Friday, August 19, 2011

Determining the effective date of tenure in a position

Determining the effective date of tenure in a position
Remus v Tonawanda City School District, 96 NY2d 271

The Remus decision by the New York State Court of Appeals sets out the high court's view with respect to the effective date of a teacher's employment rights flowing from holding a tenured appointment.

The ruling, which affects the effective date of tenure status provided to individuals employed in unclassified service positions, has significant implications with respect to an appointing authority's ability to rescind an appointment to a position in the classified service prior to the employee’s effective of permanent appointment date as well.*

The underlying issue in the Remus case: “May the appointing authority rescind its resolution granting a probationary teacher tenure if it rescinds its resolution prior to the date on which the teacher's tenure would have otherwise taken effect?”

On June 4, 1998, in accordance with the recommendation of the school superintendent, the Tonawanda school board adopted a resolution appointing probationary teacher Jill Remus “to a tenured position effective September 2, 1998.”

On August 31, 1998, the School Board adopted a resolution rescinding its resolution granting Remus a “conditional tenure appointment” and terminated her employment as a probationary teacher. This action by the board followed Remus' declining an offer to extend her probationary period for an additional year that was made to her earlier the same day. Remus appealed the Board's action, claiming she was a tenured teacher and could not be summarily dismissed.

As the Court of Appeals framed the issue: Does a Board of Education resolution that grants tenure to a teacher effective on a specified future date pursuant to the provisions of Education Law Section 2509[1] immediately entitle that teacher to the benefits of tenure?

The Court of Appeal's conclusion: A teacher granted tenure effective on a [specified] future date is not entitled to the benefits of tenure until the effective date specified in the resolution.

The Court explained that the Education Law draws a distinction between probationary teachers and tenured teachers. Probationary teachers can be terminated at any time during the probationary period, for any reason and without a hearing in contrast to tenured teachers who hold their positions during good behavior and competent service, and are subject to dismissal only after formal disciplinary proceedings.**

The basic argument advanced by Remus was that once she was granted tenure by action of the board pursuant to Section 2509 of the Education Law, her employment could not be terminated except for cause after notice and hearing. In Remus’ view, a teacher’s tenure status accrued upon school board’s adoption of the resolution granting an individual tenure effective on a specified date could not be rescinded by a subsequent resolution adopted by the board prior to that effective date.

Responding to a position adopted by the Appellate Division regarding action that the employee is required to take to confirm his or her “tenure status,” the Court of Appeals commented that the Education Law does not require a formal offer and acceptance of a tenure appointment and, “given the express grant of power to make tenure appointments before the end of the probationary period, no reason exists to inject such a requirement into the statute.”

Noting that this specific issue -- rescinding an appointment prior to its effective date -- was not addressed in Weinbrown v Board of Education, 28 NY2d 474, a case cited by Tonawanda in support of its argument, the Court of Appeals held that:

A Board resolution granting a probationary teacher tenure effective on a future date (one set either to coincide with the end of or to occur before the end of that teacher's probationary period) confers tenure upon the teacher only as of that specified future date.

The decision suggests that any permanent appointment, or contingent permanent appointment, that is subject to a probationary period, or an appointment based on reinstatement from a preferred list, whether in the classified service or the unclassified service, may be rescinded prior to its effective date by the appointing authority, provided such action (1) is not otherwise prohibited by law and (2) would not otherwise constitute unlawful discrimination.

It may be significant that the decision refers to the appointing authority's granting tenure effective on a specified future date insofar as trigging the individual's tenure rights are concerned. If, on the other hand, no “future date” is specified, it could be argued that the individual attains his or her tenure rights immediately upon the act granting such status by the appointing authority.***

* With the exception of appointment from a preferred list, a permanent appointment to a position in the classified service is typically subject to the satisfactory completion of a probationary period. Accordingly, while the individual enjoys “permanent status” for certain purposes such the right to notice and hearing if the appointee is to be removed prior to the competition of his or her minimum probationary period or termination in the event of a layoff due to the abolishment of a position, such an individual does not attain “tenure” in the title until he or she has completed the maximum period of probation required by the appointing authority. However, the appointing authority may grant an individual tenure status at any time after the appointee has completed the minimum period of probation required by law or by the rules or regulations of the responsible civil service commission.

** Typically probationers in the classified service may be summarily dismissed from the position only after completing the minimum period of their probationary period and prior to the end of their probationary period. If the appointing authority wishes to remove a probationer before the end of the appointee’s minimum period of probation, it must provide the individual with “notice and hearing” in accordance with the provisions of §75 of the Civil Service Law or in accordance with the controlling provisions of a collective bargaining agreement. However, there is no bar to granting a probationary employee tenure status at any time during his or her probationary period once he or she has completed the required minimum period of probation.

*** The effective date of appointment insofar as rescinding an appointment would not be particularly relevant in the case of a provisional or a temporary appointment as provisional and temporary employees may be dismissed at any time and without a pre-termination hearing unless a collective bargaining agreement otherwise provides.

Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at

Challenging Adverse Personnel Decisions at

The Disability Benefits E-book: at

Layoff, Preferred Lists at


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