Decision No. 18,112
Appeal of MEGAN BLITZ from action of the Board of Education of the Watkins Glen Central School District, Kyle Colunio, in his capacity as high school principal, and Gregory Kelahan, in his capacity as superintendent of schools regarding a personnel matter.
Decision No. 18,112
(April 25, 2022)
School Administrators Association of New York State, attorneys for petitioner, Jennifer L. Carlson, Esq., of counsel
Greater Southern Tier BOCES, attorneys for respondents Board of Education of the Watkins Glen Central School District and Gregory Kelahan, Darcy Wood Dill, Esq., of counsel
Satter Ruhlen Law Firm, PLLC, attorney for respondent Kyle Colunio, Sarah E. Ruhlen, Esq., of counsel
ROSA., Commissioner.--Petitioner appeals the determination of respondents Gregory Kelahan, in his capacity as superintendent of schools (“superintendent”) and the Board of Education of the Watkins Glen Central School District (“board”) (collectively, “respondents”) that petitioner is not entitled to recall to the position of high school principal off of the preferred eligibility list (“PEL”). The appeal must be dismissed.
Petitioner was hired on July 1, 2019, as assistant principal/coordinator of special education within the tenure area of school district administrator. The board abolished the assistant principal/coordinator of special education position at its September 8, 2020 meeting effective September 9, 2020. Petitioner was thereafter placed on a PEL for a period of seven years as required by Education Law § 3013 (3) (a).
In April 2021, petitioner learned that a high school principal position would become available effective July 1, 2021. On or about April 20, 2021, the superintendent informed petitioner that she was not entitled to recall because the duties of her former position were not at least 50 percent similar to the position of high school principal. This appeal ensued. Following its commencement, Kyle Colunio was awarded a probationary appointment to the position of high school principal in the tenure area of school administrator, effective July 6, 2021.
Petitioner argues that she was entitled to recall to the position of high school principal because it is within the same tenure area as her former position and the job duties of her former position of assistant principal/coordinator of special education are at least 50 percent similar to those of the position of high school principal. She requests appointment to the high school principal position or another position within the tenure area of “school administrator.” Petitioner also seeks lost salary and benefits from July 1, 2021 to the present.
Respondents argue that the appeal is not ripe for review. On the merits, respondents contend that petitioner has failed to meet her burden of proving that she is entitled to recall to the position of high school principal because it is in a different tenure area than, and insufficiently similar to, her former position of assistant principal/coordinator of special education.
Initially, respondents contend that petitioner’s appeal is premature. The Commissioner will not render an advisory opinion on an issue before it becomes justiciable (Appeal of Frey, 57 Ed Dept Rep, Decision No. 17,308; Appeal of B.R. and M.R., 48 id. 291, Decision No. 15,861). The Commissioner’s jurisdiction pursuant to Education Law § 310 is appellate in nature, and an action is not ripe for review by the Commissioner until it is final and results in an actual, concrete injury (Appeal of Kerley, 60 Ed Dept Rep, Decision No. 17,915; Appeal of M.P., 59 id., Decision No. 17,848; Appeal of Parris, 51 id., Decision No. 16,261; see generally Matter of Gordon v Rush, 100 NY2d 236, 242 ).
I find that petitioner is aggrieved by respondents’ determination that she was not entitled to recall to the open position. As I recently held, “[t]he abolition of a position and the refusal to be considered for a later appointment present distinct, and separate, injuries” (Appeal of Wheeler, 61 Ed Dept Rep, Decision No. 18,083 [citing Matter of Leggio v Oglesby, 69 AD2d 446, 447 (2d Dept 1979); Appeal of Gallagher, 59 Ed Dept Rep, Decision No. 17,858]). Therefore, I find that petitioner was entitled to commence the instant appeal within 30 days of April 20, 2021.
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 [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).
Petitioner has not met her burden of proving that she is entitled to recall to the position of high school principal. Petitioner contends that respondents maintain a single, district-wide administrative tenure area entitled “school administrator.” Respondents contend that they maintain two tenure areas: school administrator (“SA”) and school district administrator (“SDA”). Respondents explain that all administrators were placed in the SA area until it began hiring assistant principals. At that time, respondents established the SDA tenure area for assistant principals, while maintaining the SA tenure area for building principals/directors. The board minutes submitted by petitioner in support of her appeal reflect that at least two other individuals were appointed to assistant principal positions within the SDA tenure area. Thus, the evidence supports respondents’ determination that the district maintains separate SA and SDA tenure areas.
Petitioner further alleges that respondents have only recognized a single tenure area in practice by transferring administrators between various administrative positions without requiring them to serve additional probationary periods. This allegation is not supported by the evidence in the record; at most, it is unclear whether one employee, Jeremy Leroux, was required to serve a new probationary period after he changed positions from “Assistant Principal, 7-12” (SDA) to “Principal, PK-6” (SA). I do not find this ambiguity sufficient to undermine respondent’s administrative tenure scheme (Matter of Brown, 211 AD2d at 889). Therefore, I find that the two positions are in different tenure areas, and petitioner was not entitled to recall off the PEL (see Appeal of Wheeler, 61 Ed Dept Rep, Decision No. 18,083; Appeal of Goldberg, 54 id., Decision No. 16,635; Appeal of McDougall, 53 id., Decision No. 16,505).
Even if the positions were in the same tenure area, petitioner has not proven that the duties of the two positions are sufficiently similar as required by Education Law § 3013 (1). In an affidavit, petitioner states that, as assistant principal/coordinator of special education, her time was split between special education and K-12 assistant principal duties. Petitioner identifies several duties that, she avers, were performed by both the assistant principal/coordinator of special education and the high school principal. In support of this contention, she submits job descriptions for each position. The job descriptions reveal that the duties of the high school principal (51 unique bulleted duties) far outnumber the duties of the assistant principal/coordinator of special education (24 bulleted duties).
In opposition, respondents submit affidavits from the district clerk and three administrators. One administrator is the former high school principal, who worked with petitioner from July 1, 2019 through September 9, 2020. He asserts that
Petitioner spent the vast majority of her time performing Special Education duties and the vast minority of her time performing assistant principal duties by providing support to both the High School and Elementary School buildings.
As evidence, the former high school principal outlines, in substantial detail, how most of the duties of high school principal were not required or performed by petitioner in her former position. He also submits a chart comparing the duties of the two positions. This chart identifies five areas to which petitioner devoted between 80-90 percent of her time, the majority of which (three) centered on special education. Petitioner did not submit a reply or otherwise respond to respondents’ contentions. Therefore, petitioner has not met her burden of proving that the assistant principal/coordinator of special education position is similar to the position of high school principal within the meaning of Education Law § 3013.
In sum, the petition must be dismissed because petitioner has no right to recall to a position in a different tenure area. Additionally, even if the positions were in the same tenure area, petitioner has failed to meet her burden to demonstrate that the positions are sufficiently similar to be entitled to recall as high school principal.
I have considered petitioner’s remaining contentions and find them to be without merit.
THE APPEAL IS DISMISSED.
END OF FILE
 Petitioner, at my direction, joined Mr. Colunio in September 2021. Although respondents raise failure to join a necessary party as a defense, any such deficiency has been cured by the joinder of Mr. Colunio.
 While petitioner argues that assistant principal Rhonda Underhill was appointed to the SA tenure area, the board minutes reflect that she was, in fact, appointed to the SDA tenure area.
 As recognized by the high school principal, some bulleted duties are repeated under different headings.
 Each affiant attests that there is less than 50 percent overlap in the duties of both positions.
 The areas are: (1) assisting in establishing and maintaining student management protocols; (2) supporting and supervising the district 504 coordinator and committee on special education chair; (3) coordinating educational programs for students receiving specialized instruction; (4) overseeing all aspects of the district’s guidance, special education, related service, enrichment, and English as a New Language (ENL) programs; and (5) working with building principals to recruit, select, assign, and supervise relevant personnel including: special education teachers, guidance counselors, school psychologists, social workers, speech therapists, physical therapists, enrichment teachers, ENL teachers, teaching assistants, and teacher aides.