laying off petitioner with recall rights), effective July 1, 2008.  (The person in the position of K-8 elementary school principal retired.)  The board then created two new administrative positions:  7-12 high school principal, to which it appointed Valentino with tenure within the administrative tenure area of secondary administration; and K-6 elementary school principal, to which it appointed petitioner with tenure within the administrative tenure area of K-6 elementary school principal.

Petitioner contends that the board unilaterally transferred him to another tenure area without his written consent in violation of Education Law and §30.9 of the Commissioner’s regulations.[1]  Petitioner asserts that the transfer affected his tenure and seniority rights and requires that he devote a substantial portion of his time outside his tenure area of secondary administration.  He seeks an order directing the board to vacate its July 8, 2008 resolution and seeks restoration to his duties as high school principal 9-12 with all tenure and seniority status accrued in the tenure area of secondary administration.

Respondents contend that Valentino was properly offered the position as 7-12 high school principal because he had greater seniority than petitioner in the secondary administration tenure area.  They also contend that the board did not have to offer petitioner the new K-8 elementary school principal position because petitioner had no seniority rights to that position.  They further contend that the appeal must be dismissed for failure to join a necessary party.

I must first address a procedural issue.  A reply must be verified in the manner set forth for the verification of an answer (8 NYCRR §275.5; Appeal of a Student with a Disability, 48 Ed Dept Rep 171, Decision No. 15,828).  Petitioner’s reply, served September 5, 2008, is not verified.  Therefore, I have not considered it.

The appeal must be dismissed for failure to join a necessary party.  A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of Samuel, 45 Ed Dept Rep 418, Decision No. 15,371; Appeal of Meringolo, 45 id. 128, Decision No. 15,281; Appeal of Kelly, 45 id. 38, Decision No. 15,253).  Joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense (Appeal of Samuel, 45 Ed Dept Rep 418, Decision No. 15,371; Appeal of Meringolo, 45 id. 128, Decision No. 15,281; Appeal of Kelly, 45 id. 38, Decision No. 15,253).

Petitioner requests that he be reinstated to his duties as high school principal 9-12, a position that no longer exists but is subsumed within the 7-12 high school principal position held by Valentino.  A decision in favor of petitioner would clearly impact Valentino’s employment and therefore he is a necessary party to this proceeding.  However, Valentino was not named as a respondent, and there is no evidence that he was personally served with a notice of petition or petition.  Accordingly, the appeal must be dismissed for failure to join a necessary party.

Although the appeal must be dismissed on procedural grounds, I am compelled to comment on the board’s procedures.  The Commissioner’s regulations do not prescribe specific administrative tenure areas.  A board of education may establish one district-wide administrative tenure area or multiple defined administrative tenure areas (seeBell v. Board of Education of Vestal Central School District et. al., 61 NY2d 149; Appeal of Caruana, 41 Ed Dept Rep 227, Decision No. 14,671).  In addition, school administrators may be transferred within their tenure areas, but not transferred outside their tenure areas involuntarily (see  Appeal of Rabeler, 46 Ed Dept Rep 382, Decision No. 15,539; Appeal of Caruana, 41 id. 227, Decision No. 14,671). 

The board has reorganized and restructured its administrative staffing each year for three successive years, in 2006, 2007 and 2008.  In so doing, it has retitled and narrowly defined its administrative tenure areas.  While administrative reorganization is often necessary for fiscal, curricular or other concerns, the board’s frequent abolishment of positions and rehiring of individuals, combined with its determination to use multiple and restrictive tenure titles, could be seen, in effect, as a method to transfer individuals outside their tenure areas without permission.  Although I ascribe no ill motive to the board’s actions, I raise this for the board’s consideration for future administrative staffing decisions.

THE APPEAL IS DISMISSED.

END OF FILE