Decision No. 16,635
* Subsequent History: Matter of Goldberg v King; Supreme Court, Albany County; Judgment dismissed petition to review; May 13, 2015. *
Appeal of ARNOLD GOLDBERG from action of the Board of Education of the Roosevelt Union Free School District and Ronald O. Grotsky, regarding the abolishment of his position.
Decision No. 16,635
(August 5, 2014)
Minerva & D’Agostino, PC, attorneys for petitioner, Ross M. Gerber, Esq., of counsel
Lamb & Barnosky, LLP, attorneys for respondent, Board of Education of the Roosevelt Union Free School District, Lauren Schnitzer, Esq., of counsel,
KING, JR., Commissioner.--Petitioner appeals the decision of the Board of Education of the Roosevelt Union Free School District (“respondent” or “board”) not to recall him from the preferred eligibility list to the position of Assistant Superintendent for Human Resources and Professional Development (“Assistant Superintendent for HR and PD” or “Assistant Superintendent”). The appeal must be dismissed.
On or about May 1, 2002, petitioner was appointed to serve as the Director of Personnel and was granted tenure in the tenure area of “Director of Personnel”, effective May 27, 2004. The board created the position of Assistant Superintendent for Human Resources and Professional Development and appointed Dr. Marlene Zakierski to fill this new position, effective August 1, 2005. By memorandum dated August 16, 2005, petitioner’s position was abolished and he was excessed, effective August 26, 2005, and placed on a preferred eligibility list. Thereafter, petitioner filed an appeal with Commissioner Mills, challenging the abolition of his position and seeking appointment to the newly created position. On October 6, 2006, Commissioner Mills issued a decision, dismissing petitioner’s appeal and holding that petitioner was not entitled to an appointment to the newly created position. On or about December 1, 2006, petitioner filed an Article 78 proceeding in the Supreme Court, Albany County, seeking to vacate and set aside Commissioner Mill’s October 6 determination. By decision and order dated July 3, 2007, the court vacated the Commissioner’s decision and remanded the matter to the district for a hearing, pursuant to Education Law §3013, on the sole issue of whether or not the two positions were similar. On March 5, 2010, a hearing on the similarity of positions was commenced before the board. Petitioner presented his case and testified on his own behalf. Former Superintendent of Schools, Horace Williams, who served until 2004, and former Director of Health and Physical Education and Athletics, Harvey Palmore, who was employed by the district until 2005, also testified. Petitioner also called Diane Battle, who was employed as the secretary to the Superintendent since 2005. The district called Mai Cortes, who was a board member from approximately 2002 through 2007, and Dawn Johnson-Adams, who was employed by the district as an Assistant to the Superintendent and Deputy Superintendent. Following five days of hearing, respondent board issued a decision on October 13, 2011, finding that the newly created position of Assistant Superintendent for HR and PD was not similar to the petitioner’s position as Director of Personnel. Thereafter, petitioner commenced a second Article 78 proceeding against respondent to set aside respondent’s decision. By decision and order dated July 30, 2012, the Supreme Court, Albany County, granted respondents’ motion to dismiss on the grounds that the Commissioner of Education has primary jurisdiction over this matter. This appeal ensued.
Petitioner asserts that more than 50 percent of the duties he performed as Director of Personnel were performed in the newly created position of Assistant Superintendent for HR and PD. Accordingly, he alleges that he should have been appointed to the newly created position pursuant to Education Law §3013. Petitioner also asserts that the hearing provided by respondent did not meet the due process requirements of the Fifth and Fourteenth Amendments of the U.S. Constitution. Petitioner also asserts several Open Meetings Law and Freedom of Information Law (“FOIL”) allegations. Petitioner requests that the Commissioner set aside respondent’s decision that the Assistant Superintendent for HR and PD position was not similar to the Director of Personnel position as arbitrary and capricious and appoint him to the position of Assistant Superintendent for HR and PD, with back pay, seniority and all other benefits.
Respondent counters that the board’s determination that petitioner’s former position and the newly created position were not similar is rationally grounded. Respondent also asserts that the appeal is untimely and that petitioner’s allegations concerning FOIL and the Open Meetings Law must be dismissed for lack of jurisdiction. Respondent also contends that petitioner was provided with adequate due process.
First, I must address respondent’s timeliness claim. 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). To the extent that petitioner’s allegations concern decisions or acts taken by the board or the district before the October 13, 2011 decision (petitioner’s FOIL allegations, Open Meetings Law allegations and the abolition of his position), such claims must be dismissed as untimely. However, to the extent petitioner challenges respondent’s decision not to reinstate him to the Assistant Superintendent for HR and PR position, respondent does not dispute that petitioner’s claims are timely. An unsuccessful attempt to litigate a dispute in court which does not result in a final determination on the merits may be accepted as an excuse for failing to file a timely appeal to the Commissioner, when the appeal is commenced within 30 days of receipt of the determination (Appeal of Ferencik, 49 Ed Dept Rep 142, Decision No. 15,981; Appeal of Devente and Jesenof, 48 id. 150, Decision No. 15,822; Appeal of Markow-Brown, 45 id. 315, Decision No. 15,333). Since there is no evidence in the record as to when the decision and order with notice of entry was served and respondent does not dispute the timeliness of petitioner’s reinstatement claims, I find those claims to be timely.
However, I find that petitioner was provided with adequate due process under the Fifth and Fourteenth Amendment. Specifically, he asserts that the board of education was not an impartial decision-maker because the board was the body that initially made the decision to terminate him. Petitioner cites no precedent holding that a board of education may not conduct a pre-termination hearing pursuant to Appeal of Elmendorf, 36 Ed Dept Rep 308, Decision No. 13,733 (an “Elmendorf hearing”) to determine similarity of positions. In fact, there has been at least one prior Commissioner’s decision where the board of education held the Elmendorf hearing (see, Appeal of Davis, 39 Ed Dept Rep 275, Decision No. 14,236). Instead, petitioner relies upon Appeal of Dashe, 31 Ed Dept Rep 195, Decision No. 12,617, where Commissioner Sobol held that one of the essential elements of a due process hearing, in that case a residency hearing, is that it be conducted before a neutral fact finder. However, I find Appeal of Dashe to be distinguishable because in the case of an Elmendorf hearing it is clear from the statute that the board of education is responsible for making the ultimate decision as to whether to excess an employee and/or to recall an individual from the preferred eligibility list under Education Law §3013. Therefore, I am not persuaded that petitioner’s due process rights were violated by having the board of education, which by statute is the ultimate decision-maker, conduct the pre-termination hearing. However, even if respondent did deprive petitioner of her position without procedural due process by having the board hold the pre-termination hearing, that would not entitle him to the appointment he seeks, which is the relief he requests in this appeal (see, Appeal of Elmendorf, 36 Ed Dept Rep 308, 313, Decision No. 13,733). In any event, such a violation would be de minimis and petitioner would only be entitled to nominal damages (Id. at 313-314). However, it is well settled that the Commissioner lacks authority to award monetary damages (Application of Kolbmann, 48 Ed Dept Rep 370, Decision No. 15,888; Appeal of S.B., 48 id. 332, Decision No. 15,875).
The appeal must also be dismissed on the merits. The record reveals there was a 5-day evidentiary hearing wherein the parties presented witnesses and were able to cross-examine witnesses and admit written evidence into the record. Therefore, I find that petitioner was afforded a “full and fair opportunity” to introduce documentary and testimonial evidence and to cross examine the district’s witnesses, and that petitioner’s due process rights were not violated.
I must also dismiss petitioner’s claim relating to the district’s failure to recall him from the preferred eligibility list for failure to join necessary parties. Although petitioner names “Ronald O. Grotsky” in the caption, the record indicates that Marlene Zakierski had been appointed by respondent board to the Assistant Superintendent position since 2005. Since Zakierski’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 a notice of petition or petition, I must dismiss the appeal for failure to join necessary parties.
I also find that petitioner has not met his burden of demonstrating that he was entitled to the Assistant Superintendent for HR and PD position. Education Law §§2510(3)(a) and 3013(1) govern the rights of a former employee to re-employment and provide, in pertinent part, as follows:
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 his 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 his 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). Petitioner has the burden of proving that a majority of the duties of the vacant position are similar to those of his 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). 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 Ed Dept Rep 430, Decision No. 15,375; Appeal of Debowy, 41 id. 161, Decision No. 14,648).
Petitioner asserts that the district had a district-wide administrative tenure area and that both positions were in the district-wide tenure area, while respondent argues that the district had narrower administrative tenure areas. Based on the record before me, I find that the two positions were in different tenure areas. In an affidavit from the district clerk, the district clerk stated that the district “does not have one District-wide tenure area for administrators but, rather, has established different tenure areas for its various administrative positions.” To support these assertions, attached to his affidavit are minutes of the May 27, 2004 meeting when petitioner was granted tenure in the tenure area of “Director of Personnel” and the board minutes of the July 7, 2005 meeting when the board approved the probationary appointment for the Assistant Superintendent position in the tenure area of “Assistant Superintendent of Human Resources and Professional Development”. Also annexed to this affidavit were excerpts from the minutes of a board meeting held on September 22, 2005 when the board abolished the position of Director of Personnel in the tenure area of Director of Personnel and excerpts from the July 1, 2008 board meeting when the board approved the probationary appointment of an individual to an Assistant Superintendent position in the tenure area of “Assistant Superintendent of Human Resources and Professional Development”. The record also contains a memorandum dated August 16, 2005, wherein petitioner was notified that his position in the administrative tenure area of “Director of Personnel” was abolished. Moreover, petitioner’s own reply appears to concede that there are narrower administrative tenure areas.
Nevertheless, even if the two positions were in the same tenure area, the appeal must be dismissed because a review of the job descriptions for both positions and the record before me reveals that, within the meaning of Education Law §2510(3), petitioner’s position as Director of Personnel was not similar to the position of Assistant Superintendent for HR and PD.
First, the job description for the Assistant Superintendent for HR and PD position indicates that he/she reports directly to the Superintendent and is a member of the superintendent’s cabinet while the job description for the Director of Personnel position indicates that he/she reports to the Assistant Superintendent for Business and there is no mention in the job description of serving on the superintendent’s cabinet. In fact, petitioner’s own testimony reveals that he did not report directly to the Superintendent and that when Williams was Superintendent, he reported to the Assistant Superintendent for Business. He further testified that when Ross became Superintendent, he reported to the Assistant Superintendent for Business, the Assistant Superintendent for Curriculum and Instruction and later to Johnson-Adams. The testimony is also inconsistent on whether petitioner served on the superintendent’s cabinet. While petitioner, Williams and Palmore testified that he served on the superintendent’s cabinet, former board member Cortes and Johnson-Adams both testified that petitioner was not a member of Superintendent Ross’ cabinet.
In addition, the job description for the position of Director of Personnel sets forth three main areas of responsibilities: Hiring/Supervising, Professional Development and Leadership. In contrast, the job description for the Director of Personnel position reflects more narrow responsibilities and focuses exclusively on the operation and administration of the district’s human resources function.
While petitioner testified that 90% of his time was spent on similar tasks to the Assistant Superintendent position, he failed to provide sufficient documentary evidence or corroborating testimony that the two positions were sufficiently similar.
With respect to the first area “Hiring/Supervision”, the job description of the Assistant Superintendent position included several duties, including but not limited to, coordinating the evaluation of teachers, hiring of paraprofessionals, employee recruitment and activities related to teacher certification, employee benefits, risk management and identification of personnel needs. After reviewing the testimony in the record and the job descriptions for both positions, I find that the duties petitioner performed as Director of Personnel encompassed these duties and the testimony and evidence presented support this finding.
However, petitioner failed to meet his burden of demonstrating that he performed the other two major areas of responsibility listed in the job description. The second major area of responsibility is “Professional Development”. The job description lists duties, including but not limited to, coordinating and monitoring the documentation associated with the professional development process of certified staff as it relates to supervision and evaluation; providing professional development for administrators; chairing/serving on district curriculum committees; tabulating assessment surveys; assisting in the evaluation of curriculum-related staff development programs; preparing the district calendar and other brochures and publications; participating in the activities necessary for determining educational needs of students and for planning and decision-making in program development in accordance with State mandates; soliciting, exploring, and proposing innovative programs and activities to improve the quality of staff performance; communicating progress toward District goals with the Curriculum and Instruction Office on a regular basis; facilitating leadership development of current and potential administrators; coordinating and serving as a member of the Administrative Screening and Interview Committees; working with cabinet members in the development of district annual budget and keeping the Superintendent, cabinet members and other administrative staff informed as to the relevant information and critical issues of responsibility.
While petitioner provided self-serving testimony that he was actively involved in the education and professional development of district employees, he has failed to provide sufficient evidence to substantiate these statements. In contrast, the job description for Director of Personnel lists no professional development responsibilities and his own testimony reveals that the duties of his position as Director of Personnel were predominately human resources issues and that Dr. Hershel Williams was responsible for professional development activities. When asked about his involvement in professional development duties, petitioner testified that he “discussed professional development during [his] time [in the district]” under Williams, but he failed to produce sufficient evidence that he performed any professional development functions under Ross, the subsequent Superintendent. In addition, Williams testified that petitioner was involved in staff development and curriculum matters when petitioner was temporarily assigned as a building administrator to a particular school and that petitioner was “involved loosely” in the district’s “five year-planning” and that petitioner may have aided other departments by helping to get students staff members for summer camp excursions and stated “there were probably other things I’m just not recalling now”. However, this testimony is insufficient to meet petitioner’s burden of demonstrating that the positions were similar. Palmore’s testimony that petitioner helped her as part of the district’s five-year physical education plan was also insufficient to meet petitioner’s burden of demonstrating the contrary. Horace testified that the Deputy Superintendent, Dr. Williams, was “in charge of professional development in the district”, and petitioner appears to agree with this statement in his testimony. Similarly, Johnson-Adams testified that, under Ross, the majority of professional development was executed by the Department of Curriculum and Instruction and that during the 2004-2005 school year, she and the Assistant Superintendent for Curriculum and Instruction were responsible for staff development. She also testified that Zakierski, as Assistant Superintendent for HR and PD, provided staff development for the entire district and was in charge of all staff development and mentoring. Based on the foregoing, I find that petitioner has failed to meet his burden of demonstrating similarity through specific job duties and/or percentages of time spent on professional development activities. Instead, petitioner relies on primarily self-serving, bald assertions that he performed these duties with no evidence to substantiate these claims.
The final major responsibilities listed on the job description for the Assistant Superintendent position were “Leadership” activities which duties included, but were not limited to, providing leadership in establishing district-wide goals; coordinating and directing Human Resources staff; serving as a district restructuring team member; invigorating the relationship of local education agencies to support professional development; designing and implementing tools for administrators to use in classroom observations; and participating in development of district restructuring plan and updates such as My Learning Plan.
Although petitioner testified that he was involved in leadership activities, his testimony was unsupported by the record. Cortez testified that he was involved in the development of district-wide goals with the Superintendent and Assistant Superintendent and that he was not aware of petitioner’s participation in district-wide goals or in the development of policy for the district. Indeed, he testified that the Director of Personnel position was not as high-level as the Assistant Superintendent for HR and PD position, which was responsible for high-level district policy and decision-making. In addition, when petitioner was asked whether he supported professional development or sought innovative approaches to teacher independence regarding their own professional leaning (My Learning Plan), he said it occurred after he was there. He also had no meaningful reply to whether he coordinated, facilitated, managed and supervised activities of staff and reported on the status of such services. He testified that he did not know what district restructuring was and that he had not “heard the term ‘District restructuring’”. Moreover, Johnson-Adams testified that petitioner’s leadership in the district was, again, that he performed the duties of human resources, working with various departments and administrators. He also hired certified and non-certified staff, and supervised those who were in his direct employ and worked with paraprofessionals, monitors, personnel and the department of business. She further testified that the Assistant Superintendent for PD and HR position performed all of the human resources tasks and/or duties that petitioner did in his Director of Personnel position and performed additional duties providing staff development for the district as well as mentoring.
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 Assistant Superintendent for HR and PD position is a higher-level position with more responsibility and policy-making duties than the Director of Personnel position. Moreover, petitioner has not met his burden of proving that the duties of her former position as a Director of Personnel are more than 50% similar to the Assistant Superintendent position. Nor do I find that petitioner's subjective and unsubstantiated description of the duties he alleges that he performed, as compared to those enumerated in the job description, are more than 50% similar to the Assistant Superintendent for HR and PD position. Therefore, I must conclude that the two positions are not similar within the meaning of Education Law §§2510 and 3013 and that petitioner is not entitled, as a matter of law, to the newly created position (see Appeal of Debowy, 41 Ed Dept Rep 161, Decision No. 14,648).
Finally, to the extent that petitioner asserts that the August 15, 2005 board meeting was invalidly held because there was no notice of meeting posted, no published agenda, and no minutes or other documentation relating to said board meeting available, in violation of the Open
Meetings Law, this claim must be dismissed. Public Officers Law §107 vests exclusive jurisdiction over complaints alleging violations of the Open Meetings Law in the Supreme Court of the State of New York, and alleged violations thereof may not be adjudicated in an appeal to the Commissioner (Appeal of McColgan and El-Rez, 48 Ed Dept Rep 493, Decision No. 15,928; Applications and Appeals of Del Río, et al., 48 id. 360, Decision No. 15,886). Petitioner’s allegations relating to violations of the Freedom of Information Law must also be dismissed because Section 89 of the Public Officers Law vests exclusive jurisdiction over complaints alleging FOIL violations in the Supreme Court of the State of New York and alleged violations thereof may not be adjudicated in an appeal to the Commissioner (Appeal of Olka, 48 Ed Dept Rep 10, Decision No. 15,776; Application of Gentile, 47 id. 438, Decision No. 15,747; Appeal of T.K., 47 id. 234, Decision No. 15,679).
In light of this disposition, I need not address the parties’ remaining contentions.
THE APPEAL IS DISMISSED.
END OF FILE
 At the time of this petition, Ronald O. Grotsky was serving as Assistant Superintendent for Human Resources and Professional Development.
 On June 30, 2008, petitioner requested a hearing, pursuant to Education Law §3013, to determine the similarity of the Director of Personnel position to the newly created position of Assistant Superintendent for Human Resources and Professional Development. After more than a year, petitioner made a motion in Albany County Supreme Court to hold respondent in contempt for not holding a hearing with deliberate speed. On February 4, 2010, Albany County Supreme Court denied petitioner’s motion to hold respondent in contempt, but found that the district’s delay in scheduling the hearing was clearly inappropriate and he amended his prior decision and directed that the district conduct the required hearing within 30 days of the issuance of the court’s order.
 Ronald Ross served as the Superintendent of Schools following Williams. However, Ross did not testify.