Decision No. 18,195
Appeal of JOSEPH PRISINZANO from action of the Board of Education of the Jericho Union Free School District and Henry Grishman in his capacity as superintendent regarding a collective bargaining agreement.
Appeal of JOSEPH PRISINZANO from action of the Board of Education of the Jericho Union Free School District and Henry Grishman in his capacity as superintendent and David Cohen in his capacity as high school co-principal regarding a personnel matter.
Decision No. 18,195
(September 13, 2022)
School Administrators Association of New York State, attorneys for petitioner in Appeal I, Constantine F. DeStefano, Esq., of counsel
Law Office of Louis D. Stober, Jr., LLC, attorneys for petitioner in Appeal II, Louis D. Stober, Jr., Esq., of counsel
Ingerman Smith L.L.P., attorneys for respondent, Steven A. Goodstadt, Esq., of counsel
Heilig Branigan, LLP, attorneys for respondent David Cohen, Edward G. Heilig, Esq., of counsel
ROSA, Commissioner.--In two separate appeals, petitioner challenges determinations of the Board of Education of the Jericho Union Free School District (“respondent”) concerning a collective bargaining agreement (“CBA”) and his assignment to the position of co-principal on special assignment. He joins Henry Grisham in his capacity as superintendent (“superintendent”) and David Cohen in his capacity as high school co-principal. Because the appeals arise out of the same facts and circumstances and present similar issues of fact and law, they are consolidated for decision. The appeals must be dismissed.
Petitioner has been employed by respondent since 2005. He previously served as respondent’s high school principal. In a 2014 settlement agreement, petitioner agreed to accept the job title of “assistant to the superintendent” while maintaining his tenure and seniority as a high school principal.
On July 1, 2019, respondent adopted a “co-principal” structure for its high school. Joan Rosenburg and Mr. Cohen served as co-principals. On June 30, 2020, Ms. Rosenburg retired. Respondent abolished the “assistant to the superintendent” position held by petitioner and assigned him to the co-principal position formerly held by Ms. Rosenburg.
On August 12, 2020, petitioner requested approval to take vacation from August 13 through 19, 2020. The superintendent approved the request so long as petitioner agreed to participate in a virtual meeting that would be scheduled for that week. The superintendent explains in an affidavit that he would not normally have granted a vacation request “so close to the start of school.” However, the superintendent made an exception for petitioner, who was caring for a relative.
On August 15, 2020, petitioner requested “an additional vacation day” to make up for the time he took to prepare for and attend additional meetings that had been scheduled during his vacation. Petitioner sought the benefit of a provision of the CBA between the Jericho Education Administrators’ Association and respondent. That provision provides that administrators who are “called in by the superintendent to work during any vacation period … shall receive vacation time equal to work time.” This bonus vacation time “can be taken during the school calendar year subject to the superintendent’s approval.” If unused, bonus vacation time is paid to the administrator “at the rate of 1/240 of his/her salary for each day.”
The superintendent denied petitioner’s request to take an additional vacation day. He informed petitioner that, if he was unable to attend meetings due to familial obligations, he should advise the district that he cannot attend.
On August 21, 2020, petitioner requested two days of bonus vacation time. This represented, he argued, the time spent working during his vacation. The superintendent denied petitioner’s request on September 8, 2020.
Petitioner grieved the superintendent’s determination. The CBA imposes a three-step grievance procedure, which allows a party to present his or her grievance to the superintendent, the board, and, finally, the Commissioner of Education. At the first level, the superintendent awarded petitioner four hours of bonus vacation time. Petitioner appealed this determination to respondent, which awarded petitioner two bonus vacation days. Appeal I ensued (“Prisinzano I ”).
Thereafter, petitioner alleges that he was subjected to a series of retaliatory measures, including the relocation of his office (twice) and his “demotion” to the position of “Co-Principal on Special Assignment,” an assignment to which he did not consent. Appeal II ensued (“Prisinzano II”).
In Prisinzano I, petitioner argues that the “plain meaning” of the CBA entitled him to pay, not bonus vacation leave, for the two days he worked in August 2020. He seeks an order directing respondent to pay him “at his per diem rate of pay with interest … from the date of the District’s initial breach” of the CBA.
Prisinzano I must be dismissed as moot. The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts that no longer exists due to the passage of time or a change in circumstances (Appeal of Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of a Student with a Disability, 48 id. 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; see Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714 ). Where the Commissioner can no longer award a petitioner meaningful relief on his or her claims, no live controversy remains and the appeal must be dismissed (Appeal of R.B., 57 Ed Dept Rep, Decision No. 17,394; Appeal of N.C., 40 id. 445, Decision No. 14,522).
Respondent awarded petitioner two vacation days in its Level II grievance determination. While petitioner argues that these days should have been converted to their cash value as of September 2020, these days must have been used or cashed out prior to September 2021, which has passed. Therefore, petitioner has received all of the relief to which he is entitled and the appeal must be dismissed.
In Prisinzano II, petitioner argues that he was assigned to a position outside of his tenure area without consent. Petitioner additionally asserts that his reassignment was effectuated in bad faith and constitutes discipline that was unlawfully imposed without the procedural protections of Education Law § 3020-a. For relief, petitioner seeks restoration “to his position and duties as high school principal/co-principal” and a disciplinary hearing that comports with Education Law § 3020-a.
Respondents argue that many of petitioner’s claims are untimely. On the merits, respondents contend that petitioner continues to work within his tenure area as co-principal and has retained all of the rights to which he is entitled.
First, I must address a procedural matter. Petitioner submitted an affidavit with his memorandum of law. A memorandum of law should consist of arguments of law (8 NYCRR 276.4). It may not be used to add belated assertions or exhibits not included in the pleadings (Appeal of Johnson, 57 Ed Dept Rep, Decision No. 17,328; Appeal of Bruning and Coburn-Bruning, 48 id. 84, Decision No. 15,799). Petitioner has failed to explain why his assertions in the affidavit could not have been submitted with the petition or reply. Therefore, I have refused to consider it.
On the merits, petitioner failed to meet his burden of proving that he was transferred outside of his tenure area. Absent consent, a professional educator may not “be assigned to devote a substantial portion of his [or her] time in a tenure area other than that in which he [or she] has acquired tenure” (8 NYCRR 30-1.9 [c]). 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 ; 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]).
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).
The parties agree that petitioner holds tenure within the area of “high school principal.” The question, then, is whether his duties as “co-principal on special assignment” are encompassed within this tenure area. Petitioner has failed to produce any evidence to suggest that they do not. While petitioner identifies tasks that, in his view, constitute “[a] majority of a [p]rincipal’s job” and asserts that “[m]any of [his] new duties were previously performed by other bargaining unit members, or persons not in the bargaining unit, who did not occupy the title of ” high school principal or high school co-principal, he did not submit any proof thereof, such as job descriptions or affidavits. Respondent denies that petitioner’s new tasks fall outside of his tenure area, asserting that petitioner remains tenured as “high school principal” and “is still accruing seniority in his tenure area ….” Therefore, petitioner’s contention that he was transferred outside his tenure area is without merit (see Appeal of Caputo, 57 Ed Dept Rep, Decision No. 17,404; Appeal of Dunshee, 44 id. 415, Decision No. 15,216).
Petitioner’s arguments that he was transferred in bad faith and that such transfer constituted discipline similarly lack merit. Respondent, by itself or through its superintendent, possesses the power to transfer teachers and administrators (Education Law §§ 1709, 1711  [e]; see Appeal of Lander, et al., 42 Ed Dept Rep 201, Decision No. 14,822 [involving central school district, but relying upon Education Law § 1709 (33), applicable to a union free school district through principle of devolution]; Appeal of Irving, 39 id. 761, Decision No. 14,373). The Court of Appeals has held that a superintendent has the “absolute” authority to transfer teachers from one school to another “in the absence of contractual provision ... or of malice, bad faith, gross error or prejudice” (Matter of Adlerstein v Board of Educ. of City of N.Y., 64 NY2d 90 ; see also Matter of Lefkowitch v Nyquist, 29 Misc 2d 14 [Sup Ct, Albany County 1961]; Appeal of Williams, 57 Ed Dept Rep, Decision No. 17,298, affd sub nom. Matter of Board of Educ. of Poughkeepsie City School Dist. v Elia, Sup Ct, Albany County, Nov. 1, 2018, Fisher, J.; Matter of McLernon, 16 id. 13, Decision No. 9,280; Matter of Woicik, 2 id. 171, Decision No. 7,019). These principles apply to all members of the teaching staff, including administrators.
Petitioner alleges that the following actions demonstrate respondents’ bad faith:
- In November 2021, he was involuntarily transferred to the position of “co-principal on special assignment”;
- The superintendent told him, in 2020, that “in any matters of disagreement” between him and the other co-principal, Mr. Cohen, petitioner “would be subordinate to Mr. Cohen.” Thereafter, petitioner was not “consulted [or] involved in high school decision making”;
- Mr. Cohen told petitioner, at an unspecified time, “that he was happily working to keep Petitioner as a ‘pariah’ for his own personal and professional gain”;
- Petitioner’s office was relocated twice during the 2021-2022 school year;
- A teachers’ union official threatened to disclose “unfounded allegations against Petitioner dating back at least a decade.”
The superintendent and Mr. Cohen deny the remarks attributed to them, as well as any insinuation that petitioner was made “subordinate” to Mr. Cohen. Respondent further denies the remarks attributed to the union official.
Respondents also produced a reasonable explanation for petitioner’s office moves. Petitioner was initially moved to accommodate a newly-hired teacher in the music department. As the superintendent explains, “[t]he music department office was located directly across” from petitioner’s former office. The second move was offered in connection with petitioner’s transfer to co-principal on special assignment; it placed petitioner “in the High School [and] near central administration ….” While respondent has not offered a detailed rationale for the second move, this does not amount to proof that, as petitioner suggests, respondent intentionally placed petitioner “in the immediate vicinity” of two employees with whom he had experienced conflict.
Given respondents’ proof in opposition to petitioner’s claims, I find that respondent has not acted in bad faith or imposed “discipline” for which a disciplinary hearing was required (Appeal of Doe, 58 Ed Dept Rep, Decision No. 17,627 [concluding, after analyzing Holt v Board of Educ. of Webutuck Cent. School Dist. and relevant decisions of the Commissioner, that a transfer can be considered disciplinary only if effectuated in bad faith]). The authority cited by petitioner analyzing whether a letter issued to a teacher constituted an administrative reprimand or informal counseling is inapposite, as petitioner was not issued any such letter.
To the extent they are not specifically addressed herein, petitioner’s remaining contentions are without merit.
THE APPEALS ARE DISMISSED.
END OF FILE
 To the extent petitioner seeks interest, “decisions of the Commissioner have consistently denied such recovery on the basis that there is no authority to award interest in appeals brought pursuant to Education Law § 310” (Appeal of Riendeau, 31 Ed Dept Rep 240, Decision No. 12,631).
 I find that three of the concepts articulated by the Court of Appeals in Matter of Adlerstein—"malice, bad faith, … or prejudice”—can be subsumed within the concept of “bad faith,” defined by Black’s Law Dictionary as “[d]ishonesty of belief, purpose, or motive (11th ed. 2019). The fourth, “gross error,” presumably refers to significant factual or procedural error, which is not at issue here.
 Petitioner has not explained how the conduct of union officials can or should be imputed to respondents.
 To the extent that petitioner claims he was subject to retaliation, he provides no evidence that he was engaged in a protected activity (Forrest v Jewish Guild for the Blind, 3 NY3d 295, 330, n 11 ) and has not identified an adverse action to which he was subjected. Changes in work duties (Ziyan Shi v New York Dept. of State, Div. of Licensing Servs., 393 F Supp 3d 329, 338 [SD NY 2019]) or office assignments are “not ... the type of actions that would ... deter a reasonable employee from engaging in protected activity” (Ballard v Children’s Aid Socy., 781 F Supp 2d 198, 208 [SD NY 2011]; see generally Shukla v Deloitte Consulting LLP, US Dist Ct, SD NY, 1:19 civ 10578, Mordue, J., 2020).