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March 01, 2011

Denial of tenure – election of an alternate procedure challenging the board's decision

Denial of tenure – election of an alternate procedure challenging the board's decision
Spadone and Lackawanna CSD, Decision of the Comm. of Education, 14,337

The Commissioner of Education dismissed the appeal filed by Anne G. Spadone challenging the Lackawanna City School Board’s action denying her tenure. Spadone had also filed a contract grievance and an Article 78 protesting the board’s failure to grant her tenure.


Spadone had been appointed as a business teacher subject to a two-year probationary period.* The superintendent recommended that the school board grant Spadone tenure at the end of her probationary period.

The resolution to grant Spadone tenure was considered by the school board. The vote: three votes for tenure, two votes against tenure, one abstention. One board member was absent from the meeting. Accordingly, a majority of the board had not approved the resolution.**

The superintendent wrote a letter to Spadone advising her of the board’s action but noted that vote was advisory within the meaning of Section 3031(b) of the Education Law and that the board would take final action at its July 22 meeting. Spadone, however, fared no better at the July meeting: three board members voted to grant her tenure; three voted to deny her tenure; one board member abstained.

Spadone contended that the votes of at least four board members are necessary to take any action and that [the board] could not ‘override’ the superintendent’s recommendation with fewer than four votes. The board, on the other hand, claimed that an affirmative vote of the majority of the board was necessary to grant tenure.

Spadone also argued that (1) she had attained tenure by estoppel and (2) board failed to meet the deadlines set out in Section 3031 of the Education Law. The board contended Spadone had not been continued in service beyond her probationary period and thus did not attain tenure by estoppel. As to it satisfying the time requirements of Section 3031, the board claimed any such failure on its part was harmless error.

The Commissioner first addressed the technical issue of his jurisdiction to consider Spadone’s appeal. He concluded that he did not have jurisdiction because Spadone had commenced a grievance challenging her being denied tenure. Spadone, said the Commissioner, had elected her remedy and it would be contrary to the orderly administration of justice to have multiple tribunals making determinations concerning the same controversy.

Having said this, the Commissioner commented that even if Spadone’s appeal were not dismissed on jurisdictional grounds, it would have been dismissed on the merits. Why? Because, the Commissioner explained, a board of education has broad discretion in granting or denying tenure and need not accept the recommendation of the superintendent to grant tenure.

Section 2509(2)’s clear language states that a majority vote of a school board for tenure is required to grant a probationary teacher tenure. The Commissioner said that Spadone had not advanced any compelling argument that supported her theory that a majority voting against tenure was required to deny her tenure in the district.

The Commissioner agreed with the board that considering the relevant facts in this case, its failure to fully comply with the 30-day notice requirements set out in Section 3031 was harmless error and, in any event, reinstatement is not the proper remedy for a violation of Section 3031.

* As Spadone had held tenure as a teacher prior to her appointment by Lackawanna, she was given two-year rather than a three-year probationary period in accordance with Section 2509(1) of the Education Law.

** As New York State School Board General Counsel, Jay Worona, observed, “Under New York State law, a quorum is a simple majority of [more than half] the total number of board members, not merely those present. Mr. Worona provides the following example: “If a board has five members and three are present at a meeting, all three would have to vote in favor of a resolution for it to pass, a 2 to 1 vote would not be sufficient.”
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