Petitioner challenged the decision of the Board of Education of the School District [District] to transfer him to another elementary school building within school district. He also sought expungement of a counseling memorandum issued by the District in connection such transfer. New York States' Commissioner of Education, Dr. Betty A. Rosa, held that Petitioner's appeal must be sustained in part.
Petitioner had been employed by the District since 2017 and had tenure as a childhood education and special education teacher. Petitioner had also taught fourth and fifth grade English Language Arts and mathematics at one of the district’s elementary schools [School 1] for several years prior to the 2025-2026 school year.
In August 2025, the District placed Petitioner on paid administrative leave while it investigated a complaint against him alleging “improper interactions” with a fifth-grade student. On October 15, 2025, the District issued a counseling memorandum that, among other things, reassigned Petitioner to a teaching position in a different elementary school [School 2].
The memorandum noted that Petitioner “admitted to engaging in some of the behavior” alleged while maintaining that he “did nothing wrong.” An assistant superintendent concluded that Petitioner’s "continued placement at [School One was] inappropriate" and “reassigned” him to School Two. This appeal to the Commissioner followed.
Petitioner argued that his involuntary transfer to School Two was disciplinary in nature. For relief, Petitioner asked the Commissioner annul the transfer, reinstate him to his former position, and the expungement of the transfer and counseling memorandum from his personnel file. The District denied that Petitioner’s transfer was disciplinary in nature, arguing that Petitioner was a qualified candidate for the position at issue at School Two.
Initially, the Commissioner addressed two procedural matters, noting that that the Commissioner had not considered containing new allegations or exhibits or new material or affirmative defenses not set forth in the District's answer; and that the Commissioner did not accept "the new evidence submitted with [District's] memorandum of law or [consider Petitioner’s] evidence offered in response thereto'.
Turning to the merits, the Commissioner said although a board of education has broad authority to transfer teachers to assignments consistent with their certification and tenure areas, such authority, however, is not unlimited, noting that the New York State Court of Appeals has held that this power may be modified by a “contractual provision” and cannot be made in “bad faith”, citing Matter of Adlerstein v Board of Educ. of City of N.Y., 64 NY2d 90 and other decisions.
In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she seeks relief. In the instant matter the District issued a counseling memorandum setting out adverse findings against Petitioner and transferred him to a different school “[a]s a result of” such findings". Based on the plain language of the memorandum, the Commissioner said that she found that District “used reassignment as a means of discipline”.
District had argued that Petitioner’s transfer was made in the best interest of the District because there was “a vacancy in a special education program that was a match for his skill set.” However, Dr. Rosa said she found the contemporaneous language of the memorandum to be more persuasive evidence of District’s intent than its explanation on appeal.
Moreover, the Commissioner opined that District had not offered any evidence to suggest that it considered Petitioner a potential candidate for the vacant position to which Petitioner had been transferred, which vacancy was posted on August 28, 2025, until it completed its investigation into Petitioner’s conduct and that the District merely stated that, at an unspecified time, its “administrative team … determined that [Petitioner] was the best candidate” for the position. The Commissioner then annulled Petitioner's transfer from School One to School Two.
In the words of Dr. Rosa:
"Petitioner also seeks “[e]xpungement of the counseling memo … as it imposes a disciplinary transfer/reassignment without due process.” While I agree with [Petitioner] that any reference to the disciplinary nature of the transfer should be expunged from his personnel file, he has not met his burden of proving that the counseling memorandum should be expunged in its entirety. “It is not enough merely to mention a possible argument in the most skeletal way, leaving [an adjudicator] to … create the ossature* for the argument, and put flesh on its bones....” Thus, “While the timing of the counseling memorandum is relevant to assessing Petitioner’s transfer, Petitioner has failed to prove that the memorandum, in and of itself, was disciplinary in nature”.
* French: framework.
Finally, Commissioner Rosa opined that she was "compelled to comment on the serious findings contained within the counseling memorandum. The memorandum recounts numerous breaches of the student/teacher relationship". Petitioner “is an adult who knew, or should have known, how to interact appropriately with students.” Thus, although I am not privy to the information gathered by [the District] in its investigation, I am skeptical of the superintendent’s conclusion that Petitioner’s conduct “did not warrant [Education Law Section] 3020-a charges.”
The Commissioner sustained Petitioner's appeal and ordered the October 15, 2025, transfer of Petitioner from School One to School Two be annulled, "without prejudice to any further action which may be appropriate under the terms of this decision".
Click HERE to access Commissioner Rosa's decision posted on the Internet.