* Subsequent History: Matter of Mahoney v Mills, 7 Misc 3d 1006(A) (Sup Ct, Albany County, Canfield, J. [2005]); Judgment dismissed petition to review; affd 29 AD3d 1043 (3d Dept 2006); lv denied  7 NY3d 708 (2006). *

Appeal of CHARLES MAHONEY from action of the Board of Education of the Hamburg Central School District and Dr. Peter G. Roswell, Superintendent, regarding the rescission of tenure.

Decision No. 15,060

(June 14, 2004)

Lipsitz, Green, Fahringer, Roll, Salisbury & Cambria, LLP, attorneys for petitioner, John M. Walsh, Esq., of counsel

Norton/Radin/Hoover/Freedman, attorneys for respondents, Bernard B. Freedman, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges the determination of the Board of Education of the Hamburg Central School District (“board”) and Superintendent Peter G. Roswell (“superintendent”) to rescind the board’s prior resolution to grant petitioner tenure effective September 1, 2003.  The appeal must be sustained in part.

In August 2000, the board hired petitioner as a certified teacher of physical education.  Although the record does not contain a copy of the board’s resolution, it appears that petitioner received a probationary appointment commencing September 1, 2000 and ending August 31, 2003.

In petitioner’s third year of service, the school principal recommended him to the superintendent for tenure.  On April 1, 2003, the board, with the recommendation of the superintendent, granted petitioner tenure, effective September 1, 2003.

According to the school principal’s affidavit, on or about May 8, 2003, she became aware of certain matters involving petitioner’s interaction with faculty, staff, and students.  According to petitioner’s affidavit, around the same time, petitioner expressed concern about a proposed change in district policy to mainstream special education students in art, music and physical education classes.  On May 23, petitioner and other concerned teachers met with the principal and special education administrator to discuss the issue. 

On June 6, the principal conferred with the assistant superintendent about petitioner’s conduct, as observed by a teacher aide, and the assistant superintendent directed the principal to investigate.  Thereafter, the principal interviewed several faculty, staff, a former employee of the district and the parent of a student.

Without any further notice to petitioner, on July 8 the board rescinded its prior grant of tenure to petitioner.  By letter dated July 9, the superintendent notified petitioner of the board’s July 8 action.  The superintendent further notified petitioner that he would not be recommended for tenure, and that the board would review that recommendation at its regular meeting on August 12, 2003.

According to respondents, on July 16, petitioner made a timely demand pursuant to Education Law §3031 that he be furnished with a written statement giving the reasons for the superintendent’s negative recommendation.  Respondents further assert that the superintendent provided such reasons, in writing, on July 22, and that petitioner filed a written response for consideration prior to the August 12 board meeting.  (The record before me does not contain any of these documents.)

Petitioner commenced this appeal on August 5, 2003, and his request for interim relief was denied on August 19, 2003.

On August 12, the board met but took no action with respect to the negative tenure recommendation.  According to petitioner’s affidavit sworn to September 5, 2003, he attended another meeting of the board on August 26, “at which [he] learned that [his] employment as an elementary school physical education teacher was terminated.”  He avers further that he did not receive any written notice regarding the status of his employment after the August 26 board meeting.

Petitioner claims that he provoked an investigation which ultimately led to the rescission of his tenure by raising a concern about the proposed change in the district’s mainstreaming policy.  He also claims that respondents failed to provide certain required notices pursuant to Education Law §§3012(2), 3019-a and 3031(a).  He further argues that the grant of tenure made by the board on April 1, 2003 was unconditional and cannot be revoked.

Petitioner asks, among other things, for a determination that the board acted arbitrarily and capriciously on July 8 in revoking his tenure; for a determination that the board violated the law by failing to provide a 30-day notice before the July 8 board meeting; for a determination that he is entitled to a disciplinary hearing pursuant to Education Law §3020-a; and for a determination that he acquired tenure by estoppel because the board failed to give him a 60-day notice prior to the end of his probationary period.

Respondents contend that petitioner has been or will be provided with all notices required by law, including 30 days’ notice of termination and 30 days’ notice of a non-tenure recommendation.

Petitioner’s claims with respect to the rescission of the tenure resolution and his claim to a right to a hearing under Education Law §3020-a must be dismissed.  In Remus v. Tonawanda Bd. of Educ. (96 NY2d 271, 278), the Court of Appeals determined that when a board resolution grants a probationary teacher tenure effective on a future date (one set either to coincide with the end of or to occur before the end of that teacher’s probationary period), that resolution “confers tenure upon the teacher only as of that specified future date” (emphasis added).  The Court further found that Education Law §2509 “does not require a formal offer and acceptance and, given the express grant of power to make tenure appointments before the end of the probationary period, no reason exists to inject such a requirement into the statute” (Id. at 277-278).  Although Education Law §3012 governs this matter, rather than §2509, the same reasoning is applicable here, since the authority of the board to make tenure appointments prior to the expiration of a probationary period under §3012 has also been recognized (Matter of Weinbrown v. Bd. of Educ., 28 NY2d 474).

Having concluded that petitioner’s appointment to tenure was a “conditional appointment” (Remus, 96 NY2d at  278), and determined that status was rescinded by the board’s action on July 8, 2003, I must also conclude that petitioner was not entitled to a formal disciplinary proceeding pursuant to Education Law §3020-a (Remus, 96 NY2d at 276).

With respect to various notice provisions, petitioner claims that he did not receive any notice of the July 8, 2003 board meeting at which his tenure was revoked, in violation of both Education Law §§3012(2) and 3031.  Section 3012(2) requires notice of a superintendent’s negative recommendation for tenure, and §3031(a) requires a notice that the negative recommendation will be considered by the board on a specific date.  Neither provision addresses the situation in which conditional tenure, previously granted, is to be revoked, and I find nothing in either Remus or Weinbrown that would require any such notice.

However, once tenure was revoked on July 8, 2003, petitioner reverted to his status as a non-tenured teacher approaching the end of his probationary period.  As such, he was entitled under §3012(2) to written notice of a negative recommendation not less than 60 days preceding the expiration of his probationary period.  The superintendent’s letter of July 9, given only 53 days prior to the expiration of petitioner’s probationary period, does not comply with that section, and, indeed, respondents concede as much.

As a non-tenured teacher, petitioner was also entitled to notice under Education Law §3031(a) which requires that notice of a negative recommendation or a recommendation to discontinue services must be given at least 30 days prior to the board meeting at which the recommendation is to be considered.  The superintendent’s letter of July 9 advised petitioner that he would not be recommended for tenure, and that the board would consider that recommendation on August 12, 2003.  I therefore find that respondents provided sufficient notice pursuant to §3031(a).

I also must consider the effect of Education Law §3019-a, which applies to the termination of a teacher’s services during the probationary period.  I find that the superintendent’s July 9 letter gave notice of a negative tenure recommendation, but gave no notice of any recommendation to terminate petitioner prior to the end of his probationary service.  It appears that the board met on August 12 and took no action either with respect to tenure or termination of petitioner’s services.  Instead, it appears that the board acted on August 26, 2003 to terminate petitioner immediately, without any other notice being given.  Section 3019-a requires that when a teacher is terminated during a probationary period, as occurred here, the teacher must be given 30 days’ notice prior to the effective date of such termination.  No such notice was given here.

A board of education has the unfettered right to terminate a probationary teacher’s employment for any reason unless the employee establishes that he was terminated for a constitutionally impermissible reason or in violation of a statutory proscription (James v. Bd. of Educ., 37 NY2d 891; Matter of Strax v. Rockland County Bd. of Coop. Educ. Services, 257 AD2d 578; Appeal of Wynne, 40 Ed Dept Rep 521, Decision No. 14,544).

Here, petitioner has failed to establish that respondents violated a statute, or terminated him for a constitutionally impermissible purpose.  Petitioner did not submit his demand for reasons for his termination, the reasons provided to him by the superintendent, or the response he filed with the district clerk prior to the August 12, 2003, board meeting.  As indicated in Matter of Sachs (71 AD2d 898, aff’d 50 NY2d 830), the burden is on petitioner to make an “evidentiary showing” of a statutory violation or a constitutionally impermissible purpose, not mere accusations or speculation.  I find that petitioner has failed to provide critical documents and otherwise failed to make the required showing of proof.

It is clear that petitioner did not continue his employment past the expiration of his probationary period, and therefore could not, and did not, acquire tenure by estoppel (Appeal of Mau, 35 Ed Dept Rep 275, Decision No. 13,539, and cases cited therein at p. 276).

As noted above, I find that petitioner’s rights under Education Law §3019-a were not respected.  Petitioner was terminated on August 26, 2003, and under that statute he should have been given formal notice of termination 30 days previously (Appeal of Fink, 33 Ed Dept Rep 340, Decision No. 13,069).  Petitioner is therefore due 30 days’ compensation.

I have considered the parties’ remaining contentions and find them without merit.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the Board of Education of the Hamburg Central School District pay to petitioner a sum equal to 30 days’ salary, to which he would otherwise have been entitled had notice of termination been given in a timely manner.

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