Decision No. 18,102
* Subsequent History: Matter of Stiefel v Betty A. Rosa, et al., Supreme Court, Albany County; petition filed; July 27, 2022. *
Appeal of GREGORY STIEFEL from action of the Board of Education of the Tuckahoe Union Free School District and Amy Goodman, in her capacity as Superintendent, regarding a personnel matter.
Decision No. 18,102
(April 4, 2022)
Robert Saperstein, Esq., attorney for petitioner
Keane & Beane, P.C., attorneys for respondent, William Kang, Esq., of counsel
ROSA., Commissioner.--Petitioner appeals the determination of Amy Goodman, in her capacity as superintendent (“superintendent”) and the Board of Education of the Tuckahoe Union Free School District (“respondent”) (collectively, “respondents”) that petitioner is not entitled to recall to the position of student services assistant principal (“assistant principal”) off a preferred eligible list (“PEL”). The appeal must be dismissed.
Petitioner received a probationary appointment effective August 27, 2018 and was assigned to the position of principal of Tuckahoe Middle School (“middle school principal”). As explained further below, this position was in the tenure area of principal.
During the 2019-2020 school year, respondent combined its middle school and high school into one building as part of an alternative mode of building administration (see 8 NYCRR 100.2 [a]). This plan called for the former high school principal to serve as the sole building principal for the combined middle/high school. This plan was presented to, and approved by, the State Education Department (SED). Respondent thereafter abolished the position of middle school principal, effective June 30, 2020, and placed petitioner on a PEL.
Contemporaneous with its abolition of the middle school principal position, respondent created a new assistant principal position to serve the middle school and high school. Respondent appointed Paul Tobin to this position on July 1, 2020.
This matter was originally commenced as a proceeding pursuant to Article 78 of the Civil Practice Law & Rules in Supreme Court, Nassau County. Respondents filed a pre-answer motion to dismiss, arguing that the Commissioner of Education had primary jurisdiction over petitioner’s claim to reinstatement under Education Law § 3013. By Decision and Order dated April 8, 2021, Supreme Court dismissed petitioner’s claim based upon the primary jurisdiction of the Commissioner. This appeal ensued.
Petitioner argues that he was entitled to recall to the position of assistant principal because the job duties of his former position are at least 50 percent similar to those of the new assistant principal position. While petitioner acknowledges that the assistant principal position is not within his tenure area, he argues that this rule should be abandoned. Petitioner seeks appointment to the assistant principal position, effective July 1, 2020, with back pay, seniority, and other benefits.
Respondents contend that the petition was improperly verified, that the petition should be dismissed for failure to join additional necessary parties, and that petitioner’s post-answer memorandum of law should be rejected. On the merits, respondents contend that petitioner has not proven that he is entitled to recall to the assistant principal position because it is in a different tenure area than, and insufficiently similar to, his previous position.
First, I must address several 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 Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of D.P., 46 id. 516, Decision No. 15,580). Respondents complain that the verification to the petition was sworn to before a notary public on April 22, 2021, while the petition is dated April 23, 2021, and was served on April 26, 2021. Petitioner explains that the document verified on April 22, 2021 is the same document that was signed on April 23, 2021 and served on April 26, 2021. I decline to dismiss the petition on this basis. The relatively small amount of time between the date of verification and the date of service does not, in and of itself, suggest that petitioner verified anything other than the petition served upon respondents (compare Appeal of Unapanta, 57 Ed Dept Rep, Decision No. 17,166 [petition dismissed because it was verified more than two months prior to the date of the petition]).
Respondents also assert that the appeal must be dismissed for failure to join all of the district’s assistant principals as necessary parties. A person or entity whose rights would be adversely affected by a determination in favor of a petitioner is a necessary party and must be joined as such (Appeal of Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of Murray, 48 id. 517, Decision No. 15,934). Joinder requires that a party be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition, informing the party to appear in the appeal and to answer the allegations contained in the petition (Appeal of Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of Murray, 48 id. 517, Decision No. 15,934). Respondents, who bear the burden of proving any affirmative defenses (8 NYCRR 275.12 [a]; see also Appeal of Kenton, 54 Ed Dept Rep, Decision No. 16,649), have not proven that a decision in petitioner’s favor would adversely affect the district’s other assistant principals. Petitioner does not seek their dismissal or reassignment, and respondent has not sufficiently proven that their employment status would be affected. Therefore, I decline to dismiss the appeal for failure to join all assistant principals employed by the district (see Appeal of Farber-Peck, 55 Ed Dept Rep, Decision No. 16,917; Appeal of Curtis and Newell, 48 id. 184, Decision No. 15,831; Appeal of Krause, 46 id. 304, Decision No. 15,516).
Respondents additionally argue that petitioner’s memorandum of law should be rejected because he previously submitted a memorandum of law prior to service of the answer. Additional affidavits, exhibits, and other supporting papers may only be submitted with the prior permission of the Commissioner (8 NYCRR 276.5). While this provision permits the submission of additional evidence, it does not permit parties to raise new claims or defenses for which notice has not been provided (Appeal of Casey-Tomasi, 57 Ed Dept Rep, Decision No. 17,301; Appeals of Gonzalez, 48 id. 405, Decision No. 15,898). Similarly, additional submissions should not raise new issues or introduce new exhibits that are not relevant to the pleadings (Appeal of Casey-Tomasi, 57 Ed Dept Rep, Decision No. 17,301; Appeals of Gonzalez, 48 id. 405, Decision No. 15,898). Petitioner requests that I consider the second memorandum of law, which was submitted within the timeframe prescribed by 8 NYCRR 276.4, in lieu of his previously submitted memorandum. Respondent has not identified any prejudice associated with the submission of two memoranda of law (Appeal of Wertman, 58 Ed Dept Rep, Decision No. 17,614, Matter of Wertman v New York State Educ. Dept.; Supreme Court, Albany County; Special Term [Cholakis, J.]; Decision, order, and judgment dismissed petition to review). Accordingly, I have considered petitioner’s post-answer memorandum of law in reaching my determination.
To the extent petitioner challenges SED’s approval of an alternative mode of building administration and a waiver pursuant to Retirement and Social Security Law § 211 and 8 NYCRR 80-5.5 (“211 waiver”), these claims must be dismissed for lack of jurisdiction. SED approved respondent’s request to utilize “a shared principal, shared assistant principal, and shared student services assistant principal” between its middle and high schools by letter dated July 7, 2020. Additionally, SED granted respondents’ application for the temporary employment of Mr. Tobin pursuant to a 211 waiver. Education Law § 310 does not authorize an appeal to the Commissioner from actions taken by employees or officers of SED (see Appeal of Keating, 59 Ed Dept Rep, Decision No. 17,773; Appeal of Carmel Academy, 56 id., Decision No. 16,976; Appeal of the School for Language and Communication Development, 46 id. Rep 536, Decision No. 15,586; Appeal of Friends to the Elderly, Youth & Family Ctr., Inc., 46 id. 227, Decision No. 15,489). Therefore, I lack jurisdiction to review claims related to the above actions.
Turning to the merits, a board of education has the power to create and abolish positions “for purposes of economy or efficiency” (Matter of Cohen v Crown Point Cent. Sch. Dist., 306 AD2d 732, 733 [3d Dept 2003]; see generally Education Law §§ 1709 , ; 1804 ; Matter of Young v Board of Educ. of Cent. School Dist. No. 6, Town of Huntington, 35 NY2d 31, 34 ). As relevant here, Education Law § 3013 (3) (a) provides that
[i]f an office or position is abolished ... the person filling such position at the time of its abolishment or consolidation shall be placed upon a preferred eligible list [PEL] of candidates for appointment to a (present or future) vacancy ... in an office or position similar to the one which such person filled .... The persons on [the PEL] shall be reinstated or appointed to such vacancies ... in the order of their length of service in the system at any time within seven years from the date of abolition or consolidation of such office or position.
Unlike tenure areas for educators whose positions have been certified as educational in nature, there are no clearly defined guidelines or parameters for administrative tenure areas. A board of education may establish one district-wide administrative tenure area or multiple defined administrative tenure areas (see Matter of Bell v Board of Educ. of Vestal Cent. School Dist., 61 NY2d 149, 151 ; Appeal of Pronti, 54 Ed Dept Rep, Decision No. 16,698; Appeal of Caruana, 41 id. 227, Decision No. 14,671). “As tenure areas narrow[,] seniority rights become less meaningful. As tenure areas broaden, seniority rights take on greater significance ...” (Matter of Boyer v Board of Educ., W. Seneca Cent. School Dist., 132 Misc 2d 282, 285 [Sup Ct, Onondaga County 1986]).
The Commissioner of Education has consistently held that one whose position is abolished is entitled to recall to a new position only if both positions are in the same tenure area (e.g. Appeal of Gallagher, 59 Ed Dept Rep, Decision No. 17,858; Appeal of Schwarz, 28 id. 101, Decision No. 12,045). This interpretation has been upheld by the courts (Matter of Brown v Board of Educ., Morrisville-Eaton Cent. School Dist., 211 AD2d 887 [3d Dept 1995]; Matter of Kelley v Ambach, 83 AD2d 733 [3d Dept 1981]).
In addition to the tenure area requirement, a vacant position must be “similar” to that of a teacher or administrator’s former position (Greenspan v Dutchess County Bd. of Coop. Educ. Servs., 96 AD2d 1028 [2d Dept 1983]; Appeal of Barker and Pitcher, 45 Ed Dept Rep 430, Decision No. 15,375). The test of whether the duties of the two positions are in fact similar is whether more than 50 percent of the functions to be performed by the incumbent of the new position are those which were performed by the petitioner in his or her old position (Greenspan v Dutchess County Bd. of Coop. Educ. Servs., 96 AD2d at 1029; Appeal of Quattrone, 58 Ed Dept Rep, Decision No. 17,601; Matter of Farrand, 13 id. 72, Decision No. 8,715).
In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she 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).
The petition must be dismissed as the position to which petitioner seeks appointment is not within his tenure area. The record reflects that petitioner was employed within the tenure area of “principal.” It further suggests, as petitioner asserts, that “[t]he District maintains its Assistant Principals in a single districtwide Assistant Principal tenure area, just as all Principles are also in a single Principal tenure area.” Petitioner has not demonstrated that respondent board does not, in fact, consider the principal and assistant principal tenure areas to be separate (Appeal of Wheeler, 61 Ed Dept Rep, Decision No. 18,083, citing Matter of Brown v Board of Educ., Morrisville-Eaton Cent. School Dist., 211 AD2d 887 [3d Dept 1995]). Therefore, petitioner was not entitled to recall off a PEL for a position as assistant principal (see Appeal of Wheeler, 61 Ed Dept Rep, Decision No. 18,083; Appeal of Gallagher, 59 id., Decision No. 17,858; Appeal of Goldberg, 54 id., Decision No. 16,635).
Klein v. Deer Park Union Free Sch. Dist. (132 Misc 2d 282 [Sup Ct, Nassau County 1981]), cited by petitioner, does not compel a contrary result. The Klein court stated that “the Court of Appeals has recently held that [a] board need not, indeed should not on reinstatement cases, consider tenure areas ...” (id. at 285). The case upon which the Klein court cited for this proposition, however, concerned teacher tenure, not administrator tenure (Matter of Chauvel v Nyquist, 43 NY2d 48  [holding that a “certified and tenured teacher of French” was only entitled to a similar position for which she held appropriate certification]). In any event, more recent Appellate Division precedent supports the consideration of administrative tenure area as a prerequisite for reinstatement (Matter of Brown, 211 AD2d at 888; Matter of Kelley v Ambach, 83 AD2d 733 [3d Dept 1981]).
Even if the positions were in the same tenure area, petitioner has failed to prove that the duties of the two positions are sufficiently similar to satisfy the requirements of Education Law § 3013 (1). The assistant principal position, unlike petitioner’s former position, is largely devoted to athletics. Mr. Tobin avers that his “duties or responsibilities for the District’s athletic programs account for more than fifty [percent] ... of [his] overall duties and responsibilities for the District ....” He articulates 22 discrete duties related to athletics, including COVID screenings of athletes and coaches; scheduling and confirming athletic events and competitions; attending all athletic events and competitions; training coaches and ensuring their certification; ordering and preparing equipment and uniforms; and ensuring/addressing student eligibility issues.
Petitioner, by contrast, performed minimal tasks related to the district’s athletic program. Petitioner previously testified that he coordinated with coaches with respect to academic eligibility “[a]t a minimum, quarterly,” but sometimes “two or three times a month” as interim grades were awarded; occasionally mediated between teachers and coaches with respect to questions of academic eligibility; “promot[ed] athletic events” by photographing student athletes and uploading the pictures to social media; and attended a single “planning meeting” regarding the selection of an athletics director. These allegations fall far short of proving that petitioner performed more than 50 percent of the functions performed by Mr. Tobin in the assistant principal position.
Petitioner additionally argues that, as a principal with general supervisory responsibility, he could have performed the athletic duties of the assistant principal position (see 8 NYCRR 100.4, 135.4  [i]). The test of similarity, however, is not whether petitioner could have performed more than 50 percent of the duties encompassed by the new position, but whether he actually performed more than 50 percent of these duties in his former position (Greenspan v Dutchess County Bd. of Coop. Educ. Servs., 96 AD2d at 1029). Therefore, even if these positions were in the same tenure area, petitioner has not met his burden of proving that the positions are sufficiently similar.
I have considered petitioner’s remaining arguments and find them to be without merit.
THE APPEAL IS DISMISSED.
END OF FILE
 Petitioner sought, but was denied, permission to amend his complaint to add claims under 42 USC § 1983.
 For the reasons articulated in Appeal of Wheeler (61 Ed Dept Rep, Decision No. 18,083), I decline petitioner’s invitation to dispense with the tenure-area requirement.
 This is evidenced by, for example, the June 8, 2020 letter from respondent indicating that it would “eliminate one (1) position in the Principal tenure area” and identifying petitioner “[a]s the least senior employee in the Principal tenure area.” Respondents’ arguments that petitioner’s tenure area was “principal of Tuckahoe Middle School” are materially indistinguishable from those considered, and rejected, in Appeal of Gallagher (59 Ed Dept Rep, Decision No. 17,858).
 Petitioner’s claim that courts and the Commissioner have cited Klein “with approval” is misleading. These decisions cite Klein for one of two propositions, neither of which is germane to the tenure area requirement: (1) it is more difficult to conduct a “similarity” analysis for administrative positions than teaching positions; and (2) the statutory concept of “similar” must be afforded a “broad meaning” (compare Matter of Kohler v Board of Educ., S. Huntington Union Free School Dist., 122 AD2d 878, 881 [2d Dept 1986] [broad meaning]; and Appeal of Elmdorf, 36 Ed Dept Rep 308, Decision No. 13,733 [difficult to compare]; with Matter of Rossi v Board of Educ. of City School Dist. of Utica, 120 Misc 2d 129 [Sup Ct, Oneida County 1983] [both]).
 The record reflects that respondent requested and conducted an examination of petitioner, who had earlier presented a “claim” against the district (see General Municipal Law § 50-h). While unnecessary to the disposition of this appeal, it appears that Education Law § 3813, not General Municipal Law § 50-e, is more applicable to petitioner’s circumstances (compare Matter of Board of Educ. Longwood Cent. School Dist. v. Elite Assoc., 138 Misc.2d 1038, 1041 [Sup Ct, Nassau County 1988] [“this Court does not consider that Section 50–h contemplates anything but tort claims”] with Matter of Stevens v Board of Educ. of McGraw Cent. School Dist., 261 AD2d 698, 699 [3d Dept 1999] [requirements of Education Law § 3813 applicable to actions seeking enforcement of private rights]).