Decision No. 13,706

(November 25, 1996)

James R. Sandner, Esq., attorney for petitioner, Claude I. Hersch,

Esq., of counsel

Colum P. Nugent, Esq., attorney for respondent

MILLS, Commissioner.--Petitioner appeals the termination of her services as a probationary teacher by the Board of Education of the Elmont Union Free School District ("respondent"). She seeks thirty days' pay for respondent's failure to provide her with proper notice of the termination pursuant to Education Law '3019-a. The appeal must be sustained in part.

Respondent appointed petitioner as a probationary school teacher in the tenure area of special education effective at the start of the 1994-95 school year. She was assigned to teach at the Dutch Broadway School, an elementary school in respondent's school district.

By memorandum dated May 19, 1995 and personally delivered to petitioner on May 22, 1995, the school principal informed petitioner that he was going to recommend to the superintendent that her employment not be continued in the 1995-96 school year.

Respondent's acting superintendent of schools informed petitioner by memorandum dated June 20, 1995, that she would not recommend petitioner for continued employment with the district for the 1995-96 school year. The memorandum did not indicate when the recommendation would be presented to the board, as required by Education Law '3031, or the reasons for the proposed discontinuance of petitioner's employment.

By letter dated June 28, 1995, petitioner requested the reasons for the superintendent's recommendation. Further, petitioner requested notification of the date when the board would vote on the recommendation.

Petitioner was informed by letter dated July 3, 1995 that the recommendation to discontinue her employment would be presented to respondent on August 8, 1995. The letter also set forth the reasons for the recommendation. At its meeting on August 8, 1995 respondent voted to accept the recommendation to discontinue petitioner's employment, effective August 9, 1995.

Respondent's superintendent of schools notified petitioner by letter dated August 16, 1995, that respondent voted to terminate her employment at its meeting on August 8, 1995, effective August 9, 1995. Petitioner received this letter several days after August 16, 1995.

Petitioner challenges respondent's determination on August 8, 1995 to terminate her employment effective August 9, 1995 alleging that such action violates Education Law '3019-a. Specifically, petitioner claims that respondent failed to give her proper notice of termination, as required by '3019-a, and she seeks thirty days' pay as relief. Respondent asserts that it complied with all applicable notice requirements. In the alternative, respondent asserts that petitioner obtained employment for the 1995-96 school year and, therefore, is not entitled to thirty days' pay.

Education Law '3019-a provides, in pertinent part:

Thus, a teacher whose services are to be terminated must be given thirty days' notice prior thereto, and failure to provide such notice entitles the teacher to one day's pay for each day the notice was late (Matter of Tucker v. Bd. of Educ., Community School District No. 10, 82 NY2d 274; Matter of Delphin, ___ Misc 3d ___, Supreme Court, Westchester County, J. Colabella, dated March 28, 1996; Appeal of Fillie-Faboe, 34 Ed Dept Rep 643; Matter of Fink, 33 id. 340). In this case, respondent voted on August 8, 1995 to terminate petitioner's services, effective August 9, 1995, and did not provide petitioner written notice of its decision until at least August 16, 1996. Therefore, petitioner is entitled to receive the equivalent of thirty days' pay, the period corresponding to the number of days for which she was not provided thirty days' pay (Matter of Delphin, supra).

Respondent argues that, because petitioner obtained employment in another school district on September 5, 1995, she is not entitled to the full thirty days' pay. Respondent further argues that, the underlying purpose of Education Law '3019-a is to provide a teacher whose services are to be terminated time in which to seek other employment and, in light of the fact that petitioner obtained employment as of September 5, 1995, petitioner was not harmed by respondent's failure to provide the required statutory notice. Respondent asserts that, under those circumstances, petitioner should not be awarded thirty days' pay.

Respondent is correct. Ordinarily, a school district that properly complies with Education Law '3019-a must maintain a teacher on the district's payroll for the thirty day time period between the date the board acts to terminate services and the effective date of such action. Acceptance of employment elsewhere, however, indicates an intention to terminate the relationship (Matter of Strosberg, 6 Ed Dept Rep 163; Matter of Thomas, 4 id. 83). Accordingly, I find petitioner is entitled to compensation from August 9, 1996 - the date of her dismissal - to September 5, 1996 - the date upon which she obtained new employment (Matter of Gumpert, 9 Ed Dept Rep 126; Matter of Strosberg, 6 id. 163).

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the Board of Education of the Elmont Union Free School District pay to petitioner a sum equal to nineteen days' salary, to which she would have otherwise been entitled had notice been given in a timely manner, less the amount of any outside earnings she received during that period.

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