Decision No. 14,638

(August 30, 2001)

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

In 1978, petitioner was granted tenure as a math teacher by the Board of Education of the Williamsville Central School District. He resigned that position in 1985. Respondent appointed petitioner to a three-year probationary term as the K-12 math curriculum supervisor in 1993. In 1996, petitioner and respondent agreed to a one-year extension of his probationary term. From his appointment in 1993 until the end of the 1996-97 school year, petitioner served as the K-12 math curriculum supervisor and taught one high school math course each year. Because he spent most of his time on administrative work, those years counted toward his probationary period as curriculum supervisor.

By letter dated May 9, 1997, petitioner was notified that respondent granted him tenure as curriculum supervisor for K-12 math. During the 1997-98 school year, he served as curriculum supervisor and taught two math courses. According to the affidavit of respondent"s superintendent, Dr. Glenn Wachter, petitioner's performance as curriculum supervisor was not satisfactory. An agreement was reached whereby petitioner would resign from his curriculum supervisor position and accept an appointment as a full-time probationary mathematics teacher at Irondequoit High School without any reduction in salary. Petitioner was formally notified of this appointment by letter dated May 27, 1998. The letter stated "[a]dditionally, your probationary period will commence on September 4, 1998 and is anticipated to conclude on September 4, 2000 (1 year credit for prior tenure)." Petitioner served as a full-time math teacher during the 1998-99 and 1999-2000 school years.

The record indicates that school staff identified weaknesses in petitioner"s performance and worked closely with him to make improvements. By letter dated April 14, 2000, Dr. Wachter notified petitioner that he would not be recommended for tenure. Respondent reviewed Dr. Wachter"s recommendation that petitioner not be granted tenure at its May 25, 2000 meeting. On May 26, Dr. Wachter notified petitioner that he had not been granted tenure and that his employment would terminate on June 23, 2000, the last day of required teacher attendance for the school year.

On or about June 9, 2000, petitioner delivered a written verified claim to the district seeking reinstatement to his teaching position with back pay and benefits. He subsequently commenced an Article 78 proceeding in Supreme Court, Monroe County, seeking the same relief. On September 26, 2000, that court issued an oral decision dismissing the proceeding on the grounds that the Commissioner of Education has primary jurisdiction over the matter and that petitioner had failed to exhaust his administrative remedies. This appeal ensued.

Petitioner asserts that he spent 40 percent of his time during the 1997-98 school year teaching because he was assigned to teach two math courses. He contends that this service counts as one year of his two-year probationary period as a math teacher, even though it occurred before his formal appointment. He then taught full time during the 1998-99 school year. Petitioner contends that, by permitting him to teach math during the 1999-2000 school year, respondent allowed him to serve beyond the expiration of his two-year probationary period. Petitioner claims that he thus acquired tenure by estoppel and cannot now be terminated without being afforded the rights and procedures set forth in Education Law ""3020 and 3020-a. Because respondent did not follow those procedures, petitioner contends that his termination was illegal, arbitrary and capricious. He requests an order annulling respondent"s May 25, 2000 action dismissing him, stating that he has acquired tenure by estoppel, reinstating him and directing respondent to provide him with back pay and benefits lost as a consequence of the allegedly illegal termination.

Respondent asserts that the appeal is untimely and that petitioner has failed to join a necessary party because he did not name as a respondent the teacher who replaced him and who would be terminated if petitioner were reinstated. Respondent also argues that petitioner was terminated before his probationary period ended. Respondent further contends that, by entering into an agreement that specified a two-year probationary period ending on September 4, 2000, petitioner waived any right to claim tenure by estoppel. Finally, respondent argues that petitioner cannot count the time he spent teaching during the 1997-98 school year toward his required two-year probationary period and therefore has not acquired tenure by estoppel.

I will address the procedural issues first. An appeal to the Commissioner must be commenced within 30 days of the decision or act complained of unless excused by the Commissioner for good cause shown (8 NYCRR "275.16). An unsuccessful attempt to litigate a dispute in court that does not result in a final determination on the merits may be accepted as an excuse for failing to file a timely appeal to the Commissioner when the appeal is commenced within a reasonable time after the dismissal or abandonment of the court proceeding (Appeal of R.W., 40 Ed Dept Rep ___, Decision No. 14,580; Appeal of Goltz, 40 id. ___, Decision No. 14,571). Here, the court issued an oral decision dismissing petitioner"s Article 78 proceeding on September 26, 2000. Petitioner commenced this appeal on or about October 16, 2000, well within 30 days of the dismissal. Accordingly, I will not dismiss it as untimely.

A party whose rights would be adversely affected by a determination of an appeal in favor of petitioner is a necessary party and must be joined as such (Appeal of Armella, et al., 40 Ed Dept Rep ___, Decision No. 14,525; Appeal of Diane P., 37 id. 637, Decision No. 13,945; Appeal of Edward G., 36 id. 9, Decision No. 13,636). Respondent claims that petitioner has failed to join the teacher he would replace if he were reinstated. In this proceeding, however, petitioner does not ask to replace another teacher. He simply asks to be reemployed as a math teacher. Respondent asserts that this would require dismissing the most recently hired probationary math teacher, but fails to identify that teacher or to explain why it could not accommodate petitioner"s reinstatement by other means. Therefore, the appeal will not be dismissed for failure to join a necessary party.

The appeal must, however, be dismissed on the merits. In an appeal to the Commissioner, the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which he seeks relief (8 NYCRR "275.10; Appeal of Boiko, 40 Ed Dept Rep ___, Decision No. 14,513; Appeal of Acme Bus Corporation, 37 id. 219, Decision No. 13,848; Appeal of Catherine B., 37 id. 34, Decision No. 13,797). I find that petitioner has not met this burden and cannot prevail.

Petitioner"s conclusory assertion that he spent a substantial portion of his work time as defined in 8 NYCRR "30.1(g) teaching math during the 1997-98 school year is not supported by the record. Section 30.1(g) states that a "substantial" portion of a teacher"s time "means 40 percent or more of the total time spent by a professional educator in the performance of his duties, exclusive of time spent in preparation, monitoring or in co-curricular activities." Petitioner simply claims that, during the 1997-98 school year, he taught two courses and that the maximum course load any teacher could carry was five courses. He equates this to 40 percent of his time without presenting any documentation that he was assigned to perform teaching duties for at least 40 percent of the time he was employed by respondent as a math curriculum supervisor during the 1997-98 school year. The record does not detail the length of the school day or the number of periods petitioner spent in performing his various duties during the 1997-98 school year. Nor does petitioner present any evidence to demonstrate how much time he spent performing administrative duties during this period. Moreover, respondent indicates that the administrator"s contract that governed petitioner"s employment during the 1997-98 school year required curriculum supervisors, such as petitioner, to work at least 9 additional days beyond the teachers" work year. Thus, on this record, I am simply unable to conclude that petitioner actually spent 40 percent of his time teaching math during the 1997-98 school year.

In view of the foregoing, I cannot conclude that respondent was arbitrary or capricious in terminating petitioner"s employment.

THE APPEAL IS DISMISSED.

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