Appeal of MICHELLE MCDOUGALL, from action of the Board of Education of the Schuylerville Central School District, John/Jane Doe, a person to be subsequently named, and Superintendent Ryan Sherman, regarding an appointment and preferred eligibility rights.

Decision No. 16,505

(July 19, 2013)

School Administrators Association of NYS, attorneys for petitioner, A. Andre Dalbec, Esq., of counsel

Girvin & Ferlazzo, PC, attorneys for respondents, Kristine Amodeo Lanchantin, Esq., of counsel

KING, JR., Commissioner.--Petitioner appeals the decision of the Board of Education of the Schuylerville Central School District (“respondent board”) and Superintendent Ryan Sherman (collectively referred to as “respondents”) to appoint Laura Delair to the position ofK-12 Director of Curriculum, Instruction and Professional Development (“the Director position”). The appeal must be dismissed.

Petitioner is a certified administrator who was employed in the district as a K-6 assistant principal for the 2011-2012 school year. At a regularly scheduled meeting held on June 11, 2012, respondent board voted to abolish several positions due to budget reductions, including a K-6 assistant principal position in the assistant principal tenure area. On June 13, 2012,petitioner was notified that, effective June 30, 2012, she would be excessed from her position as K-6 assistant principal and placed on a preferred eligibility list. On June 15, 2012, a Notice of Vacancy for the position of Director, Curriculum, Instruction and Professional Development was posted, and on July 23, 2012, the board appointed Laura Delair to this position, effective July 24,2012. This appeal ensued.

Petitioner contends that the duties of her position asa K-6 assistant principal were substantially similar to the duties of the vacant Director position and pursuant to Education Law §3013, she was entitled to be reinstated to that position.

Respondent asserts that petitioner has failed to state a claim upon which relief may be granted and that the appeal must be dismissed for failure to join necessary parties.

At the outset, I must dismiss the appeal for failure to join necessary parties. A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879). Joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense (Appeal of Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879).

Although petitioner named “John/Jane Doe as a person to be subsequently named” in the caption, the record indicates that, at the time this appeal was commenced, Laura Delair had been appointed by respondent board to the Director position. Since Delair’s rights would be adversely affected if there was a decision in favor of petitioner in this appeal and she was not named or served with this appeal, I must dismiss the appeal for failure to join necessary parties.

Even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits. While petitioner does not dispute respondent board’s decision to abolish her position as K-6 assistant principal, she contends that she is entitled to be reappointed to the Director position.

Education Law §3013(3)(a) governs the rights of a former employee to re-employment and provides, in pertinent part:

If an office or position is abolished

or if it is consolidated with another

position without creating a new

position, the person filling such

position at the time of its abolishment

or consolidation shall be placed upon a

preferred eligible list of candidates

for appointment to a vacancy that then

exists or that may thereafter occur in

an office or position similar to the

one which such person filled 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.

Accordingly, in order for petitioner to be entitled to appointment to a vacant position, the position must be similar to that of her former position (Greenspan v. Dutchess County BOCES, et al., 96 AD2d 1028; Appeal of Barker and Pitcher, 45 Ed Dept Rep 430, Decision No.15,375). The test to ascertain whether the two positions are “similar” is whether more than 50 percent of the duties of the vacant position are those which were performed by petitioner in her former position (Greenspan v. Dutchess County BOCES, et al., 96 AD2d 1028; Appeal of Barker and Pitcher, 45 Ed Dept Rep 430, Decision No. 15,375; Appeal of Debowy, 41 id. 161, Decision No. 14,648; Appeal of Strong,41 id. 425, Decision No. 14,735). Petitioner has the burden of proving that a majority of the duties of the vacant position are similar to those of her former position(Appeal of Barker and Pitcher, 45 Ed Dept Rep 430, Decision No. 15,375; Appeal of Debowy, 41 id. 161, Decision No.14,648; Appeal of Strong, 41 id. 425, Decision No. 14,735).However, the standard of what is similar is flexible and is not to be applied mechanically (Appeal of Barker and Pitcher, 45 Ed Dept Rep 430, Decision No. 15,375; Appeal of Debowy, 41 id. 161, Decision No. 14,648). Additionally, the two positions must be in the same tenure area (Kelley v. Ambach, 83 AD2d 733; Appeal of Barker and Pitcher, 45 EdDept Rep 430, Decision No. 15,375; Appeal of Debowy, 41 id. 161, Decision No. 14,648; Appeal of Strong, 41 id. 425,Decision No. 14,735).

The record reveals that petitioner’s position was in the K-6 assistant principal tenure area and respondent asserts that the Director position is in the K-12 Director of Curriculum, Instruction and Professional Development tenure area. She would therefore have no rights under Education Law §2510(3)(a) to be appointed to the Director position if it is a different tenure area (see Kelley v. Ambach, 83 AD2d 733; Appeal of Barker and Pitcher, 45 EdDept Rep 430, Decision No. 15,375; Appeal of Debowy, 41 id. 161, Decision No. 14,648; Appeal of Strong, 41 id. 425,Decision No. 14,735). The test used to determine whether two positions are in the same administrative tenure area also is whether 50% of the duties are similar (Greenspan v. Dutchess County BOCES, et al., 96 AD2d 1028; Matter of Coates v. Ambach, 52 AD2d 261, aff’d 42 NY2d 846). Petitioner has not alleged that the Director position is in the K-6 assistant principal tenure area and, as described below, has not proven that the two positions are in the same tenure area.

Upon review of the record before me, I find that petitioner has failed to meet her burden of establishing that the duties of the position of Director of Curriculum, Instruction and Professional Development are similar to those of a K-6 assistant principal, for purposes of Education Law §§2510(3) (a) and 3013(3) (a). While petitioner asserts that she performed 100% of the duties of the Director position, she failed to provide a job description for her assistant principal position and/or to provide any evidence of the duties she performed in that position.

Moreover, from the affidavits of the superintendent and the district’s elementary and middle school principals, it appears that petitioner’s role as assistant principal was to assist the principal in his or her responsibilities. The record also reveals that petitioner reported to the principal and assisted in the implementation of curriculum and the coordination of instruction and professional development at the K-6 level, not the district level. In contrast, the position of K-12 Director of Curriculum, Instruction and Professional Development reports directly to the Superintendent and has primary responsibility for curriculum and instruction at the district level including the district’s annual professional performance review (“APPR”) plan and K-12 programmatic changes, and alignment and oversight of the district’s professional development program.

In addition, it appears from the record that petitioner spent 75% of the time in her position as an assistant principal evaluating staff and disciplining students while less than 30% of the Director’s time will be spent on these functions.

The degree of comparable skills and experience required to carry out the duties of the two positions must also be considered (Appeal of Debowy, 41 Ed Dept Rep 161,Decision No. 14,648; Appeal of Jordan, 37 id. 487, Decision No. 13,910, judgment granted dismissing petition to review, Sup. Ct., Albany Co., [Keegan, J.], March 30, 1999;n.o.r.). Although there are some common management and supervisory skills required in both positions, the record before me reveals that the Director position involves substantially broader responsibilities, skills and experience than that of a K-6 assistant principal position. Thus, petitioner has not met her burden of proving that the duties of the two positions are similar within the meaning of Education Law §3013(3)(a) or for purposes of determining whether the two positions are in the same tenure area. Therefore, petitioner is not entitled to appointment to the position of K-12 Director of Curriculum, Instruction and Professional Development.

THE APPEAL IS DISMISSED.

END OF FILE