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Decision No. 14,236

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

Decision No. 14,236

(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") taken November 14, 1997, appointing respondent Pamela Raudenbush as a full time elementary counselor. Petitioner demands employment in that position, together with back pay and benefits. The appeal must be dismissed.

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 applied for the part-time elementary counselor position, but on July 24, 1997, the board appointed respondent Pamela Raudenbush to that position to work 20 hours per week.

Petitioner brought an appeal, claiming that the newly created part-time elementary counselor position and her previous part-time school psychologist position were legally similar, and that she, therefore, was entitled to the elementary counselor position pursuant to Education Law ""2510(1) and 3013(1). Respondents denied that the positions were similar, and argued that they were in different certification and tenure areas. Respondents further argued that petitioner did not have the proper certification to occupy the newly created elementary counselor position and that the appeal was untimely.

On November 14, 1997, respondent board replaced the part-time elementary counselor position with a full time elementary counselor position, in the tenure area of school counseling and guidance, and appointed respondent Raudenbush to a probationary appointment in that new position effective December 8, 1997. Petitioner then brought this appeal with respect to the new full time elementary counselor position. On June 23, 1999, I dismissed petitioner's prior appeal with respect to the part-time position as moot (Appeal of Davis, 38 Ed Dept Rep 805, Decision No. 14,148).

Petitioner claims that the duties of the full time elementary counselor position are similar to those she performed as a full time school psychologist prior to the reduction of that position to 60 percent status at the end of the 1994-1995 school year. Respondents deny that the duties of the positions are in fact similar, and argue that the positions cannot be considered similar because they are in different tenure areas. Respondents further argue that the elementary counselor position requires certification as a school counselor, which petitioner does not have.

After the commencement of the appeal, respondent board held a hearing pursuant to Appeal of Elmendorf (36 Ed Dept Rep 308, Decision No. 13,733) to determine whether or not the duties of the positions were legally "similar" within the meaning of Education Law ""2510(1) and 3013(1).

The appeal must be dismissed. As respondents argue, the position of school psychologist and the new position of elementary counselor are in different tenure areas. In order to establish entitlement to appointment to a new position under ""2510 and 3013, petitioner must first establish that the two positions are in the same tenure area (Kelley v. Ambach, 83 AD2d 733; Appeal of Jordan, 37 Ed Dept Rep 487, Decision No. 13,910; Appeal of Schwarz, 28 id. 101, Decision No. 12,045; Matter of Torreano, 23 Ed Dept Rep 38, Decision No. 11,126). In addition, the old and new positions require different certification. Certification has been held to be a significant factor in determining the similarity of two positions (Brown v. Bd. of Educ., Morrisville-Eaton CSD, 211 AD2d 887; Appeal of Jordan, supra; Appeal of Elmendorf, 36 Ed Dept Rep 308, Decision No. 13,733).

Petitioner argues that I should consider the "injustice" of these requirements, and should limit these decisions to their own facts. However, I decline to do so. Even if I were to do so, however, I would reach the same result. Petitioner argues that certain functions that are performed by respondent Raudenbush in the elementary counselor position, such as counseling handicapped students, counseling non-handicapped students, providing guidance-related instructional programs in a classroom setting, and conducting planning, observations, parent and teacher consultations, etc., are functions that were previously performed by petitioner in her school psychologist role. However, this one-sided approach ignores numerous functions and duties of the school psychologist position which are not part of the elementary counselor position, such as coordinating all school psychological services, running the substance abuse prevention program, the primary mental health program, the Natural Helpers program, serving on both the Committee on Special Education and the Committee on Preschool Special Education, conducting home visits, conducting psychological testing, providing in-service training for faculty and staff, and providing in-house counseling to staff as needed. Based upon a full comparison of the duties of the two positions, it is clear that the positions are not similar within the meaning of ""2510 and 3013.

I have considered the other arguments advanced by the parties, and find them without merit.