Appeal of BRIAN GALLAGHER from action of the Board of Education of the City School District of the City of Oneida; Mary Margaret Zehr, in her capacity as Superintendent; Penny Houser; and John Doe regarding a personnel matter.

Decision No. 17,858

(June 23, 2020)

School Administrators Association of New York State, attorneys for petitioner, Jennifer L. Carlson, Esq., of counsel

Bond, Schoeneck & King, PLLC, attorneys for respondents City School District of the City of Oneida and Mary Margaret Zehr, Bethany A. Centrone, Esq., of counsel

Satter Law Firm, PLLC, attorneys for respondent Penny Houser, Sarah E. Ruhlen, Esq., of counsel

TAHOE., Interim Commissioner.--Petitioner appeals the decision of Mary Margaret Zehr, in her capacity as Superintendent (“respondent Zehr”), and the Board of Education of the City School District of the City of Oneida (“respondent board”) (collectively, “respondents”) to abolish his former position of high school principal and deny his appointment to the newly created position of K-12 executive principal.  Petitioner also joins Penny Houser, a principal whom petitioner alleges is the least senior administrator in respondent board’s district (“respondent Houser”).  The appeal must be sustained to the extent indicated.

On July 1, 2005, petitioner received a probationary appointment to the position of high school principal for respondents’ Oneida High School.  Petitioner was granted tenure on June 10, 2008, effective July 1, 2008.

On December 3, 2018, the State Education Department (“SED”) approved an alternate mode of building administration proposed by respondent board for July 1, 2019 through June 30, 2022 pursuant to section 100.2(c) of the Commissioner’s regulations.  As relevant here, the proposed restructuring included a plan to abolish the high school principal position and create a K-12 executive principal position to serve in a dual role as both principal for Oneida High School and an executive principal with K-12 responsibilities including supporting and evaluating principals at the district’s elementary and middle schools.

On April 4, 2019, respondent board voted to implement the proposed restructuring plan.[1]  This appeal ensued.  Petitioner’s request for interim relief was denied on May 10, 2019.  On June 11, 2019, during the pendency of this appeal, petitioner’s high school principal position was abolished.

Petitioner argues that the newly created K-12 executive principal position is sufficiently similar to the high school principal position that he held; as such, petitioner contends that he is entitled to be appointed to the new position.  In the alternative, petitioner argues that he was granted tenure in either a general “administrator” or “principal” tenure area and that, since he is not the least senior administrator in either tenure area, he should not be the administrator to be excessed.  Instead, petitioner argues that respondent Houser, as the most recently hired administrator in the district, should be excessed.  Petitioner requests that he be reinstated to his position as a tenured administrator or principal within the district without loss of tenure or seniority.

Respondents assert that petitioner is tenured as a high school principal, a tenure area which includes petitioner alone, and, as such, he is not entitled to any other administrative position in the district.  Respondents also contend that the newly created K-12 executive principal position is not similar to petitioner’s high school principal position and, therefore, petitioner is not entitled to be appointed to the new position.

I must first address some procedural matters.  Petitioner and respondent board request that I consider supplemental affidavits submitted pursuant to 8 NYCRR §276.5.  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 (Appeal of Casey-Tomasi, 57 Ed Dept Rep, Decision No. 17,301; Appeals of Gonzalez, 48 id. 405, Decision No. 15,898).  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 (Appeal of Casey-Tomasi, 57 Ed Dept Rep, Decision No. 17,301; Appeals of Gonzalez, 48 id. 405, Decision No. 15,898).  The supplemental affidavits do not add new claims or defenses but present new facts which are relevant to this appeal and which were not previously available.  Specifically, the affidavit submitted by respondent board indicates that, subsequent to the commencement of this appeal, respondent board determined that no qualified applicants had applied for the K-12 executive principal position and filled the position with a retired administrator pursuant to Retirement and Social Security Law §211.  Petitioner’s affidavit describes respondent board’s abolition and creation of additional positions in February and March 2020.  Because these events occurred after the commencement of the appeal and are relevant to the claims herein, I have accepted these submissions into the record.

Next, respondents state in a conclusory manner that “[t]he allegations in the [p]etition are not ripe for review” and that petitioner “seeks a declaratory judgment with regards to his tenure and seniority status.”  Contrary to respondents’ contentions, I find that petitioner is aggrieved by respondent board’s adoption of a plan that abolished his position.  The parties agree that counsel for petitioner and respondent board discussed, as early as January 2019, the fact that the restructuring plan:  (1) would eliminate petitioner’s position; and (2) create the K-12 executive principal position, for which respondent board informed petitioner that he was ineligible.[2]  Respondent board adopted this plan on April 4, 2019.  Thus, although it appears that respondent board did not formally abolish petitioner’s position until June 11, 2019, it committed to doing so on April 4.  It is actual knowledge of the facts underlying a claim that begins the 30-day time limit in which to bring an appeal (see Appeal of N.M., 59 Ed Dept Rep, Decision No. 17,688; Appeal of Cea, 58 id., Decision No. 17,483; Appeal of O’Brien, 51 id., Decision No. 16,316, petition dismissed Matter of O’Brien v. New York State Comm’r of Educ., et al., Sup. Ct., Albany Co. [McGrath, J.], July 3, 2012, aff’d 112 AD3d 188 [3d Dept. 2013], appeal dismissed 22 NY3d 1125 [2014], mot. for leave to appeal den. 23 NY3d 903 [2014], cert den. 574 US 959 [2014]).  Therefore, I find that petitioner is aggrieved such that he was entitled to commence the instant appeal within 30 days of April 4, 2019.[3]

Turning to the merits, a board of education of a city school district has the power to create and abolish positions for economic and/or educational reasons (Education Law §2503[5]; Matter of Young v. Board of Educ. of Cent. School Dist. No. 6, Town of Huntington, 35 NY2d 31, 34 [1974]).  However, pursuant to Education Law §2510(1),

If the board of education abolishes an office or position and creates another office or position for the performance of duties similar to those performed in the office or position abolished, the person filling such office or position at the time of its abolishment shall be appointed to the office or position thus created 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 has filled

(see also Education Law §3013[1]).

In applying this requirement, the Appellate Division, Fourth Department, has held that “broad meaning must be given to the term ‘similar,’ so as to prevent erosion of the tenure rights of the incumbents of abolished positions” (Matter of Bork v City of School Dist. of City of N. Tonawanda, 60 AD2d 13, 15-16 [4th Dept. 1977]; see generally Matter of Lynch v. Nyquist, 41 AD2d 363, 365 [3d Dept. 1973], aff’d 34 NY2d 588 [1974]).  The test of whether the duties of the two positions are in fact similar is whether more than 50 percent of the functions to be performed by the incumbent of the new position are those which were performed by the petitioner in his or her old position (Greenspan v. Dutchess County BOCES, 96 AD2d 1028, 1029 [2d Dept. 1983]; Appeal of Quattrone, 58 Ed Dept Rep, Decision No. 17,601; Matter of Farrand, 13 id. 72, Decision No. 8,715; Matter of Evans, 10 id. 156, Decision No. 8,252; see also Matter of Coates v. Ambach, 52 AD2d 261, 263 [3d Dept. 1976], aff’d 42 NY2d 846 [1977]).  In addition, the Commissioner has consistently held that the two positions must be in the same tenure area (Matter of Kelly v. Ambach, 83 AD2d 733, 733 [3d Dept. 1981]; Appeal of Heath, 37 Ed Dept Rep 544, Decision No. 13,923; Appeal of Schwarz, 28 id. 101, Decision No. 12,045).  Moreover, the Appellate Division, Third Department, has recognized that “certification is a statutory requirement of no small significance in determining whether the new position is similar to the old one” (Matter of Brown v. Bd. Of Educ., Morrisville-Eaton Central School District, 211 AD2d 887, 889 [3d Dept. 1999], citing Matter of Ward v Nyquist, 43 NY2d 57, 63 [1977] [internal quotation marks omitted]; Appeal of Elmendorf, 36 Ed Dept Rep 308, Decision No. 13,733).

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 P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).  Thus, to establish a right to the new position, a petitioner has the burden of proving that the new position is similar to his or her former position (Appeal of Heath, 37 Ed Dept Rep 544, Decision No. 13,923; Matter of Gworek, 21 id. 501, Decision No. 10,769).

On this record, petitioner has not met his burden of proving that the positions are sufficiently similar.  Initially, the two positions require different certifications.  The high school principal position required School Administrator and Supervisor (SAS) certification, while the K-12 executive principal position requires either School District Leader (SDL) or School District Administrator (SDA) certification.  As indicated above, the Appellate Division has held that the “statutory requirement” of certification is “of no small significance” in assessing the similarities between two positions (Matter of Brown, 211 AD2d at 889, citing Matter of Ward, 43 NY2d at 63).[4]

Additionally, although it appears from the record that no formal job description for petitioner’s former position as high school principal exists,[5] the parties agree that, in addition to the responsibilities incumbent to the high school principal position, the K-12 executive principal position includes additional district-wide duties that petitioner did not perform as high school principal, such as district-wide management of social/emotional and developmental learning; career/college readiness; school climate; student engagement; parental involvement; and attendance.  Unlike the duties of a building administrator, these functions are district-wide in scope and responsibility and require a higher degree of training.

Because the two positions require different certifications and the K-12 executive principal position includes additional district-wide duties that petitioner did not perform in his previous position, I find that petitioner has not met his burden of proving that the newly created K-12 executive principal position is similar to the high school principal position such that petitioner is entitled to appointment to that new position.

However, the record supports a finding that petitioner received tenure in a general “administrator” tenure area; as such, he is entitled to another administrative position in the district in accordance with his seniority.  There are no clearly defined guidelines for determining the parameters of administrative tenure areas.  A board of education may establish one district-wide administrative tenure area or multiple defined administrative tenure areas (see Matter of Bell v. Bd. of Educ. Of Vestal Central School Dist., et al., 61 NY2d 149, 151 [1984]; Appeal of Wills, 49 Ed Dept Rep 147, Decision No. 15,982; Appeal of Caruana, 41 id. 227, Decision No. 14,671).  Public policy favors the protection of employees’ seniority rights (see Ricca v. Bd. of Educ. of the City of New York, et al., 47 NY2d 385, 391 [1979]; Matter of Boyer v. Bd. of Educ., West Central School Dist., 132 Misc 2d 282, 285 [Sup. Ct., Erie Co., 1976]; Appeal of Cipriano, 32 Ed Dept Rep 302, Decision No. 12,837).  “As tenure areas narrow[,] seniority rights become less meaningful.  As tenure areas broaden, seniority rights take on greater significance ...” (Matter of Boyer, 132 Misc 2d at 285).  Consequently, the party seeking to prove the existence of a specific tenure area bears the burden of proof (Matter of Bell, 61 NY2d at 152).  That party must demonstrate that a board of education has, in fact, established the narrow, specific tenure area “consciously” and “by design” (id.) and that the employee has been sufficiently alerted to that fact (Steele v. Bd. of Educ. of the City of New York, 40 NY2d 456, 463 [1976]; Matter of Boyer, 132 Misc 2d at 285).  Descriptive terms used “inadvertently” by the board of education or other school officials are not sufficient to prove the existence of narrow, specific tenure areas (Matter of Bell, 61 NY2d at 152).

The Commissioner of Education has held, moreover, that, “[s]ince it is within the power of the school authorities to avoid questions of this nature by clear and unambiguous appointments, an ambiguous appointment should be resolved in favor of the employee” (Matter of Durso, 19 Ed Dept Rep 72, Decision No. 10,033; see Appeal of Cipriano, 32 id. 302, Decision No. 12,837).  Tenure areas are fixed at the time a person is appointed and cannot be retroactively altered (Matter of Cole v. Bd. of Educ., South Huntington UFSD, 90 AD2d 419, 425 [2d Dept. 1982]; Waiters v. Bd., of Educ., Amityville UFSD, 46 NY2d 885, 887 [1979]), without the appointed person’s consent.

On the record before me, I find that respondent board has not met its burden of proving that petitioner received tenure in the specific tenure area of high school principal.  The record includes board minutes, resolutions, and correspondence regarding several administrative tenure awards made between 2001 and 2018, including petitioner’s in 2008.  It is clear from these documents that respondent board made no clear designation of administrators’ tenure areas prior to 2018.  Indeed, respondent board failed to refer to a tenure area at all in either the 2005 letter informing petitioner of his appointment, or the 2008 letter informing him that he had received tenure.

Likewise, the board minutes concerning petitioner’s 2008 tenure award fail to reference any tenure area explicitly.  The minutes indicate only that the board “approve[d] the tenure recommendation for [petitioner] as the Oneida High School Principal.”  Although respondents claim that the minutes establish that petitioner’s tenure area was high school principal, I find that the reference to high school principal – petitioner’s job title – does not, in and of itself, establish petitioner’s tenure area (Appeal of Wills, 49 Ed Dept Rep 147, Decision No. 15,982 [appeal dismissed where respondent board of education did not produce “convincing evidence” that it had adopted specific tenure areas for its administrators; noting that it was unclear from the record whether superintendent’s use of the term “middle school/high school principal” in letter awarding petitioner tenure was merely descriptive and inadvertent]; see also Appeal of Walters, 49 id. 115, Decision No. 15,973).  As indicated above, descriptive terms used by a board of education do not prove the existence of narrow, specific tenure areas (Matter of Bell, 61 NY2d at 152).  Accordingly, I find on this record that respondent board has not met its burden of proving that it established a high school principal tenure area or that it informed petitioner of its intention to establish such a tenure area.[6]

Because respondent board failed to establish the existence of any clear and unambiguous tenure area, I find that petitioner was awarded tenure in a general “administrator” tenure area.  In abolishing the high school principal position, respondent board was required to excess the administrator “having the least seniority in the system within the tenure of the position abolished” (Education Law §§2510[2] and 3013[2]).  The current identity of that individual is unclear from the record.  In her answer, respondent Houser admits that she is the “least senior administrator.”[7]  However, it appears that, subsequent to this appeal, another administrator announced that she planned to retire on or about June 28, 2019.  Both respondent Houser and petitioner indicate in the record that “[p]etitioner should be able to fill that or another position within the District without needing to displace” respondent Houser.  Additionally, petitioner has submitted a supplemental affidavit describing the abolition and creation of additional positions in February and March 2020.

Therefore, I remand this matter to respondent board and respondent Zehr for a determination of petitioner’s seniority rights in the general “administrator” tenure area relative to the other administrators in that area and, based on such seniority, his right to reinstatement in the district as an administrator.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that, within 30 days of the date of this order, respondents Board of Education of the City School District of the City of Oneida and Mary Margaret Zehr, in her capacity as superintendent of schools, calculate petitioner’s seniority rights in the tenure area of administrator and make a determination as to whether he is entitled to reinstatement, seniority credit, back pay, and retroactive benefits as of June 11, 2019.

END OF FILE