November 20, 2018

Waiving a teacher's right to tenure


Waiving a teacher's right to tenure
Costello v East Islip UFSD, 250 A.D.2d 846

Is tenure for teachers an anachronism? A number of school districts have considered eliminating it. Thus far the courts have declined to allow them to do so.

In Conetta v Patchogue-Medford Union Free School District, 165 Misc.2d 329, a New York State Supreme Court ruled that a school board could not refuse to grant tenure to a teacher who had successfully completed his or her probationary period because it believed that "that tenure at the elementary and secondary school level was essentially guaranteed job security ... coupled with automatic salary increases."

Apparently mindful of the Conetta ruling, a Board of Education decided to take a different tack in an effort to avoid having to give newly hired teachers tenure upon their satisfactory completion of probation: the East Islip Union Free School District's Board adopted a resolution providing that all new teachers hired by the School District were to be employed under individual contracts providing for specified terms of employment.

These contracts specified that the newly appointed teachers were employed "in non-tenure-bearing positions." To emphasis the point, the contracts also included provisions intended to constitute "waivers" of the probation and disciplinary rights provided to teachers in the Education Law.

Lynn Costello and a number of other newly appointed teachers had signed these agreements. They subsequently decided to challenge these terms in their contracts and asked a State Supreme Court judge to do three things:

 (1) Annul the contracts that they had signed;

(2) Issue an order compelling the District to appoint them as probationary teachers pursuant to Education Law §3012; and

(3) Enjoin the District from "requiring teaching candidates to execute waivers of tenure and other statutory rights as a condition of employment."

The Court granted the teachers' petition in its entirety.

In so doing, the Court rejected the District's argument that the teachers' waivers were valid because the teachers had signed their respective agreements "knowingly and voluntarily."

On the issue of whether the waiver was "voluntary" or not, the Court said that under the circumstances, the contention that the waivers were voluntary was questionable since there is no indication that any teacher who refuses to agree to such a waiver will be hired.

While the District cited Feinerman v BOCES, 48 NY2d 491, in support of its position, the Court ruled that the Feinerman decision did not control under the facts of this case.

Finding that the Feinerman case involved one teacher of adult education in a BOCES program, the Court decided that it was not applicable to the Costello situation because the contracts at issue involve all teachers of children that were to be hired in a union free school district. 

Also, in Yastion v Mills, the  Appellate Division decided that a teacher may work on a year-to-year contractual basis and never acquire tenure even after three years of service. Orange-Ulster BOCES had appointed Yastion to a federally funded position and his annual employment contracts specifically indicated that "tenure does not apply to this position."

Commenting that the Board's stated purpose in promulgating its resolution was to improve education by removing the District and its teachers from the purview of the Education Law's tenure provisions, the Court said that "this goal can be achieved only by the Legislature's amendment of the Education Law, and not by an act of a local Board of Education.

The Appellate Division agreed, explaining although the Board of Education of the East Islip Union Free School District correctly contends that a teacher's rights with respect to tenure are waivable when the waiver is freely, knowingly, and openly arrived at without the taint of coercion or duress, this does not operate to give the Board the authority to eliminate the tenure system altogether. Indeed, observed the court, the tenure system is a legislative expression of a firm public policy determination that the interests of the public in the education of our youth can best be served by a system designed to foster academic freedom and to protect competent teachers from the threat of arbitrary dismissal.

Characterizing  the system proposed by the Board, i.e., tenure by contract terminating automatically at the expiration of the contract, as the very system sought to be eliminated by the enactment of the tenure statutes of the Education Law and the change to a system of permanence, the Appellate Division opined that the resolution implementing this system was improper and the petition was properly granted.

In the Conetta case, State Supreme Court Judge Lockman suggested that under certain circumstances it might be possible to eliminate tenure. The Court said that if a school district wishes to stop granting tenure, it could make such a demand in the course of collective negotiations.

Judge Lockman stated that "the Taylor Law allows negotiations for the inclusion of a 'no tenure' clause in the collective bargaining agreement." Judge Lockman also decided that a school board "could not withhold tenure at the end of the probationary period because of fiscal concerns unrelated to the qualifications of the teacher seeking such status."

Judge Lockman's full opinion follows is set out below:

The petition of Lynn Costello and the other petitioners pursuant to CPLR Article 78, seeks a judgment annulling the respondent's July 3, 1996, resolution and the petitioner-teachers' individual contracts executed pursuant to the resolution, compelling the respondents to appoint the petitioner-teachers as probationary teachers pursuant to Education Law 3012, and enjoining the respondent from requiring teaching candidates to execute waivers of tenure and other statutory rights as a condition of employment. The petition is granted in its entirety.

  The resolution at issue provides that all new teacher hirees of the East Islip Union Free School District will be employed pursuant to individual contracts providing for specified terms of employment in non-tenure-bearing positions. The contracts signed by the various petitioner-teachers contain a waiver of rights as set forth in, inter alia., Education Law §§3012, 313 and 3020, that provide for probation, tenure and certain procedures for dismissal.

The respondents' (and the amicus curiae's) reliance upon Mtr. of Feinerman v. BOCES, 48 NY2d 491 (1979) for the assertion that a waiver of the Education Law's protection is valid if it is knowingly and voluntarily made is misplaced. The Feinerman case involved one teacher of adult education in a BOCES program and is not applicable to the instant proceeding where the contracts at issue involve all teachers of children that were to be hired in a union free school district. The respondent's stated purpose in promulgating the resolution was to improve education by removing the the respondent and *its teachers from the purview of the Education Law's tenure provisions, however, this goal can be achieved only by the Legislature's amendment of the Education Law, and not by an act of a local Board of Education. There is no ruling of any Court offered by the respondent that supports the blanket eradication of the safeguards provided in the Education Law that the respondent seeks. Further, the characterization of the waiver as "voluntary" is questionable since there is no indication that any teacher who refuses to agree to such a waiver will be hired.

In view of the above, the respondent's arguments concerning the standing of certain petitioners need not be addressed.

  Submit judgment on notice.

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