Tuesday, December 15, 2015

A school administrator's transfer to another position within his or her tenure area at a lower salary as the result of a reorganization held not a disciplinary action


A school administrator's transfer to another position within his or her tenure area at a lower salary as the result of a reorganization held not a disciplinary action
Appeal of Charles R. Soriano Decisions of the Commissioner of Education, Decision #16,849

Charles R. Soriano, a tenured administrator was employed in the district as an assistant superintendent of schools until he was transferred, within his tenure area of “Administrator,” to the position of middle school principal.

Soriano had initially entered into an Employment Agreement [Agreement] with the school board in 2003 as assistant superintendent. The Agreement fixed his salary and benefits for a four-year period. 

This Agreement was subsequently amended by addenda in 2006, 2007, and 2010, with the 2010 Agreement including an extension of its term through July 1, 2012.  Together with the addenda, the Agreement included a salary schedule with annual increases as well as several other benefits tied to Soriano’s salary such as a deferred tax annuity contribution by the district, life insurance in the amount of three and one half times Soriano’s annual salary, and "sell-back options" for unused vacation and sick time at a pro-rata share of Soriano’s annual salary. 

At its June 19, 2012 meeting, the school board approved a reorganization of the administrative staff within the district, including the appointment of Soriano to the position of middle school principal, effective July 1, 2012 at a lower annual salary.

Soriano wrote the school board demanding that the then-current annual rate of compensation he received as an Assistant Superintendent be continued in accordance with the “board’s legal obligations” and contended that the decrease in his compensation approved by the school board was “unreasonable and constituted discipline”  In response, a letter signed by the school board president dated June 29, 2012, advised Soriano that the school board “declined to reinstate [Soriano’s] previous salary," stating that the new salary was an adjustment which was appropriate under the circumstances, not a disciplinary action.  

Soriano appealed the school board’s decision to the Commissioner of Education. As a remedy, he asked for the restoration of his salary and benefits retroactive to July 1, 2012, “as well as salary increases at increments prescribed in the [relevant collective bargaining agreement] and any benefits exceeding those provided to him in the 2011-2012 school year.”

In its defense, the school board contended that Soriano’s salary reduction [1] was not arbitrary or capricious, rather it was reasonable under the circumstances; [2] the  Agreement relied upon by Soriano was not binding as it had expired on June 30, 2012; [3] “even if the Employment Agreement had not expired, it would be considered void as against public policy as one board cannot bind a successor board by a contract extending beyond the term of the contracting board;” and [4] the tenure statutes and broad administrative tenure area of the district do not require an administrator to retain  his or her prior salary when transferred to a new position within his or her tenure area. 

The Commissioner initially addressed two procedural issues:

1. In its memorandum of law the school board argued that Soriano failed to file a grievance as required by the relevant collective bargaining agreement and thus had failed to exhaust his administrative remedies prior to filing his appeal to the Commissioner.  The Commissioner said that the school board had failed to raise the exhaustion of administrative remedies argument in its answer as an affirmative defense and ruled that such a defense has been waived by the school district.

2. Soriano had cited Stokes v. City of Mount Vernon in a letter to the Commissioner submitted by him after filing of his memorandum of law. The Commissioner declined to consider the decision as it had been available before Soriano had submitted his memorandum of law.

Turning to the merits of Soriano’s appeal, the Commissioner said Soriano salary was not decreased as a result of dissatisfaction with his performance or as the result of a disciplinary action and the minutes of school board’s July 3, 2012 board meeting reflect board approval of Soriano’s salary without noting any disciplinary reason.

The Commissioner also noted that in Appeal of Cadicamo* the then Commissioner of Education ruled that a salary decrease such as the one Soriano experienced cannot fall below an individual’s starting salary. Cadicamo explains that “[w]hile the salary of an employee may be reduced, it may not be reduced to a point below that at which the employee was induced to join the system.” Finding that Soriano’s starting salary in 2003 was less than his current salary as middle school principal and was neither below that starting salary nor below the minimum level for a middle school principal position within the district, the Commissioner said that absent some showing that the school board’s actions were disciplinary in nature, she “cannot find that the salary reduction was contrary to law.”

Soriano also argued that in “a parallel situation under the Civil Service Law, a lateral transfer of a tenured civil service employee that results in a reduction of salary constitutes disciplinary action that may only be imposed after a hearing under Civil Service Law §75, citing Bailey v. Susquehanna Valley Cent. School Dist. Board of Educ., 276 AD2d 963 and Borrell v. County of Genesee, 73 AD2d 386. Soriano contended that “the principle of those Civil Service Law cases” should be extended to tenured teachers under the Education Law.

The Commissioner said she did not agree that the principle articulated in the cases decided under the Civil Service Law should be applied “on these facts to confer upon [Soriano] a right to retain his salary and benefits as assistant superintendent upon transfer within his tenure area,” explaining that although CSL §75 prohibits imposition of a disciplinary penalty without a hearing and Civil Service Law §75(3) specifically provides that a “reduction in grade or title” is a disciplinary penalty that can be imposed, “there is no comparable language in Education Law §§3020 or 3020-a and thus no explicit statutory requirement that a demotion with reduction in pay be considered a disciplinary action.”

Turning to Soriano’s argument that the Agreement remained in effect absent an extension or new agreement, the Commissioner said that “juxtaposed with the expiration date plainly set forth therein, [such an argument] is unpersuasive,” and the Agreement cannot bind the school board beyond its stated expiration date of June 30, 2012

As the Agreement was not binding on the school board, the Commissioner ruled that Soriano “was not entitled to the salary contained therein beyond the expiration of his employment contract” nor, on these facts, found that the setting of Soriano’s salary constituted discipline or was arbitrary or capricious.

Based on the record before her, the Commissioner held that Soriano failed to meet his burden of establishing that the salary and benefits designated by school board upon his appointment to the position of middle school principal was arbitrary and capricious or that such action was disciplinary in nature.

* Appeal of Cadicamo, 15 Ed Dept Rep 274, Decision #9,167; aff’d as Bd. of Ed., Mt. Sinai UFSD v. Nyquist, Supreme Court, Albany Co., [Cobb, J.], June 23, 1976, [Not selected for publication in the Official Reports].

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