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Saturday, July 30, 2011

Layoff, reinstatement and tenure by estoppel considered

Layoff, reinstatement and tenure by estoppel considered
Decisions of the Commissioner of Education, Decision #16256

Full text of the decision


1. Appeal of MARY DICKINSON from action of the Board of Education of the Deer Park Union Free School District and Lynn Hadity relating to preferred eligibility rights.

2. Appeal of MARY DICKINSON from action of the Board of Education of the Deer Park Union Free School District regarding teacher termination.



KING, JR., Acting Commissioner.--On or about March 31, 2009, petitioner commenced an appeal pursuant to Education Law §310 challenging the determination of the Board of Education of the Deer Park Union Free School District (“board” or “respondent board”) to appoint Lynn Hadity as a reading teacher (“Dickinson I”).  In a separate appeal commenced on or about July 22, 2009, petitioner challenged the actions of the board terminating her employment (“Dickinson II”).

On June 30, 2010, a decision was rendered, consolidating the two appeals (Appeals of Dickinson, 49 Ed Dept Rep 463, Decision No. 16,082) and concluding in Dickinson I that the board violated petitioner’s rights when it failed to recall her to the vacant reading teacher position created in the 2008-2009 school year and ordering that she be reinstated to a reading teacher position with back pay, seniority and benefits as of September 1, 2008; and, concluding in Dickinson II, that when petitioner was recalled to a reading teacher position in June 2009, she was a probationary employee not entitled to the procedural protections of Education Law §§3013, 3020 and 3020-a and, therefore, was properly terminated on July 28, 2009.[1]

Pursuant to Article 78 of the Civil Practice Law and Rules, respondent appealed the decision to Supreme Court, Albany County.  In a decision dated February 22, 2011, the court ordered that the petition be granted solely to the extent of vacating the Commissioner’s determination in Dickinson II and remanded the matter to the Commissioner “for clarification on the effect of his determination in Dickinson I on petitioner’s tenure claims raised in Dickinson II and the basis upon which such determination is made.”[2]  Accordingly, as remanded by the court, I have considered petitioner’s tenure claims in Dickinson II in light of Dickinson I.

Pursuant to §276.5 of the Commissioner’s regulations, respondent board submitted a memorandum of law addressing the effect of the decision in Dickinson I on petitioner’s tenure status.[3]  The board alleges that the decision in Dickinson I properly did not interfere with its authority to grant or withhold tenure from petitioner.  The board seeks a determination that its recall and termination of petitioner as a probationary teacher was proper, that petitioner did not obtain tenure by virtue of Dickinson I and that petitioner is entitled only to the salary, seniority and benefits of a probationary reading teacher as of September 1, 2008 until her termination on August 31, 2009, less any compensation she received in the interim.

On or about September 1, 2005, petitioner was appointed as a remedial reading teacher in the district, subject to a two-year probationary period.  On April 24, 2007, the board granted petitioner tenure in reading, effective August 31, 2007.  On June 30, 2007, petitioner’s position was abolished and her name was placed on the district’s preferred eligibility list for a reading position.

Dickinson I held, inter alia, that the board violated petitioner’s rights when it failed to notify and recall her to an elementary school reading teacher position created for the 2008-2009 school year and ordered that petitioner “be reinstated to a reading teacher position with back pay, seniority and benefits as of September 1, 2008, less any compensation she may have received in the interim.”

Petitioner’s reinstatement on September 1, 2008 by order pursuant to Dickinson I did not result in her acquiring tenure in the district.  As previously noted in Dickinson II, in Remus v Bd. of Educ. for Tonawanda City School Dist. (96 NY2d 271, 278), 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.”  (see Mahoney v Mills, 29 AD3d 1043, lv to app den 7 NY3d 708).  There is no dispute that petitioner’s teaching position was properly abolished on June 30, 2007, prior to the August 31, 2007 effective date of the conditional tenure appointment on August 31, 2007.  Therefore, petitioner’s tenure never took effect.

Consequently, when petitioner was “recalled and appointed” as of September 1, 2008, by virtue of the order in Dickinson I, it was to a probationary position in the reading tenure area.  Although she was awarded back pay, petitioner never rendered any further actual service in that tenure area.  Therefore, petitioner was a probationary employee when the board acted to recall her to a reading position on June 23, 2009 and simultaneously rescinded her conditional tenure appointment.  Accordingly, petitioner was a probationary employee when she was terminated by respondent and was not entitled to the procedural protections of Education Law §§3013, 3020 and 3020-a.
Nor does the decision in Dickinson I result in petitioner acquiring “tenure by estoppel”. 

“Tenure by estoppel ‘results when a school board fails to take the action required by law to grant or deny tenure and, with full knowledge and consent, permits a teacher to continue to teach beyond the expiration of the probationary term’” (Matter of Gould v. Bd. of Educ. of the Sewankhaka Cent. High School Dist. et al., 81 NY2d 446, citing Matter of Lindsey v Bd. of Educ., of Mount Morris Cent. School Dist., et al., 72 AD2d 185, 186) (emphasis added).  This is not the situation before me.  Here, the board did not knowingly permit petitioner to teach beyond the expiration of her probationary term but, instead, was ordered in Dickinson I to reinstate her retroactively to September 1, 2008.  It is noteworthy that, when the board did act to recall petitioner on June 23, 2009 to a probationary position in the reading tenure area, it simultaneously rescinded its April 24, 2007 conditional appointment of petitioner in that tenure area.  Indeed, petitioner never rendered any further service in the reading tenure area under the reasonable expectation that it would lead to tenure.   As such, the board did not itself acquiesce or consent to the continuance of her employment in the district and, consequently, petitioner did not acquire tenure by estoppel (see LaBarr v Board of Ed. Of Union Free School Dist. No. 1, Town of Hempstead, 425 F Supp 219 [EDNY 1977]).

Based on the foregoing, I find that the relief provided in Dickinson I had no effect on petitioner’s tenure status and, therefore, the rationale for dismissing petitioner’s tenure claims as set forth in the decision in Dickinson II remains unaltered (Appeals of Dickinson, 49 Ed Dept Rep 463, Decision No. 16,082).

While petitioner disagrees with the board’s determination to terminate her from her position, petitioner has failed to present any evidence that the reason for the board’s denial of tenure was in violation of any statute or the constitution.  Accordingly, having determined that the decision and order in Dickinson I had no effect on petitioner’s tenure claims raised in Dickinson II, I hereby affirm and adopt the findings and determination in Dickinson II in its entirety for the reasons set forth therein and in this decision.

THE APPEAL IS DISMISSED.

[1] The facts and procedural history are set forth in the original decision. 
[2] As ordered by Supreme Court, the sole issue for consideration is the effect of the determination in Dickinson I on petitioner’s tenure claims raised in Dickinson II.  To the extent the parties attempt to introduce arguments not directly relevant to the tenure issue, I have not considered them.
[3] By letter dated April 8, 2011, my Office of Counsel notified each party of the opportunity to submit additional affidavits and memoranda of law on the sole issue of the effect of Dickinson I on petitioner’s tenure status.  Petitioner did not submit any further papers or memorandum.

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The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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