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Decision No. 13,433

Appeal of KAREN ALLEN, SUSAN BEGLEY, LUCILLE DeVITO, MICHAEL HERRSHAFT, GREGORY KULICK, ETTORE MALVETTI and RICHARD ZAKAR from action of the Board of Education of the Middle Country Central School District and Eileen Banschback, Timothy Dowler, George Royce and John Wolkiewicz, teaching assistants, relating to teacher excessing.

Decision No. 13,433

(June 19, 1995)

Kaplovitz & Galinson, Esqs., attorneys for petitioners, Daniel Galinson, Esq., of counsel

Rains & Pogrebin, P.C., attorneys for respondent, Jessica S. Weinstein, Esq., of counsel

SOBOL, Commissioner.--Petitioners appeal the decision of the Board of Education of the Middle Country Central School District ("respondent board") to abolish their positions and terminate their employment. The appeal must be dismissed.

On August 25, 1994, respondent board abolished 11.6 positions in the physical education tenure area as a result of modifications to its physical education program scheduled for the 1994-95 school year. Petitioners were notified that their positions had been abolished and that their employment was terminated, effective September 1, 1994. Pursuant to Education Law '2510(3), petitioners were placed on a preferred eligible list. After abolishing the physical education positions, respondent board required its elementary classroom teachers to provide physical education instruction to their students under the direction and supervision of a certified physical education teacher and the director of physical education. Adaptive physical education is provided by four teaching assistants, who are certified physical education teachers. Those teaching assistants work under the general supervision of a certified physical education teacher.

Petitioners contend respondent board abolished their positions and created new positions with similar duties to which petitioners are entitled to be appointed. Petitioners assert in their memorandum of law, that respondent board's requirement that teaching assistants teach adaptive physical education violates 8 NYCRR '135.4[c][1][iv]. Additionally, petitioners contend, in their memorandum of law, that respondent board violates 8 NYCRR '135.4[c][4][i] by having classroom teachers teach physical education without a certified physical education teacher present. Respondent board contends that it has complied with the law in all respects.

Based upon the record before me, I find that respondent board legally abolished petitioners' positions. A board of education, acting in good faith, may abolish positions and consolidate the duties of the former positions among existing positions (Education Law '1709[16][33]; Young v. Board of Education Central School District No. 6, 41 AD2d 966, aff'd 35 NY2d 31; Lezette v. Board of Education, Hudson City School District, 35 NY2d 272; Appeal of Chaney, 33 Ed Dept Rep 12). The burden of proving that a position was abolished in bad faith is on the party making that claim (Appeal of Chaney, supra; Appeal of Bovi, 29 Ed Dept Rep 352). The consolidation of positions for fiscal concerns does not, as a matter of law, constitute bad faith (Appeal of Bovi, supra). Moreover, school districts have a right to consolidate and abolish positions for economic reasons (Currier v. Tompkins-Seneca-Tioga BOCES, 80 AD2d 979). The record in this case reflects that petitioners' positions were abolished simultaneously with numerous other positions. The record further supports that the positions were abolished for fiscal reasons. Additionally, the record shows that no new positions were created. Instead, petitioners' duties were redistributed to classroom teachers and no classroom teacher is performing more than fifty percent of the former duties of any petitioner. Petitioners concede in their memorandum of law that this type of distribution comports with the legal principle of "fractionalization" (Appeal of Chaney, supra; Young v. Board of Education, supra). Because the positions were abolished for fiscal reasons and no teacher is performing more than 50% of the former duties of any petitioner, I find that respondent board acted properly in abolishing the positions.

Petitioners' remaining claims concern respondent's compliance with various Commissioner's Regulations. These claims are raised for the first time in petitioners' memorandum of law. It is well established that a memorandum of law may not be used to belatedly add assertions or exhibits which should have been included in the petition (Application to reopen the appeal of Board of Education, Nyack Union Free School District, 33 Ed Dept Rep 237; Appeal of Johnson, 26 id. 42). Accordingly, I will not consider the remaining allegations. In any event, identical claims were dismissed in Appeal of Reese, et al., 34 Ed Dept Rep ___, Decision No. 13429, dated June 9, 1995.