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State of New York vs. COVID-19 - Governor Andrew M. Cuomo periodically updates New Yorkers on the state's progress during the ongoing COVID-19 pandemic. The latest reports of the number of new cases, the percentage of tests that were positive and many other relevant data points concerning COVID-19 are available at forward.ny.gov.

N.B. §22 of the New York State's General Construction Law, in pertinent part, provides that “Whenever words of the masculine or feminine gender appear in any law, rule or regulation, unless the sense of the sentence indicates otherwise, they shall be deemed to refer to both male or female persons.” NYPPL typically follows this protocol.

June 9, 2010

Rescinding a tenure appointment

Rescinding a tenure appointment
Shaffer v Schenectady City School Dist., USCA2, LEXIS 20463

If an appointing authority claims that it made a mistake in taking or confirming a personnel action, may it rescind the action or correct the error if the individual voices an objection? This is the underlying issue in the Shaffer case.

Commenting that relevant provisions of "Education Law admits of multiple readings" and that there is no relevant case law concerning the issue, the U.S. Circuit Court of Appeals, Second Circuit, has "certified the question" to the New York State Court of Appeals to determine whether a teacher granted tenure by a school board resolution that states it is to be effective at some future date is immediately entitled to the protections of Section 3020-a of the Education Law available to tenured personnel.

Special education teacher Sharon Shaffer was told by the Superintendent that she would not be recommended for tenure at the end of her probation period. On June 2, 1998 the School Board adopted the following resolution:

"In accordance with the recommendation of the Superintendent of Schools in his written report ... the person whose name is set forth below is hereby appointed on tenure effective on the date set forth below."

A list consisting of thirty-three names, including Shaffer's entitled "Recommendation For Tenure" was appended to the resolution. The "tenure list" indicated the respective tenure areas, and effective tenure dates of the persons listed. Shaffer's tenure date was listed as September 1, 1998.

Claiming that its June 2, 1998, resolution incorrectly included Shaffer's name, on June 17, 1998, the Board voted to rescinded her "tenure appointment." Its theory: on June 17, 1998, Shaffer "was not yet a tenured teacher, but one with merely an expectation of becoming tenured on September 1."

Shaffer sued the District claiming it violated her rights under 42 USC 1983 when it revoked her tenure and dismissed her from her position. The District, on the other hand, contends that Shaffer inclusion on the "tenure list" attached to its June 2, 1998 resolution "was merely the result of a clerical error when [her name] was mistakenly included on a list of teachers to whom tenure was to be granted" and it acted promptly to correct the error.

The critical issue to be determined: did Shaffer acquired tenure as a result of the Board's action on June 2, 1998, and, if so, was the subsequent revocation of that tenure was lawful?

In Gould v Board of Education, 81 NY2d 446, the New York State Court of Appeals held that a "tenured teacher has a protected property interest in [his or] her position and a right to retain it subject to being discharged for cause in accordance with the provisions of [the Education Law]."

Considering the Board's argument that it cannot be bound if its action was the result of an "error" and therefore Shaffer cannot claim any right to tenure, summarized below are two decisions concerning the impact of a mistake made in reporting or recording a personnel action:

1. The Commissioner of Education, in Longshore v Massena Board of Education, 32 CEd 12839, considered the status of a part-time teacher whose "personnel action sheet" described his appointment as "probationary from September 1, 1991 until September 1, 1992." Finding that "[t]he record supports [the District's] contention that the references in the personnel action sheet and notification of appointment form were erroneous," the Commissioner ruled that Willard M. Longshore "was not appointed to a probationary position." Accordingly, the District was not required to meet the notice requirements in Education Law Sections 3031 and 3019-a in order to terminate his employment.

2. In Moore v Smithtown Central School District, 116 AD2d 273, a "layoff seniority" case, the Appellate Division held that the fact that the district had, in error, included a communications skills teacher -- Moore -- on the "reading seniority list" was not controlling thus would not be relevant in determining Moore's preferred list status and reinstatement rights.

Public Personnel Law E-books

The Discipline Book - A concise guide to disciplinary actions involving public employees in New York State set out in a 700 page e-book. For more information click on https://booklocker.com/books/5215.html

A Reasonable Disciplinary Penalty Under the Circumstances - A 442-page e-book focusing on determining an appropriate disciplinary penalty to be imposed on an employee in the public service in instances where the employee has been found guilty of misconduct or incompetence. Now available in two formats - as a large, paperback print edition and as an e-book. For more information click on http://booklocker.com/books/7401.html

The Layoff, Preferred List and Reinstatement Manual - A 645 page e-book reviewing the relevant laws, rules and regulations, and selected court and administrative decisions. For more information click on http://booklocker.com/books/5216.html

General Municipal Law §§207-a and 207-c - Disability Leave for fire, police and other public sector personnel - A 1098 page e-book focusing on disability benefits available to public officers and employees employed by New York State and its political subdivisions. For more information click on http://booklocker.com/books/3916.html

Please Note:

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