Wednesday, February 18, 2015


Determining tenure areas for teachers and tenure areas for education administrators distinguished
Appeal of Pronti, Decisions of the Commissioner of Education, Decision No. 16,698

Due to financial concerns, the school district sought to consolidate and reorganize administrative duties, resulting in the abolishment of two administrative positions, including one in the tenure area of Director of Special Education, and the approval of the creation of an administrative position in the tenure area of CSE and CPSE Coordinator/K-12 Administrator [Coordinator]. 

The least senior in the tenure area of Director of Special Education, Michelle Pronti, was notified that her employment would be terminated and that her name would be placed on a preferred eligibility list with the right to recall in her tenure area of Director of Special Education.

Contending that the duties of her former position as a Director of Special Education were substantially similar to the duties of the newly-created Coordinator position and therefore she was entitled to be appointed to the newly created t position under her “Preferred Eligibility List [PEL] rights,” Pronti appealed the school board's decision to the Commissioner of Education. 

In support of her claim, Pronti said that that the two positions are in the same broad administrative tenure area and that the school district has not provided evidence that it has established narrow tenure areas.

The school district argued that he newly-created Coordinator position was in the tenure area of CSE and CPSE Coordinator/K-12 Administrator and that Pronti has not served any time in the narrow tenure area of the newly-created Coordinator position and thus “is not entitled to the newly-created position as she does not have tenure within that area.” 

In addition, the school district asserted that “even if the positions were in the same tenure area, [Pronti’s] former Director position and the newly-created position are not similar within the meaning of Education Law §2510 and, therefore, [Pronti] is not entitled to appointment to the newly-created position.”

The Commissioner of Education dismissed Pronti’s appeal noting that “[o]n the record before me, [Pronti] has failed to meet her burden of establishing that the duties of the newly-created position are similar to those of the Director of Special Education, for purposes of Education Law §2510(3)(a). Although there are some common management and supervisory skills required in both positions, the record ... reveals that the newly-created position involves substantially broader responsibilities, skills and experience than the Director of Special Education position....”

The Commissioner explained that:

1. It has been consistently held that, in order to establish entitlement to appointment to a new position, a petitioner must first establish that the two positions are in the same tenure area; a petitioner would therefore have no rights under Education Law §2510(3) to be appointed to the newly-created position if it is in a different tenure area that his or her former position;

2. Unlike tenure areas for educators, there are no clearly defined guidelines or parameters for administrative tenure areas; and

3. A board of education may establish one district-wide administrative tenure area or multiple defined administrative tenure areas.

Accordingly, said the Commissioner, the party seeking the benefit of a specific tenure area bears the burden of proving its existence and must demonstrate that the 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.

Further, Education Law §2510(3)(a), governing the rights of a terminated employee to re-employment, provides, in pertinent part: “If an office or position is abolished or if it is consolidated with another position without creating a new position, the person filling such position at the time of its abolishment or consolidation shall be placed upon a preferred eligible list of candidates for appointment to a vacancy that then exists or that may thereafter occur in an office or position similar to the one which such person filled 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.”

Thus, an individual whose position is abolished has reinstatement rights only if the new position is “similar” to the former position. The test to whether the two positions are “similar” is whether more than 50 percent of the duties of the new position are those which were performed by the petitioner in his or her former position and the burden of proving that a majority of the duties of the newly-created position are similar to those of his or her former position is on the petitioner.

The decision is posted on the Internet at:


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

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