Monday, July 08, 2013

Tenure by estoppel, tenure by acquisition, tenure by default

Tenure by estoppel, tenure by acquisition, tenure by default, tenure by inaction
Brown v Board of Educ. of the Mahopac Cent. Sch. Dist., 2013 NY Slip Op 51026(U), Supreme Court, Putnam County [Not selected for publications in the Official Reports]

Tenure by estoppel, tenure by acquisition, tenure by default, tenure by inaction. All four terms describe the result of the failure of an appointing authority to act that results in a probationary employee obtaining tenure by operation of law because he or she was not lawfully terminated on or before the last day of his or her original, or extended, probationary period.*

As the Court of Appeals held in McManus v Hempstead Union Free School District, 87 NY2d 183, a  probationary administrator or teacher employed by a school district or a BOCES may attain tenure by estoppel when the appointing authority continues the teacher or administrator in service after failing to take the administrative action required by law to either grant or deny the individual tenure prior to the expiration of the administrator’s or teacher’s probationary term.

In this CPLR Article 78 proceeding Maura Ann Brown sought, among other things, reinstatement to her teaching position with the Mahopac Central School District based her contention she had attained tenure by estoppel and thus could not be summarily terminated from her postion.

The issue before State Supreme Court Judge Lewis Jay Lubell in this third appearance before the court:  the propriety of the school district’s recalculation of Brown’s Education Law §3012(3) probationary period end date “as directed and guided by the Court in its Decisions and Orders of March 19, 2012, and October 25, 2012”** which, in the words of the court, were “thoroughly set forth in this Court's prior two Decisions and Orders.”

The court’s conclusion: "… the Administrative Recalculation of [Brown’s] Education Law §3012(3) probationary period end date was undertaken in a manner and reaches a result that is legally insupportable and is contrary to the legal conclusions reached and directives clearly enunciated by this Court in its March and October 2012 Decisions and Orders directing remand for purposes of recalculation." Judge Lubell pointed out that the Administrative Recalculation results in a probation end date that coincided with Brown’s termination date, January 21, 2011. Brown needed just one additional date of service time to prevail on her tenure by estoppel argument, which, said the court, “she has easily established.”

Judge Lubell said the Administrative Recalculation did not properly account for his “unequivocal determination that ‘[the school district is] bound by the originally established and thereafter repeatedly reasserted June 30, 2010 probationary period end-date . . . . from [which] . . . any properly attributed extension of the probationary period must be calculated.’"

The court ruled that “it is June 30, 2010 from which to calculate [Brown’s] probationary end date….” The school district apparently “ignore the June 30th date in favor of September 2, 2010.” Accordingly, said Judge Lubell, “Upon properly accounting for the sixty-four day period from June 30th to September 2, 2010, [Brown’s] recalculated probationary end-date falls well before her termination date, i.e., the date needed by [Brown] to prevail on her tenure by estoppel argument.”

The Administrative Recalculation, said the court, “employs a ‘workday-for-workday’ methodology which is in contravention of this Court's interpretation of the methodology used in Maras v Schenectady CSD, 275 AD2d 551, wherein the Appellate Division ruled as follows:

Clearly, it was error for [the Schenectady City School District] to extend petitioner's probationary period beyond September 12, 1998 - "the period of time petitioner was absent from school in excess of her contractually allotted sick days. While respondents possess the authority to exclude from the computation of petitioner's three-year probationary period any noncontractual absences [citations omitted], they have no authority to exclude those absences provided for by contract, i.e., petitioner's 20 days of sick leave, five days of personal time and five days of medical leave that fell on school-wide vacation days. Indeed, Education Law §2509(7) expressly prohibits extension of an employee's probationary period by adding thereto contractually bargained for sick or personal leave days or school-wide vacation days.

In sum, said Judge Lubell, the court in Maras permitted an extension of Maras’ probationary period by the actual number of workdays her medical leave exceeded her paid contractual leave time, excluding any medical leave which otherwise fell on school-wide breaks or vacation days (for a total of eleven days) and which, in any event, extended petitioner's probationary period by a corresponding number of consecutive calendar days, not "workdays" as respondents would have it; thus arriving at a new probation period end date of September 12, 1998.

The bottom line: Judge Lubell held the Brown completed her three year period of Education Law §3012(3) probation well before her January 21, 2011, termination date and granted her motion to strike and dismiss the school district's Administrative Recalculation.

The court then granted summary judgment in her favor on her claim of tenure by estoppel, which tenure by estoppel matured “prior to the school district’s termination of her employment on January 21, 2011,”

Accordingly, the court directed Brown’s reinstatement to her former position as a tenured teacher effective January 21, 2011, “together with an award of back-pay, reimbursement of all employment benefits, including but not limited to medical, retirement and pension contributions, and other compensatory damages to which she may be entitled and in an amount to be determined at a damages hearing” before Judge Lubell to be held at a later date.

One exception to the general rule applied for the purpose of determining if an individual has attained tenure by estoppel is set out in Mendez v Valenti, 101 AD2d 612. In Mendez the Appellate Division ruled that as long as the termination of a probationer [in the classified service] is effected within a reasonable time after the end of his or her maximum period of probation, such as set to coincide with the end of the next payroll period, the courts will not deem the individual to have obtained tenure by estoppel because of his or her continuation on the payroll following the last day of his or her 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 effective date of the employee's removal from the payroll may occur after this date, the required notice of the termination must be delivered to the employee before close of business on the last day of his or her probationary period.

* Military Law §243.9 [with respect to public employees other than teachers] and Military Law §243.9-a, [with respect to teachers] provide certain rights to such an employee entering military service before the end of his or her probationary period upon his or her return to his or her former position.

** See, also, Matter of Brown v Board of Educ. of the Mahopac Cent. School Dist., 32 Misc 3d 370, at

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