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Decision No. 16,555

 

 Appeal of SVETLANA STOWELL, from action of the Board of Education of the York Central School District, Daniel P. Murray, as Superintendent, and MaryGrace Ferrando, as elementary school principal, regarding a reduction in her position.  

Decision No. 16,555

(September 26, 2013)

School Administrators Association of New York State, attorneys for petitioner, Robert T. Fullem, Esq., of counsel

Osborn, Reed & Burke, LLP, attorneys for respondents Board of Education of the York Central School District and Daniel P. Murray, David W. Lippitt, Esq., of counsel

Jaros & Jaros, attorneys for respondent Mary Grace Ferrando, Ronald L. Jaros, Esq., of counsel

KING, JR., Commissioner.--Petitioner appeals the decision of the Board of Education of the York Central School District (“respondent” or “board”) to reduce her position from a full-time position to a .8 full time equivalent. The appeal must be dismissed.

Petitioner is certified as a school district administrator and a school administrator/supervisor. At a regularly scheduled meeting held on August 9, 2004,respondent board appointed petitioner to the position of Director of Pupil Personnel Services, with an effective date of August 16, 2004. Petitioner alleges that she requested that her position be reduced to .8 full time equivalent (“FTE”) due to a maternity leave. At a meeting held on March 28, 2011, the board voted that the Director of Pupil Personnel Services position be reduced from a 1.0FTE to a .8 FTE, effective July 1, 2011. This appeal ensued.

Petitioner claims that, based on her request for a reduction in her schedule for maternity leave for the 2011­2012 school year and her prior conversations with the superintendent, it was her understanding that her position was reduced from a 1.0 FTE to a .8 FTE for the 2011-2012 school year only and that she would return to a 1.0 FTE position for the 2012-2013 school year. She also asserts

that, if her position was permanently reduced, Mary Grace Ferrando is the least senior person in the administrative tenure area and therefore it should be Ferrando’s position that is reduced and not petitioner’s.

Respondents allege that the appeal is untimely and that the petition should be rejected because it was not properly verified. Respondents further allege that the petition should be dismissed because petitioner consented to the permanent reduction in her position and her tenure rights were not violated.

At the outset, I must address the procedural issues. Section 275.5 of the Commissioner's regulations requires that all pleadings in an appeal to the Commissioner be verified. When a petition is not properly verified, the appeal must be dismissed (Appeal of D.P., 46 Ed Dept Rep516, Decision No. 15,580; Appeal of C.S., 46 id. 260,Decision 15,501). My office of Counsel received a copy of the petition dated September 12, 2011, which contains a verification signed by petitioner. However, the verification on the petition is dated September 6, 2011.Since the verification is dated prior to the date of the petition and the verified reply admits that modifications were made to the petition after September 6, 2011, it is impossible to tell which allegations in the petition were properly verified. Therefore, I find that the petition was not properly verified and I will not excuse this omission as petitioner was represented by counsel and the defect was never cured. The appeal must be dismissed on that basis.

I must also dismiss the appeal as untimely. An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879). It appears from the record that the action resulting in the 20 percent reduction in petitioner’s position from which she seeks relief was taken by the board on March 28, 2011, wherein they permanently reduced her position from a 1.0 FTE to a.8 FTE. However, petitioner asserts that she did not learn of the permanent reduction in her position until August 19,2011. I must reject this assertion. The record reflects that petitioner reached out to the School Administrators Association of New York State (“SAANYS”) and asked how these actions affect her employment rights. In a letter to petitioner from SAANYS dated April 5, 2011, petitioner was notified:

Our understanding is that the district’s board recently voted to reduce your position from full-time to a .8 position for the school year beginning July 1, 2011.

....

Of course, the district may reduce the position

you occupy to a .8 position, as the board

apparently did. However, education law requires

a separate analysis to determine which

administrator’s work week is reduced following

such reduction; it is not necessarily the

occupant of the position that was reduced.

Specifically, it is the least senior person in

the tenure area whose work week is reduced.

Therefore, whether the position reduction would

limit your work to a .8 position after your

maternity leave depends on the tenure areas of

all three administrators (emphasis added).

Moreover, in a letter dated May 13, 2011 from respondent’s

counsel to SAANYS, the district clearly provides: The District wishes to initially clarify several statements in your letter. First, [petitioner] requested that her position be reduced to a .8FTE position as of July 1, 2011. The district [also] understood this request was not just for the 2011-2012 school year, but a permanent reduction.

This letter also clearly provided: If the District reduced [petitioner’s] position without her consent she would not have any tenure rights outside the narrow tenure area of Director of Pupil Personnel Services. More specifically, she would not have any seniority rights over the Elementary Principal.

From this letter, it is clear that it was the intent of the

board to permanently reduce petitioner’s position. Since

the petition was not served until September 15, 2011, which

is well over 30 days from the March board action and even

the April and May letters, the appeal must also be

dismissed as untimely.

THE APPEAL IS DISMISSED. END OF FILE