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Decision No. 13,083

Appeal of W. CRAIG STRATTON from action of the Board of Education of the Wheatland-Chili Central School District and Karen E. Johnson relating to abolition of an administrative position.

Decision No. 13,083

(December 31, 1993)

Shapiro, Rosenbaum & Liebschutz, Esqs., attorneys for petitioner, Peter C. Nelson, Esq., of counsel

Harris, Beach & Wilcox, Esqs., attorneys for respondents, James A. Spitz, Jr., Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals respondent board of education's termination of his employment as assistant superintendent for business and subsequent employment of respondent Johnson as district treasurer. The appeal must be dismissed.

Petitioner was an administrator in the Wheatland-Chili District, becoming tenured in 1982. By letter dated April 14, 1993, respondent board informed petitioner that his position of assistant superintendent for business was abolished, effective May 1, 1993. Upon receiving that notification, petitioner indicated to the superintendent that the abolition of his position violated written board policies. Those policies state:

Failure to notify the administrator in writing, on or before the first day of April the year in which the appointment will be terminated, of the Board's intent not to renew the appointment, will automatically result in a one-year extension of the appointment.

. . .

In order to furnish adequate time for the administrator to secure employment elsewhere and the Board to secure services of a new administrator with the desired qualifications, four months notice shall be required prior to the expiration of services unless mutually agreed upon. Renewal of appointments shall normally be considered during the month of April with notification by April 30.

Seeking to avoid costly litigation, respondent board's superintendent recommended two actions: that these policies be eliminated, and that the board rescind its abolition of petitioner's position. On May 11, 1993, the board rescinded its decision to eliminate the position of assistant superintendent for business, and on May 25, 1993, the board repealed the policies in question. Following the rescission of the policies, the board again voted to abolish the position of assistant superintendent for business, effective May 26, 1993. Respondent board then placed petitioner on a preferred eligibility list for that position. Subsequently, respondent board appointed respondent Johnson to a newly created position of district treasurer.

Petitioner contends that respondent board's abolition of his position and subsequent creation of the district treasurer position violated Education Law '3013(1) because the duties of the new position of district treasurer and the former position of assistant superintendent for business are similar. Education Law '3013(1) provides:

If a trustee, board of trustees, board of education or board of cooperative educational services abolishes an office or position and creates another office or position for the performance of duties similar to those performed in the office or position abolished, the person filling such office or position at the time of its abolishment shall be appointed to the office or position thus created 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 or she has filled.

To prevail, petitioner has the burden of proving that a majority of the duties of the new position are similar to those of his former position (Appeal of Schwarz, 28 Ed Dept Rep 101; Matter of Gworeck, 21 id. 501).

In comparing the duties of the two positions, the degree of comparable skill and experience required for each position must be considered (Matter of Gregoire, 15 Ed Dept Rep 373; Matter of Abramson, et al., 20 id. 575). The record before me indicates that the two positions at issue require significantly different skills and experience. An incumbent to the position of district treasurer is required to have a high school diploma and one year of college. Conversely, the incumbent of the position of assistant superintendent for business is required to have a baccalaureate degree, 60 hours of graduate study and an internship, plus a masters degree (8 NYCRR 80.4).

Moreover, a comparison of the actual tasks performed by petitioner as assistant superintendent for business and those performed by respondent Johnson as district treasurer reveals many differences. While petitioner did perform certain accounting and bookkeeping duties similar to those performed by the district treasurer, he was also charged with numerous other duties not performed by the treasurer: supervising control of the district's transportation, building and grounds departments; overseeing the school lunch program; purchasing; overseeing the district's auxiliary services; and serving on the district's workers' compensation planning board. In fact, petitioner at times was even designated acting superintendent.

Finally, the position of assistant superintendent for business is an educational position requiring appropriate certification (8 NYCRR 80.4[c][1]), while the position of district treasurer is a civil service position, requiring no certification. As a matter of law, where a board abolishes an instructional or educational position and creates in lieu thereof a noneducational position which does not require educational certification, the former incumbent of the educational position has no claim on the subsequently created noneducational position since the newly created noneducational position is not similar to the former educational position (Matter of Smith, et al. v. Bd. of Ed., et al., 97 AD2d 795; Matter of Mills v. Nyquist, et al., 63 AD2d 1060, aff'd 47 NY2d 809; Matter of Nixon, et al. v. Bd. of Ed., 60 AD2d 651; Matter of McIvers, 17 Ed Dept Rep 274). Accordingly, petitioner has not met his burden of proving that the majority of the duties of his former position are similar to those of district treasurer.

Petitioner also contends that respondent did not follow board procedure when it failed to give him notice on or before April 1 and when it failed to give him four months' notice of termination. Petitioner further claims that respondent cannot rescind the policies at issue and then apply that rescission to him retroactively. Respondent board counters that the policies cited by petitioner refer to the termination of the employment of an administrator serving in a probationary appointment, not the abolition of a position, and thus do not apply to petitioner's situation. A review of the plain language of the policies support the board's interpretation that those policies do not apply to the abolition of a tenured administrative position for economic reasons. Rather, the language of the policies refer to an administrator serving pursuant to an "appointment" during a probationary period. Because the policies in question refer to the termination of an appointment during a probationary period, respondent board correctly concluded that the policies were not applicable to the elimination of a tenured position for economic reasons. Because petitioner's termination involved the abolition of a position for economic reasons and not the termination of a probationary appointment, the policies cited by petitioner provide him with no due process protections.

Petitioner further maintains that respondent board did not terminate his employment for economic reasons, but acted in bad faith. While a board of education may abolish positions for economic reasons, it may not use the subterfuge of abolishing a position for unsubstantiated economic reasons to avoid compliance with the provisions of Education Law '3020-a that must be followed when a board of education seeks the dismissal of a tenured employee for cause (Matter of Young v. Board of Educ., 35 NY2d 31). However, petitioner offers no proof to support his assertion that the termination of his position was motivated by bad faith. To the contrary, the record indicates that petitioner's position was abolished as part of a plan involving several staff reductions, including the abolition of the positions of school board secretary, assistant high school principal, four full time and five part time teaching positions and one part time guidance position. In addition, respondent made numerous other budget cuts such as elimination of driver education, elementary school extended studies and developmental first grade programs. Other cuts included reduction in the level of remedial services and the number of sections offered in several secondary courses. Extracurricular activities and interscholastic athletics were also reduced. Indeed, the record supports respondent board's assertion that petitioner's position was abolished because of a good-faith decision to address the economic needs of the district and not because of a bad-faith attempt to fire petitioner (see Matter of Young v. Board of Educ., supra).

Petitioner also maintains that a salary notice received and signed by him constitutes a written contract, the provisions of which respondent board violated when it abolished his position prior to the end of the 1992-93 school year. The salary notice he relies upon merely advised petitioner of his annual salary. His signature thereon was no more than an acknowledgement of receipt of the notice and his intention to work in the district for the salary referenced. A salary notice does not constitute a contract of employment because "the fact that compensation is measured by a specific period of time does not render the employment" an employment contract (Matter of Tyson v. Hess, 109 AD2d 1068, aff'd 66 NY2d 843, see also, LaShure v. Bd. of Ed., 167 AD2d 852; Dalton v. Union Bank of Switzerland, 134 AD 174; Appeal of Behe, et al., 31 Ed Dept Rep 544; Matter of MacPherson, 25 id. 124; Matter of Schultz, 11 id. 224). Accordingly, petitioner has failed to establish that respondent breached any contract in abolishing his position.

I have reviewed petitioner's other contentions and find them without merit.