March 13, 2018

Acquiring tenure in the position by tenure by "operation of law," sometimes referred to as tenure by estoppel or tenure by acquiesce



Acquiring tenure in a position by "operation of law," sometimes referred to as  tenure by estoppel or tenure by acquiesce
Matter of Mogilski v Westbury Union Free Sch. Dist., 2018 NY Slip Op 01063, Appellate Division, Second Department

Should the appointing authority fail, or neglect, to timely notify a probationer that he or she is to be terminated for failure to satisfactorily complete his or her probationary period  on or before the end of the individual's probationary period, the employee is deemed to have obtained tenure by "operation of law," sometimes referred to as  tenure by estoppel or tenure by acquiesce.

In Mogilski v Westbury Union Free School District the Appellate Division determined that Mogilski had obtained tenure in his position by "operation of law."

Westbury Union Free School District [District] appointed Anthony Mogilski as a Supervisor of School Facilities and Operations on September 21, 2015 subject to Mogilski's satisfactory completion of a 26-week probationary period scheduled to end March 21 next following.  On February 2, 2016, the District informed Mogilski that his probationary period was being extended for 12 days due to school closings for holidays, which, said the District, extended his probationary period through April 6, 2016.

The District's request for the extension was approved by the Nassau County Civil Service Commission [Commission] and on March 28 the School Board of Education adopted a resolution terminating Mogilski's employment "effective the last day of his probationary period, which is March 29, 2016 ...." A termination of employment letter was delivered to Mogilski on March 29.

On March 29, however, the District was informed by the Commission that it had incorrectly "authorized the extension" of Mogilski's probationary period for 12 days when the extension should have been 6 days, thereby resulting Mogilski'sprobationary period "officially" ending on March 29 rather than April 6.

Mogilskifiled an Article 78 petition seeking a court order reinstating him to his former position in which he alleged that the District exceeded its jurisdiction, and acted arbitrarily,  capriciously, and irrationally in extending his probationary period. He contended that the Commission's rules with respect to a probationer's term being extended for authorized or unauthorized absences on "workdays" does not authorize such an extension for school closings on holidays.*

Although Supreme Court denied Mogilski's petition, holding it was not an abuse of discretion for the District to treat absences resulting from "holiday" school closings the same as absences for sick leave, vacation, jury duty, and other authorized or  unauthorized absences for purposes of extending a probationer's term, the Appellate Division disagreed and reversed Supreme Court's ruling.

The Appellate Division explained that the relevant Commission rule indicated that "it is proper to extend a probationary term by the number of 'workdays' an employee is 'absent' or 'workdays' an employee missed due to sick leave, vacation, or jury duty" and that this court had previously ruled "it is rational to interpret 'workdays' to include 'all of those days when [Mogilski's] presence would normally have been required.'" However, said the court, a school closing due to a holiday "is not a day when [Mogilski's]would have required" to work and the extension of his probationary period in consideration of the school being closed due to a holiday was improper.

The court directed the District to reinstate Mogilski to his position of Supervisor of School Facilities and Operations with back pay and all benefits of his employment.

* 4 NYCRR 4.5(g), addressing absence during probationary term with respect to employees of the State as the employer, in pertinent part, provides that "Any periods of authorized or unauthorized absence aggregating up to 10 workdays during the probationary term, or aggregating up to 20 workdays if the probationary term or maximum term exceeds 26 weeks, may, in the discretion of the appointing authority, be considered as time served in the probationary term ... Any such periods of absence not so considered by the appointing authority as time served in the probationary term, and any periods of absence in excess of periods considered by the appointing authority as time served in the probationary term pursuant to this subdivision, shall not be counted as time served in the probationary term. The minimum and maximum periods of the probationary term of any employee shall be extended by the number of workdays of his absence which, pursuant to this subdivision, are not counted as time served in the probationary term."

Many local civil service commissions and personnel officers have adopted a similar rule.

The decision is posted on the Internet at:

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