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Wednesday, July 20, 2016

Educator challenges the abolition of positions and the assignment of her former teaching duties to other teachers


Educator challenges the abolition of positions and the assignment of her former teaching duties to other teachers
Decisions of the Commissioner of Education, Decision No. 16,917

Mary Farber-Peck challenged the Herkimer Central School District's Board of Education's decision to abolish the position in which she had been serving and assign the courses previously taught by her in that positition to other teachers in the school district.

Farber-Peck was initially appointed as a teacher of business and distributive education and subsequently granted tenure in the business education tenure area.*  The Board voted to abolish two positions in the business education tenure area. Presumably, Farber-Peck was one of the two least senior teachers in that tenure area. Accordingly, she was "excessed" and  her name was placed on a “preferred eligibility list.” as the result of the Board's action. 

Subsequently the Board assigned certain courses previously taught by Farber-Peck to three other teachers, Michelle Ploss, Kristin Smith and Glen Manning. 

Farber-Peck appealed the Board's action to the Commissioner of Education, alleging that the Board had “improperly abolished her position to circumvent her tenure and seniority rights.”  She also alleged that during the 2011-2012 school year, teachers were improperly assigned to teach certain business education courses, previously taught by her, outside of their respective certification areas. 

The District argued that  Farber-Peck has not met her burden of proving that it improperly abolished her position; that its assignment of certain courses previously taught by her to other teachers was permissible and that no new position has been created to which she has any clear legal right. 

The District also asserted that certain necessary parties were not joined in the action and thus Farber-Peck's appeal must be dismissed.

Clearly, 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, which requires that the 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.

Here, however, the Commissioner said that with respect to such "other parties" there is “no evidence that Ploss, Smith or Manning would be adversely affected should [Farber-Peck] prevail herein because such a result would impact only one course in their overall workload.” Further, said the Commissioner, Farber-Peck does not seek dismissal or reassignment of those teachers and there is no evidence that the employment status of those individuals would be adversely affected.  Accordingly, ruled the Commissioner, the three were not necessary parties and need not be joined as respondents and the appeal would not be dismissed on that procedural basis.

Turning to the merits of Farber-Peck’s appeal, the Commissioner said that a board of education may abolish and, or, consolidate positions for sound economic reasons, so long as the decision is not motivated by bad faith. Further, in an appeal to the Commissioner, the petitioner has the burden of demonstrating a clear legal right to the relief he or she requested and the burden of establishing the facts upon which he or she seeks relief.

The record before the Commissioner indicated that, at a budget information meeting, the Board discussed the difficult economic climate facing the District and indicated that it was necessary to make significant cuts in the school budget due to cost increases and revenue constraints, and potential staff reductions, including two business teacher positions, were discussed. 

Noting that Farber-Peck “does not claim otherwise in her petition,"  the Commissioner said that, on the record before her, Farber-Peck has not met her burden of established that Board acted in bad faith or was motivated to abolish positions for other than economic reasons and thus “there is no basis on which to conclude that [the Board] abolition of [Farber-Peck] position was improper."

In addition, the Commissioner observed that the record indicated that “no vacancy occurred and no new position was created; instead, [Farber-Peck’s] former teaching duties were redistributed … albeit to teachers who [Farber-Peck] asserts lack the proper certification."  Further, the District's interim superintendent of schools indicated that the District would not offer any courses that otherwise would have been assigned to Farber-Peck in the subsequent school year and that, consequently, Smith and Manning would not be assigned to teach those courses.** 

However, said the Commissioner, were the Board to subsequently creates a new position in the business education tenure area Farber-Peck “may, indeed, be entitled to such position by virtue of her place on the preferred eligible list of candidates.”  However, ruled the Commissioner, Farber-Peck had not demonstrated legal right to relief she requested -- an order that the Board create a new part-time position rather than a claim of a right to an appointment to a position the Board has created.

Accordingly, Commissioner dismissed Farber-Peck’s appeal.

* The Commissioner of Education noted that, pursuant to 8 NYCRR §30-1.8 (c)(4), Farber-Peck should have been appointed “to serve in a special subject tenure area co-extensive with her teaching certificate in business and distributive education.”

** See, also, Decisions of the Commissioner Number 13,433 in which the Commissioner cites Appeal of Chaney, 33 Ed Dept Rep 12; Young v. Board of Education, 41 AD2d 966, aff'd 35 NY2d 31, [distribution or reassignment of “duties” consistent with the principle of "fractionalization, i.e., the division and, or, consolidation of certain work duties formerly performed by incumbents of abolished and unfilled titles [See Jodre v Locust Val. Cent. School Dist., 2011 NY Slip Op 31076(U), [ Not officially reported].

The decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume55/d16917

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