Comparing administrative positions
Decisions of the Commissioner of Education, Decision No. 13733
In 1995 the
's budget was defeated. In response, the superintendent recommended that one position of building principal, together with the position of curriculum coordinator, be abolished and replaced by a new position of assistant superintendent. As a result, the building principal position held by Deborah Elmendorf was abolished effective Windham-Ashland-Jewett Central School District June 30, 1995. She was not interviewed for the assistant superintendent position and Janette Bain was appointed to the title effective August 17, 1995.
Elmendorf appealed to the Commissioner of Education, contending that under §2510(1) of the Education Law she was entitled to the appointment because she was the "senior excessed administrator" in the administrative tenure area. In rebuttal, the District argued that the position of assistant superintendent is not similar to the position of building principal and thus §2510(1) was not relevant.
NOTE: §2510(1) essentially provides that if an office or position is abolished and another office or position performing similar duties is created, the incumbent of the abolished position "shall be appointed to the office or position thus created 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."
Although both titles were in the administrative tenure area, the Commissioner pointed out that Elmendorf would be entitled to appointment in a newly created position only if the duties of the new position were similar to those of her former position. The test applied in such situations when classroom teachers are involved is whether more than 50% of the duties to be performed by the incumbent of the new position are similar to those of his or her former positions. The Commissioner said that this comparison is more difficult when administrative positions are involved because they "do not lend themselves to the same analysis used under §2510 when teaching positions are concerned."
In any event, Elmendorf had the burden of proving that a majority of the duties of the new position are similar to those of her former position. To succeed, Elmendorf had to demonstrate that the degree of comparable skill and experience required to carry out the duties of both positions were similar. The Commissioner rejected Elmendorf's attempt to do this by allocating percentages of duties and creating a mathematical formula to calculate the similarities of duties between the two positions.
Instead the Commissioner compared the job descriptions of the two positions, concluding that "although there are several areas ... that were transferred to the new title ... the new position includes several functions which differ significantly from those of a building principal." Dismissing Elmendorf's appeal, the Commissioner also found it significant that the building principal position only required School Administrator and Supervisor certification while the assistant superintendent required School District Administrator certification.
As to any claim to a "due process hearing" prior to Elmendorf's termination, the Commissioner said that under the circumstances the District had an obligation to provide "... a due process hearing [to consider] the alleged similarity of the duties of the two positions," but the District's violation of Elmendorf's due process rights alone does not mean that she is entitled to the position.