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Thursday, August 21, 2014

Determining if two positions are similar within the meaning of Education Law §3013 in a layoff situation


Determining if two positions are similar within the meaning of Education Law §3013 in a layoff situation
Appeal of Arnold Goldberg, Decisions of the Commissioner of Education, Decision No. 16,635

Arnold Goldberg held a tenured appointment as Director of Personnel in the tenure area of  "Director of Personnel." The School Board subsequently created a new position, Assistant Superintendent for Human Resources and Professional Development, and appointed Dr. Marlene Zakierski to fill this new position  effective August 1, 2005. On August 16, 2005, the Director of Personnel position was abolished and Mr. Goldberg was "excessed" effective August 26, 2005, and his name was placed on a “preferred eligible list “

Mr. Goldberg challenged the failure of the School District to appoint him to the newly created Assistant Superintendent position.** The then Commissioner of Education issued a decision dismissing the appeal, holding that Mr. Goldberg was not entitled to an appointment to the Assistant Superintendent position.  Subsequently Supreme Court vacated the Commissioner’s decision and remanded the matter to the School District for a hearing pursuant to Education Law §3013 on the sole issue of whether or not the two positions were similar.

Following five days of hearing, the School Board issued a decision finding that “the newly created position of Assistant Superintendent for Human Resources and Professional Development was not similar to [Mr. Goldberg’s] position of Director of Personnel,” whereupon Mr. Goldberg initiated a second CPLR Article 78 proceeding against the School District seeking to set aside the School District’s decision.  Supreme Court, however, ruled that the Commissioner of Education has primary jurisdiction over this matter and Mr. Goldberg initiated the instant appeal with the Commissioner of Education.

Mr. Goldberg asserted that more than 50 percent of the duties he performed as Director of Personnel were being performed by the incumbent of the newly created position of Assistant Superintendent* and thus, he argued, he should have been appointed to the position pursuant to Education Law §3013 and asked that the Commissioner set aside the School District’s decision that the two position were not similar “as arbitrary and capricious” and direct the School District to appoint him to the Assistant Superintendent position with back pay, seniority and all other benefits. 

The Commissioner ruled that Mr. Goldberg’s appeal concerning “the district’s failure to recall him from the preferred eligibility list” had to be dismissed for failure to join a necessary party. The Commissioner noted that although Mr. Goldberg named “Ronald O. Grotsky” as a respondent in the caption of his appeal, the record indicates that Marlene Zakierski had been appointed by School Board to the Assistant Superintendent position. As Dr.Zakierski’s rights could be adversely affected were the decision in this appeal in Mr. Goldberg’s favor because “she was not named or served with a notice of petition or petition,” he “must dismiss the appeal for failure to join necessary parties.”

Further, the Commissioner said that Mr. Goldberg failed to meet his burden of demonstrating that he was entitled to the Assistant Superintendent position.

In order for an individual to be entitled to appointment to a vacant position from a preferred list, explained the Commissioner, the position must be similar to that of his or her former position. The test to ascertain whether the two positions are “similar” is whether more than 50 percent of the duties of the vacant position are those which were performed by individual in his or her former position and the two positions must be in the same tenure area.

Based on the record before him, the Commissioner said that he found that the two positions were in different tenure areas, noting that the School Board had approved the probationary appointment of an individual to an Assistant Superintendent position in the tenure area of “Assistant Superintendent of Human Resources and Professional Development" while Mr. Goldberg had been granted tenure in the administrative tenure area of “Director of Personnel.”

The Commissioner also noted that “even if the two positions were in the same tenure area, the appeal must be dismissed because a review of the job descriptions for both positions and the record before him “reveals that, within the meaning of Education Law §2510(3), [Mr. Goldberg’s] position as Director of Personnel was not similar to the position of Assistant Superintendent for Human Resources and Professional Development.”

The Commissioner then dismissed Mr. Goldberg's appeal.

* Mr. Goldberg also asserted that the hearing provided by the School Board did not meet the due process requirements of the Fifth and Fourteenth Amendments of the United States Constitution and, in addition, he alleged several violations of the Open Meetings Law and the Freedom of Information Law. The Commissioner rejected Mr. Goldberg’s due process claims and with respect to his Open Meetings Law and Freedom of Information claims noted that New York State Supreme Court has exclusive jurisdiction with respect to adjudicating such claims and any “alleged violations thereof may not be adjudicated in an appeal to the Commissioner.”

** The test applied is whether 50% or more of the duties being performed by the incumbent of the newly created position were previously being performed by the incumbent of the position that had been abolished not whether 50% or more of the duties of the abolished position were being performed by the incumbent of the new position. For example, the incumbent of the new position could have assumed all of the duties of the abolished position yet those duties could be less than 50% of all of the duties assigned to the incumbent of the new position.

The Commissioner’s decision is posted on the Internet at:

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The Layoff, Preferred List and Reinstatement Manual - a 645 page e-book reviewing the relevant laws, rules and regulations, and selected court and administrative decisions. For more information click on http://booklocker.com/books/5216.html
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Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

A Reasonable Penalty Under The Circumstances at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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