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Decision No. 14,235

Appeal of MAXINE DAVIS from action of the Board of Education of the Westport Central School District and Kristin Ferris with respect to the termination of her services as a school psychologist and to her right to reinstatement.

Decision No. 14,235

(October 25, 1999)

James R. Sandner, Esq., attorney for petitioner, Kevin H. Harren, Esq., of counsel

Ferrara, Fiorenza, Larrison, Barrett & Reitz, PC, attorneys for respondents, Norman H. Gross, Esq., of counsel


MILLS, Commissioner.--Petitioner seeks to annul an action of the Board of Education of the Westport Central School District ("respondent board") in procuring the services of respondent Kristin Ferris as a per diem school psychologist. Petitioner demands employment in that position, together with back pay and benefits. The appeal must be sustained.

Prior to the 1995-1996 school year, petitioner was employed as a full-time school psychologist at Westport. During the 1995-1996 and 1996-1997 school years, petitioner served as Westport's school psychologist in a part-time, 60 percent position.

On March 6, 1997, respondent board abolished the part-time school psychologist position occupied by petitioner, effective at the end of the 1996-1997 school year. At its March 27, 1997 meeting, respondent board approved the creation of a "part time elementary counselor" for the 1997-1998 school year. At that same meeting, the board also determined to contract with a school psychologist on a per diem basis to perform psychological testing services for the district to the extent such services became necessary.

Petitioner alleges that on September 25, 1997, the board first used the services of respondent Kristin Ferris, a certified school psychologist, at a meeting of the district's Committee on Special Education ("CSE"). Respondent board admits the use of Ms. Ferris' services, but claims that her services were first used on July 11, 1997, although it provides no documentation of that date. The record indicates that on December 17, 1997, respondent board authorized its attorney to offer the per diem position to petitioner. The board's attorney conveyed that offer to petitioner's attorney the same day, stating:

This offer is for employment beginning immediately, but is on the same "as needed" per diem basis as was given to Ms. Ferris, and under the same conditions. The per diem rate of pay would be at a rate of $308.38 per day.

Please let me know as soon as possible whether Ms. Davis will accept this offer so that the Superintendent of Schools may plan for future work by the person who occupies this position.

Petitioner's attorney responded on January 5, 1998:

I have now had an opportunity to review with Ms. Davis your letter of December 17, 1997, in which you transmit the Board's offer to employ Ms. Davis on the same "'as needed' per diem basis as was given to Ms. Ferris, and under the same conditions."

While Ms. Davis is ready, willing and able to resume work in accord with her rights under the Education Law, she is unable to make an informed decision about the District's current offer because neither Ms. Davis nor I is aware of those conditions that governed Ms. Ferris' employment. Absent a more detailed explanation of what the District is offering, Ms. Davis is unable to reply to the District's offer.

Please let me know the details of the terms and conditions under which the District is willing to re-employ Ms. Davis, including but not limited to statements as to whether the District intends to call Ms. Davis for less than a full day's work and the amount of notice the District intends to provide to Ms. Davis before she will be expected to work on any particular day.

I find no response to that letter in the record before me.

My Office of Counsel requested further information pursuant to 8 NYCRR "276.5 as to subsequent events. It appears that respondent board has used the services of Ms. Ferris throughout the 1997-1998 and 1998-1999 school years, has paid her on an hourly basis, has withheld no payroll taxes, and has made no Social Security contributions on her behalf. There is no contract of employment.

Upon my review of the record, it is clear that the services provided by respondent Ferris are identical to those services previously provided by petitioner, and it is equally clear that the per diem position was intended to replace services provided by petitioner, and not to supplement them. As a result, the district has in effect created a new position (Appeal of Davis, 39 Ed Dept Rep _______, Decision No. 14,234; Mairs v. Bd. of Ed., 82 Misc.2d 989; Appeal of Spataro, 25 Ed Dept Rep 206, Decision No. 11,549; Matter of Friedman, 19 id. 522, Decision No. 10,236). Respondent board may not ignore the tenure rights of its employees by attempting to contract with an independent contractor to perform the same services previously performed by its tenured staff (Appeal of Spataro, supra, at 209).


IT IS ORDERED that respondent board reinstate petitioner as of October 9, 1997, to the part-time position of school psychologist with back pay and benefits in accordance with its current collective bargaining agreement, less any income she may have had from other employment during such period.