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August 23, 2017

Abolishing a position for economic reasons


Abolishing a position for economic reasons
Decision of the Commissioner of Education, Decision No. 17,142

The Director of Athletics and Physical Education [Petitioner] was granted tenure in this tenure area in 2008. In May 2013 the superintendent of schools advised the Petitioner that his position was to be abolished for economic reasons and at its meeting held on June 20, 2013, the School Board approved the superintendent’s recommendation to abolish the Petitioner position effective June 21, 2013.  

Petitioner appealed the School Board's action to the Commissioner of Education contending that [1] his position was improperly excessed in violation of §135.4 of the Commissioner’s regulations, which regulation requires all public school districts with a high school to employ a director of physical education and [2] he was terminated in bad faith because the district created several new positions after he was terminated. He asked the Commissioner of Education to direct that the School Board reinstate him to his former position, with back pay and benefits. 

In response, the School Board alleged that it had the statutory authority to abolish Petitioner’s position for sound economic and budgetary reasons and that it acted in good faith in its decision to abolish Petitioner’s position.  In addition, the School Board asserted that no new employee has been hired to replace Petitioner and that, instead, the his duties had been distributed "among three long-standing employees; none of who are performing more than 50% of Petitioner’s former duties."*

The Commissioner ruled that Petitioner request that he be reinstated to this prior position was moot as he had earlier been reinstated to his former position.**

However, the Commissioner declined to dismiss Petitioner's claim that the School Board acted arbitrarily and “without a rational basis” in abolishing his position. With respect to the merits of this claim, the Commissioner noted that it was "well-settled that the authority to create and/or abolish positions rests with the board of education, which may abolish and/or consolidate positions for sound economic reasons, so long as the decision is not motivated by bad faith."

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief.

Here the superintendent said that the decision to abolish Petitioner’s position was driven by budgetary constraints and her affidavit explained that "the district paid three current administrators a small stipend to carry out a portion of Petitioner’s former duties, instead of paying Petitioner’s high salary, which resulted in a cost savings to the district of approximately $144,975." The School Board contended that it is permissible for a board of education, acting in good faith, to abolish a position for economic reasons and fractionalize its duties among multiple other existing positions.

The Commissioner ruled that Petitioner [1] failed to refute respondent’s assertion that his position was abolished in order to realize cost savings from fractionalization of his duties and [2] failed to demonstrate that by abolishing the Director of Athletics and Physical Education position, the School Board violated 8 NYCRR §135.4(c)(4)(iii).

The Commissioner said that the record indicated that the school district continued to employ a Director of Physical Education [40%] following the abolition of Petitioner’s position, ruling that this complied with this regulation.  The Commissioner commented that "even if more than 50% of the duties of Petitioner's former position involved his responsibilities as Director of Athletics and Physical Education, the regulation does not prescribe a particular percentage of duties that must be dedicated to the responsibilities of a Director of Physical Education."

Petitioner also alleged that the School Board acted in bad faith as evidenced by its creating new positions, including a Director of Social Studies, Director of Science, Technology and Engineering, Director of Science and an Assistant Superintendent for Special Education position.  

The Commissioner said that the burden of proving bad faith is on the party asserting it, and indicated that the fact that other new positions unrelated to Petitioner’s former position were created at the same time or after the abolition of a position for economic reasons does not in and of itself support finding that the School Board acted in bad faith. The Commissioner ruled that "[o]n the record before me, Petitioner has not met his burden of proving that his position was abolished in bad faith."

In addition, Petitioner did not establish that the duties of the new positions he cited were similar to those of his former position.  Rather the duties of Petitioner’s former position "were fractionalized and re-distributed among three current employees."  As Petitioner’s position was abolished for fiscal reasons and none of "the current three employees" were assigned more than 50% of the duties of his former position, the Commissioner found that the School Board had properly abolished his position, which action resulted in his being excessed and his name being placed on a preferred list.

* In Currier v Tompkins-Seneca-Tioga BOCES, 80 AD2d 979, the Appellate Division ruled that the reassignment of the work of the incumbent of an abolished position among five other (retained) employees, none being assigned more than 50% of the duties of the abolished position, was lawful.

** Petitioner was reinstated as Director of Athletics, Physical Education, Health and Chairperson District-wide Health and Safety Team from the relevant preferred eligible list effective August 31, 2015 
 
The decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume57/d17142
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