Denial of tenure based on failure to satisfy an advanced degree requirement in timely fashion ruled arbitrary

Denial of tenure based on failure to satisfy an advanced degree requirement in timely fashion ruled arbitrary
Aievoli v SUNY, 264 AD2d 476

The State University of New York [SUNY] denied Patrick J. Aievoli tenure because he had failed to attain his master’s degree “in a timely manner.” Aievoli sued, claiming that the tenure decision lack any rational basis.

The Appellate Division, Second Department, agreed with Aievoli and ordered SUNY to reopen its tenure process. The court said “there was no evidentiary support to substantiate [SUNY’s] claim that the denial of tenure was based upon a lack of commitment on the part of Aievoli” and that “the denial of tenure on this basis also was arbitrary and capricious.”

The Appellate Division affirmed a ruling by State Supreme Court Judge Alan Winick [Nassau County], who cited Harrison v Goldstein, 204 AD2d 451 in support of his decision.

The Appellate Division’s decision in Harrison relies on the so-called Pell standard, which holds that a court is justified in overturning an administrative decision if it finds that the decision is “shocking to one’s sense of fairness.” [Pell v Board of Education, 34 NY2d 222] Pell is more commonly cited in connection with challenges to disciplinary terminations.

In contrast to Aievoli’s case, it is well settled that where the law requires an individual to have a valid license or permit in order to practice his or her profession or duties, the loss, expiration, revocation or failure to obtain or maintain the required license or permit in a timely fashion means that the individual is not authorized to perform the duties of the position as a matter of law. Accordingly, the courts have had little difficulty in upholding the immediate suspension of a teacher without pay where the educator is unable to present a valid license or certification when asked to do so.

Although such a person may continue to be “qualified” to perform the duties of the position, he or she is typically barred from doing so unless and until a valid license or permit is obtained. In such situations the courts have upheld the employer summarily suspending the employee without pay.

Courts have deemed suspension without pay to be proper where the teacher lacks the necessary license or certification authorized [Meliti v Nyquist, 41 NY2d 183]. The legal theory in such cases is that it would be unlawful to continue a tenured but uncertified, and therefore unqualified, teacher on the payroll. [Suspension without pay is not available in disciplinary cases under Section 3020-a of the Education Law.]

Courts have also ruled that the fact that the teacher is granted a license to teach “retroactive” to the date of the expiration of his or her earlier certificate does not cure his or her “unqualified” status. The defect -- the inability to lawfully perform teaching duties -- is not remedied by the retroactive issuance of a license and the teacher’s subsequent recertification does not make his or her earlier suspension without pay unlawful. This is significant as it implies that the issuing of a “retroactive license” does not support any claim for back salary and benefits for the period during which the teacher was off the payroll.
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