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Decision No. 16,162

Appeal of ROBERTA-MICHELE JODRE from action of the Board of Education of the Locust Valley Central School District and Anne F. Hunderfund, Superintendent, regarding a transfer.

Decision No. 16,162

(October 8, 2010)

School Administrators Association of New York State, attorneys for petitioner, Arthur P. Scheuermann, Alyssa F. Bomze and Louis D. Stober, Jr., Esqs., of counsel

Bond, Schoeneck & King, PLLC, attorneys for respondents, Howard M. Miller, Esq., of counsel

STEINER, Commissioner.--Petitioner challenges the relocation of her office and the modification of her duties by the Board of Education of the Locust Valley Central School District (“respondent board” or “board”) and Anne F. Hunderfund, Superintendent (collectively “respondents”).  The appeal must be dismissed.

Petitioner is a tenured director of guidance services for grades kindergarten through 12 in respondents’ district.  In October 2009, petitioner’s primary office was relocated from the high school to the middle school and her duties were modified so that she focused more of her time on the middle school.

By letter dated November 4, 2009, the attorney for petitioner’s collective bargaining agent asserted that she had been subject to discipline without due process and requested that she be returned to her office and her duties restored.  By letter dated November 20, 2009, respondents’ attorney responded that there had been no disciplinary action taken against petitioner and stated that it was within respondents’ authority to move her office and it was within the superintendent’s discretion to have her focus her efforts on the middle school.  This appeal ensued.

Petitioner alleges that the superintendent’s actions in relocating her office and diminishing her job responsibilities were disciplinary and that she was illegally deprived of due process under Education Law §3020-a.  Petitioner also alleges that she has been harassed.  Petitioner requests that the discipline imposed be vacated and that she be reinstated to her rightful position with all rights and privileges.

Respondents allege that the petition is untimely, that petitioner fails to state a cause of action and that petitioner has failed to establish that she is entitled to relief.  Respondents contend that petitioner has elected her remedy under the applicable collective bargaining agreement and that the petition is barred by the doctrines of waiver and estoppel.  Respondents also object to additional exhibits submitted by petitioner after her petition.

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 Gonzalez, 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Marquette, et al., 48 id. 193, Decision No. 15,833).  I will not accept materials that raise new issues and introduce new exhibits that are not relevant to the claims originally raised in the appeal (Appeals of Gonzalez, 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Marquette, et al., 48 id. 193, Decision No. 15,833).  Accordingly, while I have reviewed petitioner’s additional submissions, I have not considered additional exhibits and supporting papers that constitute new allegations or are not responsive to the pleadings.

An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879).  The relocation of petitioner’s office occurred on October 8, 2009 and the modification of her duties occurred on an unspecified date in October 2009.  Petitioner did not commence her appeal until December 16, 2009, more than 30 days later.  The attorney for petitioner’s collective bargaining agent sent a letter on November 4, 2009 questioning the legality of respondents’ actions which, in effect, constituted a request for reconsideration. However, a reconsideration request does not extend the time within which an appeal must be commenced (Appeal of Valentino, 48 Ed Dept Rep 254, Decision No. 15,851).  Beyond the exchange of correspondence between the attorneys, petitioner offers no excuse for the delay.  Therefore, on these facts, I must dismiss the appeal as untimely.

Even if this appeal were timely, it would be dismissed on the merits.  A board of education has broad discretion in assigning members of its professional staff, so long as the employees tenure rights are not infringed (Matter of Van Heusen v. Bd. of Educ., City School Dist. of the City of Schenectady, et al., 26 AD2d 721; Appeal of Dunshee, 44 Ed Dept Rep 414, Decision No. 15,216; Appeal of Dillon, 43 id. 333, Decision No. 15,010).  Although petitioner is unhappy with the modification of her job responsibilities with greater emphasis on the middle school, it is clear that she will maintain her tenured position and that she has been assigned to duties consistent with that tenured position.  Moreover, there is no general requirement that a school district assign a teacher to a particular classroom or school (Appeal of Ginnane, 43 Ed Dept Rep 239, Decision No. 14,983; Appeal of Sacks, 22 id. 45, Decision No. 10,876), and changes and assignments are permissible provided the assignments are within the same tenure area (Appeal of Dillon, 43 Ed Dept Rep 333, Decision No. 15,010; Appeal of Gould, 17 id. 283, Decision No. 9604).

Likewise, I find no merit to petitioner’s claim that the actions taken by respondents were disciplinary in nature and required an Education Law §3020-a hearing.  A school board’s decision to reassign a tenured employee based on the district’s educational needs does not constitute discipline for which procedural due process must be provided under Education Law §3020-a as long as the employee’s rights are not infringed (Matter of Mishkoff v. Nyquist, 57 AD2d 649; Appeal of Dillon, 43 Ed Dept Rep 333, Decision No. 15,010; Appeal of Gaul, et al., 40 id. 105, Decision No. 14,432).

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 Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).  Petitioner fails to submit any evidence as to the conduct for which she was allegedly being disciplined.  Moreover, the superintendent avers that the district’s administrative team determined that petitioner’s narrow focus at the high school level was not the best use of her services and that to be an effective leader and supervisor in the middle school, petitioner needed to have a more dynamic and physical presence there.  The superintendent also states that the new focus on more direct contact with the middle school guidance counselors is based on educational and managerial need.  Finally, according to the superintendent, petitioner now has offices in both the high school and the middle school, that both are equipped with phone and computers and that clerical support is ready and available to petitioner.

In light of this disposition, I need not address the parties’ remaining contentions.