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Upon the abolishment of a position, the individual excess is to be placed on a preferred list for appointment to the same and similar positions

Upon the abolishment of a position, the individual excess is to be placed on a preferred list for appointment to the same and similar positions
Appeal of Greta Kantrowitz from action of the Board of Education of the Uniondale Union Free School, Decisions of the Commissioner of Education No. 15,842

Greta Kantrowitz challenged the decision of the Uniondale Union Free School District?s Board of Education?s refusal to place her in another similar position or to place her on a preferred eligible list following the abolishment of her position.

Kantrowitz was initially employed by the district as a half-time kindergarten coordinator and a half-time assistant principal for one of the district?s elementary schools. She was subsequently promoted to the position of administrative assistant for early childhood programs and ultimately was granted tenure in that position.

In 2007 the district abolished Kantrowitz?s position and told her that she would be placed ?on a preferred eligibility list for the position in case [the district] decides to reestablish it.? Although the district subsequently offered Kantrowitz appointments to two positions within the district, she declined both. Kantrowitz did apply for appointment to two assistant principal positions that became available but was not selected for either vacancy.

Kantrowitz appealed, contending that [1] her position was unlawfully abolished for discriminatory reasons and [2] that the district failed to place her on a preferred eligible list, to which she is lawfully entitled. She asked the Commissioner to direct the district to reinstate her to her former position with back pay and benefits, as well as damages and attorney fees or, in the alternative, direct the district to place her on a preferred eligible list pursuant to Education Law §3013.

The Commissioner dismissed Kantrowitz?s appeal as untimely because ?it had not been commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16.?

Notwithstanding the dismissal of Kantrowitz?s appeal on technical grounds, the Commissioner noted that Kantrowitz was entitled to be placed on a preferred eligible list not solely for the title she held at the time the her position was abolished, but also for any position similar to the one that she held.

Thus the statement earlier made by the district that Kantrowitz would ?be placed on a preferred eligible list ?for the position in case the Board decides to reestablish it?? is incorrect.

The Commissioner noted that Education Law §3013(3)(a) provides, in pertinent part, that ?If an office or position is abolished or if it is consolidated with another position without creating a new position, the person filling such position at the time of its abolishment or consolidation shall be placed upon a preferred eligible list of candidates for appointment to a vacancy that then exists or that may thereafter occur in an office or position similar to the one which such person filled 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 or she has filled.?

The full text of the Commissioner?s decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume48/d15842.htm

Full post as published by New York Public Personnel Law on November 05, 2008 (boomark / email).