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Decision No. 13,262

Appeal of ALBERT CERILLI from action of the Board of Education of the Wappingers Central School District, John G. Marmillo, Superintendent, and Stephen Miller, Principal, relating to a teaching assignment.

Decision No. 13,262

(September 16, 1994)

Barry Kaufman, Esq., attorney for petitioner

Raymond G. Kruse, P.C., attorney for respondents, Bob A. Kramer, Esq., of counsel

SOBOL, Commissioner.--Petitioner, a tenured elementary school teacher in respondent board's school district, appeals a determination to assign him to teach in a particular school. The appeal must be dismissed.

During the 1993-94 school year, petitioner was employed as a third grade teacher at the Sheafe Road Elementary School. Prior to and during that school year, petitioner filed three appeals under Education Law '310 and two grievances with the district. The appeals and grievances involved, among other things, allegations by petitioner of improper conduct by respondent Miller, Principal of the Sheafe Road school. The appeals and grievances were dismissed (see Appeal of Cerilli, 33 Ed Dept Rep 385). On June 6, 1994, respondent Miller notified petitioner that he would be reassigned to teach fourth grade at the district's Oak Grove Elementary School for the 1994-95 school year. That decision was affirmed by the school superintendent, respondent Marmillo.

Petitioner contends that his transfer to the Oak Grove School is improper and in retaliation for his previous filing of appeals and grievances. Respondents deny that they have engaged in any retaliatory action against petitioner. Respondents further contend that petitioner's transfer from the Sheafe Road School to the Oak Grove School is based solely on the needs of the students in both schools, as well as petitioner's capabilities as a teacher.

Pursuant to Education Law '1709(33), local school authorities

have in all respects the superintendence, management and control of the educational affairs of the district, and, therefore, shall have all the powers reasonably necessary to exercise powers granted expressly or by implication and to discharge duties imposed expressly or by implication by this chapter or other statutes.

In addition, Education Law '1711(5)(e) specifically authorizes a superintendent to transfer a teacher to and from one school to another or from one grade to another. Moreover, a teacher does not acquire tenure in a particular school and school authorities may, in their discretion, transfer tenured teachers without their consent (Matter of Blumenfeld, et al., 21 Ed Dept Rep 236; Matter of McFernon, 16 id. 13). The actions of school officials in the management of internal affairs or the operation of school will not be overturned except upon presentation of convincing evidence that they have acted illegally, arbitrarily or in bad faith (Matter of Horelick, 10 Ed Dept Rep 216; Matter of Lefkowitch, 1 id. 546).

The record before me indicates that respondent board has employed petitioner since 1970. During his employment, petitioner was transferred to different schools in the district in 1979, 1980 and 1991. While teaching third grade at the Sheafe Road school, petitioner expressed a desire to teach a fourth grade class at that school. The record also indicates that approximately 35 teachers are scheduled to be transferred within the district from one school building to another during the 1994-95 school year. Regarding the reason for petitioner's transfer, respondents note that the student population at the Sheafe Road school is diverse and changing, with many students moving in an out of the attendance zone for that school. According to respondents, the turnover in that school's student population and the diversity of that population require teachers who are capable of readily adapting to meet changing students' needs. Upon reviewing petitioner's evaluations, respondents concluded that petitioner does not presently have the adaptability required to remain in the placement he desires. According to respondents, these factors precipitated the determination to assign petitioner to the Oak Grove School. Based on the foregoing, it appears that other than petitioner's conclusory allegations that his transfer was motivated by a desire to retaliate against him for instituting appeals and grievances, he supplies no evidence to support his contention on this issue.

Petitioner also maintains that his transfer violates the provisions of the current collective bargaining agreement between respondent board and the teachers' union. Petitioner's contention is rejected. The pertinent provisions of the agreement clearly state that a teacher may be transferred without his or her consent.