Tenure by estoppel

Tenure by estoppel
Tucker v Bd. of Education SD #10, 189 AD2d 704

Under certain circumstances a probationary teacher may attain tenure by estoppel, sometimes referred to as "tenure by acquisition."

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.

§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 §3031 provision: the probationary teacher "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."

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 a probationary teacher was advised that she was to be denied tenure 22 days before her probationary period was to end. The court ruled that the individual was entitled to an award of a day's pay for each day the district's notice to her that she would not be granted tenure was late. In other words, the probationary teacher was entitled to pay  corre­sponding to the number of days for which she was not given the statutory number of days of notice prior to effective date of her termination.

Implicit in this 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 a defense to the individual 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 he or she receives payment for each day that the notice was "late."

Further, the removal of the probationary employee from the payroll 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 [1] it was of a short duration;[2] it was for "administrative convenience;" and [3] he was provided with timely prior notice of the termination from his probationary appointment. .

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 actual 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 has attained tenure by estoppel.

Addressing another variation concerning the individual's attaining tenure in his or her position, 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 receipt of federal funding and his annual employment contracts specifically indicated that "tenure does not apply to this position."