Authority to hear a disciplinary appeal

Authority to hear a disciplinary appeal
Pierino v Brown, 281 A.D.2d 960

The issue in the Pierino case concerns the proper forum to consider a disciplinary appeal.

John Pierino filed an Article 78 action challenging a disciplinary determination based on a hearing officer's finding that Pierino was guilty of violating Section 35-6 of the Buffalo City Code.

The disciplinary charges filed against Pierino were resolved in accordance with the provisions set out in Article 22 -- the contract disciplinary procedure -- of the relevant collective bargaining agreement. Article 22 required the appointment of a hearing officer, who was to hear the charges and make a determination.

Pierino challenged the disciplinary determination by bring an Article 78 action alleging the decision by the hearing officer was not based on substantial evidence. As is typical in such cases, the State Supreme Court transferred the action to the Appellate Division.

The Appellate Division, however, rejected the transfer of Pierino's Article 78 petition to it for review.

What was the basis for the court's action? The Appellate Division ruled that the issue of “substantial evidence” that formed the basis of Pierino's appeal is raised only if an administrative hearing is “required by law.” In the words of the Appellate Division, citing Marin v Bensonsi, 131 AD2 100:

Since the hearing was mandated by the collective bargaining agreement and not by Civil Service Law Section 75, the substantial evidence standard of review does not apply and the arbitrary and capricious standard is appropriate. Consequently, the proceeding was erroneously transferred to this Court.

Jurisdictional classification of positions

Jurisdictional classification of positions
CSEA Local 1000 v State University of New York, 280 A.D.2d 832

Unless placed in a different jurisdictional classification by statute or by action of the civil service commission(s) having jurisdiction, all positions in the classified service are automatically included in the competitive class.* 

Accordingly, most “jurisdictional classification” questions concern the placement or the jurisdictional reclassification of a position in the competitive class of the classified service into the exempt, noncompetitive or labor class.

However, sometimes another “jurisdictional issue” is raised: is a particular position in the classified service or the unclassified service. The CSEA Local 1000 case raised such an issue and sets out the standards the court will apply in resolving such questions.

In 1998 the State University of New York [SUNY] announced a vacancy for a “warehouse staff assistant” position in the unclassified service at SUNY-Plattsburgh. CSEA Local 1000 objected to the jurisdictional classification of this position in the unclassified service, contending that the position was actually that of a “principal stores clerk”, a classified service position in the competitive class in a bargaining unit represented by Local 1000.

Section 35 of the Civil Service Law sets out the positions that are in the unclassified service. These include all elective offices; officers and employees of the state legislature and any other legislative bodies whose principal functions are directly related to the performance of the legislative functions of such body; and the head or heads of any department of the government.

Also included are “all positions in the state university in the professional service as defined in subdivision three of section three hundred fifty-five-a of the education law, which positions shall be determined by the chancellor of the state university and certified by him to the civil service commission....” Essentially Local 1000 charged that SUNY had abused its discretion when it designated the warehouse staff assistant as an unclassified professional position.

Affirming the Chancellor's determination, the Appellate Division said that “[w]hile we must look to the duties, not the title, to determine the proper classification of a position, a comparison of the duties and job requirements for the position of “principal stores clerk” with those of the “staff assistant” reveals that the positions are not “so substantially similar as to be appropriately termed identical.”

The Appellate Division noted that the positions have “vastly different educational requirements” and many different duties and, while some of the duties of each position appear similar, clearly the “staff assistant” position entails more managerial tasks and greater responsibilities.

The Appellate Division's conclusion: CSEA's allegation that the designation of the position as a “staff assistant” was arbitrary and capricious is not supported by evidence and, consequently, cannot be said to lack a rational basis.

* Jurisdictional classification and jurisdictional reclassification involve determinations placing positions in the classified service in the competitive, exempt, noncompetitive or labor classes [Section 2.10, Civil Service Law]. In contrast, position classification involves the evaluation of the duties and responsibilities of a position and placing it in a group of positions with a common and descriptive title [Section 2.11, Civil Service Law]. Positions in the unclassified service consist essentially of elected officials, department heads and educators, and are listed in Section 35 of the Civil Service Law.

Equal pay - Judges

Equal pay - Judges
Affronti v Crosson, NYS Court of Appeals, 95 NY2d 713

Sometimes one employee of the State of New York will receive a supplement to his or her annual salary not being paid to another State worker employed in the same title. Typically such differences result from the supplements to annual compensation based on “geographic” considerations [Civil Service Law Section 130.7], “hazardous duty differentials” [Civil Service Law Section 130.9], an “occupational pay differential” [Civil Service Law Section 130.13] or the payment of a “shift differential” [Civil Service Law Section 130.6].*

Accordingly, certain State employees may receive a different amount as total compensation than that paid to other State employees appointed to the same title. Does such an arrangement violate the “Equal Protection” mandates of the Fourteenth Amendment or the State's policy of “equal pay for equal work” [Civil Service Law Section 115]? Essentially this was the question raised by the Affronti case.

State Family Court judges serving in Monroe County and State Family Court judges in Sullivan, Putnam and Suffolk Counties do not receive the same rates of compensation.

The Family Court judges in Monroe County sued the Office of Court Administration [OCA], contending that “the statutorily enacted pay disparities” between and among Family Court judges “violate their rights to equal protection under the 14th Amendment of the Federal Constitution and Article I, Section 11 of the State Constitution.”

In support of their claim, the Monroe County judges presented evidence of “a similarity -- in the functions, duties and responsibilities performed -- between themselves and Judges in the other counties,” together with economic data related to the “cost of living” in certain areas to support their claim. OCA presented expert testimony and statistical data showing a cost of living differential between Monroe and Suffolk Counties and rested its case.**

The test applied by the Court of Appeals in resolving the controversy: was there a rational basis for these salary disparities?

According to the ruling, where a governmental classification is not based on an inherently suspect characteristic and does not impermissibly interfere with the exercise of a fundamental right, it need only rationally further a legitimate state interest to be upheld as constitutional.

Finding that the challenged “disparate judicial salary schedules in Judiciary Law Sections 221-d and 221-e do not involve suspect classes or fundamental rights,” the Court of Appeals ruled that the Monroe County judges claims were to be resolved on a “rational basis review.” The court's conclusion: The challenged provisions of the Judiciary Law had a rational basis and thus do not violate equal protection.

According to the decision, the fact that Putnam County Court Judges performed multiple judicial roles preclude a finding of any “true unity of judicial interest in the compared posts” and thus provide a rational basis for the statutory salary differentials.

In addition, the Court of Appeals decided that the Monroe County judges “proffered no proof that the costs of living in Monroe and Suffolk County are comparable”, thereby failing to demonstrate a “true unity of ... judicial interest ... indistinguishable by separate geographic considerations”.

Presumably the same analysis would be applied in cases involving challenges to pay differentials granted to State employees pursuant to one or more of the relevant subdivisions of Section 130 of the Civil Service Law.

* The provisions of Article VIII of the Civil Service Law -- Classification and Compensation of State Employees -- do not apply to employees of municipalities and political subdivisions of the State.

**Limited evidence concerning this matter was introduced by OCA. The Court of Appeals said, “the State has no obligation to produce evidence to sustain the rationality of a statutory classification. A legislative choice is not subject to courtroom fact-finding and may be based on rational speculation unsupported by evidence or empirical data”.

Employee may be subject to discipline for "off the job" misconduct

Employee may be subject to discipline for "off the job" misconduct
Rivera v Farrell, NYS Supreme Court, Justice Stallman, [Not selected for publication in the Official Reports]

From time to time an employee is served with disciplinary charges alleging that his or her off-duty conduct violated a rule or regulation of the employer. The Rivera case involves such a situation.

Rivera, a New York City Department of Sanitation [DOS] supervisor, was “moonlighting” as an income tax adviser. According to the decision, Rivera “promoted a tax-evasion scheme, informed other DOS workers about how to evade taxes, and filled out their payroll forms so that taxes would not be withheld, in return for a fee.”

Served with disciplinary charges, Rivera was terminated after being found guilty of violations of the DOS Code of Conduct by his filing a W-4 tax withholding allowance certificate falsely claiming exemptions to which he was not entitled, falsely claiming “tax-exempt status” and failing to a file a tax return for the tax year 1994.

The decision indicates that Rivera had earlier pled guilty to failing to file a tax return for the tax year 1994, a misdemeanor.

DOS alleged that Rivera violated Code of Conduct 3.2, by engaging in conduct prejudicial to good order and which tends to discredit the City or Department, and Code of Conduct 4.4, filing false records or statements.

Rivera appealed, contending that dismissal “was disproportionate compared to sanctions imposed in similar cases.” He claimed that (1) others similarly situated, with worse disciplinary records, received suspensions, not termination and (2) three sanitation workers who failed to pay taxes and filed false W-4 forms received 30-day suspensions.

Judge Stallman, after distinguishing the misdeeds of the other DOS workers cited by Rivera with respect to the disciplinary penalties imposed, upheld Rivera's termination. The court said that Rivera had failed to meet his burden of proving that DOS acted arbitrarily, capriciously or contrary to law. Under the circumstances, said the court, the penalty of termination “does not shock the judicial conscience; it was thus not an abuse of discretion.”

As an alternative argument for overturning his termination, Rivera submitted a Certificate of Relief from Civil Disabilities he had obtained pursuant to Section 701 of the Corrections Law. Judge Stallman, after commenting that Rivera failed to demonstrate the relevance of the Certificate insofar as this case was concerned, indicated that even if it were relevant, such a certificate does not exempt a civil servant from administrative discipline.

As to a court's authority to overturn or modify an administrative disciplinary decision or a disciplinary penalty imposed on a worker, the Court of Appeals, in its March 22, 2001 decision in Kelly v Safir, 96 N.Y.2d 32, [decided with Elliott v City of New York], said that:

1.The courts may not modify such a determination if substantial evidence supports it; and

2.A court must uphold an administrative penalty unless it finds that it is so disproportionate to the offense as to be shocking to one's sense of fairness -- the Pell standard [Pell v Board of Education, 34 NY2d 222].

Kelly was terminated after being found guilty of unauthorized “off-duty employment” and falsifying records. Meagher was penalized ten vacation days after being found guilty of using excessive force in the course of making an arrest.

The Appellate Division ruled that the penalties imposes were “disproportionate” based on the officers' service records, notwithstanding the fact that substantial evidence supported the findings of fact.

Notice of claim pursuant to Education Law §3813

Notice of claim pursuant to Education Law §3813
CSEA v West Islip UFSD, Supreme Court, Suffolk County, Justice Doyle, [Not selected for publication in the Official Reports]

Justice Doyle, holding that “is well established that as a condition precedent to an action against a school district, Education Law Section 3813 requires that a notice of claim be presented to the governing body of the school district within 90 days from the accrual of the claim,” dismissed CSEA's law suit alleging a “breach of contract” because it had not filed a timely “Section 3813” notice of claim.

The events leading to this litigation are fairly simple. Luanne Dunne and Patricia Plompen was appointed by the West Islip Union Free School District to clerk-typist positions in 1998, positions in the negotiating unit represented by CSEA. Each was scheduled to work 17.5 hours per week. A full-time clerk-typist works 35 hours a week.

The district refused to provide health insurance to Dunne and Plompen on the ground that they only worked part-time. CSEA, however, argued that the collective bargaining agreement provides for employees to be eligible to participate in the Enhanced Empire Health Insurance Plan and for the cost to be paid by the District. The agreement, according to CSEA, “covers all unit members and does not distinguish between part-time and full-time employees with respect to health insurance benefits.”

The district, on the other hand, contended:

1. Since at least 1985 it did not to provide health insurance to individuals working one-half or less of a full-time schedule; and

2. No grievance had ever been filed concerning its not providing health insurance to such part-time workers in the unit.

In September 1999 CSEA sued the district. West Islip asked the court to dismiss its complaint because CSEA had not filed a notice of claim within 90 days after accrual of the claim as required by Education Law Section 3813. CSEA, argued the district, was now time-barred from litigating the dispute.

Holding that CSEA's claims accrued in July and August 1998, when Dunne and Plompen were hired without being given health insurance benefits, the court said that under the facts of this case, it did not have any authority to allow CSEA to serve a late notice of claim.

Justice Doyle commented that the grievance procedure set out in the collective bargaining agreement “was merely an alternative remedy” and did not serve to toll the statute of limitations otherwise applicable for perfecting an Article 78 action.

The court granted the district's motion for summary judgment dismissing CSEA's petition.

There are some exceptions to the “well established” rule noted by Justice Doyle, however -- the key element appearing to be whether or not the school district had “actual notice” or “knowledge” of the allegations within the time limits set out in Section 3813.

In Union-Endicott Central School District v PERB, 197 AD2d 276 the Appellate Division clearly ruled that compliance with Section 3813 “is a condition precedent to PERB's exercise of jurisdiction over an improper practice charge.” The Court of Appeals declined to hear the appeal from Appellate Division's decision.

However, this was not the end of the matter. Union-Endicott involved allegations of improper practices filed by an employee organization. Here, said the court, although the Association had not filed a formal Section 3813 notice of claim, it had, in fact, filed its charges with PERB within five weeks of the District's declaration of impasse in contract negotiations with the Association and PERB had sent a copy of the Association's allegations to the District.

Therefore, the Appellate Division concluded, the District had received its copy of the charges “within 90 days after the claim arose as evidenced by the fact that it had filed its answer to the charges [with PERB] within the 90-day period.”

As the purpose of the Section 3813 “notice of claim” requirement is to give a school district prompt notice of claims to permit its efficient investigation, here, the court concluded, there was substantial compliance with Education Law Section 3813 since all that is required is that the school district be sufficiently informed of the claim in a timely manner.

Probationer terminated for failure to correct a report

Probationer terminated for failure to correct a report
Morgan v Safir, 281 A.D.2d 376

The failure to correct his incorrect report resulted in the termination of New York City probationary police officer Lealand A. Morgan.

Morgan challenged his dismissal but he was unable to persuade the court to direct his reinstatement to his former position.

According to the decision, Morgan conceded that he failed to correct his report concerning the loss of his shield and identification badge after learning that it was incorrect.

This, said the Appellate Division, “indicates legitimate reasons for questioning [Morgan's] honesty and candor. In view of this, Morgan failed to show that his termination was in bad faith.”

Reinstatement from a preferred list

Reinstatement from a preferred list
Harvey v State of New York, 281 A.D.2d 846

On July 12, 1995, Ronald S. Harvey was laid off from his civil service position with the Department of Environmental Conservation. His name was placed on preferred lists and reemployment rosters for certification for appointment to comparable titles by the Department of Civil Service [DCS].

A clerical error resulted in Harvey's name being removed from the preferred lists and reemployment rosters on August 25, 1995. DCS corrected the error and restored Harvey's name to the appropriate lists October 31, 1995.

However, on November 1 and 2, 1995, other State agencies made permanent appointments to two Salary Grade 18 positions for which Harvey would have had seniority if his name had remained on the lists. Ultimately Harvey was reinstated to a Salary Grade 23 in the Division of Budget effective September 30, 1996.

Harvey sued, seeking compensation for the damages he suffered as a result of the removal of his name from the lists.

As the State stipulated to the fact that Harvey's name was erroneously removed from the lists, the primary issue is the scope and calculation of damages resulting from that error. Harvey, said the Appellate Division, has the burden of proving lost wages with reasonable certainty.

As Harvey proved with reasonable certainty that the persons hired on November 1 and 2, 1995 would not have received their jobs if his name had been on the lists, he was entitled to compensation for the period November 1, 1995 to September 30, 1996, the date he was actually rehired, based on employment in a Salary Grade 18 position.

Harvey's damages: The salary of a Grade 18 employee for that period plus lost retirement contributions, his expenses for health insurance coverage and 11 months of service credit in the NYS Employees' Retirement System. After making an adjustment for unemployment insurance benefits and “outside earnings,” the Appellate Division concluded that Harvey was entitled to $37,690 as damages.

Another aspect of the case concerned Harvey's demand for disclosure of vacancy and reemployment records. The court said that such records would not be of any relevant assistance to him. Why? Because, said the court, “at best, they would have revealed additional job openings for which he would have been qualified,” but this may be misleading as “the hiring agencies would not have been required to fill” any such position.

Tenure by estoppel

Tenure by estoppel
Wamsley v East Ramapo Central School District, 281 AD2d 633

If a school board neglects to take timely action to discontinue the services of a probationary teacher or administrator, the individual will attain what is termed “tenure by estoppel.” The Court of Appeals addressed the issue of an individual obtaining “tenure by estoppel” in the Sewanhaka case [Gould v Sewanhaka Central High School District, 81 NY2d 446].

However, “tenure by estoppel” is not limited to individuals in the unclassified service such as teachers and school administrators -- employees in the classified service also may attain tenure by estoppel as the Wamsley case demonstrates.

On October 5, 1998, East Ramapo appointed George Wamsley to the position of school bus driver, a classified service position in the noncompetitive class. Wamsley's appointment was subject to his satisfactorily completing a 26-week probationary period.

On August 18, 1999 the school district's personnel officer wrote to Wamsley advising him that he was to be dismissed because his service during his probationary period had been deemed unsatisfactory by his supervisors. Wamsley was terminated from his position effective August 25, 1999.

Wamsley sued, contending that his probationary term had expired before he was discharged and he held a tenured appointment. He also claimed that he was entitled to a “pretermination hearing” because he was an “exempt volunteer firefighter.”

The Appellate Division agreed with Wamsley's argument that he was no longer a probationary employee at the time he was discharged. In the words of the court, Wamsley's “probationary term began on October 5, 1998, and ended 26 weeks later ... as permissibly extended by his days of absence.”*

Accordingly, Wamsley's 26-week period, not having otherwise been extended as permitted by the rules of the Rockland Civil Service Commission, “expired long before his employment was terminated.”

However, there were other elements to consider concerning Wamsley's claim of a right to a pretermination hearing.

The due process procedures set out in Section 75 of the Civil Service Law are not available to a noncompetitive class employee who has less than five years of continuous service unless the individual is a veteran who served in time of war or is an “exempt volunteer firefighter.”

According to the Appellate Division, Wamsley claimed, but never established, that he was entitled to the protections of Section 75 because he was an exempt volunteer firefighter.

The Appellate Division concluded that although clearly Wamsley was not a probationer at the time of is dismissal, he raised a triable issue of fact with respect to his claim of Section 75 rights based on his status as an exempt volunteer firefighter.

According, a hearing on this aspect of this complaint was required and the matter was returned to State Supreme Court “for resolution of that factual issue.”

Two technical elements concerning exempt volunteer firefighter status should be noted:

1. The individual claiming exempt volunteer firefighter status has the burden of demonstrating that he or she enjoys such status [People v Hayes, 135 AD 19]; and

2. Notice of the fact that the individual is an exempt volunteer firefighter must be given to the employer prior to the individual's effective date of termination [Badman v Falk, 4 AD2d 149].

* Although decision indicates that Wamsley “became permanent” after the expiration of his 26-week probationary term, “probationary employees” in fact hold permanent appointments as of the effective date of his or her appointment to the position and may enjoy limited tenure rights. For example, courts have ruled that probationers are entitled to notice and hearing if the appointing authority decides to dismiss the individual during his or her minimum period of probation. In contrast, a probationer may be dismissed without notice and hearing after completing his or her minimum period of probation and prior to the expiration of his or her maximum period of probation. 

Employee's refusal to produce medical records results in dismissal of lawsuit

Employee's refusal to produce medical records results in dismissal of lawsuit

Peters-Turnbull v NYC Board of Education, CA2, 7 Fed. Appx. 107

Sometimes a plaintiff refuses to cooperate in pre-trial discovery procedures. The Peters-Turnbull case illustrates the difficulties that such lack of cooperation may cause the plaintiff.

Gloria Peters-Turnbull filed a complaint in federal district court alleging that the New York City Board of Education failed to reasonably accommodate her disability in violation of the Americans with Disabilities Act of 1990, and New York State's Executive Law §296. She also charged that the Board retaliated against her when she began to complain.

The district court ultimately granted the Board's motion to dismiss her complaints because she failed to cooperate in discovery proceedings. Among other things, the Board complained that Peters-Turnbull (1) failed to comply with its request that she report for a physical examination and (2) that she that refused to provide authorization for the release of her medical records to the Board.

According to the ruling, on May 4, 1999, the court held a conference and ordered Peters-Turnbull to respond to the Board's requests by May 25, 1999. She did not comply with this order. The court then ordered Peters-Turnbull to show cause why her lawsuit should not be dismissed for failure to respond to the Board's discovery requests. Peters-Turnbull failed to respond to this order by the court. The court then instructed the Board to move for dismissal based on Peters-Turnbull's failures to produce the requested discovery.

Peters-Turnbull appealed the dismissal of her petition, contending that the District Court abused its discretion in dismissing her claims with prejudice for failure to comply with its discovery orders.

The Circuit Court said that “five factors are used to determine whether such a dismissal is warranted.” The five tests are:

1. The duration of the plaintiff's failure to comply with court orders;

2. Whether the plaintiff was on notice that failure to comply would result in dismissal;

3. Whether the defendant is likely to be prejudiced by further delay in the proceedings;

4. A balancing of the court's interest in managing its docket with the plaintiff's interest in receiving a fair chance to be heard; and

5. Whether the judge has adequately considered a sanction less drastic than dismissal.

Applying each of the factors, the Circuit Court said that it was satisfied that the District Court acted within its discretion in dismissing Peters-Turnbull's action.

The Circuit Court's rationale for its holding:

1. Peters-Turnbull's failure to comply with repeated discovery requests and court orders has extended this lawsuit over five years.

2. Peters-Turnbull received ample notice that further delays would result in dismissal of her case.

3, The duty of due diligence imposed upon plaintiffs under the rules rests upon the crucial policy of encouraging prompt disposition of cases. Therefore, although the District Court did not identify any specific prejudice to the Board, “prejudice to defendants resulting from unreasonable delay may be presumed.”

Although the District Court made no explicit findings with regard to its balancing of the need to alleviate court calendar congestion with Peters-Turnbull's right to due process, Peters-Turnbull received sufficient notice and a fair opportunity to be heard before the case was dismissed.

Finally, under the circumstances, the District Court had no reason to believe that lesser sanctions would be effective. Peters-Turnbull had been warned repeatedly and the issues on which discovery had not been produced constituted the essence of the case.

The Circuit Court affirmed the district court's dismissal of Peters-Turnbull's complaint with prejudice.

Rescinding an appointment granting tenure by mistake held lawful

Rescinding an appointment granting tenure by mistake held lawful
Shaffer v Schenectady City School Dist., CA2, 245 F.3d 41

If an appointing authority claims that it made a mistake in taking or confirming a personnel action, may it rescind the action or correct the error if the individual voices an objection? This is the underlying issue in the Shaffer case.

Commenting that relevant provisions of “Education Law admits of multiple readings” and that there is no relevant case law concerning the issue, the U.S. Circuit Court of Appeals, Second Circuit, “certified the question” to the New York State Court of Appeals to determine whether a teacher granted tenure by a school board resolution that states it is to be effective at some future date is immediately entitled to the protections of Section 3020-a of the Education Law available to tenured personnel.

Special education teacher Sharon Shaffer was told by the Superintendent that she would not be recommended for tenure at the end of her probation period. On June 2, 1998 the School Board adopted the following resolution:

“In accordance with the recommendation of the Superintendent of Schools in his written report ... the person whose name is set forth below is hereby appointed on tenure effective on the date set forth below.”

A list consisting of thirty-three names, including Shaffer's, entitled “Recommendation For Tenure” was appended to the resolution. The “tenure list” indicated the respective tenure areas, and effective tenure dates of the persons listed. Shaffer's tenure date was listed as September 1, 1998.

Claiming that its June 2, 1998, resolution incorrectly included Shaffer's name, on June 17, 1998, the Board voted to rescinded her “tenure appointment.” Its theory: on June 17, 1998, Shaffer “was not yet a tenured teacher, but one with merely an expectation of becoming tenured on September 1.”

Shaffer sued the District claiming it violated her rights under 42 USC 1983 when it revoked her tenure and dismissed her from her position. The District, on the other hand, contends that Shaffer inclusion on the “tenure list” attached to its June 2, 1998 resolution “was merely the result of a clerical error when [her name] was mistakenly included on a list of teachers to whom tenure was to be granted” and it acted promptly to correct the error.

The critical issue to be determined: did Shaffer acquired tenure as a result of the Board's action on June 2, 1998, and, if so, was the subsequent revocation of that tenure was lawful?

Considering the Board's argument that it cannot be bound if its action was the result of an “error” and therefore Shaffer cannot claim any right to tenure, summarized below are two decisions concerning the impact of a mistake made in reporting or recording a personnel action:

1. The Commissioner of Education, in Longshore v Massena Board of Education, 32 CEd 12839, considered the status of a part-time teacher whose “personnel action sheet” described his appointment as “probationary from September 1, 1991 until September 1, 1992.” Finding that “[t]he record supports [the District's] contention that the references in the personnel action sheet and notification of appointment form were erroneous,” the Commissioner ruled that Willard M. Longshore “was not appointed to a probationary position.” Accordingly, the District was not required to meet the notice requirements in Education Law Sections 3031 and 3019-a in order to terminate his employment.

2. In Moore v Smithtown Central School District, 116 AD2d 273, a “layoff seniority” case, the Appellate Division held that the fact that the district had, in error, included a communications skills teacher -- Moore -- on the “reading seniority list” was not controlling thus would not be relevant in determining Moore's preferred list status and reinstatement rights.

In Schaffer, 96 N.Y.2d 271, the Court of Appeals concluded "that a teacher granted tenure effective on a future date is not entitled to the benefits of tenure until the effective date specified in the resolution" and so advised the U.S. Circuit Court of Appeals.

N.B. In Gould v Board of Education, 81 NY2d 446, the New York State Court of Appeals held that a “tenured teacher has a protected property