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Decision No. 16,917

Appeal of MARY FARBER-PECK from action of the Board of Education of the Herkimer Central School District regarding abolition of a position and teaching assignments.

Decision No. 16,917

(June 27, 2016)

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

Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C., attorneys for respondent, Henry F. Sobota, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the actions of the Board of Education of the Herkimer Central School District (“respondent board” or “board”) abolishing her position and assigning courses previously taught by her to other teachers.  The appeal must be dismissed.

According to the record, in 1989, petitioner was appointed as a teacher of business and distributive education and was subsequently granted tenure in the business education tenure area.[1]  By letter dated May 19, 2011, petitioner was notified that, at its May 18, 2011 special meeting, respondent board voted to abolish two positions in the business education tenure area, including petitioner’s position, effective June 30, 2011.  Petitioner was placed on a preferred eligibility list.  Thereafter, respondent assigned certain courses previously taught by petitioner to other teachers.  This appeal ensued.

Petitioner alleges that respondent improperly abolished her position to circumvent her tenure and seniority rights.  Petitioner also alleges that, during the 2011-2012 school year, teachers were improperly assigned to teach certain business education courses, previously taught by her, outside of their respective certification areas.  Specifically, petitioner alleges that, for 2011-2012, respondent assigned Glen Manning, a certified health teacher, to teach a section of Accounting 1; Michelle Ploss, a certified English teacher, to teach a Senior Seminar course; and Kristin Smith, a certified English teacher; to teach a Microsoft Office course, outside of their certification areas.  Petitioner asks that I direct respondent to provide a copy of the master schedule for the school year.  As relief, petitioner seeks an order directing respondent to create a part-time position in business and distributive education and re-hire her to fill that position, with back pay and benefits.  She also seeks costs and disbursements.

Respondent contends that petitioner has not met her burden of proving that it improperly abolished her position.  It further alleges that its assignment of certain courses previously taught by petitioner was permissible and that no new position has been created to which the petitioner has any clear legal right.  Respondent further asserts that the appeal is moot, that Ploss, Smith and Manning are necessary parties to the appeal and that petitioner has failed to join them as respondents, warranting dismissal of the appeal.

I will first address several procedural matters.  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). 

In this case, I note that, while Ploss, Smith and Manning were served with the notice of petition and petition, they were not clearly named in the caption.  In any case, there is no evidence that Ploss, Smith or Manning would be adversely affected should petitioner prevail herein because such a result would impact only one course in their overall workload.  Petitioner does not seek dismissal or reassignment of those teachers and there is no evidence that the employment status of those individuals would be affected.  Therefore, they are not necessary parties and need not be joined as respondents and the appeal will not be dismissed on that basis (see Appeal of Curtis and Newell, 48 Ed Dept. Rep 184, Decision No. 15,831; Appeal of Krause, 46 id. 304, Decision No. 15,516; Appeal of McNamara, 41 id. 134, Decision No. 14,638, judgment granted dismissing petition, McNamara v. Mills, Sup.Ct., Albany Co., Special Term, [Kane J.], January 10, 2002, n.o.r).

Moreover, respondent subsequently submitted an affidavit, pursuant to §276.5 of the Commissioner’s regulations, stating that Manning and Smith were no longer teaching Accounting or Microsoft Office, respectively, and that the district would not offer those courses in the following year, thus rendering petitioner’s claims relating to those assignments academic.

Next, to the extent that petitioner asks that I direct the district to provide petitioner with a master schedule to corroborate her allegations, 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) or investigations (Appeal of Huffine, 48 Ed Dept Rep 386, Decision No. 15,893; Appeal of D.K., 48 id. 276, Decision No. 15,857).

Turning to the merits, a board of education may abolish and/or consolidate positions for sound economic reasons, so long as the decision is not motivated by bad faith (Education Law §§1709[16] and [33]; 1804[1]; Matter of Young v. Bd. of Educ. of Central School Dist. No. 6, Town of Huntington, et al., 35 NY2d 31; Appeal of Roberts, et al., 49 Ed Dept Rep 354, Decision No. 16,049).  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).

In this case, the record indicates that, at a budget information meeting, respondent board discussed the difficult economic climate and indicated that it was necessary to make significant cuts in the school budget due to cost increases and revenue constraints, including an approximately $1.3 million reduction in State aid.  At that time, the potential staff reductions, including two business teacher positions, were discussed.  Petitioner does not claim otherwise in her petition nor does she refute respondent’s assertions.  Therefore, based on the record before me, I conclude that petitioner has not established that respondent’s abolition of her position was in bad faith or was improperly motivated for other than economic reasons.  Consequently, there is no basis on which to conclude that respondent’s abolition of petitioner’s position was improper.

Moreover, on this record, I do not find that respondent created a position to which petitioner would be entitled.  Petitioner’s position was abolished pursuant to Education Law §3013 and she is requesting that respondent be directed “to create” and rehire her to fill a part-time position in her tenure area because respondent continues to offer business and distributive education classes.  Education Law §3013 requires that a teacher whose position is abolished be appointed to a vacancy in a corresponding or similar position that is subsequently created (Appeal of Strong, 41 Ed Dept Rep 425, Decision No. 14,735; Appeal of Allen, et al., 34 id. 627, Decision No. 13,433).  The record here indicates that no vacancy occurred and no new position was created; instead, petitioner’s former teaching duties were redistributed (see Appeal of Krause, 46 Ed Dept Rep 304, Decision No. 15,516; Appeal of Allen, et al., 34 id. 627, Decision No. 13,433), albeit to teachers who petitioner asserts lack the proper certification.  Moreover, as previously noted, a supplemental affidavit from the interim superintendent of schools indicated that the district would not offer any accounting courses or Microsoft Office courses in the subsequent school year and that, consequently, Smith and Manning would not be assigned to teach those courses.  If respondent subsequently creates a new position in the business education tenure area, petitioner may, indeed, be entitled to such position by virtue of her place on the preferred eligible list of candidates.  However, petitioner has not demonstrated legal right to relief requested, which is an order that respondent create a new part-time position rather than a claim of a right to a position respondent has created (see, Matter of Young v. Board of Educ. of Cent. School Dist. No. 6, 35 NY2d 31).

With respect to petitioner’s claim that respondent improperly assigned business courses to Smith, Manning and Ploss, as noted, such claims as to Smith and Manning are academic.  As to Ploss, the record indicates that the course at issue is an elective course entitled “Senior Seminar.”  It does not have a mandated curriculum.  Although it was previously taught by the other teacher in the business education tenure area and, apparently, focused on financial topics, Ploss states in an affidavit that she is emphasizing communication and decision-making skills and will not include financial planning in teaching the course.  She submits a course description that covers a wide range of life skills topics and does not clearly support a determination that certification as a business and distributive education teacher is required.  Thus, petitioner has not established that the Senior Seminar course was improperly assigned to Ploss, and her claim in that regard must fail.

Finally, to the extent that petitioner seeks 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, I need not address the parties’ remaining contentions. 




[1] I note, however, that pursuant to §30-1.8 (c)(4) of the Rules of the Board of Regents, respondent should have appointed petitioner to serve in a special subject tenure area co-extensive with her teaching certificate in business and distributive education.