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Decision No. 16,592


 Appeal of LORI SHUSTER from action of the Board of Education of the Cherry Valley-Springfield Central School District and Laura Carson, G. Thomas Brigham, Emily Mattison Welch, ValerieMetcalf, Nicholas Savin, Matthew Martindale and Amanda Sikkema regardingthe abolishment of her position.

Decision No. 16,592

(February 21, 2014)

Cooper Erving & Savage LLP, attorneys for petitioner,Phillip G. Steck, Esq., of counsel

Hogan, Sarzynski, Lynch, Surowka & DeWind, LLP, attorneys

for respondent Cherry Valley-Springfield Central

School District, James A. Gregory, Esq., of counsel

BERLIN, Acting Commissioner.--Petitioner challenges various actions of the Board of Education of the Cherry Valley-Springfield Central School District (“respondent” or “board”) relating to the abolishment of her position. The appeal must be dismissed.

Petitioner is a certified physical education and health teacher. She was appointed by respondent to a physical education position in 1985 and was granted tenure in 1988. During the 2010-2011 school year, petitioner taught in a .2 physical education and .8 health position. Petitioner’s physical education classes were at respondent’s elementary school. By letter dated May 20,2011, petitioner was notified that, on May 17, 2011, respondent board reduced her position to a .5 health teacher position, effective June 30, 2011, and that at its June 23, 2011 meeting, respondent board would “completely abolish” her position, effective August 31, 2011. By letter dated July 8, 2011, the superintendent notified petitioner that due to fiscal resources, the board passed are solution on July 7, 2011 abolishing her position, effective July 8, 2011. The letter also notified petitioner that she would be placed on a preferred eligibility list. Commencing in the 2011-2012 school year, teachers employed by the Otsego-Northern Catskill Board of Cooperative Educational Services (“Otsego BOCES”) taught

physical education in kindergarten through fifth grade in respondent’s district. This appeal ensued.

Petitioner alleges that respondent improperly circumvented her tenure and seniority rights by making an improper arrangement with Otsego BOCES to provide teachers to teach the physical education courses that she previously taught. In addition, she alleges that respondent improperly assigned Thomas Brigham (“Brigham”), a physical education teacher in the district, to teach seven physical education classes in violation of the terms of the collective bargaining agreement. Petitioner further asserts that, because BOCES took over “a single teaching job” and not the district’s entire physical education program, there was no permissible BOCES takeover under Education Law §3014-a. Petitioner asserts that, consequently, her position was improperly eliminated and there is no basis “to prefer BOCES employees over [petitioner] for retention.” Petitioner asks that I direct respondent to “rehire her to teach the remaining physical education classes other than the six classes taught by [Brigham],” with back pay and seniority rights. In addition, she asks that I direct respondent to provide certain documents described in the petition which petitioner believes are necessary for a fair evaluation of her petition. She also seeks costs and disbursements.

Respondent contends that the district’s physical education program for prekindergarten through fifth grade and the health instruction program were taken over by the Otsego BOCES, pursuant to Education Law §3014-a, and that petitioner was properly placed on a preferred eligibility list. Respondent also alleges that the appeal is untimely and that, to the extent petitioner asks for discovery or an order to produce documents, such relief must be denied because it is not authorized in appeals brought pursuant to Education Law §310.

First, I must address several procedural matters. 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). By letter dated April 23, 2012, petitioner attempts to submit three notarized letters from parents of fifth grade students which she says constitute “newly discovered evidence”

unavailable at the time the petition was filed. Similarly, by letter dated March 28, 2013, petitioner submits her own affidavit based on facts that she states were also newly discovered and unavailable when the appeal was commenced. Respondent objects to both submissions. To the extent the additional submissions are relevant to the claims raised by petitioner (i.e., the reorganization of the district’s physical education program), I have accepted them for consideration. The extent to which they are probative are discussed infra. However, I have not accepted those portions of these materials that raise new issues that are not relevant to the claims originally raised in the appeal.

An appeal to the Commissioner must be commenced within30 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).Generally, the 30-day time period for commencing an appeal from the abolition of a position begins on the effective date of the abolition (Appeal of Gordon, 53 Ed Dept Rep, Decision No. 16,582). In this case, however, petitioner is challenging the propriety of the BOCES takeover of her physical education classes. Applying the logic of Appeal of Gordon, the 30-day time period for commencement of this appeal began on the effective date of the BOCES takeover, which would be at the start of the 10-month school year,

i.e. on September 1, 2011, when a BOCES employee commenced service in the position at issue (see Appeal of Bojarczuk,38 Ed Dept Rep 788, Decision No. 14,143). Petitioner served the petition within 30 days of September 1, 2011,the school start date on which petitioner became aggrieved; thus, the appeal is timely.

In any case, in Appeal of Chaney, 33 Ed Dept Rep 12,Decision No. 12,959, the Commissioner ruled that the 30-dayperiod for challenging the abolition of a position associated with a BOCES takeover did not commence until the start of the school year in September. In that decision, the Commissioner relied upon the holding in Appeal of Berowski, 28 Ed Dept Rep 53, Decision No. 12,027, and Appeal of Bales, 32 id. 559, Decision No. 12,913, which were expressly overruled in Appeal of Gordon. For the reasons stated in Appeal of Gordon, even if I concluded that this appeal should have been commenced within 30 days of the effective date of the abolition, I would decline to dismiss the appeal as untimely because of the conflicting decisions on timeliness that predated Appeal of Gordon,

including Appeal of Chaney. Because this appeal was pending before me on the date Appeal of Gordon (53 Ed Dept Rep, Decision No. 16,582) was decided (December 20, 2013),in accordance with that decision, I would not dismiss it as untimely.

Nevertheless, the appeal must be dismissed on the merits. 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).

Education Law §1950 established boards of cooperative educational services (BOCES) "for the purpose of carrying out a program of shared educational services in the schools of the supervisory district ..." (Education Law §1950[1]).Education Law §1950(4)(d)(1) specifically provides that, at the request of component school districts and with the approval of the Commissioner of Education, a BOCES may provide certain services on a cooperative basis, including physical education services. The Department’s records reveal that, pursuant to Education Law §1950(4)(d)(1) and(4)(bb), a cooperative services application was approved for the Otsego BOCES to provide, among other things, shared itinerant physical education services to component districts, including respondent’s district.

Pursuant to Education Law §1950(4)(bb)(5), “[a]teacher whose position in a school district is abolished as the result of a takeover of an academic program by a board or boards of cooperative educational services shall be accorded the rights provided by section thirty hundred fourteen-a of this chapter.”

Education Law §3014-a(2) provides, in pertinent part, as follows:

If the number of teaching positions needed to

provide the services required by such program

by the board or boards of cooperative

educational services is less than the number

of teachers ... eligible to be considered

employees of such board or boards of

cooperative educational services ..., the

services of the teachers ... having the least

seniority in the school district ... whose

programs are taken over by the board or

boards of cooperative educational services

within the tenure area or civil service title

of the position shall be discontinued. Such

teachers ... shall be placed on a preferred

eligible list of candidates for appointment

to a vacancy that may thereafter occur in an

office or position under the jurisdiction of

the board or boards of cooperative

educational services similar to the one such

teacher ... filled in such school district...

Petitioner argues that an improper BOCES takeover occurred because the district’s entire physical education program was not transferred to Otsego BOCES. She also asserts that a teacher employed by respondent continues to teach seven physical education classes and there has been no change in the physical education program of the district. She further asserts that replacing a single teaching position with BOCES employees is not a BOCES takeover.

Notably, prior case law has held that an entire tenure area need not be transferred to a BOCES in order to constitute a permissible BOCES takeover. In Angello v.Board of Co-Op. Educ. Serv., Steuben County, 80 Misc 2d472, aff’d 55 AD2d 806, the court held that, even though two introductory courses (Typing I and General Business) were retained by the school district, other business courses were properly taken over by the BOCES and constituted a program takeover under Education Law §3014-a.Using the same reasoning applied by the court, I find that respondent’s entire physical education program and/or tenure area need not be taken over by a BOCES for a takeover to be proper. I note that respondent’s decision to organize physical education into prekindergarten through fifth grade and sixth through twelfth grade is within its authority under Education Law §§1709(33) and 1804(1), and petitioner has cited nothing prohibiting such action. Applying Angello, respondent’s transfer of its prekindergarten through fifth grade physical education classes to Otsego BOCES, while retaining physical education for grades six through twelve constitutes a permissible takeover by the BOCES pursuant to Education Law §3014-a.

Further, it appears from the record that all of the district’s prekindergarten through fifth grade students received physical education by Otsego BOCES (see Sklar v. Board of Co-Op. Educ. Serv., Nassau County, et al., 104AD2d 622), and petitioner has not proved otherwise. Nor has petitioner established that the prekindergarten through fifth grade physical education program provided by Otsego BOCES is not equivalent to that which respondent would

offer (see Acinapuro, et al. v. Board of Co-Op. Educ. Serv., Nassau County, et al., 89 AD2d 329; see Matter of Owlett, 16 Ed Dept Rep 317, Decision No. 9,411; cf. Cooper, et al. v. Bd. of Educ., Shenendehowa Central School District, 206 AD2d 811), except to argue that prekindergarten through fifth grade physical education classes constitute part of a prekindergarten through twelfth grade physical education program, transfer of which has already been found to be permissible under Angello, as noted above.

I must also reject petitioner’s allegation that the takeover is invalid because district teacher Brigham continues to teach seven physical education classes, in alleged violation of the collective bargaining agreement. Although petitioner does not have standing to assert Brigham’s rights under a collective bargaining agreement, to the extent that she is relying on the propriety of Brigham’s assignment as part of her challenge to the BOCES takeover, I will entertain her claim. Nevertheless, upon the record before me, it appears that Section 8.23 of the district’s collective bargaining agreement governing teachers permits the district to assign a teacher to a seventh assignment for a $5,500 stipend. Consequently, respondent’s retention of its sixth grade through twelfth grade physical education program by assigning Brigham a seventh class was permissible and does not render improper the transfer of its prekindergarten through fifth grade physical education classes to Otsego BOCES.

Petitioner has also failed to demonstrate that the transfer to Otsego BOCES of respondent’s prekindergarten through fifth grade physical education program was for an illegal purpose. On the contrary, respondent indicates that the takeover of the elementary physical education program was expected to result in a significant cost savings to the district. Although petitioner disputes the actual cost savings, she has not carried her burden and established that respondent’s expectation of savings was aruse for an illegal purpose. Indeed, I note that petitioner requests an order directing respondent to provide certain financial information presumably for the purpose of determining whether respondent realized savings from the transfer. Petitioner’s claims on this point are, thus, speculative and she has failed to carry her burden and establish facts entitling her to the relief sought.

Petitioner also claims that no permissible BOCES takeover occurred because respondent assigned two teaching assistants to assist in some physical education classes

taught by Otsego BOCES’ teachers. I find that such teaching assistant assignments do not compel a conclusion that the Otsego BOCES did not properly takeover respondent’s prekindergarten through fifth grade physical education program, particularly where all such classes are taught by Otsego BOCES’ teachers.

Petitioner submits three letters by parents of fifth grade students in which each states that her child claimed that district employee Brigham taught a portion of the fifth grade physical education classes, in contravention of respondent’s assertion that its prekindergarten through fifth grade physical education program was taken over by Otsego BOCES. I initially note that, although the signature on each letter is notarized, the statements are not sworn nor are they based on direct observation. Consequently, while I have considered them, I find that they are of little probative value.

Moreover, the statements also indicate that the BOCES teacher was present in every class. Respondent’s superintendent provides a sworn affidavit in which he avers that Brigham’s free period coincided with the fifth grade physical education class taught by the BOCES teacher – the teacher of record - and that, on days when he has no simultaneous high school class, Brigham teaches with the BOCES teacher only to assist and mentor her. Petitioner offers no probative evidence, or any response at all, to contradict the superintendent’s affidavit, and I do not find that such practice renders the BOCES takeover a nullity or otherwise improper. Petitioner provides no evidence that Otsego BOCES teachers are not, in fact, teaching the prekindergarten through fifth grade physical education classes in respondent’s district.

Petitioner further submits her own additional affidavit in which she avers that, during the 2012-2013school year, she was called in as a substitute teacher for BOCES’ physical education teacher Matthew Martindale who was working in respondent’s district. She avers that she taught physical education classes for prekindergarten, kindergarten, first, second, sixth and eighth grade. She offers her affidavit in contravention of respondent’s claim that it offered separate elementary and secondary physical education programs, the former of which was transferred to BOCES. Petitioner also claims, in a conclusory fashion, that she saw no distinction between the levels of classes, but she does not further explain or elaborate on the nature of the activities in each class.

The substitute plans attached to petitioner’s additional affidavit do not support her assertion. The activities described for prekindergarten through second grade are similar, while the sixth and eighth grade activities are different. On this record, petitioner has not met her burden regarding her claim. Furthermore, respondent’s superintendent submits an affidavit in which he indicates that, subsequent to its transfer of the prekindergarten through fifth grade physical education program, respondent also transferred its sixth grade through eighth grade physical education program to BOCES, commencing with the 2012-2013 school year, to save additional funds. Petitioner submits no response to the superintendent’s affidavit.

After careful review of the record, I can not conclude that the BOCES takeover of respondent’s prekindergarten through fifth grade physical education program, pursuant to Education Law §3014-a, was impermissible. Respondent’s abolition of petitioner’s position and her placement on its preferred eligibility list, therefore, was proper.

Finally, regarding petitioner’s request that I direct the district to provide petitioner with certain documentation outlined in the petition, I note that an appeal to the Commissioner under Education Law §310 is appellate in nature and does not provide for discovery(Appeal of W.T.B. and M.B., 44 Ed Dept Rep 152, Decision No. 15,129; Appeal of Krantz, 38 id. 485, Decision No.14,077 Appeal of Schonfeld, 38 id. 306, Decision No. 14,040).

I must also reject petitioner’s request for costs and disbursements for this proceeding. The Commissioner has no authority to award monetary damages, costs or reimbursements in an appeal pursuant to Education Law §310(Application of Kolbmann, 48 Ed Dept Rep 370, Decision No.15,888; Appeal of S.B., 48 id. 332, Decision No. 15,875).

In light of the foregoing disposition, I need not address petitioner’s remaining contentions.