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Decision No. 18,422

Appeals of MICHAEL MUSIC from action of the Board of Education of the South Glens Falls Central School District and Kristine Orr, as superintendent, regarding an involuntary transfer.

Decision No. 18,422

(June 26, 2024)

Girvin & Ferlazzo, PC, attorneys for respondent, Ryan P. Mullahy, Esq., of counsel

ROSA., Commissioner.--In two separate appeals (“Music I” [Appeal No. 21,948] and “Music II” [Appeal No. 21,978]), petitioner challenges decisions by the Board of Education of the South Glens Falls Central School District (“board” or “respondent”) and superintendent Kristine Orr (“superintendent”) (collectively, “respondents”) to transfer him to another school in respondent’s district.  Because the appeals arise out of similar facts and circumstances and present similar issues of law, they are consolidated for decision.  Music I must be dismissed, and Music II must be sustained in part.

Petitioner has been employed by the district since 2006.  He received tenure as a physical education teacher in 2009.  From 2006 until June 2023, petitioner taught physical education at the high school in respondent’s district.

In June 2022, the board placed petitioner on paid administrative leave while it investigated a complaint against him.  That investigation resulted in a counseling memorandum dated August 2, 2022 being placed in petitioner’s file.  This series of events formed the basis of an appeal which is the subject of a separate decision that is being issued herewith (Appeal of Music, 63 Ed Dept Rep, Decision No. 18,421).  As relevant here, petitioner returned to his assignment at the high school for the 2022-2023 school year.

On June 8, 2023, petitioner was verbally informed of his reassignment to a physical education teaching position at an elementary school within respondent’s district for the 2023-2024 school year.  The following day, petitioner received a letter from the superintendent informing him of same.   

On June 12, 2023, petitioner received a counseling memorandum dated June 7, 2023, from the superintendent.  The memorandum concerned an “interaction” between petitioner and a student in late May 2023.  In the memorandum, the superintendent described petitioner’s conduct during the interaction as “unacceptable” and directed petitioner to refrain from discussing certain topics unrelated to the physical education curriculum.  A copy of the memorandum was added to petitioner’s personnel file.

Thereafter, petitioner commenced Music I challenging his involuntary transfer and requested a stay of same.  By order dated July 24, 2023, the Commissioner stayed the transfer until the board’s August 14, 2023 meeting, at which the superintendent was directed to report the proposed transfer to the board for consideration pursuant to Education Law § 1711 (2) (e).

On August 14, 2023, the board convened for its regularly scheduled monthly meeting.  During the public comment portion of the meeting, petitioner spoke in opposition to the proposed transfer.  The board, joined by the superintendent, then went into executive session.  After returning to open session, the board approved the proposed transfer of petitioner for the 2023-2024 academic year.

By letter dated August 16, 2023, the superintendent advised petitioner of the board resolution approving his transfer.  Music II ensued.  Petitioner’s request for interim relief seeking a stay of the transfer was denied on September 6, 2023.

In both appeals, petitioner asserts that the superintendent’s action in involuntarily transferring him from the high school to the elementary school was disciplinary in nature.  Petitioner further alleges that the transfer was retaliation for the Education Law § 310 appeal that he filed in May 2023 concerning a separate, unrelated matter.[1]  Petitioner additionally asserts that his involuntary transfer violates the terms of the collective bargaining agreement (“CBA”) governing his employment with respondents.  Petitioner requests that the transfer be annulled, that he be reinstated to his former position, that any reference to the transfer be removed from his personnel file, and that respondent grant him a name-clearing hearing.

Respondents assert that the appeals must be dismissed for failure to join necessary parties.  Respondents further assert that the Commissioner lacks jurisdiction over petitioner’s claim as it is governed by the terms of a CBA between the board and the South Glens Falls Faculty Association.  Respondents alternatively argue that petitioner has failed to state a claim for relief insofar as the superintendent acted within her authority to transfer petitioner and her justification for doing so was reasonable.  

Before reaching the merits, I must address a procedural matter.  Music 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 [1980]).  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). 

In Music I, petitioner appeals the June 9, 2023 letter from the superintendent notifying him of his transfer to the elementary school.  Thereafter, respondents issued a second letter to petitioner, dated August 16, 2023, reflecting the board’s vote at the August 2023 board meeting.  Because the June 9, 2023 letter was superseded by the August 16, 2023 letter, there is no longer a live controversy in Music I.  Accordingly, the first appeal is dismissed as moot.

Next, respondents assert that the appeals must be dismissed for failure to join necessary parties.[2]  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 J.S., 49 Ed Dept Rep 445, Decision No. 16,077; Appeal of Valentino, 48 id. 254, Decision No. 15,851; Appeal of Johnson, 46 id. 432, Decision No. 15,555).  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 Valentino, 48 Ed Dept Rep 254, Decision No. 15,851; Appeal of Samuel, 45 id. 418, Decision No. 15,371).

Respondent contends that petitioner failed to join Michael Leonbruno and Anthony Kenny, the two teachers whom respondents appointed to replace petitioner and teach physical education at the high school.  However, petitioner’s appeal in Music II includes affidavits of service stating that both teachers were served with copies of the petition.  Respondents’ submissions do not contain any evidence to rebut the presumption of service created by petitioner’s affidavits (see e.g. Appeal of M.A., 61 Ed Dept Rep, Decision No. 18,070 [citing Kihl v Pfeffer, 94 NY2d 118, 122 (1999), which states that “mere denial of receipt” is insufficient to rebut a presumption of service]).  Further, as respondents acknowledge, the petition states on the title page that Mr. Leonbruno and Mr. Kenny are “[n]ecessary [p]arties.”  Thus, assuming without deciding that petitioner was required to join these teachers, I find that petitioner substantially complied with the joinder requirements set forth above.

Turning to the merits, a board of education has broad authority to transfer teachers to assignments consistent with their certification and tenure areas.  This authority, however, is not unlimited.  The Court of Appeals has held that this power may be modified by a “contractual provision” and cannot be made in “bad faith” (Matter of Adlerstein v Board of Educ. of City of N.Y., 64 NY2d 90 [1984]; see also Matter of Lefkowitch v Nyquist, 29 Misc.2d 14 [Sup Ct, Albany County 1961]).[3]  The Commissioner has held that the “use[] [of] reassignment as a means of discipline” may constitute bad faith (Appeal of Doe, 58 Ed Dept, Rep, Decision No. 17,627; see Appeal of Irving, 39 Ed Dept Rep 761, Decision No. 14,373).  “Bad faith” is defined as “[d]ishonesty of belief, purpose, or motive” (Appeals of Prisinzano, 62 Ed Dept Rep, Decision No. 18,195, citing Black’s Law Dictionary [11th ed. 2019]).

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 argues that respondents transferred his teaching assignment as retaliation for his appeal to the Commissioner and/or dissatisfaction with events giving rise to the June 2023 counseling memorandum.  As evidence, petitioner argues that, as in Appeal of Irving, the superintendent issued a counseling letter—a “substantial step toward disciplinary action”—the day before advising him of a transfer from his assignment of 17 years (Appeal of Doe, 58 Ed Dept, Rep, Decision No. 17,627; Appeal of Irving, 39 id. 761, Decision No. 14,373).[4]  Petitioner further asserts that respondents knew of the vacancy at the elementary school since January 2023.  Moreover, petitioner contends, and respondents do not dispute, that he was not given a reason for his transfer during the June 8 conversation or in the June 9 letter.  Petitioner also argues that the transfer was made without regard to his rights under the CBA.[5]  Section 3, subsection C of the CBA provides that involuntary transfers will only be made when “when necessary” and that due regard shall be given “a teacher’s area of competence, major and/or minor fields of study, certification, quality of teaching performance[,] and length of service” in the district.

In response, respondents assert that petitioner’s transfer was made in the “best interests of the district” because one of the teachers selected to replace petitioner, Mr. Leonbruno, coached two varsity sports, thereby allowing him to draw upon and further develop “the strong working relationships that invariably develop between a coach and their athletes.”

This justification does not withstand scrutiny.  Petitioner asserts, and respondents do not dispute, that his replacements, Mr. Leonbruno and Mr. Kenny,[6] did not possess high school physical education teaching experience at the time of the transfer.  I am also unpersuaded by the “pedagogical value” in appointing Mr. Leonbruno to teach at the high school level based upon his coaching background because:  (1) petitioner also coached a high school level sport;[7] (2) Mr. Leonbruno’s primary certification area is in business and marketing;[8] and (3) respondent’s analysis fails to address how, or whether, petitioner’s skills were suited toward teaching in an elementary school.  Moreover, there is no evidence that respondents considered several of the factors in its CBA in connection with the transfer, particularly petitioner’s “length of service” with the district (compare Appeal of Williams, 57 Ed Dept Rep, Decision No. 17,298, mod 57 id., Decision No. 17,386). 

Taken together, I conclude that respondent acted in bad faith when it issued a counseling memorandum and transferred petitioner a day later (Appeal of Irving, 39 Ed Dept Rep 761, Decision No. 14,373).  While respondents’ precise motivation remains unclear, petitioner has sufficiently proven that respondents’ proffered “purpose [] or motive” was pretextual (Appeal of Rickson, 62 Ed Dept Rep, Decision No. 18,211, affd Matter of Albany-Schoharie-Schenectady-Saratoga BOCES v Rosa, et al., Index No. 900037-23 [Sup Ct, Albany County, Jul. 27, 2023]).  As such, petitioner’s transfer must be annulled (Appeal of Irving, 39 Ed Dept Rep 761, Decision No. 14,373).

Respondents’ attempts to distinguish Appeal of Irving are unpersuasive.  First, the administrator who was the subject of that appeal was not reassigned to a different tenure area.  While she was demoted from principal to assistant principal, both positions were encompassed within the tenure area of “Administrator K-12.”  Additionally, while the administrator was made the “subordinate” of another employee, this was only one of several factual findings that supported a finding that the transfer was disciplinary in nature.  Put another way, a demotion is not a prerequisite for a finding of improper motivation.

However, I decline to expunge the counseling memorandum from petitioner’s personnel file.  In Appeal of Irving, the Commissioner found that the administrator’s counseling memorandum, demotion, and transfer were part of “a single process” that, collectively, “constitute[d] improper discipline.”  With specific respect to the counseling memorandum, the Commissioner observed that “all the materials submitted by respondents ... [we]re directed toward demonstrating misconduct on the part of petitioner, and [we]re, therefore, exactly the type of proof that respondents would be expected to introduce in a hearing pursuant to Education Law § 3020-a.”  The record does not support such findings here.  While the timing of the counseling memorandum is relevant to assessing petitioner’s transfer, petitioner has failed to prove that the memorandum, in and of itself, was disciplinary in nature (see Holt v Board of Educ., Webutuck Cent. Sch. Dist., et al., 52 NY2d 625 [1981]).

Finally, petitioner is not entitled to a name-clearing hearing.  A public employee is only entitled to such a hearing when his or her “employer creates and disseminates a false and defamatory impression about the employee in connection with ... termination” (Codd v Velger, 429 US 624, 628 [1977]; see also Matter of Lentlie v Egan, 61 NY2d 874, 875 [1984]).  Petitioner was not terminated and there is no evidence in the record that respondents publicly made any defamatory or stigmatizing comments about petitioner in connection with his involuntary transfer. 

I have reviewed the parties’ remaining contentions and find them to be without merit.


IT IS ORDERED that the transfer of petitioner from the position of high school physical education teacher to elementary school physical education teacher be annulled, without prejudice to any further action that may be appropriate under the terms of this decision.



[1] As indicated above, the decision in that appeal is No. 18,421.


[2] Respondents argue that both appeals should be dismissed on this basis.  However, because petitioner’s appeal in Music I is moot, I need only address this argument as it relates to petitioner’s appeal in Music II.


[3] I have previously held that three other grounds articulated by the Court of Appeals in Matter of Adlerstein—“malice, bad faith, … or prejudice”—can be subsumed within the concept of “bad faith.”  The fourth, “gross error,” presumably refers to significant factual or procedural error, which is not at issue here (Appeals of Prisinzano, 62 Ed Dept Rep, Decision No. 18,195 at n.2).


[4] Respondents indicate that it intended to address the issue with petitioner earlier, but that this meeting was postponed at petitioner’s request.  Even if true, it would not affect the outcome of this appeal.


[5] Respondents correctly observe that the Commissioner has declined to entertain alleged violations of CBA provisions for the reasons articulated in Bd. of Educ., Commack Union Free Sch. Dist. v. Ambach, 70 NY2d 501 (1987).  However, given my jurisdiction over petitioner’s challenge to his transfer, I find it appropriate to examine the above CBA provisions for the purpose of evaluating respondents’ intent.


[6] While petitioner alleges that Mr. Kenny was assigned to teach one or more sections of physical education at the high school because of petitioner’s transfer, respondent merely states that petitioner’s transfer “impacted” Mr. Kenny’s teaching assignment.  Weighing this evidence, I credit petitioner’s assertion that Kenny replaced petitioner’s high school teaching responsibilities to some degree.


[7] The parties’ disagreement over whether petitioner served as a “coach” appears to be based upon whether the high school trap shooting team is considered a “club” or a “sport.”  Other than this disagreement, the district’s high school coaching needs and the extent to which petitioner or Mr. Leonbruno were qualified to meet those needs are unexplored in the record.


[8] Mr. Leonbruno only obtained a supplementary certificate to teach physical education in June 2022.  This information is contained in the Department’s TEACH (“TEAcher Certification Help”) database, “a web-based teacher certification database, online application, and teacher certification system” (Appeal of Campbell, 61 Ed Dept Rep, Decision No. 18,014; see 8 NYCRR 276.6).