Decision No. 13,539

(January 25, 1996)

Bernard F. Ashe, Esq., attorney for petitioner

Whiteman, Osterman & Hanna, Esqs., attorneys for respondent, Sonya Dee Peral, Esq., of

counsel

MILLS, Commissioner.--Petitioner appeals the termination of his services by the Board of Education of the Cobleskill-Richmondville Central School District ("respondent"). The appeal must be dismissed.

In 1988, respondent appointed petitioner to a part-time teaching position. Subsequently, petitioner received a full-time probationary appointment commencing September 1, 1990 and expiring August 31, 1992. The normal three year probationary period was reduced by one year as a result of petitioner's previous part-time experience with the district. Petitioner had served one year of his probationary appointment when respondent eliminated his full-time position, and replaced it with an 80% part-time position. On July 23, 1991, respondent sent petitioner a letter informing him that it had appointed him to serve in a new part-time position and that his service in that position would not count towards fulfilling his two year probationary period. The letter additionally indicated that petitioner would need to complete another year of full-time service to be eligible for tenure. After petitioner completed the 1991-92 school year, respondent appointed him to a full-time position for the 1992-93 school year. Respondent advised petitioner that his probationary period would resume during the 1992-93 school year and expire on August 31, 1993.

On May 6, 1993, petitioner and respondent entered into an agreement extending petitioner's probationary period to August 31, 1994. That agreement acknowledged that petitioner's employment was in jeopardy, and that, in exchange for the extension of time for consideration of a tenure appointment, petitioner waived any claim to tenure by estoppel. Additionally, on July 30, 1993, petitioner and respondent entered into a remedial action plan which identified areas for improvement in petitioner's teaching performance. Under the plan, petitioner could expect to be recommended to the board of education for tenure if certain issues were addressed successfully, and if no new issues arose. However, on May 24, 1994, respondent board of education informed petitioner that his services would be terminated effective August 31, 1994. Petitioner objected to respondent's decision and this appeal ensued.

Under Education Law '3012(1)(a), prior to the completion of a probationary teacher's probationary period, his or her services can be terminated at any time on the recommendation of the superintendent of schools and by a majority vote of the board of education. At the expiration of a probationary term, the superintendent of schools shall make a written report to the board of education recommending for appointment on tenure those probationary teachers who have been found competent, efficient and satisfactory (Education Law '3012[2]). Upon receiving tenure, a teacher shall not be removed except for certain enumerated grounds and upon a hearing (Education Law ''3012[2] and 3020-a). Where a school board fails to take the action required by Education Law '3012, either granting or denying tenure, and permits a teacher to continue to teach beyond the expiration of the probationary period, tenure by estoppel may result (Matter of Gould v Board of Education, 81 NY2d 446; Matter of Lindsey v Board of Education, 72 AD2d 185). After a teacher receives tenure by estoppel, a subsequent agreement which purports to waive the teacher's right to tenure will be considered void (Matter of Gould v Board of Education, supra). This is because a misconception regarding such a critical aspect of an employment agreement would render the agreement unenforceable due to the doctrine of mutual mistake (Matter of Gould v Board of Education, supra at 453). Therefore, if petitioner obtained tenure by estoppel, his subsequent agreement with respondent would be invalid. As a result, the critical issue in this case is whether petitioner's service during the 1991-92 school year constituted a year of full-time probationary service.

The record is undisputed that on July 22, 1991 respondent eliminated the full-time position in which petitioner had been serving, created a new part-time position and appointed petitioner to that position for the 1991-92 school year. Petitioner's salary was calculated at 80% of the salary of a full-time teacher in conformity with this decision. In a letter dated July 23, 1991, respondent advised petitioner that his services in this part-time position would not count towards his two year probationary requirement. Although petitioner asserts that his work schedule during the 1991-92 school year was comparable to a full-time teacher, a determination that petitioner served in a full-time position requires "an appointment to a full-time teaching position" (Matter of Audrey Margolies, 16 Ed Dept Rep 404, 405; citing Matter of Cardo, 8 Ed Dept Rep 182). Moreover, on the record before me, it appears that all parties understood petitioner's employment to be part-time during the 1991-92 school year.

As a result, petitioner's appointment to a part-time position during the 1991-92 school year placed his probationary status on hold. He resumed his probationary period for the 1992-93 school year and, subsequently, entered into an agreement with respondent to extend his probationary service through 1993-94. At the end of the 1993-94 school year, respondent denied petitioner tenure within his probationary period. As there is no evidence in this record demonstrating that respondent's denial of tenure to petitioner was in any way improper, the appeal must be dismissed.

I have considered petitioner's remaining contentions and find them without merit.

THE APPEAL IS DISMISSED.

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