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Decision No. 12,989

Appeal of RICHARD P. COOPER from action of the Board of Education of the Red Hook Central School District relating to appointment on tenure.

Decision No. 12,989

(August 18, 1993)

Denise M. Verfenstein, Esq., attorney for petitioner

Ruberti, Girvin & Ferlazzo, P.C., attorneys for respondent, Jeffrey D. Honeywell, Esq., of counsel

SHELDON, Acting Commissioner.--Petitioner, the primary elementary principal in the Red Hook Central School District, requests that I order respondent to appoint him to that position with tenure, effective July 1, 1992, with no reduction in salary. The appeal must be dismissed.

Prior to March 4, 1992, the administrative structure in respondent's elementary school consisted of an elementary principal and two assistant elementary principals. On March 24, 1992, the board of education abolished the positions of elementary principal and assistant elementary principals and created the positions of elementary principal for instruction and two new principal positions, one responsible for the primary grades which is entitled `primary' elementary principal and the other responsible for grades 3 through 5, which is termed the `intermediate' elementary principal. Petitioner was thereupon notified that his assistant principal position had been abolished, and was offered the position of primary principal. The notice to petitioner indicated that he would be serving a probationary appointment in the tenure area of principal commencing on July 1, 1992 and ending June 30, 1995. Petitioner, upon receipt of this notice, requested that he be granted tenure in the new position of primary principal. Respondent refused to grant his request and this appeal ensued.

Petitioner alleges that as an assistant elementary principal he performed many of the same duties and had many of the same responsibilities as he now has as primary elementary principal. Petitioner therefore contends that pursuant to Education Law '2510(3), because he obtained tenure as an assistant principal and performed the same duties as a principal, he should be granted tenure in the new position of principal without serving a new probationary appointment. Respondent contends that it has always maintained separate tenure areas for principals and for assistant principals and that since petitioner is now serving in a new tenure area which has been consistently maintained by the district as separate from that of assistant principal, he must serve a new probationary appointment.

In Matter of Kelley, 19 Ed Dept Rep 499, Commissioner Ambach concluded that an individual who had served as an assistant junior high school principal was not entitled to a position as an assistant senior high school principal pursuant to Education Law '2510(3) because the individual's prior service was in a separate tenure area. The decision in that case was unanimously affirmed by the Appellate Division, Third Department (Matter of Kelley v. Ambach, 83 AD2d 733). An examination of the record in this case confirms respondent's position that it has always maintained separate and distinct tenure areas for assistant principal and principal. The record also confirms that although there are some duties which are to a degree shared between the positions of assistant principal and principal, there are duties, including the ultimate responsibility for decisions made for the grade levels assigned to the principals, and the suspension of students pursuant to Education Law '3214(3)(b), which cannot be performed by the assistant principal. Therefore, there are also distinct differences between the functions, responsibilities and authority of individuals serving as assistant principal and principal.

Thus, in accordance with Matter of Kelley, supra, I find that petitioner was not entitled pursuant to Education Law '2510(3) to the position of primary principal, and that since he was serving a new tenure area, it was appropriate for respondent to appoint him as a probationer when he accepted the position of primary principal.