MILLS, Commissioner.--Petitioner challenges the failure of the Board of Education of the Ellenville Central School District ("respondent") to appoint him to the position of Assistant Superintendent for Curriculum and Instruction. The appeal must be dismissed.

Prior to 1992, petitioner, who holds New York State certification as a school district administrator, was a tenured Assistant Superintendent/Business Administrator in the Ellenville Central School District. By resolution dated April 28, 1992, respondent abolished petitioner's position and created a new position of Business Manager. Petitioner brought a proceeding pursuant to Article 78 of the Civil Practice Law and Rules in New York State Supreme Court, Ulster County, seeking reinstatement to his assistant superintendency or, in the alternative, appointment to the new Business Manager position pursuant to Education Law ' 2510.

In a decision dated February 8, 1993, the court dismissed petitioner's claims. It found no bad faith or impropriety related to the abolition of petitioner's position. The court also dismissed petitioner's claim to the new Business Manager position. Specifically, the court held that for petitioner to be entitled to the position under Education Law ' 2510, both the abolished position and the new position had to be in the same tenure area and be similar positions. The court found that the new Business Manager position was a Civil Service position and, therefore, it was not in any tenure area. The court also found that the abolished Assistant Superintendent/Business Administrator position, which included educational duties, was not similar within the meaning of ' 2510 to the position of Business Manager, which required no educational certification. The court held that the abolished position, which included educational duties, was not similar within the meaning of ' 2510 to a non-educational position, which required no educational certification, even where 75 to 80 percent of the duties were identical. The court cited functions from petitioner's employment evaluations, such as improving curriculum, handling employee relations, and supervising school bus unloading, student behavior and classroom operations, and concluded that they were "clearly educational in nature."

In 1996, respondent created the new position of Assistant Superintendent for Curriculum and Instruction. By letter dated July 9, 1996, petitioner asserted his alleged right to the position. By letter dated July 10, 1996, respondent's superintendent advised petitioner that the new Assistant Superintendent position was in a different tenure area than the position which had been eliminated in 1992. By letter dated July 19, 1996, petitioner reasserted his right to the new position. This appeal ensued. Petitioner claims that respondent is in violation of Education Law ' ' 2510(3)(a) and 3020 and asks that he be restored to the position of Assistant Superintendent with all appropriate economic benefits.

Respondent contends that petitioner's former Assistant Superintendent/Business Administrator position is not "substantially similar" within the meaning of Education Law ' 2510 to the new position of Assistant Superintendent for Curriculum and Instruction. Respondent quotes from the job description for petitioner's former position:

Respondent contends that the mission of the new position is "to advance educational opportunity through management and coordination in the areas of pupil services, certified personnel, and instructional program development" and argues that there is "virtually no overlap between the two positions." In support of its position, respondent produced an affidavit from Edward V. Rhine, Superintendent from 1990 to 1994. In it he states:

Respondent also cites petitioner's affidavit submitted in connection with the Article 78 proceeding in which petitioner denied having educational or instructional responsibilities -- specifically, that neither he nor his two immediate predecessors "ever had instructional or curriculum responsibilities whatsoever" and that "[t]he Ellenville School District limited this position to business functions."

Petitioner, however, cites Mr. Rhine's affidavit from the Article 78 proceeding which stated that "in practice it is clear that Dr. Heath did in fact function as an administrator."

Education Law ' 2510(3) governs the rights of a terminated employee to re-employment. Paragraph (a) of that subdivision provides, in pertinent part:

Thus, an individual whose position is abolished has reinstatement rights, but only if the new position is "similar" to the former position. The test of whether the two positions are in fact "similar" is whether more than 50 percent of the duties of the new position are those which were performed by the petitioner in his former position (Greenspan v. Dutchess County Bd. of Coop. Educ. Servs., 96 AD2d 1028; Appeal of Elmendorf, 36 Ed Dept Rep 308; Matter of Evans, 10 id. 156). However, that standard is flexible and is not to be applied mechanically (Appeal of Langton, 28 Ed Dept Rep 146; Matter of Elkins, 14 id. 193). In comparing the duties of the two positions, the degree of comparable skill and experience required for each position must be considered (Matter of Abramson, 20 Ed Dept Rep 575; Matter of Gregoire, 15 id. 373).

In addition, the Commissioner has consistently held that the two positions must be in the same tenure area (Kelly v. Ambach, 83 AD2d 733; Appeal of Schwarz, 28 Ed Dept Rep 101; Matter of Torreano, 23 id. 38; cf.Chazanoff v. Board of Educ., City School Dist. of the City of Rochester, 58 AD2d 1002; ContraLeggio v. Oglesby, 69 AD2d 446, appeal dismissed, 48 NY2d 882). Unlike teacher tenure areas, no supervisory or administrative tenure areas are created or defined in the Rules of the Board of Regents. Rather, they also depend on the similarity of duties and skills required by the respective positions (Greenspan at 1029).

Petitioner argues that since he is a certified school district administrator and was found to have had educational duties in the prior proceeding, he is entitled to the new Assistant Superintendent position, which also requires school district administrator certification and imposes educational responsibilities. However, that is not sufficient. To establish a right to the new position, petitioner has the burden of proving that a majority of the duties of the new position are similar to the duties of his former position (Matter of Gworek, 21 Ed Dept Rep 501), and he has failed to meet that burden.

Petitioner did provide a copy of an undated document labeled "Job Description: Assistant Superintendent of Schools" including handwritten changes and additions, which apparently was a part of the record in the previous Article 78 proceeding. Respondent also provided a copy of the same document, and, in addition, provided a copy of the job description for the new position of Assistant Superintendent for Curriculum and Instruction. It is clear from a review of the duties of the two positions that less than 50 percent of the duties of the new position of Assistant Superintendent for Curriculum and Instruction were duties of petitioner's former Assistant Superintendent position. A comparison reveals that the duties of the former position lie primarily in the school business arena, whereas the duties of the new position are focused on the instructional program, its staff and materials. Of the 25 itemized duties of the new position, there is little overlap with the duties of the position which petitioner held. The only areas which suggest any similarity of duties is the extent to which the incumbent of the new position is involved in the hiring of instructional support staff and works on the securing of federal and/or state funds for educational programs. Therefore, I must conclude that the two positions are not similar within the meaning of Education Law ' 2510 and that petitioner is not entitled, as a matter of law, to the newly created position of Assistant Superintendent for Curriculum and Instruction.

THE APPEAL IS DISMISSED.

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