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Decision No. 15,539

Appeal of SCOTT RABELER from action of the Board of Education of the City School District of the City of Oneonta, Superintendent Michael P. Shea and Nancy Osborn regarding a transfer.

Decision No. 15,539

(February 27, 2007)

Paul J. Derkasch, Esq., attorney for petitioner

Hogan, Sarzynski, Lynch, Surowka & DeWind, LLP, attorneys for respondents, John P. Lynch, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals his transfer from High School Principal to an untitled position as a principal performing various administrative duties.  The appeal must be dismissed.

Petitioner was first employed by the Board of Education of the City School District of the City of Oneonta (“respondent board” or “board”) as a music teacher in 1983.  Respondent board granted him tenure in the associate principal tenure area effective August 30, 1996.  He began a probationary appointment in the principal tenure area on September 1, 1997.  Petitioner’s probationary term thereafter was extended to August 31, 2001.  He subsequently was granted tenure and served as Principal of the High School until July 2006.

While neither party submits much evidence or explanation of the events at issue, it appears that on or about July 10, 2006, respondent superintendent advised petitioner that he was being transferred to an as yet untitled position performing principal duties.  The superintendent stated that he had conducted an administrative review and that, in his opinion, petitioner had “lost the ability to lead.”  Respondent superintendent later gave petitioner a memorandum dated July 19, 2006, which outlined his new administrative duties.  These included serving as Director of Transportation, Elementary Science Program Coordinator and Homeschool Liaison.  The memorandum also stated that petitioner would be responsible for creating a central district database, an administrative handbook and a faculty/staff handbook and for processing a number of reports and forms.  It added that other duties would be assigned to petitioner “as needed”.  Respondent Osborn was appointed Interim High School Principal.

Petitioner alleges that he was granted tenure as High School Principal and that his transfer outside that tenure area violates his rights.  He also contends that respondent superintendent exceeded his authority when he made the transfer without approval from respondent board.  Finally, he asserts that the transfer was effected for disciplinary reasons in violation of the due process rights afforded him under Education Law §3020-a.  Petitioner asks that the transfer be annulled, that he be reinstated as High School Principal and that all references to the transfer be expunged from district records.

Respondents contend that petitioner’s tenure was in the principal tenure area, not as High School Principal, and that his new assignment falls within the same tenure area.  They assert that respondent board has delegated to respondent superintendent the authority to organize the administrative staff and that he acted within this delegated authority when he transferred petitioner.  Finally, respondents assert that the transfer was the result of an administrative review and was not made to discipline petitioner.

     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).  Petitioner has failed to meet this burden here and the appeal must be dismissed.

     School administrators may be transferred within their tenure areas, but may not be transferred outside their tenure areas involuntarily (Appeal of Caruana, 41 Ed Dept Rep 227, Decision No. 14,671).  Petitioner asserts that respondent board has established High School Principal as a separate tenure area and that he was improperly transferred to another tenure area without his consent.  The record does not substantiate this claim.  By letter dated August 20, 1997, the district clerk informed petitioner that respondent board appointed petitioner to a probationary term in the principal tenure area effective September 1, 1997.  This document does not establish that petitioner was appointed to a more specific tenure area.  Petitioner does not provide any other evidence that respondent board established a separate tenure area for the high school principal position. Nor does he establish that his new duties constitute work in a separate tenure area. Accordingly, petitioner’s claim that he was reassigned outside his tenure area is unavailing.

     Petitioner also contends that respondent superintendent exceeded his authority in making the transfer without the approval of respondent board.  Education Law §§1711 and 2508 authorize a superintendent to transfer personnel from school to school (seeAppeal of Irving, 39 Ed Dept Rep 761, Decision No. 14,373 [involving the transfer or a principal]).  In addition, respondents refer to the superintendent’s contract with the board for additional authority.  That contract provides that the superintendent is to be the chief administrative officer of the district and shall have the authority to “organize and reorganize the administrative and supervisory staff, including instructional and non-instructional personnel, in a manner which, in the Superintendent’s judgment, best serves the District. . ..”  In light of this clear and broad delegation of duties, petitioner’s claim that the superintendent was not authorized to make the transfer also is unavailing.

Neither a superintendent nor a board of education may make a reassignment for disciplinary reasons without following the procedures set forth in Education Law §3020-a (Appeal of Dillon, 43 Ed Dept Rep 333, Decision No. 15,010; Appeal of Irving, 39 id. 761, Decision No. 14,373). However, petitioner’s claim that his transfer was made to punish him for alleged misconduct and that he was deprived of his rights under the Education Law is not supported by the record.  While respondents fail to elaborate on the superintendent’s conclusion or explain why the reassignment would improve school administration, their rationale does not establish that the transfer was disciplinary.  The only additional evidence petitioner presents is an article from the local newspaper, which asserts that unnamed sources told the reporter petitioner was transferred as a result of his misconduct.  It is well settled that newspaper articles do not constitute evidence of the truth of the statements contained therein (Application of Coleman, 45 Ed Dept Rep 282, Decision No. 15,324; Application of Gabryel, 44 id. 235, Decision No. 15,158; Application of Lilly, 43 id. 459, Decision No. 15,050).  Accordingly, on the record before me, I am constrained to dismiss the appeal.