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January 12, 2011

Attaining tenure by estoppel

Attaining tenure by estoppel
Lilley v Mills, App. Div., 274 A.D.2d 644

Robert Lilley was employed by the George Junior Republic Union Free School District to replace the district’s part-time per-diem school psychologist for the 1993-1994 academic year. As Lilley was paid on a per-diem basis, he did not receive any of the fringe benefits, such as health insurance, provided to full-time employees.

The record indicated that Lilley was not obligated to report to work on a daily basis nor was the district required to utilize his services on a daily basis or pay him for days he did not work.

In July 1994, Lilley was given a probationary appointment as a full-time school psychologist. He was terminated effective June 30, 1997. Lilley objected to his termination and appealed to the Commissioner of Education claiming that he had attained tenure by estoppel on the basis of his service as a per-diem substitute school psychologist during the 1993-1994 school year. Lilley later amended his claim, contending simply that he was employed full-time by the district commencing October 1993.

The Commissioner of Education dismissed Lilley’s appeal, holding that he had not attained tenure by estoppel. Lilley filed an Article 78 petition seeking to overturn the Commissioner’s determination.

The Appellate Division, Third Department, commenced its analysis by noting that:

Tenure may be acquired by estoppel when a school board accepts the continued services of a teacher or administrator, but fails to take the action required by law to either grant or deny tenure prior to the expiration of the teacher’s probationary term ...,” citing McManus v Hempstead Union Free School District, 87 NY2d 183.

The key to resolving Lilley’s problem: as he had to satisfactorily complete a three-year probationary period to attain tenure, he had the burden of proving that he had acquired tenure by estoppel by showing that he was entitled to probationary service credit for his services during academic 1993-1994.”

The court commented that the Commissioner had indicated that part-time service is generally insufficient to establish tenure by estoppel. After the Commissioner reviewed Lilley’s employment history for academic 1993-1994, he concluded that Lilley failed to meet his burden of proof that he had been employed full-time for this period.

The Appellate Division sustained the Commissioner’s determination, noting the following significant points:

1. The true nature of an individual’s employment status cannot be determined by the label given to it by the District and depends instead on the realities of the position and its accompanying duties.

2. The record showed that the change of Lilley’s status to full time in July 1994 involved more than merely changing the label of the position.

3. During academic 1993-1994 Lilley was paid only for days he actually worked and did not receive the fringe benefits provided to the District’s full-time employees.

4. Lilley was paid a salary and received the additional benefits provided to the district’s full-time professional staff commencing with academic 1994-95.

5. The superintendent stated that Lilley’s duties changed after July 1994 and provided examples such as his beginning to serve as Chair of the Committee on Special Education.

Thus, said the court, the record before the Commissioner contained sufficient evidence to provide a rational basis to support his rejection of Lilley’s appeal.

Citing Catlin v Sobol, 77 NY2d 552, the Appellate Division said that “[i]n such cases the Commissioner’s determination must be upheld unless it is arbitrary and capricious and without rational basis.”

Although Lilley attempted to support his claims by listing the duties contained in the district’s job description for the full-time school psychologist position and contended that he performed those duties during the 1993-1994 school year, he also conceded that his duties intensified after July 1994.

Considering the conclusory nature of Lilley’s answer to the district’s claims and Lilley’s “concession that his duties ‘intensified’, the absence of any independent evidence such as documents or affidavits of disinterested persons with knowledge of the facts to support [Lilley’s] self-serving allegations and the failure to include his claim concerning his 1993-1994 duties in his petition,” the Appellate Division held that there was nothing arbitrary, capricious or irrational in the Commissioner’s rejecting Lilley’s appeal.

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