Appeal of JANICE WALTERS from action of the Board of Education of the City School District of the City of Cortland, Superintendent Laurence Spring and Lydia Eberenz-Rosero regarding the appointment of an elementary principal.

Decision No. 15,973

(August 20, 2009)

School Administrators Association of New York State, Office of General Counsel, attorneys for petitioner, A. Andre Dalbec, Esq., of counsel

Hogan, Sarzynski, Lynch, Surowka & DeWind, LLP, attorneys for respondent Board of Education and Superintendent, James A. Gregory, Esq., of counsel

James N. McCauley, Esq., attorney for respondent Eberenz-Rosero

HUXLEY, Interim Commissioner.--Petitioner challenges the determination of the Board of Education of the City School District of the City of Cortland (“respondent board” or “board”) and Superintendent Laurence Spring (“superintendent”), to appoint Lydia Eberenz-Rosero (“Eberenz-Rosero”) to an elementary principal position.  The appeal must be dismissed.

Petitioner began her employment with the City School District of the City of Cortland (“district”) in February 2001 in a three-year probationary position as Committee on Special Education/Committee on Preschool Special Education (“CSE/CPSE”) Chairperson.  Petitioner’s tenure area was CSE/CPSE Chairperson.  In May 2002, the board changed petitioner’s tenure area to special education supervisor.  Petitioner was aware of this change and signed a revised job description on July 1, 2002.

Petitioner completed her probationary term and was granted tenure on December 17, 2003.  Petitioner states that she was granted tenure in the area of administration.  The board, however, asserts that due to a clerical error, petitioner’s tenure area was misstated as administration rather than the correct tenure area of supervisor of special education.

Petitioner’s position as supervisor of special education was abolished by the board effective July 31, 2008.  In the interim, the principal of the district’s Barry Elementary School, whose tenure area was administration, gave notice that he would retire effective June 30, 2008.  Petitioner interviewed for the principal position but was not chosen.  Eberenz-Rosero was offered and accepted the position.  This appeal ensued.

Petitioner contends that she was granted tenure in the area of administration and is entitled to the elementary principal position in accordance with Education Law §2510(3)(a).  Alternatively, petitioner requests that she be reinstated to her employed status as a tenured administrator.

Respondent board and superintendent contend that petitioner is not tenured in the area of administration but in the area of special education supervisor, and that the notice petitioner received after the grant of tenure in 2003 mistakenly referred to the wrong tenure area.  Additionally, respondent board and superintendent argue that petitioner’s former position of special education supervisor is not similar to the position of elementary school principal as required under Education Law §2510(3)(a).

Education Law §2510(3)(a) governs the rights of a former employee of a city school district to re-employment and provides, in pertinent part:

If an office or position is abolished or if it is consolidated with another position without creating a new position, the person filling such position at the time of its abolishment or consolidation shall be placed upon a preferred eligible list of candidates for appointment to a vacancy that then exists or that may thereafter occur in an office or position similar to the one which such person filled 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 or she has filled.

Accordingly, in order for petitioner to be entitled to appointment to a vacant position, the position must be similar to that of her former position (Greenspan v. Dutchess County BOCES, et al., 96 AD2d 1028; Appeal of Barker and Pitcher, 45 Ed Dept Rep 430, Decision No. 15,375).  The test to ascertain whether the two positions are “similar” is whether more than 50 percent of the duties of the vacant position are those which were performed by petitioner in her former position (Greenspan v. Dutchess County BOCES, et al., 96 AD2d 1028; Appeal of Barker and Pitcher, 45 Ed Dept Rep 430, Decision No. 15,375; Appeal of Debowy, 41 id. 161, Decision No. 14,648).  Petitioner has the burden of proving that a majority of the duties of the vacant position are similar to those of her former position (Appeal of Barker and Pitcher, 45 Ed Dept Rep 430, Decision No. 15,375; Appeal of Debowy, 41 id. 161, Decision No. 14,648).  However, the standard of what is similar is flexible and is not to be applied mechanically (Appeal of Barker and Pitcher, 45 Ed Dept Rep 430, Decision No. 15,375; Appeal of Debowy, 41 id. 161, Decision No. 14,648).  Additionally, the two positions must be in the same tenure area (Kelley v. Ambach, 83 AD2d 733; Appeal of Barker and Pitcher, 45 Ed Dept Rep 430, Decision No. 15,375; Appeal of Debowy, 41 id. 161, Decision No. 14,648).

In this case the parties dispute the tenure area of petitioner’s previous position.  Petitioner relies upon two documents:  a Schedule of Appointments dated December 16, 2003 which was submitted to respondent board when it granted petitioner tenure and lists her tenure area as administration; and a letter from the superintendent dated December 18, 2003, stating that petitioner was appointed to the tenure area of administration.  Consequently, petitioner argues that she is in the same tenure area as the position of elementary principal.

On the record before me it is clear that petitioner was granted a probationary appointment in the tenure area of CSE/CPSE Chairperson and that subsequently, with petitioner’s consent, her tenure area was modified in 2002 to special education supervisor.  Respondents assert, and it appears, that there was a clerical error in both the December 18, 2003 Schedule of Appointments and the superintendent’s letter of the same date, mistakenly listing petitioner’s tenure area as administration.  There is no indication in the board minutes from December 17, 2003 that the board was consciously changing petitioner’s tenure area or that petitioner was consenting to a change.  Moreover, respondent board could not retroactively change the scope of the tenure area in which petitioner was serving (seeMatter of Durso, 19 Ed Dept Rep 72, Decision No. 10,033) and it would have been anomalous for the board to unilaterally change petitioner’s tenure area at the end of her probationary period.  Under these circumstances, I find that the listing of petitioner’s tenure area as administration at the time of her tenure appointment was due to clerical error and that petitioner’s actual tenure area is special education supervisor.  She therefore has no rights under Education Law §2510(3) to appointment to the elementary principal position because it is a different tenure area (see Kelley v. Ambach, 83 AD2d 733; Appeal of Barker and Pitcher, 45 Ed Dept Rep 430, Decision No. 15,375; Appeal of Debowy, 41 id. 161, Decision No. 14,648).

Even if the two positions were in the same tenure area, the appeal would be dismissed because a review of the job descriptions for both positions reveals that, within the meaning of Education Law §2510(3), petitioner’s position as special education supervisor is not similar to the position of elementary principal.  The position of elementary principal is described as a supervisory position that requires management, leadership and public relations skills by the person in the position.  Among other things, this position requires: the development of procedures for school wide discipline; responsibility for the implementation of all board policies and regulations by school staff and students; preparation and submission of budgetary requests and the development, revision and evaluation of the curriculum.

In contrast, the position of special education supervisor focused exclusively on the special education needs of the district.  According to the job description, the duties of special education supervisor include: serving as chairperson of the CSE/CPSE; participating in the planning and implementation of special education staff development and developing and maintaining complete and cumulative individual records of all children receiving special education services.

The degree of comparable skills and experience required to carry out the duties of the two positions must also be considered (Appeal of Debowy, 41 Ed Dept Rep 161, Decision No.14, 648, Appeal of Jordan, 37 id. 487, Decision No. 13,910, judgment granted dismissing petition to review, Sup. Ct., Albany Co., [Keegan, J.], March 30, 1999; n.o.r.).  Althoughthere are some common management and supervisory skills required in both positions, the record before me reveals that the position of elementary principal involves substantially broader responsibilities, skills and experience than that of special education supervisor.  Thus, I find thatthe two positions are not in the same tenure area and even if they were,petitioner has not met her burden of proving that the two positions are similar within the meaning of Education Law §2510(3)(a).  Therefore, petitioner is not entitled to appointment to the position of elementary principal or to reinstatement to her former position.

THE APPEAL IS DISMISSED.

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