Appeal of KERSTIN WHEELER from action of the Board of Education of the Fairport Central School District, Fairport Central School District, and Tanya Wilson-Thevanesan, in her capacity as deputy superintendent for school improvement and community engagement regarding a personnel matter.

Decision No. 18,083

(January 31, 2022)

Starvaggi Law Offices, P.C., attorneys for petitioner, Michael A. Starvaggi, Esq., of counsel

Harris Beach, PLLC, attorneys for respondents, Sara E. Visingard, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals the determination of the Board of Education of the Fairport Central School District[1] (“respondent”) that she is not entitled to recall to the position of deputy superintendent for school improvement and community engagement from the preferred eligible list (“PEL”).  The appeal must be dismissed.

On June 5, 2015, respondent appointed petitioner on a probationary basis to the position of assistant superintendent for curriculum and instruction (the “assistant superintendent position”) in the tenure area of assistant superintendent for curriculum and instruction.  Respondent granted petitioner tenure, effective July 6, 2018.  Respondent later abolished the assistant superintendent position then held by petitioner, effective August 31, 2020. 

On May 19, 2021, respondent advertised for the position of deputy superintendent for school improvement and community engagement (“the deputy superintendent position”) in the tenure area of deputy superintendent for school improvement and community engagement.  By letter dated May 27, 2021, petitioner requested recall off of the PEL to the new position.  By email dated May 27, 2021, respondent indicated that petitioner was not entitled to recall because the deputy superintendent position was in a different tenure area than her former position.  This appeal ensued.

Petitioner argues that she is entitled to recall because she is certified for the deputy superintendent position, the duties of the deputy superintendent position are substantially similar to those of her former position, and she is the most senior person on the PEL.  Petitioner acknowledges that her former position and the deputy superintendent position are in different tenure areas but contends that this should not preclude recall because administrative tenure areas are not prescribed by regulation, vary by district, and lack uniformity and predictability.

Respondent argues that the petition must be dismissed, among other reasons, as premature.  On the merits, respondent contends that petitioner is not entitled to recall because the deputy superintendent position is in a different tenure area than the assistant superintendent position.  Respondent argues that it unambiguously established, and maintains, “narrow” administrative tenure areas.  Moreover, respondent asserts that petitioner is not entitled to recall because the two positions are not sufficiently similar.[2]

First, I must address a procedural issue.  The Commissioner will not render an advisory opinion on an issue before it becomes justiciable (Appeal of Frey, 57 Ed Dept Rep, Decision No. 17,308; Appeal of B.R. and M.R., 48 id. 291, Decision No. 15,861).  The Commissioner’s jurisdiction pursuant to Education Law § 310 is appellate in nature, and an action is not ripe for review by the Commissioner until it is final and results in an actual, concrete injury (Appeal of Kerley, 60 Ed Dept Rep, Decision No. 17,915; Appeal of M.P., 59 id., Decision No. 17,848; Appeal of Parris, 51 id., Decision No. 16,261; see generally Matter of Gordon v Rush, 100 NY2d 236, 242 [2003]).

I find that petitioner is aggrieved by respondent’s determination that she was not entitled to recall to the open position.  The abolition of a position and the refusal to be considered for a later appointment present distinct, and separate, injuries (see Matter of Leggio v Oglesby, 69 AD2d 446, 447 [2d Dept 1979]; Appeal of Gallagher, 59 Ed Dept Rep, Decision No. 17,858).  Therefore, I find that petitioner was entitled to commence the instant appeal within 30 days of May 27, 2021.

I must also address the scope of the record in this appeal.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR 275.3, 275.14).  A reply is not meant to buttress allegations in the petition or belatedly add assertions that should have been raised in the petition (Appeal of Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of Caswell, 48 id. 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

Moreover, 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 does not permit parties to raise new claims or defenses 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).  Similarly, additional submissions should not raise new issues or introduce new exhibits that are not relevant to the pleadings (Appeal of Casey-Tomasi, 57 Ed Dept Rep, Decision No. 17,301; Appeals of Gonzalez, 48 id. 405, Decision No. 15,898).  Respondent seeks permission to file a sur-reply, citing the voluminous information in petitioner’s reply.  Petitioner, in turn, seeks permission to respond to the sur-reply.  Because I have not accepted those portions of petitioner’s reply which attempt to raise assertions that should have been in the petition, it is unnecessary to consider respondent’s sur-reply or any subsequent submissions.  However, I have considered petitioner’s affidavit dated October 18, 2021, as it represented petitioner’s first opportunity to respond to any assertions made by Ms. Wilson-Thevanesan.[3]

Turning to the merits, a board of education has the power to create and abolish positions “for purposes of economy or efficiency” (Matter of Cohen v Crown Point Cent. Sch. Dist., 306 AD2d 732, 733 [3d Dept 2003]; see generally Education Law §§ 1709 [16], [33]; 1804 [1]; Matter of Young v Board of Educ. of Cent. School Dist. No. 6, Town of Huntington, 35 NY2d 31, 34 [1974]).  As relevant here, Education Law § 3013 (3) (a) provides that

[i]f an office or position is abolished ... the person filling such position at the time of its abolishment or consolidation shall be placed upon a preferred eligible list [PEL] of candidates for appointment to a (present or future) vacancy ... in an office or position similar to the one which such person filled ....  The persons on [the PEL] shall be reinstated or appointed to such vacancies ... in the order of their length of service in the system at any time within seven years from the date of abolition or consolidation of such office or position.

Unlike tenure areas for educators whose positions have been certified as educational in nature, there are no clearly defined guidelines or parameters for 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 Board of Educ. of Vestal Cent. School Dist., 61 NY2d 149, 151 [1984]; Appeal of Pronti, 54 Ed Dept Rep, Decision No. 16,698; Appeal of Caruana, 41 id. 227, Decision No. 14,671).  “As tenure areas narrow[,] seniority rights become less meaningful.  As tenure areas broaden, seniority rights take on greater significance ...” (Matter of Boyer v Board of Educ., W. Seneca Cent. School Dist., 132 Misc 2d 282, 285 [Sup Ct, Onondaga County 1986]).

The Commissioner of Education has consistently held that one whose position is abolished is entitled to recall to a new position only if both positions are in the same tenure area (e.g. Appeal of Gallagher, 59 Ed Dept Rep, Decision No. 17,858; Appeal of Schwarz, 28 id. 101, Decision No. 12,045).  This interpretation has been upheld by the courts (Matter of Brown v Board of Educ., Morrisville-Eaton Cent. School Dist., 211 AD2d 887 [3d Dept 1995]; Matter of Kelley v Ambach, 83 AD2d 733 [3d Dept 1981]).

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she 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).

Petitioner does not dispute that:  (1) respondent established the narrow, specific tenure areas at issue herein “consciously” and “by design,” as was its right (Matter of Bell, 61 NY2d at 152); (2) the assistant superintendent and deputy superintendent positions are in different tenure areas; and (3) the Commissioner has held that administrative positions may only be considered “similar” if they are within the same tenure area.  She nevertheless argues that one cannot, or should not, consider tenure area in conducting a similarity analysis.  Petitioner argues that this rule would allow school districts to “excess the position of a tenured administrator, ... recreate the position with 99% similarity under a different name, and [then] designate that new position in a different tenure area ....”

Initially, I am unpersuaded by petitioner’s argument that “many court decisions have concluded that identity of tenure area is not an appropriate requirement for recall analysis.”  Although two of the cases cited by petitioner state that an individual need not be “tenured” to be eligible for re-employment, the use of “tenured” in this context refers to those who have acquired tenure (see Matter of Leggio v Oglesby, 69 AD2d 446, 448 [2d Dept 1979] [“The phrases ‘tenure’ and ‘tenure area’ are terms of art which signify specific, albeit imprecise, conditions of employment”]).  The concept of tenure, unlike that of tenure area, has no bearing on the issues raised in this appeal (Matter of Levy v Board of Educ. of Freeport Union Free School Dist., 275 AD2d 459, 459 [2d Dept 2000], lv denied 95 NY2d 769 [2000]; Matter of Cole v Board of Educ., S. Huntington UFSD, 90 AD2d 419, 428 [2d Dept 1982], affd 60 NY2d 941 [1983]).

Additionally, Matter of Leggio v Oglesby (69 AD2d 446 [2d Dept 1979]) is distinguishable as its holding—that individuals must be reappointed from a PEL irrespective of tenure area—is inextricably connected to teacher tenure, the areas of which are identified in Part 30 of the Commissioner’s regulations (see Matter of Leggio, 69 AD2d at 448 [“tenure is ... a means of isolating areas of instruction[,] providing the teacher with an opportunity to advance in a particular sphere of educational expertise ... [g]enerally, the duties performed in one tenure area are not similar to the duties performed in a different tenure area ....”]).[4]  In any event, more recent Appellate Division precedent supports the consideration of administrative tenure area as a prerequisite for reinstatement (Matter of Brown, 211 AD2d at 888; Matter of Kelley, 83 AD2d at 733).

Nevertheless, petitioner’s concerns necessitate clarification of the role of tenure area with respect to administrative positions.  The tenure area requirement for recall from the PEL has a rational basis insofar as the existence of two areas presupposes that the district has determined that the positions assigned therein are dissimilar (Greenspan v Dutchess Cty. Bd. of Coop. Educ. Servs., 96 AD2d 1028, 1029 [2d Dept 1983] [“Administrative tenure areas can be defined according to the similarity of duties and skills entailed in respective positions”]; Matter of Chazanoff v Board of Educ. of City School Dist. of City of Rochester, 58 AD2d 1002 [4th Dept 1977]).  However, a person seeking recall is not foreclosed from submitting proof that a district does not, in fact, consider two administrative tenure areas to be separate (Matter of Brown, 211 AD2d at 889 [petitioner failed to prove “personnel interchange[s]” between two administrative tenure areas or submit other evidence which would show that the district “did not consider the two areas separate and distinct”]).  Therefore, I find that a difference in administrative tenure areas creates a presumption of dissimilarity that may be rebutted by the person seeking recall.[5]

Petitioner, however, has not submitted any evidence to rebut this presumption.  Petitioner merely alleges that the two positions are similar but presents no evidence that respondent does “not consider the two areas separate and distinct,” such as “personnel interchange[s]” between the areas (Matter of Brown, 211 AD2d at 889).  Consequently, I find that the appeal must be dismissed as the assistant superintendent and deputy superintendent positions are in different tenure areas.

Even if the positions were in the same tenure area, petitioner has failed to prove that the duties of the two positions are similar enough to satisfy the requirements of Education Law § 3013 (1).  In an affidavit, petitioner details the similarities in the duties of the two positions based upon published job postings and her own experience in the assistant superintendent position.  In response, respondent offers several affidavits explaining the differences between the two positions.  Based on the record before me, I find that the deputy superintendent position is a higher-level administrative position with a broader scope of duties than the assistant superintendent position.  While both positions have at least some district-wide responsibilities for educational programming, the deputy superintendent has numerous, additional duties related to fiscal sustainability and facilities planning.  Moreover, the scope of community engagement required by the deputy superintendent position is much broader than the community engagement petitioner describes in connection with the assistant superintendent position. 

Given the disposition of this appeal, I need not address the parties’ remaining contentions.

THE APPEAL IS DISMISSED.

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