Abolishment of probationer’s position prior to attaining tenure results in his or her appointment from a preferred list as a probationer

Abolishment of probationer’s position prior to attaining tenure results in his or her appointment from a preferred list as a probationer
Dickinson v Board of Education of the Deer Park Union Free School District, et al, Decisions of the Commissioner of Education, Decision No. 16,082
[Consolidated appeals: (1) reinstatement from a preferred list and (2) probationary termination]

Mary Dickinson was appointed as a remedial reading teacher by the Deer Park Union Free School District and on April 24, 2007 was granted tenure in reading effective August 31, 2007. However, on June 30, 2007 Dickinson’s was abolished and her name was placed on the district’s preferred list for a reading teacher position.

Deer Park then appointed Dickinson to a new position as a teacher of English Language Arts (“ELA”) effective September 1, 2007, a position in a separate tenure area from reading.

In March 2008 announcements were posted for anticipated vacancies for the 2008-2009 school year, including a vacancy for a reading teacher. Later that March Dickinson was notified that her position as an ELA teacher was abolished.

After learning that school board subsequently appointed another individual, Lynn Hadity, to the vacant reading teacher position Dickinson appealed, seeking reinstatement to the reading teacher position, with back pay, seniority and other benefits.

Dickinson contended that Deer Park “failed to notify her, and then recall her to the vacant reading teacher position, in violation of Education Law §3013.”

Deer Park's defense: Although it did not make any attempt to contact Dickinson directly about the vacancy, it took steps to publicize the available position and that it was Dickinson’s responsibility to notify the district of her interest in the vacant position.

The Commissioner said that “in accordance with Education Law §3013, the board placed [Dickinson’s] name on the preferred eligibility list and [Dickinson] was entitled to be appointed to any vacancy in a corresponding or similar position in the district for seven years, or on or until June 30, 2014.

Rejecting Deer Park's argument that “it was [Dickinson’s] obligation to notify the district that she was interested in the vacancy,” the Commissioner said there was “no such obligation in the Education Law.”

On the contrary, said the Commissioner, “since the district maintains the preferred eligibility list and manages vacancies, it is implicit that the district is required to make a reasonable effort to notify eligible persons of vacancies so that such persons may be afforded the opportunity to accept or decline a position.”

Finding that Deer Park “should have made a reasonable effort to directly notify [Dickinson] of the vacant position” and in failing to do so the school district violated Dickinson’s rights to reinstatement from the preferred list, the Commissioner ruled that she must be reinstated to a reading teacher position with back pay, seniority and benefits.

Accordingly, on June 23, 2009, the school board appointed Dickinson from the preferred list and placed her in a “different probationary reading position, effective July 1, 2009.” It simultaneously rescinded Dickinson’s April 24, 2007 “conditional tenure appointment … in the reading tenure area.”

At its July 28, 2009, the board voted to terminate Dickinson’s services effective August 31, 2009 and, again, Dickinson appealed to the Commissioner.

Dickinson argued that the board violated Education Law §§3013, 3020 and 3020-a when it recalled her to a probationary reading position on June 23, 2009, rescinded its prior conditional tenure appointment and terminated her services. She asked the Commissioner to void the board’s actions.

The board responded that Dickinson “was terminated prior to the attainment of tenure and that she is not entitled to the procedural protections set forth in §§3020 and 3020-a.”

Citing In Remus v. Bd. of Educ. for Tonawanda City School District, 96 NY2d 271, the Commissioner dismissed Dickinson’s appeal. In Remus, said the Commissioner, the Court of Appeals held that “a board of education resolution that grants tenure to a teacher effective on a specified future date ‘confers tenure upon the teacher only as of that specified future date.’”

Concluding that under the circumstances, Dickinson’s tenure never took effect because she had been laid off prior to "the effective date of her tenure," the Commissioner ruled that when Dickinson was recalled to a reading teacher position in June 2009, “she was a probationary employee and not entitled to the procedural protections of §§3013, 3020 and 3020-a.”

The decision is posted on the Internet at: http://www.counsel.nysed.gov/Decisions/volume49/d16082.htm

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