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Monday, September 16, 2013

The Education Law does not bar a probationer from serving an agreed upon extension of his or her probationary period.


The Education Law does not bar a probationer from serving an agreed upon extension of his or her probationary period.
2013 NY Slip Op 05818, Appellate Division, Second Department

The essential facts leading to this appeal are as follows:

1. A probationary teacher [Teacher] was advised that he would not be recommended for tenure.

2. The principal, after discussing the matter with the superintendent of the school district, met with Teacher and an employee organization representative and offered to extend Teacher’s probationary period for one year.*

3. Teacher subsequently sent a letter to the principal in which he “formally request[ed] a fourth probationary year of employment” and said that he hoped that he would be “granted tenure” the following spring.

4. The following spring, however, Teacher was told that he would not be offered a “tenured position” and he was terminated at the end of the school year.

5. Teacher then initiated an Article 78 proceeding alleging that he had acquired tenure by estoppel.

6. The school district moved to dismiss Teacher’s petition but Supreme Court denied its motion and annulled the school district’s determination to terminate Teacher.

The school district appealed and the Appellate Division reversed the lower court’s decision, explaining that "In general, estoppel is a bar which precludes a party from denying [that] a certain fact or state of facts exists to the detriment of another party who was entitled to rely on such facts and had acted accordingly."

Here, said the court, "Tenure may be acquired by estoppel when a school board accepts the continued services of a teacher or administrator, but fails to take the action required by law to either grant or deny tenure prior to the expiration of the teacher's probationary term." While Education Law §3012(1) provides that certain teachers shall be appointed "for a probationary period of three years," nothing in the Education Law prevents a probationary teacher from “knowingly and voluntarily waiving the three-year probationary period."

Teacher’s letter clearly indicated that he had agreed to extend his probationary period for an additional year. Accordingly his probationary had not expired prior to the school district’s advising him that he would not be granted tenure in the position and terminated his employment. Thus, said the Appellate Division, Teacher "had not acquired a tenured position by estoppel."

* 4 NYCRR 5(b)(3)(ii), which applies to employees in the classified service of the State and public authorities, public benefit corporations and other agencies for which the Civil Service Law is administered by the State Department of Civil Service, provides: If the conduct or performance of a probationer is not satisfactory, his or her employment may be terminated at any time after eight weeks and before completion of the maximum period of service. The appointing officer may, however, in his [or her] discretion, offer such probationer an opportunity to serve a second probationary term of not less than 12 nor more than 26 weeks in a different assignment, in which case the appointment may be made permanent at any time after completion of 12 weeks of service, or the employment terminated at any time after the completion of 8 weeks of service and on or before the completion of 26 weeks of service [emphasis supplied]. Many local civil service commissions have adopted a similar provision.

The decision is posted on the Internet at:
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Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

A Reasonable Penalty Under The Circumstances at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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