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Decision No. 15,475

* Subsequent History: Matter of Goldberg v Mills; Supreme Court, Albany County; Judgment granted petition and annulled Commissioner’s decision; remanded to district for a hearing; July 3, 2007. *

Appeal of ARNOLD GOLDBERG from action of the Board of Education of the Roosevelt Union Free School District regarding termination of employment.

Decision No. 15,475

October 6, 2006

Minerva & D’Agostino, P.C., attorneys for petitioner, Albert D’Agostino, Esq., of counsel

Jaspan Schlesinger Hoffman LLP, attorneys for respondent, Michael D. Raniere, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Roosevelt Union Free School District (“respondent”) to abolish his position.  The appeal must be dismissed.

Respondent appointed petitioner to the position of Director of Personnel on May 1, 2002 and granted him tenure in May 2004.  By memorandum dated August 16, 2005, petitioner was notified that, at a meeting held August 15, 2005, his position was abolished effective August 26, 2005.

By letter dated September 9, 2005, petitioner’s counsel requested documents, including the minutes, resolutions and agenda, related to the August 15, 2005 meeting.  By letter dated October 6, 2005, the district clerk indicated that the requested documents did not exist.  The clerk provided petitioner’s counsel with a portion of the agenda from respondent’s September 22, 2005 meeting that contained a motion to abolish petitioner’s position effective August 26, 2005.  This appeal ensued.

Petitioner alleges that the abolition of his position was not intended to, and did not, result in greater efficiency and/or economy to respondent, but rather was intended to circumvent the provisions of Education Law §3020-a and the protections afforded to tenured employees.  Petitioner requests reinstatement, back wages and pension credits.

Respondent avers that petitioner’s position was abolished no later than September 22, 2005 and that petitioner was therefore excessed.  Respondent maintains that the abolition of petitioner’s position was proper and based on sound economic reasons.

Initially, I must address petitioner’s reply and the parties’ memoranda of law. The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Schildhorn, 44 Ed Dept Rep 212, Decision No. 15,152; Appeal of Kirschenbaum, 43 id. 366, Decision No. 15,020; Appeal of Hollister, 39 id. 109, Decision No. 14,188).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

A memorandum of law should consist of arguments of law (8 NYCRR §276.4).  It may not be used to add belated assertions or exhibits that are not part of the pleadings (Appeal of N.L., 44 Ed Dept Rep 216, Decision No. 15,153; Appeal of Smolen, 43 id. 296, Decision No. 15,000; Appeal of George, 40 id. 509, Decision No. 14,540).  Both petitioner and respondent add belated assertions in their memoranda of law.  While I have reviewed both memoranda, I have not considered those portions containing new allegations that are not responsive to the material and affirmative defenses contained in the pleadings.

A board of education may abolish and/or consolidate positions for sound economic reasons, so long as the decision is not motivated by bad faith (see Currier v. Tompkins-Seneca-Tioga Bd. of Cooperative Educational Services, 80 AD2d 979;  Appeal of Schosek, 22 Ed Dept Rep 11, Decision No. 10,860).  Respondent maintains that it abolished petitioner’s position, Director of Personnel, and created a new position, Assistant Superintendent for Human Resources and Professional Development, and, by doing so, saved between $55,000 and $70,000.  Respondent further maintains that the duties of the Director of Personnel encompass less than 50% of the duties of the new Assistant Superintendent.

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Patton, et al., 42 Ed Dept Rep 226, Decision No. 14,832; Appeal of Pope, 40 id. 473, Decision No. 14,530).  Here petitioner alleges that respondent’s intent was not greater economy and efficiency, but fails to provide any evidence to support his claim.  Respondent, on the other hand, explains how abolishing petitioner’s position and creating a new position would result in savings to the district.  Thus, I conclude that petitioner has not met his burden of proof on his claim of improper motivation.

Furthermore, Education Law §3013(1) provides:

If a trustee, board of trustees, board of education or board of cooperative educational services abolishes an office or position and creates another office or position for the performance of duties similar to those performed in the office or position abolished, the person filling such office or position at the time of its abolishment shall be appointed to the office or position thus created without reduction in salary or increment, provided the record of such person has been one of faithful, competent service in the office or position he or she has filled.

To prevail, petitioner has the burden of proving that a majority of the duties of the new position are similar to those of his former position (Appeal of Schwarz, 28 Ed Dept Rep 101; Appeal of Gworek, 21 id. 501).

Respondent maintains that the duties of the abolished position encompass less than 50% of the duties of the new position, and petitioner fails to provide any argument or evidence to the contrary.  Accordingly, petitioner has failed to meet his burden of proof of entitlement to the newly created position.