Decision No. 16,049
Appeal of SHERMAN ROBERTS, AUDREY LEWIS, CALVIN WILSON, SALLY NEUMANN, YOLANDA HOWARD, THOMAS WRIGHT and GINA TALBERT from actions of the Board of Education of the Wyandanch Union Free School District and board members Denise Baines, Barry White, Nancy Holliday and Yvonne Robinson regarding the abolition of positions.
Decision No. 16,049
(March 31, 2010)
Kevin A. Seaman, Esq., attorney for petitioners
Conway, Farrell, Curtin & Kelly, P.C., attorneys for respondents, Heather M. Palmore, Esq., of counsel
STEINER, Commissioner.--Petitioners appeal the decision of the Board of Education of the Wyandanch Union Free School District (“board”) and individual board members Denise Baines, Barry White, Nancy Holliday and Yvonne Robinson (collectively “respondents”) to abolish six positions. The appeal must be sustained in part.
At the time this appeal was commenced, petitioner Roberts was employed as the district’s superintendent. The remaining six petitioners were also employed by the district in the following positions: School Personnel Officer (petitioner Lewis), Business Manager/Director of Finance (petitioner Wilson), Assistant Superintendent for Curriculum and Technology (petitioner Neumann), School Cook Manager/Supervisor of Food Services (petitioner Howard), School Transportation Supervisor (petitioner Wright), and Director of Grant Funding (petitioner Talbert). The positions held by petitioners Lewis, Wilson, Howard and Wright were civil service positions. In their answer, respondents indicate that petitioners Neumann and Talbert are “currently tenured” as Director of Technology and Middle School Principal, respectively.
According to respondents, the board was informed at its July 2, 2008 meeting that the district was operating at a $2.5 million deficit. On July 3, 2008, the board proposed a reorganization plan to the superintendent (petitioner Roberts). Specifically, the board proposed the abolition of the positions held by petitioners Lewis, Wilson, Neumann, Howard, Wright and Talbert (“abolished positions”) and the creation of four new positions: (1) Director of Elementary Education; (2) Director of Secondary Education; (3) Assistant Superintendent for Personnel, Curriculum and Staff Development; and (4) Assistant Superintendent for Business, Finance and Grant Funding. Under the board’s plan, the duties of the positions held by petitioners Howard and Wright would be redistributed among existing staff.
At a July 22, 2008 special meeting, respondents again proposed the reorganization plan to petitioner Roberts. By memorandum dated August 15, 2008, Roberts informed respondents that he could not support the proposal “as it does not move the organization forward effectively, efficiently [or] operationally.”
At the board’s August 20, 2008 meeting, respondents adopted resolutions abolishing the six positions for “budgetary/economic/fiscal considerations and for reasons of efficiency.” By letters dated August 28, 2008, the board president (respondent Baines) notified petitioners Lewis, Wilson, Neumann, Howard, Wright and Talbert that their positions had been abolished, effective September 20, 2008. This appeal ensued. Petitioners’ request for interim relief was denied on September 8, 2008.
Petitioners argue, interalia, that respondents abolished the positions in violation of Education Law §§1711 and 3013 and various board policies. First, petitioners allege that they did not receive prior written notification of the impending abolitions. Petitioners also contend that, because the superintendent opposed respondents’ reorganization plan, respondents lacked the authority to abolish the positions. Petitioners also allege that respondents’ action was illegal, arbitrary and capricious because their stated reasons for the abolition of the positions were unsupported by the facts. Finally, petitioners argue that, pursuant to Education Law §3013, petitioners Neumann and Talbert are entitled to appointment to the “similar positions established.”
Respondents contend, among other things, that the positions were abolished for “reasons of economy and efficiency” in response to the fiscal problems faced by the district. Respondents deny that their actions violated law or policy and maintain that petitioners have failed to meet their burden of proof.
Petitioners claim that respondents failed to provide notice of the abolishment of their positions in violation of board policy 4220 (“policy 4220”). While the Commissioner of Education has the authority to enforce a board policy, the Commissioner will exercise this authority only when petitioner establishes that a policy has clearly been violated (Appeal of Fusco, 39 Ed Dept Rep 836, Decision No. 14,396; Appeal of Pulvermacher, 36 id. 333, Decision No. 13,740). Policy 4220 provides:
Existing administrative positions shall not be abolished by the [board] without previous written notification of the impending abolition. Such written notification is to be served to the individual currently holding that position. In all cases the individual currently holding the position should receive as much advance notice as possible.
Petitioners contend that they did not receive proper written notification regarding the abolishment of their positions. However, the record contains copies of letters dated August 28, 2008, wherein the board president (respondent Baines) notified petitioners that their positions would be abolished effective September 20, 2008. Respondents aver that such letters were “delivered by Certified mail to the homes of each Petitioner.” Petitioners submit no evidence to the contrary. It is not clear whether the intent of the policy is to provide notice prior to board action on a proposed abolition or prior to the effective date of the abolition. Thus, on the record before me, I cannot conclude that respondents clearly violated policy 4220.
Petitioners also claim that respondents violated board policy 6210 (“policy 6210”) by abolishing their positions “in derogation” of the superintendent’s recommendation. Education Law §§2510 and 3013 authorize a board of education to abolish positions and it is well-settled that abolition of a position does not require a superintendent’s recommendation (Appeal of Baker, et al., 32 Ed Dept Rep 645, Decision No. 12,943; Appeal of Smith, 32 id. 341, Decision No. 12,849; Appeal of Pecorale, et al., 31 id. 493, Decision No. 12,712). Policy 6210 states that the board “shall, upon the recommendation of the Superintendent, create, abolish, maintain and/or consolidate positions involving certified persons as necessary for the proper and efficient achievement of its goals.” It is not clear from the language of policy 6210 or from the record before me whether this policy was intended to limit the board’s ability to abolish a position without an affirmative recommendation by the superintendent or merely to require that a recommendation be made by the superintendent for consideration by the board, as petitioner Roberts did in this case. Thus, petitioners have not demonstrated to my satisfaction that the board has clearly violated policy 6210.
However, to the extent that policy 6210 could be interpreted to preclude the board from exercising its responsibility to abolish a position without agreement of the superintendent, I note that such policy would constitute an unlawful delegation of the board’s powers and be void as against public policy (seeCohoes City School Dist. v. Cohoes Teachers Ass’n, 40 NY2d 774; Appeal of Kastberg, et al., 35 Ed Dept Rep 208, Decision No. 13,518; Appeal of Osten, 35 id. 160, Decision No. 13,500). Because the decision to abolish positions for economic reasons is inextricably intertwined with the board’s non-delegable duty to formulate the district’s budget, a policy that delegates the ultimate decision to abolish positions to the superintendent would be unenforceable.
A board of education may abolish and/or consolidate positions for sound economic reasons, so long as the decision is not motivated by bad faith (Education Law §1709 and ; Matter of Young v. Bd. of Educ. of Central School Dist. No. 6, Town of Huntington, et al., 35 NY2d 31, 34 [abolition of attendance teacher position]; Cohen v. Crown Point Cent. School Dist., et al., 306 AD2d 732 [abolition of civil service business manager position]; Currier v. Tompkins-Seneca-Tioga Bd. of Coop. Educ. Services, 80 AD2d 979 [abolition of Director of Department of Continuing Education position]). In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Brown, 46 Ed Dept Rep 584, Decision No. 15,602; Appeals of Hubbard, 46 id. 533, Decision No. 15,585; Appeal of Darrow, 46 id. 182, Decision No. 15,477).
In this case, it is undisputed that the district was facing serious financial difficulties, including a $2.5 million operating deficit. However, petitioners claim that respondents’ actions were “bereft of any substantive basis either fiscal or administrative.” To support their position, petitioners submit two unsigned contracts purportedly entered into by the district and two consultants as well as an affidavit from their attorney, who concludes that based on the consulting contracts, “there has been no effective fiscal savings deriving to the District.” In a reply affidavit, petitioner Roberts also alleges that respondents were aware of the district’s fiscal difficulties since April 2007, when they “knowingly approved” the budget which “contained a ‘built-in’ $2.5 million revenue shortage.” Petitioner Roberts contends that respondents’ reorganization plan will actually result in increased personnel costs to the district.
Respondents explain that the district was operating at a significant deficit and that abolishing petitioners’ positions and creating new ones would result in savings of between $400,000 and $500,000 to the district. Respondents further contend that certain aspects of its reorganization plan are intended to “foster higher results in academic achievement” within the district. Respondents’ verified answer also explains that the consultants “have yet to perform work for the District” and are consultants, not employees.
While the record before me reflects disagreement between the parties regarding the extent to which respondents’ reorganization plan will result in cost savings to the district, I note that the record contains no indication that respondents acted in bad faith in adopting such plan. Based on the record before me, therefore, I conclude that petitioners have not met their burden of proof on their claim of improper motivation.
Petitioners also assert that the abolitions “must be annulled to the extent they seek to effect the terminations” of petitioners Neumann and Talbert, both of whom are tenured administrators in the district. In support of this contention, petitioners cite the Suffolk County Supreme Court’s decision in Collins v. Bd. of Educ. of Three Village Cent. School Dist. of Brookhaven and Smithtown, Suffolk County, et al. (Sup. Ct., Suffolk County, March 23, 1979, Gerard, J., Index No. 78-19259, [“Collins”]). In Collins, the court ruled that the board of education was required to “take special action” to terminate the employment of tenured and probationary teachers whose positions were abolished. Respondents assert that, unlike the teachers in Collins, petitioners Neumann and Talbert have not been terminated and are “currently on leave from their positions” as Director of Technology and Middle School Principal. Petitioners have submitted no evidence to the contrary. Therefore, petitioners have failed to demonstrate that the abolition of Neumann and Talbert’s positions, which is the subject of this appeal, terminated them in violation of the holding in Collins.
Finally, petitioners claim that “as to those Petitioners assuming positions which have been recreated in merged positions ... the alleged terminated incumbents would be entitled to assume the ‘similar’ positions established.” Education Law §3013(1) provides that if a position is abolished and a similar position is created, the person who filled the abolished position must be appointed to the new position. To establish Neumann and Talbert’s right to appointment to any newly created positions, petitioners must first establish that the abolished positions held by Neumann and Talbert and the new positions are in the same tenure area(s) (seeAppeal of Jordan, 37 Ed Dept Rep 487, Decision No. 13,910, judgment granted dismissing petition to review, Sup. Ct., Albany Co., [Keegan, J.], March 30, 1999; n.o.r.). Moreover, petitioners Neumann and Talbert are entitled to appointment to newly created positions only if the new positions are similar to their former (abolished) positions. Accordingly, petitioners have the burden of proving that a majority of the duties of the new positions are similar to those of their former positions (Appeal of Wills, 49 Ed Dept Rep __, Decision No. 15,982).
In its answer, however, the board admits that petitioners Neumann and Talbert are “currently tenured” as Director of Technology and Middle School Principal, respectively, and that these positions “are in the same tenure area.” The board also admits that Neumann and Talbert have never been terminated and may have rights to the newly created positions of Director of Elementary Education or Director of Secondary Education. However, respondent’s answer also contains seemingly contradictory statements that petitioners Neumann and Talbert have tenure rights in the positions from which they are on leave, rather than in their former (abolished) positions, which are the subject of the instant appeal. There is no evidence in the present record that the board ever conducted an appropriate analysis of the similarity of the abolished positions held by Neumann and Talbert to the newly created positions or determined what tenure area they are in, as required by §3013(1). Under these circumstances, I will direct the board to determine, retroactively to the effective date of the abolition of their positions, the employment rights of petitioners Neumann and Talbert in light of such abolition, including their rights, if any, to appointment to any similar newly created position within their tenure areas.
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that respondent board determine, retroactive to September 30, 2008, the employment rights of petitioners Neumann and Talbert, including their right to appointment to any similar newly created positions within their tenure areas.
END OF FILE.
 According to respondents’ answer, while serving in this position, petitioner Neumann was on leave from the position of Director of Technology.
 According to respondents’ answer, while serving in this position, petitioner Talbert was on leave from the position of Middle School Principal.
 The employment of persons in civil service positions is governed by the Civil Service Law rather than by the provisions of the Education Law, which address, among other things, probationary appointments, tenure and the abolition of tenured positions.
 Under the board’s plan, this position would consolidate those held by petitioners Lewis and Neumann and would require a school district administrator’s certificate.
 Under the board’s plan, this position would consolidate those held by petitioners Wilson and Talbert and would require a school district administrator’s certificate.