As a result, the City School District of New Rochelle was ordered to reinstate an improperly excessed employee with full back pay of an annual salary of  over $110,000.

ESSA Wins Reinstatement for Improperly Excessed Administrator

by Bob Saperstein ESSAA General Counsel

Please refer to page 6

October_Journal_2011.pdf

The applicable law states:

http://codes.lp.findlaw.com/nycode/EDN/II/51/2510

Effective June 30, 2010, the New Rochelle School District excessed the Coordinator of Funded Programs. This admin- istrator was responsible for most of the federal and private grants received by the District. Effective November 1, 2010, the District hired a contract employee as a fulltime admin- istrator to manage one of the larger grants, the Safe School/ Health Student [“SS/HS”] grant.
The District did not offer the position to the excessed Co- ordinator of Funded Programs who had previously managed the grant. Not surprisingly, the new contract employee was paid less money than the excessed administrator.

The applicable law states:

If an office or position is abolished…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 in- crement…
ESSAA raised immediate objections with the District, claiming statutory entitlement to the newly created position on behalf of the excessed unit member. The District demurred and ESSAA instituted litigation. We established that the ex- cessed administrator was responsible for all grants including the SS/HS grant and was entitled to the newly created posi- tion, in that it performed duties previously performed by the excessed administrator.

The District responded claiming that as a result of the elimination of the Coordinator position they reassigned the majority of the duties to other positions, and that the newly created position involved less than 50% of the excessed ad- ministrator’s former duties, and therefore she was not entitled to it. The District also claimed that since the newly created position was not tenure bearing, the statute did not apply. Fi- nally, the District claimed that given the difficult economic conditions, and since the position was eliminated for financial reasons, and the new position involved less work and was paid less money, they should not have to rehire the excessed ad- ministrator “without reduction in salary”.

In response to the District’s arguments, ESSAA pointed out that the legal test for similarity is whether the more than 50% of the functions performed by the new position were performed by the excessed position. In this situation, 100% of the duties performed by the new position were performed by the excessed administrator. The purpose of the excessing statutes is to protect the excessed educator, not the newly employed one. The District’s arguments about tenure were also misplaced. If the excessed administrator were not in a tenure track position she would not be protected. However, she was tenured and the fact that the new position wasn’t in a tenure track was irrelevant. The question was one of similar- ity, which was established. The court agreed with ESSAA’s legal analysis.

Finally, the court ruled the District’s economic argument was not a legal argument, as the Legislature wrote the statute to require the reinstatement to be “without reduction in sal- ary”. Consequently, the administrator was ordered reinstated with full back pay, seniority and benefits from November 1, 2010.