Decision No. 12,839

(November 25, 1992)

Seth Rockmuller, Esq., attorney for petitioner

Cappello & Linden, Esqs., attorneys for respondents, Roger B. Linden, Esq., of counsel

SOBOL, Commissioner.--Petitioner, a part-time teacher in respondents' school district, appeals his dismissal without notice. The appeal must be dismissed.

Petitioner applied to teach business education in the Massena Central School District on June 27, 1991. The Commissioner of Education issued a "Notice of Substantial Question As to Moral Character", relating to petitioner's application for certification as a teacher in New York State on June 26, 1991. That notice stated that, because a substantial question existed as to petitioner's moral character, he would have to request a hearing before a provisional teaching certification would be issued.

On July 10, 1991, respondent superintendent interviewed petitioner for a teaching position. Petitioner did not disclose to Davis that he had received the "Notice of Substantial Question as to Moral Character" or that petitioner's application for provisional certification was pending, although petitioner had received the notice at the time of the interview. Instead, petitioner falsely represented that he was provisionally certified in the area of business and distributive education.

On July 21, 1991, Davis recommended to respondent board of education that petitioner be appointed to a part-time teaching position in business education. The personnel action sheet which contained the recommendation described the type of appointment as "probationary" and the duration from September 1, 1991 until September 1, 1992. On July 22, 1991, respondent board of education approved the appointment. On July 25, 1991, petitioner received a notification of "probationary" appointment to a part-time position in business education for September 1, 1991 until September 1, 1992. That notification form indicated that petitioner was provisionally certified. Petitioner accepted the position by signing the notification form.

On September 10, 1991, respondent Davis asked petitioner to resign. On September 17, 1991, respondent Davis wrote petitioner that his employment was being terminated, effective September 20, 1991, because petitioner misrepresented that he was certified during his employment interview, when he knew that he was not certified and that such certification was under review and pending the results of a hearing. On September 19, 1991, petitioner recommended to respondent board of education that petitioner be terminated. On September 23, 1991, respondent board of education terminated petitioner, effective September 20, 1991.

Petitioner contends that he was appointed to a probationary teaching position and that respondents violated his rights by failing to provide notice of termination, as prescribed by Education Law ''3031 and 3019-a. Petitioner is requesting reinstatement, that respondents be ordered to follow Education Law ''3031 and 3019-a, and that respondents be ordered to pay petitioner the back salary that he was denied due to respondents' alleged improper actions.

Respondents contend that petitioner was not appointed to a probationary appointment because petitioner was hired to a part-time teaching position and because the appointment was for a one-year period, not the three-year term required for probationary appointments. Respondents contend that the language in the notification form and personnel action sheet characterizing the appointment as "probationary" was a clerical error. Respondent Davis states she made it clear to petitioner at his employment interview on July 10, 1991 that this was not a probationary appointment leading to tenure.

Generally, part-time teaching does not constitute probationary service leading to tenure (Matter of Ceparano v. Ambach, 53 NY2d 873; Matter of Rosenberg v. Board of Education of the Westbury Public Schools, 51 AD2d 551; Matter of Nyboe v. Allen, 7 AD2d 822; Matter of Nanni, 23 Ed Dept Rep 444; Matter of Matthews, 15 Ed Dept Rep 316). However, a board of education may be bound by a provision in a collective bargaining agreement which provides that credit towards tenure may be acquired by part-time service (Matter of Schlosser v. Board of Education of the East Ramapo CSD, 47 NY2d 811). In this case, petitioner provides no evidence of such a provision in the collective bargaining agreement applicable to teachers in respondents' school district. A board of education also may be bound by a unilaterally adopted practice of according credit towards tenure for part-time service (Matter of Moritz v. Board of Education of the Gowanda CSD et al., 60 AD2d 161). Therefore, the fact that petitioner was hired to a part-time position is not dispositive of whether his position was probationary.

As a matter of law, a probationary appointment must be for three years (Education Law '3012). There are only two exceptions to this requirement. Service in another district or another tenure area within the same district may shorten the probationary period to two years (Education Law '3012[1][a]), and regular substitute teacher service immediately preceding the probationary period may shorten the probationary period to one year (Education Law ''2509[1][a], 3012[1][a]; Matter of Robbins v. Blaney, 59 NY2d 393). Petitioner provides no evidence that he had earned credit to reduce the three-year requirement.

Petitioner contends that his one-year appointment referenced the first year of a three-year probationary period. To substantiate this claim, petitioner provides an affidavit by the president of the Massena Federation of Teachers stating that respondent Davis indicated to him that the one-year appointment of several other full-time probationary teachers referred to the first year of longer probationary periods. Respondent Davis does not recall any such conversation and asserts that she would not have said this because it is untrue. Petitioner does not provide any other probative evidence to substantiate this claim. Respondent has submitted evidence that the personnel action sheets for teachers actually given probationary appointments show a probationary term of three years. In appeals to the Commissioner, it is the burden of the petitioner to establish facts upon which the claim for relief is founded (Appeal of Negrin, 29 Ed Dept Rep 484). Petitioner has not established that his one-year appointment intended to reference the first year of a three-year probationary appointment. Consequently, I find that petitioner has failed to establish that he was given an appointment for a probationary term of three years. The record supports respondents' contention that the references in the personnel action sheet and notification of appointment form were erroneous. Because petitioner was not appointed to a probationary position, respondents were not required to meet the notice requirements in Education Law ''3031 and 3019-a.

Even if petitioner had been appointed to a probationary position, he would not be entitled to the relief he seeks. Education Law '3031 requires a school district to notify a probationary teacher at least 30 days before the date of a board meeting at which the board is to consider a recommendation from the superintendent that the teacher's services be discontinued. Education Law '3019-a requires school boards to give teachers who are terminated during their probationary period at least 30 days' notice of the termination, prior to the effective date of the termination.

Where a school board fails to comply with the notice requirements of '3031 the appropriate remedy is not to nullify the termination of the probationary teacher, but rather to require the board to reconsider the matter, while maintaining the original date of termination (Matter of Zunic v. Nyquist et al., 48 AD2d 378, aff'd 40 NY2d 962; Matter of Saddlemire, 16 Ed Dept Rep 179). Likewise, when a probationary teacher is terminated without the 30 days' notice required by '3019-a, the appropriate remedy is not reinstatement, but payment of the 30 days' back pay (Matter of Zunic v. Nyquist et al., supra; Matter of Gordon, 24 Ed Dept Rep 277; Matter of Slater, 12 id. 275). Therefore, if petitioner were appointed to a probationary position, he would not be entitled to reinstatement but could be entitled to a reconsideration of his case by respondent board and 30 days' back pay.

Petitioner is not due either of these remedies. Petitioner is not due reconsideration of his termination by respondent board of education, pursuant to Education Law '3031, because petitioner is not qualified to be reinstated to his former position as a matter of law. Certification is an essential qualification for employment in a teaching position, and a board of education is prohibited from employing or paying an uncertified teacher as a matter of law (Education Law ''3001, 3009, 3010; Matter of Smith v. Board of Education of Wallkill CSD et al., 102 AD2d 655 aff'd 65 NY2d 797, Matter of Pivorunas, 29 Ed Dept Rep 172). Similarly, petitioner is not entitled to receive 30 days' back pay pursuant to Education Law '3019-a, because respondent board of education is prohibited as a matter of law from paying salary to an uncertified teacher (Matter of Pivorunas, supra). The Court of Appeals has determined that Education Law ''3001, 3009, and 3010 constitute "a quite specific statutory prohibition" against paying an uncertified teacher (Matter of Meliti v. Nyquist et al., 41 NY2d 183).

THE APPEAL IS DISMISSED.

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