Appeal of MICHAEL WILLS from action of the Board of Education of the Morristown Central School District, Superintendent Beverly Ouderkirk, Ruth Lincoln and Susan Lambert, regarding the appointment of a building principal.

Decision No. 15,982

(September 3, 2009)

School Administrators Association of New York State, Office of General Counsel, attorneys for petitioner, A. Andre Dalbec, Esq., of counsel

Silver & Collins, attorneys for respondents, Andrew W. Silver, Esq., of counsel

HUXLEY, Interim Commissioner.--Petitioner challenges the determination of the Board of Education of the Morristown Central School District (“respondent board” or “board”) and superintendent Beverly Ouderkirk (“superintendent”), to appoint Ruth Lincoln (“Lincoln”) to a building principal position.  The appeal must be dismissed.

The Morristown Central School District (“district”) consists of one building for approximately 400 students in grades Kindergarten through 12.  Beginning August 26, 2004, petitioner was employed as the middle school/high school principal.  He was the only principal in the district.  On March 20, 2008, petitioner received a letter from the superintendent stating that the board had granted him “tenure in the district in the area of Middle School/High School Principal, such tenure to be effective March 19, 2008.”

Lincoln was employed beginning July 23, 2003 as the district’s CSE chairperson.  Her title was changed to an “administrative position” on March 3, 2004.  She was also employed as a Reading First grant administrator (.3 FTE) effective April 7, 2004, elementary supervisor (.25 FTE) beginning July 1, 2004, and §504/ADA coordinator as of July 1, 2005.  Lincoln received tenure on June 7, 2006.  A memorandum and the board minutes from that meeting indicate that Lincoln was granted tenure “in the area of Administration.”

On April 23, 2008, the board voted unanimously to eliminate one administrative staff position by combining petitioner’s and Lincoln’s positions.  The role of CSE chairperson, however, was assigned to respondent Lambert, a BOCES employee.  On July 1, 2008, the new consolidated position of building principal was assigned to Lincoln and petitioner’s position was abolished.  This appeal ensued.

Petitioner argues that he is entitled to the building principal position because his previously assigned duties and tenure area of middle school/high school principal are “more similar” to the new position than Lincoln’s.  Petitioner also asserts that, in violation of §30.13(a)[1] of the Rules of the Board of Regents, the board failed to identify the tenure area of the abolished position.  Finally, petitioner asserts that his tenure rights were violated as evidenced by the fact that he was not appointed to the CSE chairperson position when that role was separated from the building principal position.

Respondents maintain that petitioner and Lincoln were in the same broad tenure area of administration.  Therefore, when it became necessary to terminate an administrative position, in accordance with the Education Law, the board terminated the least senior employee, which happened to be petitioner.

I must first address a procedural matter.  Additional affidavits, exhibits and other supporting papers may only be submitted with the prior permission of the Commissioner (8 NYCRR §276.5).  While this provision permits the submission of additional evidence, it cannot be used to add new claims against a respondent for which notice has not been provided (Appeals of Cass, et al., 46 Ed Dept Rep 321, Decision No. 15,521; Appeal of Johnson, 46 id. 67, Decision No. 15,443).  On November 24, 2008, petitioner sought permission to submit an additional exhibit for consideration.  Respondents did not object.  Accordingly, I have considered this exhibit (an email to petitioner from the district’s attorney referring to him as the “building principal”).

Education Law §§2510(1) and 3013(1) provide in pertinent part:

If the board of education 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 has filled.

To establish his right to appointment to the newly created position, petitioner must first establish that his prior position and his new position are in the same tenure area (Appeal of Elmendorf, 36 Ed Dept Rep 308, Decision No. 13,733; Appeal of Schwarz, 28 id. 101, Decision No. 12,045; pet dsmd on other grounds, Sup. Ct., Albany Co., [Cheeseman, J.], May 4, 1989, n.o.r.; affd 163 AD2d 715; affd 78 NY2d 935 [1991]).  Petitioner asserts that his tenure area is middle school/high school principal and attaches a March 20, 2008 letter from the superintendent so stating.

There are no clearly defined guidelines for determining the parameters of administrative tenure areas.  A board of education may establish one district-wide administrative tenure area or multiple defined administrative tenure areas (seeBell v. Bd. of Educ. of Vestal Central School Dist., et al., 61 NY2d 149; Appeal of Caruana, 41 Ed Dept Rep 227, Decision No. 14,671).  Public policy favors the protection of employees’ seniority rights (seeRicca v. Bd. of Educ. of the City of New York, et al., 47 NY2d 385, 391; Matter of Boyer v. Bd. of Educ., West Central School Dist., 132 Misc 2d 282, 285; Appeal of Cipriano, 32 Ed Dept Rep. 302, Decision No. 12,837).  “As tenure areas narrow seniority rights become less meaningful.  As tenure areas broaden, seniority rights take on greater significance ...” (Matter of Boyer v. Bd. of Educ., West Central School Dist., 132 Misc. 2d 282, 285).  Consequently the party seeking the benefit of a specific tenure area bears the burden of proving its existence (Matter of Bell v. Bd. of Educ. Vestal Central School Dist., et al., 61 NY2d 149, 152).  That party must demonstrate that the board of education has, in fact, established the narrow, specific, tenure area “consciously” and “by design” (id.) and that the employee has been sufficiently alerted to that fact (Steele v. Bd. of Educ. of the City of New York, 40 NY2d 456, 463; Matter of Boyer v. Bd. of Educ., West Central School Dist., 132 Misc 2d 282, 285).  Descriptive terms used “inadvertently” by the board of education or other school officials are not sufficient to prove the existence of narrow, specific tenure areas (Matter of Bell v. Bd. of Educ. of Vestal Central School Dist., et al., 61 NY2d 149, 152).

In this matter, petitioner carries the burden of proving the board’s intention to create a system of multiple defined tenure areas for its administrators.  Although petitioner has produced a letter from the superintendent indicating his tenure appointment as “middle school/high school principal,” the board minutes reflecting petitioner’s appointment are silent about his tenure area.  No other evidence has been submitted that it was the board’s intention to create narrow tenure areas for its administrators.

In this appeal, respondents are inconsistent in identifying what, if any, tenure system the district has implemented for its administrators.  For example, when discussing petitioner’s tenure, they initially admit in their answer that petitioner is in the tenure area of middle school/high school principal.  They similarly admit to allegations in the petition that Lincoln was in the tenure area of “Administration - CSE Chair/Elementary Supervisor.”  However, later in their answer, respondents contradict these statements, asserting that petitioner’s and Lincoln’s positions were both in a single administrative tenure area.

In response to a request for additional information, pursuant to §276.5 of the Commissioner’s regulations,  respondents’ counsel provided a letter stating that Lincoln’s tenure area was “administration” and as evidence, supplied a memorandum and minutes of the board’s June 7, 2006 meeting granting tenure to Lincoln “in the tenure area of Administration.”[2]

Further complicating matters, it appears that the board never identified a tenure area for the new position of building principal.  The tenure area of the position was not discussed at the board’s meeting on April 23, 2008, at which the two administrative positions were combined.  Additionally, when further information was sought by my Office of Counsel, respondents’ counsel stated that the district “cannot locate documentation to establish what tenure area the position of building principal is in.”

On the record before me it is evident that the board has not adopted a coherent policy regarding administrative tenure areas.  It is unclear whether use of the phrase “middle school/high school principal” in the superintendent’s June 20, 2008 letter was merely descriptive and used inadvertently by the superintendent.    In the absence of convincing evidence that the board has adopted specific tenure areas for its administrators, I must find that petitioner, Lincoln and the new position of building principal are all in the same general tenure area of administration.

In abolishing the position of middle school/high school principal, the board was required to excess the administrator “having the least seniority in the system within the tenure of the position abolished” (Education Law §§2510[2] and 3013[2]).  It is undisputed that petitioner had less seniority than Lincoln. 

With regard to entitlement to the new consolidated building principal position, I must determine if both petitioner and Lincoln had rights to the new position based on the similarity of their prior duties.  The test to determine if the duties of the two positions are in fact similar is whether more than 50% of the functions to be performed by the incumbent of the new position are those which were performed by petitioner in his former position (Greenspan v. Dutchess Co. BOCES, et al., 96 AD2d 1028; Appeal of Barker and Pitcher, 45 Ed Dep Rep 430, Decision No. 15,375).  Additionally, in comparing the similarity of the two positions, the degree of comparable skill and experience required to carry out the duties and responsibilities for each position must be considered.  Petitioner has the burden of proving that a majority of the duties of the new position are similar to those of his or her former position (Matter of Coates v. Ambach, et al., 52 AD2d 261; Appeal of Elmendorf, 36 Ed Dept Rep 308, Decision No. 13,733; Appeal of Schwarz, 28 id. 101, Decision No. 12,045; pet dsmd on other grounds, Sup. Ct., Albany Co., [Cheeseman, J.], May 4, 1989, n.o.r.; affd 163 AD2d 715; affd 78 NY2d 935 [1991]).

The parties have submitted, and I have carefully reviewed, a copy of the duties and responsibilities for the new building principal position as well as the job description for middle school/high school principal.  I have also considered the additional duties performed by petitioner as described in the pleadings.  Both principal positions require, among other similar duties, that the candidates maintain a relationship with the board and attend all meetings; assist in the maintenance of the district’s facilities; establish good school-community relations by keeping the public informed of activities; assist with the hiring of new staff and provide supervision of staff; work closely with the superintendent and partake in the district’s extracurricular activities.

I have also carefully reviewed the job descriptions submitted for CSE chairperson (administrator) and elementary supervisor (25 percent) in comparison to the duties and responsibilities for the new building principal position.  This comparison also includesadditional duties performed by Lincoln as described in the pleadings.  My review finds that similar to the requirements of the new building principal position,Lincoln maintained a relationship with the board; worked on budgets for her various programs; assisted with the hiring of new staff in her programs; worked closely with the superintendent and had extensive supervisory duties in special education and grades kindergarten through four in general education.

Additionally, both petitioner and Lincoln performed the following duties, which are relevant to the new building principal position: professional staff evaluations; hiring of staff; budget formation; establishing curriculum; student and staff discipline; and chairing faculty meetings.  Indeed, respondents assert in their answer that the duties of the district’s three administrative positions are “virtually identical” and a review of the job descriptions and the duties described in the pleadings indicates that both petitioner and Lincoln had a multitude of varied administrative tasks.  In conclusion, an examination of the various duties and roles of petitioner’s and Lincoln’s previous positions reveals that, although accountable to different grades within the district (Lincoln K through four and petitioner five through twelve) they both exceed the 50 percent similarity requirement to qualify for the new position of building principal.  Accordingly, it was appropriate for the board to excess petitioner as the administrator with the least seniority in the tenure area.

Petitioner also argues that the board violated the Regents Rules because it failed to identify the tenure area in which the professional educator position was abolished when it sought to combine the two positions (see 8 NYCRR §30-1.13[a]).  Part 30, however, does not apply to administrative appointments and since the positions at issue in this case were administrative, I find this argument to be without merit (Appeal of Krason, et al., 41 Ed Dept Rep 305, Decision No. 14,695).

Finally, petitioner submits no explanation why he was entitled to the position of CSE chairperson, the duties of which were removed from the new building principal position.  Respondents maintain that the district did not create a new position of CSE chairperson but instead hired a BOCES employee, respondent Lambert, to perform the duties on a part time basis.  Petitioner is thus unable to meet his burden of proof to establish that he is entitled to either the building principal position or the CSE chairperson position and his appeal must, therefore, be dismissed.

Although I am dismissing this appeal, I am compelled to comment on the district’s failure to implement a coherent tenure system for its administrators.  Even though there are no clearly defined guidelines for determining the parameters of administrative tenure areas, it is expected that a board of education will establish either one district-wide administrative tenure area or multiple defined administrative tenure areas (seeBell v. Bd. of Educ. of Vestal Central School Dist., et al., 61 NY2d 149; Appeal of Caruana, 41 Ed Dept Rep 227, Decision No. 14,671).  Respondent board should undertake a comprehensive review of its policies and procedures to ensure the adoption and implementation of a coherent tenure system for its administrators.

THE APPEAL IS DISMISSED.

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