No automatic appointment for substitute teachers
Matter of Susan Daniels, Decisions of the Commissioner of Education #10918
When the incumbent for whom she was substituting died, the School Board, at the request of the Union to fill the position in accordance with the terms of the collective bargaining agreement, granted the substitute teacher a “temporary appointment.”
The Contract provided that a temporary appointment was to be made when the employment as a substitute was to be for more than 40 consecutive days.
When the substitute was notified that she was not under consideration for permanent appointment, she sued claiming that she should be deemed to be a probationer in the vacant position “by operation of law.”
Accordingly, she argued, she could not be removed unless the provisions of Section 3020-a of the Education Law were met.
Following a series of administrative and Court proceedings, the question was returned for consideration by the Commissioner of Education.
After finding the appeal untimely. the Commissioner dismissed the appeal on the merits, indicating that although the Board has no authority to make other than probationary appointments to fill permanent vacancies, a teacher may waive the statutory entitlement.
The Commissioner then found that the bargaining agreement provision (with which the Board had complied at the request of the Union) constituted such a waiver and Daniels could not now challenge that action by the School Board.