Educator challenged his involuntary transfer to another school in the educator’s school district

By Public Employment Law Press on July 10, 2024

In two separate appeals (“Music I” [Appeal No. 21,948] and “Music II” [sic Appeal No. 21,978]), Petitioner challenged decisions by the Board of Education and the School Superintendent [collectively, “Respondents”].

Because
these appeals arose out of similar facts and circumstances and presented similar
issues of law, they were consolidated for decision by the Commissioner of Education.

The Commissioner, holding that Music I must
be dismissed, and Music II must be sustained in part, ORDERED that the transfer of Petitioner from the position of high school physical education teacher to elementary school physical education teacher be annulled, without prejudice to any further action that may be appropriate under the terms of these [Music I and Music II] decisions.

The Commissioner of Education further ruled that Petitioner was not entitled to a name-clearing hearing, explaining “A public employee
is only entitled to such a hearing when his or her ’employer creates and
disseminates a false and defamatory impression about the employee in connection
with … termination’”, citing Codd
v Velger, 429 US 624 and Matter of Lentlie v Egan, 61 NY2d 874. The Commissioner also observed that
“Petitioner was not terminated and there is no evidence in the record that [Respondents] publicly made any defamatory or stigmatizing comments about [Petitioner] in connection with his involuntary transfer.”

Decision
No. 18,422

Appeals of MICHAEL MUSIC from action of the Board of Education of
the South Glens Falls Central School District and Kristine Orr, as superintendent,
regarding an involuntary transfer.

Decision No. 18,422

(June 26, 2024)

Girvin & Ferlazzo, PC, attorneys for respondent, Ryan P.
Mullahy, Esq., of counsel

ROSA.,
Commissioner.–In two separate appeals (“Music I” [Appeal No.
21,948] and “Music II” [Appeal No. 21,978]), petitioner challenges
decisions by the Board of Education of the South Glens Falls Central School
District (“board” or “respondent”) and superintendent Kristine Orr
(“superintendent”) (collectively, “respondents”) to transfer him to another
school in respondent’s district. Because the appeals arise out of similar
facts and circumstances and present similar issues of law, they are
consolidated for decision. Music I must be dismissed,
and Music II must be sustained in part.

Petitioner
has been employed by the district since 2006. He received tenure as a
physical education teacher in 2009. From 2006 until June 2023, petitioner
taught physical education at the high school in respondent’s district.

In June
2022, the board placed petitioner on paid administrative leave while it
investigated a complaint against him. That investigation resulted in a
counseling memorandum dated August 2, 2022 being placed in petitioner’s file.
This series of events formed the basis of an appeal which is the subject
of a separate decision that is being issued herewith (Appeal of Music,
63 Ed Dept Rep, Decision No. 18,421). As relevant here, petitioner
returned to his assignment at the high school for the 2022-2023 school year.

On June 8,
2023, petitioner
was verbally informed of his reassignment to a physical education teaching
position at an elementary school within respondent’s district for the 2023-2024
school year. The following day, petitioner received a letter from the
superintendent informing him of same.

On June
12, 2023,
petitioner received a counseling memorandum dated June 7, 2023, from the superintendent. The
memorandum concerned an “interaction” between petitioner and a student in late
May 2023. In the memorandum, the superintendent described petitioner’s
conduct during the interaction as “unacceptable” and directed petitioner to refrain
from discussing certain topics unrelated to the physical education
curriculum. A copy of the memorandum was added to petitioner’s personnel
file.

Thereafter,
petitioner commenced Music I challenging his involuntary
transfer and requested a stay of same. By order dated July 24, 2023, the
Commissioner stayed the transfer until the board’s August 14, 2023 meeting, at
which the superintendent was directed to report the proposed transfer to the
board for consideration pursuant to Education Law § 1711 (2) (e).

On August
14, 2023, the
board convened for its regularly scheduled monthly meeting. During the
public comment portion of the meeting, petitioner spoke in opposition to the
proposed transfer. The board, joined by the superintendent, then went
into executive session. After returning to open session, the board
approved the proposed transfer of petitioner for the 2023-2024 academic year.

By
letter dated August 16, 2023, the superintendent advised petitioner of
the board resolution approving his transfer. Music II ensued.
Petitioner’s request for interim relief seeking a stay of the transfer was
denied on September 6, 2023.

In both
appeals, petitioner asserts that the superintendent’s action in involuntarily
transferring him from the high school to the elementary school was disciplinary
in nature. Petitioner further alleges that the transfer was retaliation
for the Education Law § 310 appeal that he filed in May 2023 concerning a
separate, unrelated matter.[1] Petitioner additionally asserts
that his involuntary transfer violates the terms of the collective bargaining
agreement (“CBA”) governing his employment with respondents. Petitioner
requests that the transfer be annulled, that he be reinstated to his former
position, that any reference to the transfer be removed from his personnel
file, and that respondent grant him a name-clearing hearing.

Respondents
assert that the appeals must be dismissed for failure to join necessary
parties. Respondents further assert that the Commissioner lacks
jurisdiction over petitioner’s claim as it is governed by the terms of a CBA
between the board and the South Glens Falls Faculty Association.
Respondents alternatively argue that petitioner has failed to state a claim for
relief insofar as the superintendent acted within her authority to transfer
petitioner and her justification for doing so was reasonable.

Before
reaching the merits, I must address a procedural matter. Music I must
be dismissed as moot. The Commissioner will only decide matters in actual
controversy and will not render a decision on a state of facts that no longer
exists due to the passage of time or a change in circumstances (Appeal of
Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of a Student
with a Disability, 48 id. 532, Decision No.
15,940; Appeal of M.M., 48 id. 527, Decision
No. 15,937; see Matter of Hearst Corp. v Clyne, 50
NY2d 707, 714 [1980]). Where the Commissioner can no longer award a
petitioner meaningful relief on his or her claims, no live controversy remains
and the appeal must be dismissed (Appeal of R.B., 57 Ed Dept Rep,
Decision No. 17,394; Appeal of N.C., 40 id. 445,
Decision No. 14,522).

In Music I,
petitioner appeals the June 9, 2023 letter from the superintendent notifying
him of his transfer to the elementary school. Thereafter, respondents
issued a second letter to petitioner, dated August 16, 2023, reflecting the board’s vote at the August
2023 board meeting. Because the June 9, 2023 letter was superseded by the August
16, 2023 letter,
there is no longer a live controversy in Music I.
Accordingly, the first appeal is dismissed as moot.

Next,
respondents assert that the appeals must be dismissed for failure to join
necessary parties.[2] 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 (Appeal of J.S., 49 Ed
Dept Rep 445, Decision No. 16,077; Appeal of Valentino, 48 id. 254,
Decision No. 15,851; Appeal of Johnson, 46 id. 432,
Decision No. 15,555). Joinder requires that an 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 (Appeal of Valentino, 48 Ed Dept Rep
254, Decision No. 15,851; Appeal of Samuel, 45 id. 418,
Decision No. 15,371).

Respondent
contends that petitioner failed to join Michael Leonbruno and Anthony Kenny,
the two teachers whom respondents appointed to replace petitioner and teach
physical education at the high school. However, petitioner’s appeal
in Music II includes affidavits of service stating that both
teachers were served with copies of the petition. Respondents’
submissions do not contain any evidence to rebut the presumption of service
created by petitioner’s affidavits (see e.g. Appeal
of M.A., 61 Ed Dept Rep, Decision No. 18,070 [citing Kihl v
Pfeffer, 94 NY2d 118, 122 (1999), which states that “mere denial of
receipt” is insufficient to rebut a presumption of service]). Further, as
respondents acknowledge, the petition states on the title page that Mr.
Leonbruno and Mr. Kenny are “[n]ecessary [p]arties.” Thus, assuming
without deciding that petitioner was required to join these teachers, I find
that petitioner substantially complied with the joinder requirements set forth
above.

Turning
to the merits, a board of education has broad authority to transfer teachers to
assignments consistent with their certification and tenure areas. This
authority, however, is not unlimited. The Court of Appeals has held that
this power may be modified by a “contractual provision” and cannot be made in
“bad faith” (Matter of Adlerstein v Board of Educ. of City of N.Y., 64
NY2d 90 [1984]; see also Matter of Lefkowitch v Nyquist, 29
Misc.2d 14 [Sup Ct, Albany County 1961]).[3] The Commissioner has held that the
“use[] [of] reassignment as a means of discipline” may constitute bad faith (Appeal
of Doe, 58 Ed Dept, Rep, Decision No. 17,627; see Appeal
of Irving, 39 Ed Dept Rep 761, Decision No. 14,373). “Bad faith” is
defined as “[d]ishonesty of belief, purpose, or motive” (Appeals of
Prisinzano, 62 Ed Dept Rep, Decision No. 18,195, citing Black’s Law
Dictionary [11th ed. 2019]).

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 (8 NYCRR 275.10; Appeal of P.C. and K.C.,
57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523,
Decision No. 15,936; Appeal of Hansen, 48 id. 354,
Decision No. 15,884).

Petitioner
argues that respondents transferred his teaching assignment as retaliation for
his appeal to the Commissioner and/or dissatisfaction with events giving rise
to the June 2023 counseling memorandum. As evidence, petitioner argues
that, as in Appeal of Irving, the superintendent issued a
counseling letter—a “substantial step toward disciplinary action”—the day
before advising him of a transfer from his assignment of 17 years (Appeal
of Doe, 58 Ed Dept, Rep, Decision No. 17,627; Appeal of Irving,
39 id. 761, Decision No. 14,373).[4] Petitioner further asserts that
respondents knew of the vacancy at the elementary school since January
2023. Moreover, petitioner contends, and respondents do not dispute, that
he was not given a reason for his transfer during the June 8 conversation or in
the June 9 letter. Petitioner also argues that the transfer was made
without regard to his rights under the CBA.[5] Section 3, subsection C of the CBA
provides that involuntary transfers will only be made when “when necessary” and
that due regard shall be given “a teacher’s area of competence, major and/or
minor fields of study, certification, quality of teaching performance[,] and
length of service” in the district.

In
response, respondents assert that petitioner’s transfer was made in the “best
interests of the district” because one of the teachers selected to replace
petitioner, Mr. Leonbruno, coached two varsity sports, thereby allowing him to
draw upon and further develop “the strong working relationships that invariably
develop between a coach and their athletes.”

This
justification does not withstand scrutiny. Petitioner asserts, and
respondents do not dispute, that his replacements, Mr. Leonbruno and Mr. Kenny,[6] did
not possess high school physical education teaching experience at the time of
the transfer. I am also unpersuaded by the “pedagogical value” in
appointing Mr. Leonbruno to teach at the high school level based upon his
coaching background because: (1) petitioner also coached a high school
level sport;[7] (2)
Mr. Leonbruno’s primary certification area is in business and marketing;[8] and
(3) respondent’s analysis fails to address how, or whether, petitioner’s skills
were suited toward teaching in an elementary school. Moreover, there is
no evidence that respondents considered several of the factors in its CBA in
connection with the transfer, particularly petitioner’s “length of service”
with the district (compare Appeal of Williams, 57 Ed Dept Rep,
Decision No. 17,298, mod 57 id., Decision No.
17,386).

Taken
together, I conclude that respondent acted in bad faith when it issued a
counseling memorandum and transferred petitioner a day later (Appeal of
Irving, 39 Ed Dept Rep 761, Decision No. 14,373). While respondents’
precise motivation remains unclear, petitioner has sufficiently proven that
respondents’ proffered “purpose [] or motive” was pretextual (Appeal of
Rickson, 62 Ed Dept Rep, Decision No. 18,211, affd Matter of
Albany-Schoharie-Schenectady-Saratoga BOCES v Rosa, et al., Index No.
900037-23 [Sup Ct, Albany County, Jul. 27, 2023]). As such, petitioner’s
transfer must be annulled (Appeal of Irving, 39 Ed Dept Rep 761,
Decision No. 14,373).

Respondents’
attempts to distinguish Appeal of Irving are
unpersuasive. First, the administrator who was the subject of that appeal
was not reassigned to a different tenure area. While she was demoted from
principal to assistant principal, both positions were encompassed within the
tenure area of “Administrator K-12.” Additionally, while the
administrator was made the “subordinate” of another employee, this was only one
of several factual findings that supported a finding that the transfer was
disciplinary in nature. Put another way, a demotion is not a prerequisite
for a finding of improper motivation.

However,
I decline to expunge the counseling memorandum from petitioner’s personnel
file. In Appeal of Irving, the Commissioner found that the
administrator’s counseling memorandum, demotion, and transfer were part of “a
single process” that, collectively, “constitute[d] improper discipline.”
With specific respect to the counseling memorandum, the Commissioner observed
that “all the materials submitted by respondents … [we]re directed toward
demonstrating misconduct on the part of petitioner, and [we]re, therefore,
exactly the type of proof that respondents would be expected to introduce in a
hearing pursuant to Education Law § 3020-a.” The record does not support
such findings here. 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 (see Holt
v Board of Educ., Webutuck Cent. Sch. Dist., et al., 52 NY2d 625 [1981]).

Finally,
petitioner is not entitled to a name-clearing hearing. A public employee
is only entitled to such a hearing when his or her “employer creates and
disseminates a false and defamatory impression about the employee in connection
with … termination” (Codd v Velger, 429 US 624, 628 [1977]; see
also Matter of Lentlie v Egan, 61 NY2d 874, 875 [1984]). Petitioner
was not terminated and there is no evidence in the record that respondents
publicly made any defamatory or stigmatizing comments about petitioner in
connection with his involuntary transfer.

I have
reviewed the parties’ remaining contentions and find them to be without merit.

MUSIC
I IS
DISMISSED. MUSIC II IS SUSTAINED TO THE EXTENT
INDICATED.

IT IS
ORDERED that the transfer of petitioner from the position of high school
physical education teacher to elementary school physical education teacher be
annulled, without prejudice to any further action that may be appropriate under
the terms of this decision.

[1] As indicated above, the decision in
that appeal is No. 18,421.

[2] Respondents argue that both appeals
should be dismissed on this basis. However, because petitioner’s appeal
in Music I is moot, I need only address this argument as it
relates to petitioner’s appeal in Music II.

[3] I have previously held that three
other grounds articulated by the Court of Appeals in Matter of
Adlerstein—“malice, bad faith, … or prejudice”—can be subsumed within the
concept of “bad faith.” The fourth, “gross error,” presumably refers to
significant factual or procedural error, which is not at issue here (Appeals
of Prisinzano, 62 Ed Dept Rep, Decision No. 18,195 at n.2).

[4] Respondents indicate that it intended
to address the issue with petitioner earlier, but that this meeting was
postponed at petitioner’s request. Even if true, it would not affect the
outcome of this appeal.

[5] Respondents correctly observe that
the Commissioner has declined to entertain alleged violations of CBA provisions
for the reasons articulated in Bd. of Educ., Commack Union Free Sch.
Dist. v. Ambach, 70 NY2d 501 (1987). However, given my jurisdiction
over petitioner’s challenge to his transfer, I find it appropriate to examine
the above CBA provisions for the purpose of evaluating respondents’ intent.

[6] While petitioner alleges that Mr. Kenny
was assigned to teach one or more sections of physical education at the high
school because of petitioner’s transfer, respondent merely states that
petitioner’s transfer “impacted” Mr. Kenny’s teaching assignment.
Weighing this evidence, I credit petitioner’s assertion that Kenny replaced
petitioner’s high school teaching responsibilities to some degree.

[7] The parties’ disagreement over
whether petitioner served as a “coach” appears to be based upon whether the
high school trap shooting team is considered a “club” or a “sport.” Other
than this disagreement, the district’s high school coaching needs and the
extent to which petitioner or Mr. Leonbruno were qualified to meet those needs
are unexplored in the record.

[8] Mr. Leonbruno only obtained a
supplementary certificate to teach physical education in June 2022. This
information is contained in the Department’s TEACH (“TEAcher Certification
Help”) database, “a web-based teacher certification database, online
application, and teacher certification system” (Appeal of Campbell, 61
Ed Dept Rep, Decision No. 18,014; see 8 NYCRR 276.6).

Decision
No. 18,422

Appeals of MICHAEL MUSIC from action of the Board of Education of
the South Glens Falls Central School District and Kristine Orr, as superintendent,
regarding an involuntary transfer.

Decision No. 18,422

(June 26, 2024)

Girvin & Ferlazzo, PC, attorneys for respondent, Ryan P.
Mullahy, Esq., of counsel

On June
12, 2023,
petitioner received a counseling memorandum dated June 7, 2023, from the superintendent. The
memorandum concerned an “interaction” between petitioner and a student in late
May 2023. In the memorandum, the superintendent described petitioner’s
conduct during the interaction as “unacceptable” and directed petitioner to
refrain from discussing certain topics unrelated to the physical education
curriculum. A copy of the memorandum was added to petitioner’s personnel
file.

Respondents
assert that the appeals must be dismissed for failure to join necessary
parties. Respondents further assert that the Commissioner lacks
jurisdiction over petitioner’s claim as it is governed by the terms of a CBA
between the board and the South Glens Falls Faculty Association. Respondents
alternatively argue that petitioner has failed to state a claim for relief
insofar as the superintendent acted within her authority to transfer petitioner
and her justification for doing so was reasonable.

Respondent
contends that petitioner failed to join Michael Leonbruno and Anthony Kenny,
the two teachers whom respondents appointed to replace petitioner and teach
physical education at the high school. However, petitioner’s appeal in Music
II includes affidavits of service stating that both teachers were
served with copies of the petition. Respondents’ submissions do not
contain any evidence to rebut the presumption of service created by
petitioner’s affidavits (see e.g. Appeal of M.A.,
61 Ed Dept Rep, Decision No. 18,070 [citing Kihl v Pfeffer, 94
NY2d 118, 122 (1999), which states that “mere denial of receipt” is
insufficient to rebut a presumption of service]). Further, as respondents
acknowledge, the petition states on the title page that Mr. Leonbruno and Mr.
Kenny are “[n]ecessary [p]arties.” Thus, assuming without deciding that
petitioner was required to join these teachers, I find that petitioner
substantially complied with the joinder requirements set forth above.

Petitioner
argues that respondents transferred his teaching assignment as retaliation for
his appeal to the Commissioner and/or dissatisfaction with events giving rise
to the June 2023 counseling memorandum. As evidence, petitioner argues
that, as in Appeal of Irving, the superintendent issued a
counseling letter—a “substantial step toward disciplinary action”—the day
before advising him of a transfer from his assignment of 17 years (Appeal of
Doe, 58 Ed Dept, Rep, Decision No. 17,627; Appeal of Irving,
39 id. 761, Decision No. 14,373).[4] Petitioner further asserts that
respondents knew of the vacancy at the elementary school since January
2023. Moreover, petitioner contends, and respondents do not dispute, that
he was not given a reason for his transfer during the June 8 conversation or in
the June 9 letter. Petitioner also argues that the transfer was made
without regard to his rights under the CBA.[5] Section 3, subsection C of the CBA
provides that involuntary transfers will only be made when “when necessary” and
that due regard shall be given “a teacher’s area of competence, major and/or
minor fields of study, certification, quality of teaching performance[,] and
length of service” in the district.

This
justification does not withstand scrutiny. Petitioner asserts, and
respondents do not dispute, that his replacements, Mr. Leonbruno and Mr. Kenny,[6] did not possess high school physical
education teaching experience at the time of the transfer. I am also
unpersuaded by the “pedagogical value” in appointing Mr. Leonbruno to teach at
the high school level based upon his coaching background because: (1)
petitioner also coached a high school level sport;[7] (2) Mr. Leonbruno’s primary
certification area is in business and marketing;[8] and (3) respondent’s analysis fails
to address how, or whether, petitioner’s skills were suited toward teaching in
an elementary school. Moreover, there is no evidence that respondents
considered several of the factors in its CBA in connection with the transfer,
particularly petitioner’s “length of service” with the district (compare
Appeal of Williams, 57 Ed Dept Rep, Decision No. 17,298, mod 57 id.,
Decision No. 17,386).

Respondents’
attempts to distinguish Appeal of Irving are
unpersuasive. First, the administrator who was the subject of that appeal
was not reassigned to a different tenure area. While she was demoted from
principal to assistant principal, both positions were encompassed within the
tenure area of “Administrator K-12.” Additionally, while the administrator
was made the “subordinate” of another employee, this was only one of several
factual findings that supported a finding that the transfer was disciplinary in
nature. Put another way, a demotion is not a prerequisite for a finding
of improper motivation.

I have
reviewed the parties’ remaining contentions and find them to be without merit.

MUSIC
I IS
DISMISSED. MUSIC II IS SUSTAINED TO THE EXTENT
INDICATED.

[1] As indicated above, the decision in
that appeal is No. 18,421.

[6] While petitioner alleges that Mr.
Kenny was assigned to teach one or more sections of physical education at the
high school because of petitioner’s transfer, respondent merely states that
petitioner’s transfer “impacted” Mr. Kenny’s teaching assignment. Weighing
this evidence, I credit petitioner’s assertion that Kenny replaced petitioner’s
high school teaching responsibilities to some degree.