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Decision No. 17,404

Appeal of DR. LINDA CAPUTO from action of the Board of Education of the Copiague Union Free School District and Superintendent Dr. Kathleen Bannon regarding assignment of duties.

Decision No. 17,404

(June 6, 2018)

Brad A. Stuhler, Esq., attorney for petitioner

Ingerman Smith, L.L.P., attorneys for respondent Board of Education of the Copiague Union Free School District, Steven A. Goodstadt, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the decision of the Copiague Union Free School District (“respondent board”) and Superintendent Dr. Kathleen Bannon (“Bannon”)[1] (collectively “respondents”) to assign petitioner duties outside her tenure area.  The appeal must be dismissed. 

Petitioner is an assistant principal in respondents’ district who received tenure in the area of secondary assistant principal in 2006.  On June 16, 2014, respondent board preferred charges against petitioner, seeking her removal and termination from employment, for acts of misconduct, including being inappropriate to students and staff members, and neglect of her job responsibilities.  By decision dated July 18, 2016, the hearing officer found petitioner guilty of certain specifications and imposed a four-month unpaid suspension and counseling requirements.  By letter dated September 6, 2016, Bannon provided petitioner details regarding her suspension and other responsibilities pursuant to the hearing officer’s determination.

Petitioner served her suspension from October 3, 2016 through February 3, 2017, and returned to work, effective February 6, 2017.  Petitioner asserts that, since her return to work as assistant principal, she has been assigned duties outside her administrative tenure area.   For example, she asserts that she was directed to write non-specific grant applications; write a course about organic gardening; and make copies for the superintendent’s secretary.   This appeal ensued.

Petitioner alleges that the assignment of clerical duties is tantamount to placing petitioner in a different tenure area than that of assistant principal, in violation of 8 NYCRR §30-1.9(c), and that the duties hold no reasonable relationship to petitioner’s administrative competency or training.  Petitioner further contends that respondents violated the hearing officer’s decision, which required petitioner to be reinstated to the position of assistant principal following her suspension.  She requests a determination that respondents violated 8 NYCRR §30-1.9(c), by assigning her duties outside her tenure area and requests that she be assigned duties that are reasonably related to and consistent with her tenure area of assistant principal; and reinstating her to the position of assistant principal.

Respondent board argues that the appeal must be dismissed as untimely and for failure to state a claim upon which relief can be granted.  

I must first address a procedural issue.  Respondent board contends that the appeal is untimely as it was not commenced within 30 days of the assigned duties which petitioner complains are outside of her tenure area.  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 Saxena, 57 Ed Dept Rep, Decision No. 17,239; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).  To the extent petitioner is challenging the individual assignments as alleged in the petition, the appeal is untimely as to the grant assignment and organic gardening course assignment.  According to petitioner’s affidavit of service, the petition was served on July 24, 2017.  The record indicates that petitioner returned from her suspension on February 6, 2017 and was assigned the grant assignment on or about the same day.  Further, the record indicates that, on March 9, 2017, she was assigned the organic gardening course project.  Therefore, the appeal is untimely to the extent petitioner is challenging the grant and organic gardening course assignments as alleged in the petition.  With respect to the allegation regarding the assignment of clerical duties, respondent board denies that petitioner was ever assigned to make copies for Bannon’s secretary.  Together with her reply, petitioner submits an affidavit from herself indicating that, on or about June 27, 2017, she was directed to make copies of student records for the assistant superintendent for curriculum.  Therefore, at a minimum, the appeal would be timely as to petitioner’s allegation regarding the assignment of clerical duties. 

Petitioner contends that the appeal is timely because “[t]he repeated and continued failure of [r]espondent to assign [p]etitioner duties that are within her tenure area, training, and competency as an [a]ssistant [p]rincipal constitutes a continuing wrong.”  The continuing wrong doctrine applies when the ongoing action is itself an unlawful action that results in a continuous violation of the law, such as the unlawful employment of an unqualified individual (Appeal of Kippen, 48 Ed Dept Rep 469, Decision No. 15,919), unlawful appointments to a district’s shared decision-making team (Appeal of Sadue-Sokolow, 39 Ed Dept Rep 6, Decision No. 14,155), an improperly constituted professional development team (Appeal of Copenhagen Teachers’ Association, et al., 45 Ed Dept Rep 459, Decision No. 15,381) or certain ongoing expenditures under an austerity budget that did not comply with the law (Appeal of Aarseth, 32 Ed Dept Rep 506, Decision No. 12,901).  The doctrine does not apply where the specific action being challenged is a single discrete action, inaction or decision and the resulting effects are continuing but are not intrinsically unlawful (Application of Ayers, 48 Ed Dept Rep 350, Decision No. 15,883; Appeal of a Student with a Disability, 48 id. 146, Decision No. 15,821, judgment granted dismissing petition to review, April 8, 2009, Sup.Ct., Albany Co. [Zwack, J.]).  Since the assignment of an administrator to devote a substantial portion of his/her time to duties outside of his/her tenure area without his/her prior written consent in violation of 8 NYCRR §30-1.9(c) would be intrinsically unlawful, I decline to dismiss the appeal as untimely (see Appeal of McEvoy, 57 Ed Dept Rep, Decision No. 17,198).

Nevertheless, the appeal must be dismissed on the merits.  Petitioner claims that she continues to be assigned duties outside of her tenure area without her consent in violation of §30-1.9(c) of the Rules of the Board of Regents and that she is entitled to reinstatement “in full to her position of assistant principal.”  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 P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).

Administrative tenure areas are not governed by Part 30 of the Rules of the Board of Regents (see Matter of Cowan v. Bd. of Ed. of Brentwood Union Free School Dist., et al., 99 AD2d 831; Matter of Coates v. Ambach, 52 AD2d 261, aff’d 42 NY2d 846).  Rather, administrative tenure areas are determined by individual school districts (Appeal of Alexander and Gonzalez, 54 Ed Dept Rep, Decision No. 16,731; Appeal of Murray, 48 id. 517, Decision No. 15,934).  School administrators may be transferred within their tenure areas but may not be transferred outside their tenure areas involuntarily (Matter of Bell v. Bd. of Ed. of Vestal Central School Dist., et al., 61 NY2d 149; Appeal of Rabeler, 46 Ed Dept Rep 382, Decision No. 15,539; Appeal of Caruana, 41 id. 227, Decision No. 14,671).  The crux of the issue before me is whether the duties assigned to petitioner are within the assistant principal tenure area as established by the district.

Section 30-1.9(c) of the Rules of the Board of Regents provides as follows:

No professional educator, whether on tenure or in probationary status, may be assigned to devote a substantial portion of his time in a tenure area other than that in which he has acquired tenure or is in probationary status, without his prior written consent.

Petitioner argues that she has not provided her consent to her current assignment and that respondent board is prohibited from assigning petitioner tasks that would have her devote a substantial portion of her time performing duties outside of her tenure area.  It is well-settled that an administrator will be considered to be in a new tenure area if the administrator will devote more than 50 percent of his or her time to new or different duties within that new tenure area (Matter of Coates v. Ambach, 52 AD2d 261, aff’d 42 NY2d 846; Matter of Maine-Endwell Teachers Association, et al. v. Maine-Endwell Central School Dist., et al., 92 AD2d 1052; Appeal of Pearse, 50 Ed Dept Rep, Decision No. 16,159).  Therefore, the definition of “substantial portion of his time” in 8 NYCRR §30-1.1(g)
does not apply to administrators.[2]  As noted above, under established case law, administrators cannot be transferred to another tenure area without their consent, and in the case of an administrator, the 50-percent rule is used to determine whether the administrator has been transferred to a new tenure area in violation of his or her tenure rights.

Petitioner alleges that, since her return to work on February 6, 2017, respondent assigned her to “few, if any, duties,” all of which are outside of her administrative tenure area of secondary assistant principal.  However, a board of education has broad discretion in assigning duties to members of its professional staff, so long as the employee’s tenure rights are not infringed upon (Matter of Van Heusen v. Bd. of Ed., City School District of the City of Schenectady, et al., 26 AD2d 721; Appeal of Dillon, 43 Ed Dept Rep 333, Decision No. 15,010; Appeal of Garry, 19 id. 359, Decision No. 10,166).  It is clear from the record before me that petitioner will continue to accrue tenure and seniority credit in the secondary assistant
principal tenure area.

Together with her petition, petitioner includes a document entitled “Areas of Responsibilities 2010-2011 School Year Linda Caputo (12th Grade),” which lists duties including student activity coordinator; eligibility reports; student management/interventions; staff management/evaluation; and miscellaneous duties, including evening/extracurricular events as assigned; student ID photos; and all reports as requested. 

Respondent board denies petitioner’s allegations relating to her duties and asserts that the duties assigned to petitioner are reasonably related to her tenure area and bear a reasonable relationship to her job description, competency, and training.  Respondent board submits an affidavit from the assistant superintendent for human resources (“assistant superintendent”), who asserts that petitioner’s duties listed for the 2010-2011 school year are not part of her job specification and change from year to year.  Rather, he attaches petitioner’s “Job Description,” and asserts that, pursuant to paragraph 19 of such document, a high school assistant principal must “[p]erform[] such additional duties as may be delegated by the immediate supervisor or the [s]uperintendent....”  Respondent board specifically denies that petitioner was ever assigned clerical duties and states that petitioner’s remaining duties (i.e. grants and course outlining) were consistent with those expectations. 

Further, the assistant superintendent notes that, pursuant to the hearing officer’s determination following petitioner’s §3020-a proceeding, petitioner was to be “reinstated to her Assistant Principal duties” and that, since petitioner’s return to work, “the [s]chool [d]istrict has made sure that [p]etitioner has been given duties which would qualify as part of her job specification.”

The Court of Appeals has ruled that the concept of tenure “does not entitle a teacher to a specific class or proscribe assignment to proper duties of a teacher other than classroom teaching of a specific subject” (Matter of Adlerstein, 64 NY2d 90, 99).  The Court held that assignment to a nonteaching assignment “which bears reasonable relationship to the suspended teacher’s competence and training and is consistent with the dignity of the profession, is permissible” (id. at 100).  Thus, a reassignment to nonteaching duties following completion of a proceeding pursuant to Education Law §3020-a does not constitute a disciplinary action that would trigger a teacher’s rights to a hearing pursuant to Education Law §§3020 and 3020-a and the board of education is not required to restore the teacher to his or her previous teaching assignment (Matter of Taylor v. Hammondsport Cent. School Dist., 267 AD2d 987; see also Matter of McElroy, 5 Misc 3d 321).  The principles of these cases apply equally to a tenured school administrator.

While petitioner generally claims that the assigned duties were all outside of her administrative tenure area of secondary assistant principal, petitioner has provided no evidence to refute respondent’s contention that the duties she performed were within her tenure area and reasonably related to her competence and training.  Petitioner’s allegation that she was impermissibly assigned clerical duties is denied by respondent and in light of the conflicting affidavits, the evidence on that contention is at best in equipoise.  Therefore, I find that petitioner has failed to meet her burden of demonstrating that she has been assigned duties outside of her tenure area or was not reinstated pursuant to the decision rendered in her §3020-a proceeding.

In light of this disposition, I need not address the parties’ remaining contentions.

THE APPEAL IS DISMISSED.

END OF FILE

 

[1] I note that, although petitioner’s affidavit of service indicates that the petition was served upon both respondent board and Bannon, the answer was served on behalf of respondent board only.  

 

[2] Although the Commissioner’s decision in Appeal of Dunshee (44 Ed Dept Rep 414, Decision No. 15,216), an appeal involving an administrator, cites 8 NYCRR §30.9(b), which has since been redesignated as §30-1.9(c), such decision did not address whether the 50-percent rule or the 40-percent standard embedded in the definition of a “substantial portion of his time” is applicable.