Monday, October 31, 2011

Tenure by estoppel

Tenure by estoppel
Dembovich v Liberty CSD, App. Div., 296 AD2d 794 

The basic rule concerning granting tenure to a probationary teacher or administrator is that although a school board may reject a superintendent's recommendation to grant the probationer tenure, a school board may not grant a probationary employee tenure unless the superintendent recommends that it do so.

Under certain circumstances, however, the teacher may attain tenure by estoppel. As the court said in Pascal v Board of Education, 100 AD2d 622, tenure by estoppel results when a school board fails to take the action required by law to grant or deny tenure and, with its full knowledge and consent, permits a teacher to continue to teach beyond the expiration of his or her probationary period.

Consideration of these two propositions were elements in resolving the Dembovich case.

Shiri Dembovich was appointed as a teacher by the Liberty Central School District. Her appointment was subject to her satisfactorily completing a two-year probationary period that was to end August 31, 2000. By letter dated March 30, 2000, the Superintendent of Schools, Brian Howard, notified Dembovich he would not recommend her for tenure and that her employment would be terminated effective June 23, 2000. Dembovich asked for, and received, the reasons for Howard's decision not to recommend her for tenure.*

In September of 2000, Dembovich asked the superintendent to obtain a substitute "to fill in for her" until September 11. Howard immediately responded, informing her that she had been terminated effective June 23, 2000 and that she should not report for work.

Dembovich disagreed, claiming that the district had failed to provide her with the procedural rights to which she was entitled under Education Law §3031 and thus she had not been properly terminated from her position. In effect, Dembovich contended that she had attained tenure by estoppel because the district had not properly terminated her prior the end of her probationary period and she had "continued in service" beyond the end of her probationary period.

§3031 of the Education Law requires that the board of education review "all recommendations not to appoint a person on tenure." The individual is to be advised of the date on which the board will consider the recommendation at least 30 days prior to the date of the meeting. Another procedural requirement: the individual "may, not later than 21 days prior to such meeting" ask for a written statement setting out the reasons for the superintendent's recommendation and may file a response to such reasons "not later than 7 days prior to the day of the board meeting."

On September 8, 2000, the school's attorney wrote to Dembovich advising her that the school board would hold the required §3031 meeting to consider the superintendent's recommendation that she not be granted tenure on September 11 and would, on that date, adopt a resolution terminating her employment retroactive to August 31, 2000.

Dembovich sued the school district contending that it had unlawfully denied her the §3031 rights to which she was entitled. Supreme Court agreed. It annulled the district's resolution and directed it to comply the procedures set out in §3031. Liberty appealed.

After dismissing the district's technical arguments concerning the timeliness of Dembovich's filing her Article 78 action, the Appellate Division addressed the merits of her claims.

The arguments advanced by the parties in support of their respective positions:

1. Dembovich contended that September 8, 2000 letter violated §3031 because it only gave Dembovich three days notice rather than the required 30 days notice.

2. The district argued that its complying with the §3031 procedure is moot because it could not grant Dembovich tenure in the absence of the Superintendent's affirmative recommendation that it do so.

The Appellate Division disagreed with the district's position as to mootness, pointing out that §3031 is very specific as to the procedure that must be followed by a school board in the event a superintendent recommends against granting tenure to a probationary teacher and a school board must be comply with these statutory mandates.

The court, however, did not go so far as to hold that Dembovich had attained tenure by estoppel because she had not been "terminate" on or before August 31, 2002, presumably because the district "had not accepted" her services after that date. All the Appellate Division ordered was that the school board to follow the procedures set out in §3031.

What is the potential impact on a school district if it is found that it did not comply with the provisions set by §3031?

In Tucker v Bd. of Education SD #10, 189 AD2d 704, the court found that Tucker, a probationary teacher, was advised that she was to be denied tenure 22 days before her probationary period was to end. As a result, the court ruled that Tucker was entitled to an award of pay for each day the district's notice to her that she would not be granted tenure was late. In other words, Tucker was entitled to pay corresponding to the number of days for which she was not provided the statutory days of notice.

Implicit in the ruling is that in the event a probationary teacher is not provided with timely notice that he or she is to be denied tenure, the failure to provide such notice is not a fatal defect insofar as any defense to the individual’s claiming tenure by estoppel or by default is concerned, provided the teacher was given formal written notice of this decision by the appropriate party prior to expiration of his or her probationary period and receives payment for each day that the notice was "late."

By the same token, a probationary period termination does not have to take effect on or before the last day of the applicable probationary period.

In Mendez v Valenti, 101 AD2d 612, the Appellate Division held that retaining Mendez on the payroll until the end of payroll period for administrative convenience did not result in his attaining tenure in the position. The Court held that under the circumstances, keeping Mendez on the payroll was permissible in view of the fact that it was of a short duration; for "administrative convenience;" and he was provided with timely notice of his probationary termination prior to the end of his probationary period.

Stated another way, the appointing authority has until the last day of the individual's probationary period to decide whether to retain the employee, extend the employee's probationary period, or to terminate the employee from his or her position. Although the employee's removal from the payroll may occur after this date, the required notice of the termination delivered to the employee before the end of his or her probationary period is deemed timely notice of termination for the purposes of determining if the individual attained tenure by estoppel.

Addressing another variation concerning the individual's employment obligation in relation to his or her tenure status, in Yastion v Mills, 229 AD2 775, the Appellate Division held that a teacher may work on a year-to-year contractual basis and never acquire tenure even after three years of continuous service. The decision points out that Yastion's continued employment was contingent on the district's receiving federal funding to support the position and his annual employment contracts specifically indicated that "tenure does not apply to this position."

* It is well settled that a probationary teacher may be dismissed from his or her position at any time during the probationary period without notice and hearing provided that such termination is not for an unlawful reason.

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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