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 http://www.nycourts.gov/reporter/3dseries/2011/2011_21182.htm

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_51026.htm

Determining the availability of Jarema credit for the purposes of attaining tenure

Determining the availability of Jarema credit for the purposes of attaining tenure

2015 NY Slip Op 04847, Appellate Division, Second Department

Pursuant to Education Law §3012(1)(a), teachers were appointed for a probationary period of three years.*However, in the case of a teacher who has rendered satisfactory service as a regular substitute for a period of two years and has been appointed to teach the same subject on an annual salary, the probationary period is limited to one year. Although service as a substitute teacher does not constitute probationary service for purposes of obtaining tenure as a regular teacher, a substitute teacher's three-year probationary period can be reduced to one year through so-called "Jarema" credit, so named for the sponsor of the bill that provided for this calculation of credit.**

A certified teacher [Petitioner] in elementary education and special education was employed by the School District as a permanent substitute teacher in a general education kindergarten class during the 2008-2009 school year. She subsequently taught as a probationary special education teacher during the 2009-2010, 2010-2011, and 2011-2012 school years in first and fourth grade integrated co-teaching classes.

On May 22, 2012, based on the recommendation of the Superintendent of Schools, the  School District’s Board of Education terminated Petitioner's employment without a hearing effective June 22, 2012. Petitioner, contending that she had attained tenure by estoppel and thus could not be terminated without a hearing, commenced a CPLR Article 78 proceeding in the nature of mandamus seeking a judgment compelling her reinstatement as a tenured teacher by the School District with back pay.

The Supreme Court denied the petition and dismissed the proceeding, concluding that the Petitioner did not establish that she had acquired tenure by estoppel and thus was not entitled to a hearing before her employment could be terminated. As to attaining tenure by estoppel, in McManus v Board of Education, Hempstead UFSD, 87 NY2 183, the Court of Appeals held that "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."

The Appellate Division said that Supreme Court properly concluded that Petitioner did not acquire tenure by estoppel,*** explaining:

1. Petitioner did not acquire tenure by estoppel in the special education tenure area, as the Petitioner did not teach in that area for a period of time exceeding the three-year probationary period required for gaining tenure.

2. Probationer was not entitled to Jarema credit for the additional year she taught general-education kindergarten, as such service was not in the same "subject" area as special education.

3. Petitioner failed to establish that she acquired tenure by estoppel in the elementary education tenure subject area as during the 2009-2010, 2010-2011, and 2011-2012 school years, Petitioner was employed as a probationer in the special education tenure subject area, not the elementary tenure subject area and she taught as a special education teacher in co-teaching classrooms along with general education teachers.

4. Petitioner failed to establish that she devoted at least 40% of her time to teaching elementary education in the co-teaching classes, as opposed to teaching special education in those classes.

Thus, said the Appellate Division, the record does not support Petitioner’s contention that she was entitled to tenure by estoppel as an elementary education teacher.

* See http://publicpersonnellaw.blogspot.com/2015/04/amendments-to-education-law-included-in.htmland http://publicpersonnellaw.blogspot.com/2015/07/education-department-posts-proposed.htmlfor recent amendments to tenure requirements.

**  Jarema credit cannot exceed two years and the service as a substitute teacher must be continuous for at least one school term.

*** “Tenure by estoppel” is sometimes referred to as “tenure by acquisition,” “tenure by default,” or “tenure by inaction.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_04847.htm

Tenure by estoppel

Tenure by estoppel
Matter of Andrews v Board of Educ. of the City School Dist. of the City of N.Y., 2010 NY Slip Op 32963(U), October 15, 2010, Supreme Court, New York County. Judge Joan A. Madden [Not selected for publication in the Official Reports]

Dana Andrews sought a court order declaring that she had attained tenure by estoppel as a result of her being continued in service after the end of her probationary period and direct the New York City Board of Education to reinstate her to her former position with back salary.*

Although a newly appointed teacher is required to serve a three-year probationary period, because Andrews was entitled to two years of so-called “Jarema credit toward the completion of her probationary period.** Accordingly, Andrews’ probationary period was to end August 30, 2008.

When Andrews was advised that she would not be given tenure at the end of her probationary period, she requested, and was granted, “another chance to improve and perform satisfactorily,” and Andrews signed an agreement extending her probationary period for one year, i.e., through August 30, 2009. The agreement provided that Andrews would either be granted tenure, if she satisfactorily completed the additional year of probation, or she could be terminated on or before that date.

On or about June 18, 2009 Andrews was sent a letter advising her that her overall rating as a probationary teacher was “unsatisfactory.”

On September 8, 2009, the first day of the 2009-2010 school year, Andrews reported for duty. Her principal advised her that she should not be there because she had been terminated. Andrews replied that she had “never received written notice of her termination and left the school, only to return later that day, indicating that her union representative had told her that she should remain at the school for that day.

Andrews’ union representatives subsequently met with school officials. The union's representatives asserted that Andrews’ principal had stated that she had "messed up" by failing to provide Andrews with timely written notice that she was to be discontinued.

The Board of Education, contending that Andrews had not attained tenure by estoppel, withdrew its argument that she was not entitled to back pay, conceding that she had not been be provided with a written notice of her discontinuance more than 60 days before her probationary period expired.

Noting that a teacher can acquire tenure either through appointment or by acquiescence and estoppel. Typically tenure by estoppel is acquired 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.”

An individual claiming tenure by estoppel has the burden of demonstrating that his or her “post-probationary” services were performed with the knowledge and consent of the responsible board of education. However, said Judge Madden, “The mere failure to provide a teacher with the required amount of notice of an intention not to recommend tenure does not confer tenure," citing Matter of Brunecz v City of Dunkirk Bd. of Educ., 23 AD3d 1126.

Noting that the Board of Education terminated Andrews on or about September 11, 2009, the court said that in Educ. of Cohoes City School Dist., 59 AD2d at 807, the Appellate Division held that a teacher who taught for a few days after his probationary period ended had not attain tenure by estoppel “where prompt action was taken to discharge the teacher as soon as his presence was discovered.”***

Accordingly, Judge Madden dismissed Andrews’ petition seeking a judgment that she had attained tenure by estoppel but commented that her request for alternative relief – back pay for failure to provide the statutory notice that she was not to be given tenure at the end of her probationary period -- was not in dispute and would be provided by the Board of Education.

* In the alternative, she contended that she was entitled to 60 days of back pay because she was not given the requisite pre-termination notice as to he failure to satisfactorily complete her probationary period.

** Section 2509.1(a) [the "Jarema Act"] provides that the statutory three-year probationary period for teachers may be reduced by up to two years if the teacher rendered service as a "regular substitute" for a full term or more prior to the teacher's probationary appointment by the school district. In determining the duration of the probationary period, if a teacher is absent during his or her probationary period, the district may extended the probationary period for a period of time equal to the absence.

*** Similarly, as the Appellate Division held in Mendez v Valenti, 101 AD2d 612, as long as the termination of a probationer [in the classified service] is effected within a reasonable time, such as set to coincide with the end of the next payroll period, the courts will not deem the probationer 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.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/pdfs/2010/2010_32963.pdf
NYPPL

Tenure by estoppel

Tenure by estoppel
Matter of Ronga v Klein, 2011 NY Slip Op 01408, Appellate Division, First Department

A probationary administrator or teacher may attain tenure by estoppel [sometimes referred to as “tenure by acquiescence”] 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 the individual tenure prior to the expiration of the administrator’s or teacher’s probationary term, McManus v Hempstead Union Free School District, 87 NY2d 183.

Richard Ronga, appointed as a probationary principal by the New York City Department of Education [DOE], challenged DOE's terminating his employment on the theory that he was denied due process as he was not give the required pre-termination notice and hearing.

Ronga contended that he had attained tenure as a principal by “estoppel” and thus he was entitled to such due process as a matter of law.

Supreme Court dismissed Ronga’s petition, which ruling was unanimously affirmed by the Appellate Division.

In contrast to Ronga’s claim that he acquired tenure by estoppel, the Appellate Division said that the record established that he did not perform the duties of a principal with DOE's knowledge or consent beyond the expiration of his probationary term.

Further, the court noted, prior to the expiration of Ronga’s probationary period DOE notified him that he would not be granted tenure. According to the decision, Ronga and DOE then negotiated and signed a resignation agreement, which Ronga attempted to revoke later that same day.

The Appellate Division concluded that Ronga failed to demonstrate that he acquired tenure by estoppel and, further, failed to sustain his burden of showing that DOE acted in bad faith when it terminated his employment as a probationary principal, “as he provides no support for his claims.”

N.B. Continuation on the payroll for a brief period after the expiration of a probationary period does not automatically result in the individual attaining tenure by estoppel [Mendez v Valenti, 101 AD2d 612]. The court ruled that as long as the termination of a probationer [in the classified service] is effected within a reasonable time, such as set to coincide with the end of the next payroll period, the courts will not deem the probationer 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.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_01408.htm
.

Tenure by estoppel

Tenure by estoppel

Dembovich v Liberty CSD, App. Div., 296 AD2d 794 

The basic rule concerning granting tenure to a probationary teacher or administrator is that although a school board may reject a superintendent's recommendation to grant the probationer tenure, a school board may not grant a probationary employee tenure unless the superintendent recommends that it do so.

Under certain circumstances, however, the teacher may attain tenure by estoppel. As the court said in Pascal v Board of Education, 100 AD2d 622, tenure by estoppel results when a school board fails to take the action required by law to grant or deny tenure and, with its full knowledge and consent, permits a teacher to continue to teach beyond the expiration of his or her probationary period.

Consideration of these two propositions were elements in resolving the Dembovich case.

Shiri Dembovich was appointed as a teacher by the Liberty Central School District. Her appointment was subject to her satisfactorily completing a two-year probationary period that was to end August 31, 2000. By letter dated March 30, 2000, the Superintendent of Schools, Brian Howard, notified Dembovich he would not recommend her for tenure and that her employment would be terminated effective June 23, 2000. Dembovich asked for, and received, the reasons for Howard's decision not to recommend her for tenure.*

In September of 2000, Dembovich asked the superintendent to obtain a substitute "to fill in for her" until September 11. Howard immediately responded, informing her that she had been terminated effective June 23, 2000 and that she should not report for work.

Dembovich disagreed, claiming that the district had failed to provide her with the procedural rights to which she was entitled under Education Law §3031 and thus she had not been properly terminated from her position. In effect, Dembovich contended that she had attained tenure by estoppel because the district had not properly terminated her prior the end of her probationary period and she had "continued in service" beyond the end of her probationary period.

§3031 of the Education Law requires that the board of education review "all recommendations not to appoint a person on tenure." The individual is to be advised of the date on which the board will consider the recommendation at least 30 days prior to the date of the meeting. Another procedural requirement: the individual "may, not later than 21 days prior to such meeting" ask for a written statement setting out the reasons for the superintendent's recommendation and may file a response to such reasons "not later than 7 days prior to the day of the board meeting."

On September 8, 2000, the school's attorney wrote to Dembovich advising her that the school board would hold the required §3031 meeting to consider the superintendent's recommendation that she not be granted tenure on September 11 and would, on that date, adopt a resolution terminating her employment retroactive to August 31, 2000.

Dembovich sued the school district contending that it had unlawfully denied her the §3031 rights to which she was entitled. Supreme Court agreed. It annulled the district's resolution and directed it to comply the procedures set out in §3031. Liberty appealed.

After dismissing the district's technical arguments concerning the timeliness of Dembovich's filing her Article 78 action, the Appellate Division addressed the merits of her claims.

The arguments advanced by the parties in support of their respective positions:

1. Dembovich contended that September 8, 2000 letter violated §3031 because it only gave Dembovich three days notice rather than the required 30 days notice.

2. The district argued that its complying with the §3031 procedure is moot because it could not grant Dembovich tenure in the absence of the Superintendent's affirmative recommendation that it do so.

The Appellate Division disagreed with the district's position as to mootness, pointing out that §3031 is very specific as to the procedure that must be followed by a school board in the event a superintendent recommends against granting tenure to a probationary teacher and a school board must be comply with these statutory mandates.

The court, however, did not go so far as to hold that Dembovich had attained tenure by estoppel because she had not been "terminate" on or before August 31, 2002, presumably because the district "had not accepted" her services after that date. All the Appellate Division ordered was that the school board to follow the procedures set out in §3031.

What is the potential impact on a school district if it is found that it did not comply with the provisions set by §3031?

In Tucker v Bd. of Education SD #10, 189 AD2d 704, the court found that Tucker, a probationary teacher, was advised that she was to be denied tenure 22 days before her probationary period was to end. As a result, the court ruled that Tucker was entitled to an award of pay for each day the district's notice to her that she would not be granted tenure was late. In other words, Tucker was entitled to pay corresponding to the number of days for which she was not provided the statutory days of notice.

Implicit in the ruling is that in the event a probationary teacher is not provided with timely notice that he or she is to be denied tenure, the failure to provide such notice is not a fatal defect insofar as any defense to the individual’s claiming tenure by estoppel or by default is concerned, provided the teacher was given formal written notice of this decision by the appropriate party prior to expiration of his or her probationary period and receives payment for each day that the notice was "late."

By the same token, a probationary period termination does not have to take effect on or before the last day of the applicable probationary period.

In Mendez v Valenti, 101 AD2d 612, the Appellate Division held that retaining Mendez on the payroll until the end of payroll period for administrative convenience did not result in his attaining tenure in the position. The Court held that under the circumstances, keeping Mendez on the payroll was permissible in view of the fact that it was of a short duration; for "administrative convenience;" and he was provided with timely notice of his probationary termination prior to the end of his 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 employee's removal from the payroll may occur after this date, the required notice of the termination delivered to the employee before the end of his or her probationary period is deemed timely notice of termination for the purposes of determining if the individual attained tenure by estoppel.

Addressing another variation concerning the individual's employment obligation in relation to his or her tenure status, in Yastion v Mills, 229 AD2 775, the Appellate Division held that a teacher may work on a year-to-year contractual basis and never acquire tenure even after three years of continuous service. The decision points out that Yastion's continued employment was contingent on the district's receiving federal funding to support the position and his annual employment contracts specifically indicated that "tenure does not apply to this position."

* It is well settled that a probationary teacher may be dismissed from his or her position at any time during the probationary period without notice and hearing provided that such termination is not for an unlawful reason.

Attaining tenure by estoppel

Attaining tenure by estoppel
Lilley v Mills, App. Div., 274 A.D.2d 644

Robert Lilley was employed by the George Junior Republic Union Free School District to replace the district’s part-time per-diem school psychologist for the 1993-1994 academic year. As Lilley was paid on a per-diem basis, he did not receive any of the fringe benefits, such as health insurance, provided to full-time employees.

The record indicated that Lilley was not obligated to report to work on a daily basis nor was the district required to utilize his services on a daily basis or pay him for days he did not work.

In July 1994, Lilley was given a probationary appointment as a full-time school psychologist. He was terminated effective June 30, 1997. Lilley objected to his termination and appealed to the Commissioner of Education claiming that he had attained tenure by estoppel on the basis of his service as a per-diem substitute school psychologist during the 1993-1994 school year. Lilley later amended his claim, contending simply that he was employed full-time by the district commencing October 1993.

The Commissioner of Education dismissed Lilley’s appeal, holding that he had not attained tenure by estoppel. Lilley filed an Article 78 petition seeking to overturn the Commissioner’s determination.

The Appellate Division, Third Department, commenced its analysis by noting that:

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 ...,” citing McManus v Hempstead Union Free School District, 87 NY2d 183.

The key to resolving Lilley’s problem: as he had to satisfactorily complete a three-year probationary period to attain tenure, he had the burden of proving that he had acquired tenure by estoppel by showing that he was entitled to probationary service credit for his services during academic 1993-1994.”

The court commented that the Commissioner had indicated that part-time service is generally insufficient to establish tenure by estoppel. After the Commissioner reviewed Lilley’s employment history for academic 1993-1994, he concluded that Lilley failed to meet his burden of proof that he had been employed full-time for this period.

The Appellate Division sustained the Commissioner’s determination, noting the following significant points:

1. The true nature of an individual’s employment status cannot be determined by the label given to it by the District and depends instead on the realities of the position and its accompanying duties.

2. The record showed that the change of Lilley’s status to full time in July 1994 involved more than merely changing the label of the position.

3. During academic 1993-1994 Lilley was paid only for days he actually worked and did not receive the fringe benefits provided to the District’s full-time employees.

4. Lilley was paid a salary and received the additional benefits provided to the district’s full-time professional staff commencing with academic 1994-95.

5. The superintendent stated that Lilley’s duties changed after July 1994 and provided examples such as his beginning to serve as Chair of the Committee on Special Education.

Thus, said the court, the record before the Commissioner contained sufficient evidence to provide a rational basis to support his rejection of Lilley’s appeal.

Citing Catlin v Sobol, 77 NY2d 552, the Appellate Division said that “[i]n such cases the Commissioner’s determination must be upheld unless it is arbitrary and capricious and without rational basis.”

Although Lilley attempted to support his claims by listing the duties contained in the district’s job description for the full-time school psychologist position and contended that he performed those duties during the 1993-1994 school year, he also conceded that his duties intensified after July 1994.

Considering the conclusory nature of Lilley’s answer to the district’s claims and Lilley’s “concession that his duties ‘intensified’, the absence of any independent evidence such as documents or affidavits of disinterested persons with knowledge of the facts to support [Lilley’s] self-serving allegations and the failure to include his claim concerning his 1993-1994 duties in his petition,” the Appellate Division held that there was nothing arbitrary, capricious or irrational in the Commissioner’s rejecting Lilley’s appeal.

Tenure by estoppel

Tenure by estoppel
Tucker v Bd. of Education SD #10, 189 AD2d 704

Under certain circumstances a probationary teacher may attain tenure by estoppel, sometimes referred to as "tenure by acquisition."

As the court said in Pascal v Board of Education, 100 AD2d 622, tenure by estoppel results when a school board fails to take the action required by law to grant or deny tenure and, with its full knowledge and consent, permits a teacher to continue to teach beyond the expiration of his or her probationary period.

§3031 of the Education Law requires that the board of education review "all recommendations not to appoint a person on tenure." The individual is to be advised of the date on which the board will consider the recommendation at least 30 days prior to the date of the meeting.

Another §3031 provision: the probationary teacher "may, not later than 21 days prior to such meeting" ask for a written statement setting out the reasons for the superintendent's recommendation and may file a response to such reasons "not later than 7 days prior to the day of the board meeting."

What is the potential impact on a school district if it is found that it did not comply with the provisions set by §3031?

In Tucker v Bd. of Education SD #10, 189 AD2d 704, the court found that a probationary teacher was advised that she was to be denied tenure 22 days before her probationary period was to end. The court ruled that the individual was entitled to an award of a day's pay for each day the district's notice to her that she would not be granted tenure was late. In other words, the probationary teacher was entitled to pay  corre­sponding to the number of days for which she was not given the statutory number of days of notice prior to effective date of her termination.

Implicit in this ruling is that in the event a probationary teacher is not provided with timely notice that he or she is to be denied tenure, the failure to provide such notice is not a fatal defect insofar as a defense to the individual claiming tenure by estoppel or by default is concerned, provided the teacher was given formal written notice of this deci­sion by the appropriate party prior to expiration of his or her probationary period and he or she receives payment for each day that the notice was "late."

Further, the removal of the probationary employee from the payroll does not have to take effect on or before the last day of the applicable probationary period. In Mendez v Valenti, 101 AD2d 612, the Appellate Division held that retaining Mendez on the payroll until the end of payroll period for administrative convenience did not result in his attaining tenure in the position. The Court held that under the circumstances, keeping Mendez on the payroll was permissible in view of the fact that [1] it was of a short duration;[2] it was for "administrative convenience;" and [3] he was provided with timely prior notice of the termination from his probationary appointment. .

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 employee's actual removal from the payroll may occur after this date, the required notice of the termination delivered to the employee before the end of his or her probationary period is deemed timely notice of termination for the purposes of determining if the individual has attained tenure by estoppel.

Addressing another variation concerning the individual's attaining tenure in his or her position, in Yastion v Mills, 229 AD2 775, the Appellate Division held that a teacher may work on a year-to-year contractual basis and never acquire tenure even after three years of continuous service. The decision points out that Yastion's con­tinued employment was contingent on the district's receipt of federal funding and his annual employment contracts specifically indicated that "tenure does not apply to this position."

Tenure by estoppel

Tenure by estoppel

2015 NY Slip Op 05471, Appellate Division, Second Department

In response to the School District’s denying the petitioner [Teacher] tenure and terminating her employment, Teacher filed an Article 78 seeking reinstatement to her former position, back salary and benefits and other relief.

Teacher’s notice of appointment stated that her probationary period was to run through June 30, 2010. From September 2, 2008, through January 21, 2009, Teacher was absent from work for 87 work days on an approved unpaid maternity leave.

Teacher was later placed on “contractual paid medical leave” due to complications with a second pregnancy. While on such leave, Teacher was served with a notice that she would not be recommended for tenure at the expiration of her three-year probationary period. She returned to work on January 13, 2011 only to her employment terminated effective January 21, 2011.

Teacher sued, contending that she had attained tenure by estoppel. Supreme Court granted Teacher’s petition, expressly rejecting the School District’s claim that Teacher’s maternity leave tolled the probationary period by the total sum of the calendar days of her leave, rather than by the number of days that school was actually in session.

Supreme Court directed the School District to recalculate Teacher’s probationary period end date, using an original end date of June 30, 2010, rejecting the School District’s recalculation of Teacher’s probationary period end date and declared that she acquired tenure by estoppel. The court also directed Teacher’s reinstatement effective January 21, 2011, with back pay, reimbursement of benefits, and an award of compensatory damages in an amount to be determined at a hearing.

In response to the School District’s appeal, the Appellate Division said:

1. The Education Law specifically distinguishes between probationary teachers and tenured teachers. Tenure by estoppel results "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."

2. A teacher who has acquired tenure by estoppel, but is nonetheless improperly terminated, is entitled to reinstatement, retroactive to the last date of employment, back pay, and all accrued benefits.

3. Where a teacher is granted a period of unpaid maternity leave during her three-year probationary period, that period of leave may properly be excluded from computation of a teacher's three-year probationary period.

4. An extension of a teacher's probationary period is to be performed utilizing a workday-to-calendar day methodology and not, as the School District argued, by the corresponding number of calendar days’*

Applying the foregoing principles to this proceeding, the Appellate Division conclude that Teacher had worked past her extended probationary period end date and that Supreme Court properly determined that Teacher acquired tenure by estoppel, and that she is entitled to reinstatement to her position, with tenure and back pay from the date her employment was terminated, January 21, 2011.

Addressing a collateral issue, the removal of certain documents for Teacher’s personnel file the Appellate Division agreed with Supreme Court's determination that the School District was in breach of certain provisions set out in a Taylor Law (Civil Service Law Article 14) collective bargaining agreement.

Although it is well settled that a board of education will not be liable for the unauthorized acts of its agents, under the Taylor Law agreements that are negotiated between a public employer, by its chief executive officer, and a union and/or a unionized employee are enforceable and binding upon the public employer to the extent that the provisions thereof do not require approval by a legislative body.** The court noted that the chief executive officer of the School District, and pursuant to the powers and duties set forth in Education Law §1711(2)(e), was authorized to enter into the Taylor Law agreement insofar as it pertained to the maintenance of Teacher’s personnel file.

* Education Law § 3012(3) provides that "no period in any school year for which there is no required service and/or for which no compensation is provided shall in any event constitute a break or suspension of probationary period or continuity of tenure rights."

**§204-a of the Civil Service Law states that provisions in a written agreements between the employer and an employee organization are conditional to the extent that provisions set out in such agreement requiring legislative action to permit its implementation by amendment of law or by providing the additional funds therefor, shall not become effective until the appropriate legislative body has given approval.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_05471.htm

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Attaining tenure by estoppel or acquisition

Attaining tenure by estoppel or acquisition

Files v Department of Educ. of the City of New York, 2014 NY Slip Op 04713, Appellate Division, First Department

Typically a probationary teacher or administrator will attain tenure by estoppel or acquisition when a school board accepts the continued services of the 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 or administrator’s probationary term.

The Appellate Division sustained a State Supreme Court decision rejecting a probationary teacher’s [Teacher] petition by which she sought a court order annulling her employer’s decision to deny her tenure and to terminate her employment, contending that she had attained tenure by estoppel.

As to Teacher’s claim that she had attained tenure by estoppel, the Appellate Division said the she had failed to demonstrate that she acquired tenure by estoppel or acquisition as the record demonstrated that she did not perform the duties of a teacher beyond her probationary term. The decision notes that Teacher’s employer made it clear to her that she would not be given tenure and, at most, would be offered an extension of her probationary period. Teacher, however, declined the offer to extend her probationary period.

Significantly Teacher was not placed in a classroom nor did she perform any traditional teaching functions immediately prior to the expiration of her probationary period. Rather, said the Appellate Division, the record demonstrates that she performed administrative tasks instead of traditional teaching duties.

The Appellate Division also rejected Teacher’s allegation that her employer had “engaged in bad faith when it terminated her employment” as the record indicated that Teacher had received “two letters of misconduct and an unsatisfactory performance rating.”

One exception to the general rule: In Mendez v Valenti, 101 AD2d 612 the Appellate Division held that as long as the termination of a probationer appointed to a position 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, he or she does not attain tenure by estoppel or acquisition notwithstanding his or her continuation on the payroll. 

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Substitute service credit

Substitute service credit

Hudson v Hempstead UFSD, NYS Supreme Court

The Hudson case concerned the proper counting of service as a substitute teacher for the purposes of determining if a teacher had obtained tenure. The ruling emphasizes the importance of considering substitute service in making tenure decisions for probationary employees.

The Supreme Court commented in its decision that this was a case of "first impression." That is, the issue of crediting service as a "permanent substitute" had never before been litigated in New York State.

A probationary employee is deemed to have acquired tenure "by estoppel"  if the employer fails or neglects to take timely action to terminate the services of the probationer prior to end of his or her maximum period of probation.

In the Hudson case, Shawn Hudson had served as a per-diem substitute elementary school teacher for a number of years with the Hempstead Union Free School District. The District then appointed him as a "permanent substitute" for a teacher while she was on maternity leave for the school year.  Hudson was subsequently appointed as an elementary school teacher subject to a two-year probationary period. The probationary period was to end February 1, 1995.

Prior to the end of this probationary period, Hudson signed a document advising him that the superintendent would not recommend him for tenure at the end of his probationary period and that his probationary period would be extended for another year and would now run through February 1, 1996. The document also contained a waiver whereby Hudson agreed not to claim tenure by estoppel based on his employment with the District after February 1, 1995.

On December 12, 1994 Hudson was told in a letter that his probationary period would not be extended after all and that he was terminated effective February 1, 1995.  Hudson sued.

Hudson argued that (1) he had acquired tenure by estoppel and (2) as a tenured teacher, he could not be discharged without formal proceedings being taken pursuant to Education Law. How could Hudson argue this given the fact that he had waived his right to tenure by estoppel? Hudson asserted and the Court agreed that the District's letter dated December 12, 1994 rendered Hudson's waiver of any claim to tenure by estoppel null and void. Simply put, when the District reneged on its offer of an additional year of probation, all bets were off.

NOTE: The Court ruled that Hudson's state of mind when he signed the letter was not relevant to the issue of whether or not he was actually entitled to credit towards tenure.

Hudson's claim of tenure by estoppel amounted to a counting of the days he served. He contended that by tacking together all of his service in the District, he had served a total of three or more years with Hempstead and therefore was entitled to "Jarema Credit."*He included his service as a full-time substitute teacher for one school year, other  service as a substitute for the District, his service as a "permanent substitute," and his probationary service.

The District contended that only Hudson's full-time substitute service (one school year) and his time as a probationary teacher (slightly less than two years) should be counted and credited toward the three-year service requirement for tenure. Thus, argued the District's "no hearing was required under the Education Law and it had the right to discharge [Hudson] without cause."

The Court said that central to resolving the dispute between the parties was the calculation of Jarema credit. That determination, in turn, depended on whether Hudson was to be given credit for the time he served as a "permanent substitute." To resolve the issue, the Court said it must first look to the regulations of the Commissioner of Education in an attempt to find the classifications of the various categories of teacher service.

Was the position "permanent substitute" analogous to a "regular substitute" within the meaning of §3012.1(a)?  Here the Court decided  that it was and that the Board of Education was "estopped from denying Hudson Jarema Credit for the time in which he served as a "permanent substitute."

According to the ruling,  "the provisions of the Education Law applicable to the granting of tenure are in derogation of the common law and should be strictly construed." The Court said that "a board of education may not deny tenure and other rights to its employees by refusing to designate such employees by the appropriate title or by designating their positions as "acting" or "temporary."

Citing Ricca v Board of Education, 47 NY2d 385. the Court concluded that whether or not a Board of Education acted intentionally to circumvent the tenure laws is not determinative because "even good faith violations of the tenure system must be forbidden, lest the entire edifice crumble from the cumulative effect of numerous well-intentioned exceptions."

Another argument made by Hempstead was that Hudson's periods of service in which the he served as a regular substitute must have been immediately preceded his probationary appointment to be considered. The District contended that because Hudson served certain semesters less than full time prior to his probationary period, he could not qualify for Jarema credit.

Not so, said the Court.  "While the Commissioner of Education noted in Matter of Carey, 31 Ed. Dept. Rep. 394 (1992), that there is a distinction between seniority credit and 'Jarema Credit,' he did not state that in order to qualify for 'Jarema Credit,' the full-time substitute work must come immediately before the probationary appointment."

In addition, the Court commented that "... §3012 does not impose such a requirement and it is permissible for a teacher to achieve tenure by estoppel ... by tacking together two non-continuous periods of service," quoting from Lindsey v Mt. Morris Board of Education, 172 AD2d 185.

The Court decided that Hudson's "service sufficient to allow the petitioner to qualify for 'Jarema Credit' for the regular substitute periods in which he served."

Concluding that Hudson had attained tenure by estoppel and thus "should not have been discharged without formal proceedings pursuant to Education Law §3012(2) being brought," the Court ruled that he was entitled to back pay for the period following his termination, subject to an adjustment based on Hudson's "mitigation of those damages."

* §2509.1(a), the "Jarema Act," provides that the statutory three-year probationary period for teachers is reduced to one year if the teacher rendered satisfactory service as a "regular substitute" for two years or more prior to the teacher's probationary appointment by the same school district. The probationary period is not to exceed two years in situations involving the appointment of a probationary teacher who was tenured in another school district.  The Education Commissioner has  distinguished between "Jarema Credit" and "seniority credit" for the purposes of §2510. He said that  seniority credit recognizes continuous full-time service in a  school district and unlike Jarema credit,  may not be used  to obligate a board to grant tenure to a teacher. Tenure decisions may be  made  without  regard to a teacher's  accumulated  seniority. Citing  Matter of Crandall (20 Ed. Dept. Rep. 16),  the Commissioner said "seniority, then,  relates only to a teacher's rights vis-à-vis other teachers" such as may be relevant in a layoff situation. The Commissioner observed that in such a context, "it is reasonable to assume that  teachers  will  be  retained according  to  the  length  of continuous [i.e., uninterrupted] service, whether  such  service  was  all  rendered subsequent to a probationary appointment or was rendered partly before and partly after such an appointment."

Tenure may be acquired by estoppel

Tenure by estoppel 

Wilson v Department of Educ. of the City of N.Y., 2019 NY Slip Op 01161, Appellate Division, First Department

An employee may attain tenure by estoppel as the result of the appointing authority's failing to provide the individual with timely notice that his or her services will not be continued beyond his or her probationary period.*

Citing McManus v Board of Educ. of Hempstead Union Free School District, 87 NY2d 183, the Appellate Division affirmed a Supreme Court's ruling that annulled New York City Department of Education's [DOE] discontinuing Petitioner's employment and directed the educator's reinstatement to her former position as a tenured teacher with back salary.**

DOE had appointed Petitioner as a teacher in 2011 and her initial 3-year probationary period was set to expire in 2014. Prior to the date on which Petitioner probationary period was to expire, she and DOE entered into a written agreement extending her probation through September 8, 2015. 

In March 2015, DOE temporarily reassigned Petitioner to perform certain clerical duties. Significantly, DOE did not advise Petitioner concerning its decision regarding her status as a probationary teacher upon her reassignment. In March 2016, DOE discontinued Petitioner's clerical assignment and  directed her to resume performing her teaching duties. The Appellate Division's decision reports that after resuming her teaching duties Petitioner was involved in an incident with her school principal and she "took an unapproved leave of absence." On June 15, 2016, DOE notified Petitioner that "it was discontinuing her probationary service as of July 15, 2016."

The Appellate Division explained that a probationary teacher typically acquires tenure by estoppel when a school board fails to take the action required by law to either [1] grant or deny tenure to the individual prior to the expiration of the teacher's probationary term and [2] accepts the continued services of an educator in his or her position. Here, said the Appellate Division, Petitioner obtained tenure by estoppel at the end of her extended probationary period as the result of DOE's failure to deliver the notice of it's decision to terminate her on or before September 8, 2015.

In addition, the court noted that DOE failed to advise Petitioner that the temporary assignment to perform clerical duties would not count toward her satisfying her probationary term of service. Accordingly, Petitioner's decision to accept the temporary reassignment did not "serve to disrupt" Petitioner's  probationary period nor did it result in an automatic extension  of her probationary term for a period equal in length to the period of her service in a clerical capacity.

Having attained tenure in her position as an educator by estoppel, which is sometimes referred to as tenure by acquiescence or tenure by default, Petitioner could only be removed from her position for cause, after notice and hearing.

In contrast, for the purposes of determining the duration of the probationary period, if a teacher is absent during his or her probationary period, the appointing authority may take appropriate action to extend the probationary period for a period of time equal to such absence.

The same is true with respect to absence during the probationary period of employees in the classified service.*** However, with respect to employees in the classified service, the appointing authorities may be given discretion to waive a limited period of such absence pursuant to the rules of the responsible civil service commission. Otherwise the minimum and maximum periods of the probationary term of the employee are extended by the number of workdays of such absences not counted as time served in the probationary term” [see, for example, 4 NYCRR 4.5(g), “Absence during probationary term”].

Another element to consider is the extension of the probationary period in the event an employee is given a “light duty” or some other alternate assignment while serving his or her probationary period [see Boyle v Koch, 68 NY2d 60].

* If the notice of termination of the employee's service is timely given, the last day of service need not coincide with the last day of his or her probationary period. If the termination date of service of the individual is made effective within a reasonable time of the last day of his or her probationary period, such as to coincide with the end of the next payroll period, the courts will not deem the probationer to have obtained tenure by estoppel as the result of the “carryover” [see Mendez v Valenti, 101 AD2d 612].

** The Supreme Court's ruling was subsequently amended to provide that amount earned by the Plaintiff from a specified date to a later specified date would be deducted from the amount of back pay owed to Plaintiff by the Department of Education.

*** The positions of teachers and school administrators are typically in the Unclassified Service [see Civil Service Law §35, subdivisions g through and including k].

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_01161.htm

CPLR Article 78 petition dismissed as untimely, barred by the Doctrine of Res Judicata and barred by the Doctrine of Collateral Estoppel

Supreme Court rejected the CPLR Article 78 action filed by the Petitioner [Plaintiff] again seeking a court order annulling the decision of the New York City Department of Education [DOE] terminating Petitioner's employment.

Plaintiff had challenged her being appointed as a probationary employee by DOE upon her reinstatement to a position with the agency in 2009 after she had been terminated from her from her position in 2010. Plaintiff contending that she had attained tenure by estoppel* and thus could be removed from her position only after "notice and hearing" pursuant to the controlling disciplinary procedure and being found guilty of one or more of charges filed against her.

Supreme Court, considering a number of procedural issues, held that Plaintiff's instant Article 78 petition was [1] untimely, [2] barred by the Doctrine of Res Judicata and [3] barred by the Doctrine of Collateral Estoppel, dismissed the proceeding. 

As to the basis underlying the Supreme Court's rulings on these procedural matters:

1. The commencement of an action at law is deemed "untimely" if the required petition or similar instrument is not filed with the judicial or quasi-judicial tribunal having jurisdiction within the period of time specified by the relevant law, rule or regulation or, in some instances, the terms of a collective bargaining agreement negotiated pursuant to Article 14 of the New York State Civil Service Law, the so-called "Taylor Law";

2. The Doctrine of Res Judicata bars considering claims that could have been advanced in an earlier judicial or quasi-judicial proceeding in the course of a subsequent litigation; and

3. The Doctrine of Collateral Estoppel providesthat when an issue of fact has once been determined by a judicial or quasi-judicial body of competent jurisdiction the determination is conclusive as to the controverted issues and cannot again be litigated by the same parties in any future litigation.

Plaintiff appealed the Supreme Court's ruling. The Appellate Division, however,  unanimously affirmed the Supreme Court's decision, explaining:

a. Plaintiff's challenge with respect to her probationary status upon reinstatement by DOE in 2009 and the discontinuance of her employment under color of her being a "probationary employee" in 2010 was untimely and to the extent Plaintiff submitted a renewed challenge against DOE in 2015 concerning such action by DOE, it was similarly barred; and

b. Supreme Court correctly determined that the instant proceeding was barred by res judicata and collateral estoppel as Plaintiff had asserted claims arising from her reinstatement and subsequent discontinuance from her position by DOE in actions that raised the same issue with respect to her allegation that she had attained "tenure by estoppel" in two actions she had brought in federal court, one in 2011 and a second in 2013, and another such action she brought in state court in 2015. 

* * Tenure by estoppel, also referred to as tenure by acquisition, tenure by default, or tenure by inaction, results "by operation of law" in the event the appointing authority does not lawfully terminate the probationary employee on or before the last day of the individual's original, or extended, probationary period.

Click HEREto access the Appellate Division's ruling.

 

Tenure by estoppel

Tenure by estoppel

2013 NY Slip Op 04006, Appellate Division, Second Department

Tenure by estoppel results "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."

When a probationary teacher was denied tenure prior to the end of his probationary period, he claimed that he had attained tenure by estoppel.

According to the decision, the Board of Education had employed the teacher [Educator] as a per diem substitute teacher from September through the following June. Upon Educator’s completion of that academic year he appointed as full time teacher subject to the satisfactory completion of a two-year probationary period commencing July 1, 2008 through to June 30, 2010. The decision notes that Educator was entitled to a “one-year credit” toward the statutory three-year probationary period based on his prior tenure service in another district as provided by Education Law §3012[1][a].

What was ultimately to prove critical to the resolution of Educator’s claim that he had attained tenure by estoppel was a revised “letter of intent” he had signed that memorialized his probationary appointment and which specified that he would become eligible for tenure on July 1, 2010.

In May 2010, the superintendent of schools advised Educator that would be recommend the termination of his probationary appointment and on June 23, 2010 the Board voted to terminate Educator’s employment effective June 25, 2010.

Educator challenged the Board’s action and filed an Article 78 seeking a court order directing his reinstatement to his former contending that the Board did not have the authority to summarily terminate his employment because he had acquired tenure by estoppel.

Supreme Court denied Educator’s petition.

The Appellate Division sustained the Supreme Court’s decision, explaining that Educator had failed to demonstrate that the Board unduly delayed his formal appointment to his position or that he had otherwise acquired tenure by operation of law.

The court said that it was undisputed that Educator signed a revised letter of intent. This letter was held to have superseded all prior agreements and specified that Educator would become eligible for tenure on July 1, 2010.

Educator, however, had already discharged from his employment prior to that date.

Accordingly, ruled the Appellate Division, the Supreme Court properly denied Educator’s petition and dismissed the proceeding.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_04006.htm