August 10, 2022

School board's discontinuing probationary employee's services based on the school superintendent's recommendation appealed

In Frasier v Board of Educ. of City School Dist. of City of N.Y., 71 NY2d 763, the Court of Appeals ruled that the services of a probationary teacher may be discontinued at any time during the probationary period unless the teacher shows that a board terminated service "for a constitutionally impermissible purpose, in violation of a statutory proscription, or in bad faith."

In this appeal to Commissioner of Education, Commissioner Betty A. Rosa considered the application of Education Law §3031 with respect to the school superintendent's response to a probationary teacher’s [Probationer] request that the superintendent provide written reasons for her or his recommendation to the School Board that her services be discontinued.  In the words of Dr. Rosa, §3031 is “a procedural device to force the superintendent to lay bare the reasons for his [or her] recommendation so that [a] probationer [can] ascertain whether any were constitutionally or statutorily impermissible.”

Citing Rathbone v Board of Educ. of Hamilton Cent. School Dist., 47 AD2d 172, [3d Dept 1975], affd 41 NY2d 825, Commissioner Rosa noted that "[t]he superintendent’s reasons must be sufficiently specific so that the teacher can submit “a reasonable and logical reply” thereto. In this instance, said Dr. Rosa, the superintendent recommended Probationer’s termination based on her (1) use of “controversial materials”; (2) “[f]ailure to utilize [the] approved curriculum”; and (3) “promot[ing] misinformation” but failed to provide any dates or specific details. This, opined Commissioner Rosa, deprived the Probationer of her ability to argue that her conduct was protected by the United States or New York Constitutions, explaining "[i]t is well settled that a board of education may not dismiss or refuse to grant tenure to an employee in retaliation for the exercise of constitutionally guaranteed freedoms or statute."*

The Commissioner remanded the matter to the superintendent for further proceedings, noting the procedure for doing so was described by the Appellate Division in Rathbone, [supra] at page 178, where the court instructed Rathbone's superintendent to "resubmit [the] statement of reasons for [the] recommendation of dismissal." Further, said the Rathbone court, "[i]f these reasons are subsequently demonstrated to be unlawful, or if they are not accepted by the Board of Education, [Rathbone] will then be entitled to her benefits from the date of the unlawful dismissal" but if adequate reasons are given "which in the superintendent’s view would have justified [Rathbone's] dismissal ... and the board, after [Rathbone] has had the opportunity to respond, chooses to accept the recommendation, [Rathbone] should not receive back pay or benefits …."

* The Commissioner declined to consider the more specific reasons for Probationer’s discontinuance that the superintendent articulated for the first time after Probationer's appeal to the Commissioner, explaining that time to provide the Probationer with these reasons "was at the local level and permitting the superintendent to proceed in this matter would effectively abrogate the protections of Education Law §3031."

Click HERE to access the Commissioner's decision posted on the Internet.

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