Appeal of NIKKI SLATER from action of the North Syracuse Central School District, Board of Education of the North Syracuse Central School District, Alicia Pizzuto and Annette Speach, as Interim Superintendent of Schools regarding an appointment and preferred eligibility rights.

Decision No. 17,017

(December 13, 2016)

School Administrators Association of New York State, Office of General Counsel, attorneys for petitioner, Arthur P. Scheuermann, Esq., of counsel

Bond, Schoeneck & King, PLLC, attorneys for respondents, Christa R. Cook, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the decision of the Board of Education of the North Syracuse Central School District (“respondent board”) and Interim Superintendent Annette Speach (collectively referred to as “respondents”) to appoint Alicia Pizzuto (“respondent Pizzuto”) to the position of Director of Educator Effectiveness and Math.  The appeal must be dismissed.

Petitioner is a certified school district administrator who was employed in the district as Director of Professional Development (“former Director position”), effective July 1, 2009, until the position was abolished due to budget constraints, effective June 30, 2010.  Effective July 1, 2010, petitioner was appointed to the position of Associate Principal at Gillette Road Middle School for a period of one year at a salary rate comparable to that which petitioner received in the former Director position.  Thereafter, on June 20, 2011, petitioner was appointed to the Associate Principal position, subject to a three-year probationary period from July 1, 2010 through June 30, 2013, at a reduced salary.

This is the second appeal filed by petitioner against respondents seeking reinstatement from a preferred eligibility list to a position within the North Syracuse Central School District to which respondent Pizzuto was appointed.  In Appeal of Slater, 57 Ed Dept Rep, Decision No. 17,006, I dismissed petitioner’s petition seeking appointment to the position of Director of Educator Effectiveness, Training and Library Media.  As the instant petition reiterates the facts and allegations of the previous appeal, the relevant facts from petitioner’s first appeal are summarized herein.

During the 2011–2012 academic year, the administrative structure of the district was reorganized and, at its July 23, 2012 meeting, as part of the reorganization, respondent board created the position of Director of Educator Effectiveness, Training and Library Media.  In July 2012, in response to an internal “Vacancy Notice” seeking applicants for the new Director position, respondent Pizzuto submitted her application.  According to the record, respondent Pizzuto was the only applicant for the position.  By letter to respondent superintendent dated August 21, 2012, the School Administrators Association of New York State (“SAANYS”) asserted that petitioner was entitled to the new Director position, contending that it was similar to the former Director position in that “the new and abolished positions share over fifty percent similar duties.”  The district responded through its attorney by letter dated August 23, 2012, stating that petitioner was not entitled to the new Director position because the positions were not more than 50 percent similar and, additionally, because petitioner did not meet the minimum qualifications for the new Director position.  On August 28, 2012, respondent board appointed Pizzuto to the new Director position, effective September 1, 2012, and petitioner’s first appeal ensued.

The following academic year, respondent board again reorganized its administrative structure and, on September 23, 2013, abolished the position of Director of Educator Effectiveness, Training and Library Media.  As part of its efforts to redistribute job responsibilities at the Director level within the district and redistribute responsibility for the four core academic subjects (Math, Science, ELA and Social Studies), respondent created the position of Director of Educator Effectiveness and Math (“new Director position”).  Respondent Pizzuto was subsequently appointed thereto.  This appeal ensued.

Petitioner contends that the duties of the new Director position are more than 50 percent similar to those of her former position as Director of Professional Development and therefore, pursuant to Education Law §3013, she is entitled to be appointed to the new Director position.  Petitioner relies heavily on one task shared by her former Director position and the new Director position: the development and carrying out of the agenda for the annual early September superintendent’s conference days.  Petitioner also argues that the addition of the math component to the new Director position was done by respondent district in “an attempt to thwart petitioner’s current appeal, making the positions too dissimilar.”  In this appeal, petitioner submits a “Job Description Comparison Chart” attached to the verified petition, which sets forth her analysis of the overlap in the duties of the new Director position as compared to her former position, based on what respondents refer to as the “tentative draft” job description for the new Director position.  Petitioner alleges, and respondents admit, that respondent district has not yet published an “official” job description for the new Director position.  She requests an order declaring that she is entitled to the new Director position at the same salary and benefits received by the incumbent and retroactive salary in the amount of the difference in the salary paid to her in her current District Assistant Principal position until such time as she is appointed to the new Director position.

Respondents contend that petitioner has not met her burden of proof in demonstrating that the new Director position is substantially similar to petitioner’s former Director position.  Respondents further contend that the new Director position, although created as part of an overall reorganization to reassign responsibility for an abolished director position within the district and to redistribute administrative responsibilities for the four core subjects among existing directors, was also created largely to assist respondent district in continuing compliance with new State requirements such as the Annual Professional Performance Review (“APPR”) mandates.  As these State requirements and mandates were not in effect during petitioner’s time in the former Director position, respondents contend that they could not be similar to the duties of petitioner’s former Director position.  Additionally, respondent district asserts that it required, as a minimum qualification for the new Director position, that the individual possess certification as a trainer with Teaching Learning Solutions, a New York State Education Department-approved training company.  As petitioner lacked such certification, respondents contend that she did not meet the minimum qualifications for the new Director position.  For all of the above reasons, respondents assert that the appeal must be dismissed.

Education Law §§2510(3) and 3013(3) govern the rights of a terminated school district teacher or administrator to recall from a preferred eligibility list.  Paragraph (a) of §3013(3), which applies to a central school district such as respondent, 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 has filled. 

Accordingly, an individual whose position is abolished has reinstatement rights, but only if the new position is "similar" to the former position.  The test to determine whether the two positions are "similar" is whether more than 50 percent of the duties of the new position are those which were performed by petitioner in her former position (Greenspan v. Dutchess County BOCES, 96 AD2d 1028; Appeal of Elmendorf, 36 Ed Dept Rep 308, Decision No. 13,733; Matter of Evans, 10 id. 156, Decision No. 8,252).  Petitioner has the burden of proving that a majority of the duties of the new 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 Heath, III, 37 id. 544, Decision No. 13,923).  However, it should be noted that 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).

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 Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).

As in petitioner’s first appeal, I find that on this record, petitioner has failed to meet her burden of proving that the duties of petitioner’s former Director position constitute more than 50 percent of the duties of the new Director position.

In this appeal, the minutes of respondent board’s September 23, 2013 meeting indicate that it appointed respondent Pizzuto to the position of Director of Educator Effectiveness and Math and simultaneously appointed three other administrators to newly-configured positions as part of a reorganization of the district’s administrative structure.  For each such administrator, respondent board characterizes its action as a change in title, in respondent Pizzuto’s case from the position of Director of Educator Effectiveness, Training and Library Media to the new Director of Educator Effectiveness and Math.  However, it appears from the record that some job duties were also being transferred.  In respondent Pizzuto’s case, her former duties relating to Library Media were transferred to the new Director of ELA and respondent Pizzuto asserts in her affidavit that her responsibilities relating to the Dignity for All Students Act have also been transferred to someone else.  Although the parties agree that there is no “official” job description for the new Director position, I find the “tentative draft” job description of such position to be highly probative of the job duties of the new Director position, since it is contemporaneous with the appointment of respondent Pizzuto to the new Director position to which petitioner claims a right of reinstatement.  It is also consistent with respondent Pizzuto’s description of her new position in her affidavit, and petitioner has not submitted any evidence to the contrary.

Therefore, I must compare the job duties of the Director of Professional Development with the job duties of the new Director position, as set forth in the “tentative draft” job description.  As I found in my decision in the first appeal, there is overlap in the duties of the two positions relating to oversight of professional development, including planning and coordination of superintendent’s conference days.  In her “Job Description Comparison Chart” and accompanying attachments, petitioner makes a series of conclusory allegations relating to her former duties and their alleged similarity to the duties of the new Director position that are denied by respondents.  Petitioner has provided no documentation to corroborate her allegations about the duties she performed or her subjective analysis of why her former duties are similar to those of the new Director position and cannot meet her burden of proof by making such conclusory and unsubstantiated allegations (see Appeal of Donato, 41 Ed Dept Rep 246, Decision No. 14,677, Judgment granted dismissing petition to review, Sup Ct, Albany Co. [Stein, J.], January 14, 2003, n.o.r., aff’d sub nom Donato v. Mills, 6 AD3d 966).

As I found in my decision in the first appeal, petitioner’s duties as Director of Professional Development did include evaluation of teaching personnel “as assigned” as well as evaluation of professional developers.  For the reasons stated in my decision in Appeal of Slater, 57 Ed Dept Rep, Decision No. 17,006, I reject petitioner’s argument that because her former Director position included responsibility for the conduct of teacher evaluations as assigned, all duties of the new Director position relating to implementation of the APPR are necessarily similar to petitioner’s former duties.  Likewise, for the reasons stated in my decision in the first appeal, I also reject respondents’ argument that there is no overlap between the duties of the two positions with regard to evaluation because the state-mandated APPR fundamentally changed how evaluations are conducted.  Similarly, for the reasons stated in that decision, I also reject respondent’s argument that petitioner was unqualified for the new Director position because she has not been certified as a trainer of lead evaluators.  As I held in that decision, petitioner has not proven that her former position involved districtwide responsibilities with respect to the design and implementation of teacher evaluations.  The fact that petitioner’s duties included the evaluation of teachers as assigned merely establishes that the duties of the two positions relating to the conduct of evaluations do overlap.  Petitioner’s argument that she would have been assigned districtwide duties for APPR implementation had the APPR been initiated while she held her former position are conclusory and speculative.

In any case, it appears from the record that the new Director position has extensive duties relating to the supervision and administration of the district’s K-12 mathematics program.  Respondent Pizzuto attests in her affidavit that, during the first two months following her appointment, more than 60 percent of her time was spent performing her duties relating to mathematics.  Petitioner has not demonstrated that the duties her former Director position included the duties of the new Director position relating to administration of the K-12 mathematics program on a districtwide basis.

Petitioner contends that respondent district abolished the Director of Educator Effectiveness, Library and Media position and added the Math component to the new Director position in an attempt to subvert her preferred eligibility rights.  However, it is well settled that, a board of education may abolish a position for the purpose of managing its affairs economically and effectively (Matter of Young v. Bd. of Educ., 35 NY2d 31; Appeal of McGraw, 31 Ed Dept Rep 451, Decision No. 12,696).  Respondents maintain that the abolishment and creation of several Director positions was part of a redistribution of administrative oversight over the four core subjects, and the minutes of respondent board’s September 23, 2013 meeting reflect such intent.  Petitioner has offered no evidence to rebut this assertion or to support her conclusory allegation that respondents acted to subvert her preferred eligibility rights.

Upon review of the record before me, I find that petitioner has failed to meet her burden of establishing that the duties of the position of Director of Educator Effectiveness and Math are similar to those of petitioner’s former abolished position of Director of Professional Development within the meaning of Education Law §3013(3) and therefore, petitioner is not entitled to appointment to the such position.

THE APPEAL IS DISMISSED.

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