* Subsequent History: Matter of Dickinson v Steiner; Supreme Court, Albany County; Decision and order granted petition and annulled Commissioner’s decision, in part, remanding for further proceedings; February 22, 2011; Commissioner issued Decision No. 16,256; July 7, 2011. *

Appeal of MARY DICKINSON from action of the Board of Education of the Deer Park Union Free School District and Lynn Hadity relating to preferred eligibility rights.

Appeal of MARY DICKINSON from action of the Board of Education of the Deer Park Union Free School District regarding teacher termination.

Decision No. 16,082

(June 30, 2010)

James R. Sandner, Esq., New York State United Teachers, attorney for petitioner, Lena M. Ackerman, Esq., of counsel

Cooper, Sapir & Cohen, P.C., attorneys for respondent board of education, Robert E. Sapir, Esq., of counsel

STEINER, Commissioner.--Petitioner appeals the decision of the Board of Education of the Deer Park Union Free School District (“board” or “respondent board”) to appoint Lynn Hadity (“Hadity”) as a reading teacher (“Dickinson I”).  In a separate appeal, petitioner challenges the actions of the board regarding her termination (“Dickinson II”).  Because the appeals present similar issues of fact and law, they are consolidated for decision.  The appeals must be sustained to the extent indicated. 

Dickinson I

On or about September 1, 2005, petitioner was appointed as a remedial reading teacher in the district.  On April 24, 2007, the board granted petitioner tenure in reading, effective August 31, 2007.  On June 30, 2007, petitioner’s position was abolished and her name was placed on the district’s preferred eligibility list for a reading position.

Effective September 1, 2007, petitioner was appointed to a new position as a teacher of English Language Arts (“ELA”) in the district, a separate and distinct tenure area from reading.  On or about March 4, 2008, announcements were posted for anticipated vacancies for the 2008-2009 school year, including a vacancy for a reading teacher.  On or about March 20, 2008, petitioner was notified by the superintendent that her position as an ELA teacher was abolished.  At a public meeting held on July 29, 2008, the board appointed Hadity to the vacant reading teacher position.  Petitioner’s first appeal ensued.

In her first appeal, petitioner seeks reinstatement to the reading teacher position, with back pay, seniority and other benefits.  Petitioner argues that respondent board failed to notify her, and then recall her to the vacant reading teacher position, in violation of Education Law §3013. 

Respondent board alleges that it met its obligations under Education Law §3013.  While the board admits that it did not make any attempt to contact petitioner directly about the vacancy, it argues that steps were taken to publicize the available position and that it was petitioner’s responsibility to notify the district of her interest in the vacant position.  The board also alleges that the appeal is untimely.

An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Proctor, 46 Ed Dept Rep 575, Decision No. 15,599; Appeal of Henley, 46 id. 556, Decision No. 15,594).  The board alleges that the appeal is untimely because it was initiated on March 31, 2009, more than 30 days after the board appointed Hadity to the reading teacher position. 

In determining the timeliness of this appeal, the date of board appointment is not the controlling factor.  In circumstances such as this, a petitioner does not become aggrieved until the date that another person commences service in the position at issue (Appeal of Petkovsek, 48 Ed Dept Rep 513, Decision No. 15,933).  However, petitioner did not initiate this appeal until almost six months after September 1, 2008, the date Hadity commenced service in the position.

Petitioner requests that her delay be excused because she did not learn of Hadity’s appointment until March 1, 2009.  An appeal may in some circumstances be commenced within 30 days of discovery of an alleged wrongdoing (see Appeal of Goldin, 43 Ed Dept Rep 330, Decision No. 15,009; Appeal of Johnson, 38 id. 327, Decision No. 14,045).  Respondent board admits that it never directly notified petitioner of the reading teacher vacancy and petitioner asserts in her affidavit that she did not discover Hadity’s appointment until March 1, 2009.  Since the appeal was commenced within 30 days of her discovery of the alleged wrongdoing and respondent board has not provided any evidence to refute petitioner’s assertion, I will excuse the delay and consider the appeal to be timely.

The gravamen of petitioner’s challenge to Hadity’s appointment is that the board violated Education Law §3013 by failing to notify petitioner of the vacancy and to recall petitioner to the reading teacher position. 

Education Law §3013(3)(a) provides, in pertinent part:

If an office or position is abolished or if it is consolidated with another position without creating a new position, the person filling such position at the time of its abolishment or consolidation shall be placed upon a preferred eligible list of candidates for appointment to a vacancy that then exists or that may thereafter occur in an office or position similar to the one which such person filled without reduction in salary or increment, provided the record of such person has been one of faithful, competent service in the office or position he or she has filled.  The persons on such preferred list shall be reinstated or appointed to such vacancies in such corresponding or similar positions in the order of their length of service in the system at any time within seven years from the date of abolition or consolidation of such office or position.

In this case, the board abolished petitioner’s position as a reading teacher, effective June 30, 2007.  Thereafter, in accordance with Education Law §3013, the board placed petitioner’s name on the preferred eligibility list and petitioner was entitled to be appointed to any vacancy in a corresponding or similar position in respondent’s district for seven years, or on or until June 30, 2014.  It is undisputed that the board created a new reading teacher position for the 2008-2009 school year and that the district failed to notify petitioner of such vacancy, despite the fact that petitioner was on the preferred eligibility list.[1]  Respondent board and Hadity allege that it was petitioner’s obligation to notify the district that she was interested in the vacancy, however, I find no such obligation in the Education Law.  On the contrary, since the district maintains the preferred eligibility list and manages vacancies, it is implicit that the district is required to make a reasonable effort to notify eligible persons of vacancies so that such persons may be afforded the opportunity to accept or decline a position.  Therefore, I find that respondent board should have made a reasonable effort to directly notify petitioner of the vacant position.

Moreover, the courts have determined that public policy favors the protection of employees’ tenure rights (Ricca v. Bd. of Educ. of the City of New York, et al., 47 NY2d 385, 391; Matter of Boyer v. Bd. of Educ., West Seneca Cent. School Dist., 132 Misc. 2d 282, 285) and I find that public policy supports this result.

Additionally, there is no indication that petitioner waived her recall rights to a reading teacher position.  “[W]aiver of a teacher’s tenure rights must be knowingly and freely given” (Matter of Gerson v. Bd. of Educ. of Comsewogue Union Free School Dist., et al., 214 AD2d 732, citing Matter of Gould v. Bd. of Educ. of Sewanhaka Cent. High School Dist., et al., 81 NY2d 446, 452).

Thus, for the reasons set forth above I find that respondent board violated petitioner’s rights when it failed to recall her to the reading teacher position and she must be reinstated to a reading teacher position with back pay, seniority and benefits.

Dickinson II

On June 23, 2009, the board recalled petitioner from the preferred eligibility list to a different probationary reading position, effective July 1, 2009 and simultaneously rescinded its April 24, 2007 conditional tenure appointment of petitioner in the reading tenure area.  Thereafter, at a meeting held on July 28, 2009, the board voted to terminate petitioner’s services, effective August 31, 2009.  Petitioner commenced her second appeal.

Petitioner alleges that the board violated Education Law §§3013, 3020 and 3020-a when it recalled her to a probationary reading position on June 23, 2009, rescinded its prior conditional tenure appointment and terminated her services.  Petitioner asks that I declare the actions of the board to be in violation of the Education Law, direct the board to correct its June minutes to reflect that petitioner was recalled as a tenured reading teacher and compel the board to comply with the recall and tenure provisions set forth in Education Law.  Petitioner further requests that I impose financial sanctions on respondent board for frivolous conduct and reimburse her for the costs and disbursements of this appeal.

Respondent board argues that petitioner was terminated prior to the attainment of tenure and that she is not entitled to the procedural protections set forth in §§3020 and 3020-a.    

Petitioner’s claims with respect to the rescission of her conditional tenure appointment and her claim to a right to the procedural protections in §§3013, 3020 and 3020-a must be dismissed.  In Remus v. Bd. of Educ. for Tonawanda City School Dist. (96 NY2d 271, 278), the Court of Appeals held that a board of education resolution that grants tenure to a teacher effective on a specified future date “confers tenure upon the teacher only as of that specified future date.”  (see Mahoney v Mills, 29 AD3d 1043, lv to app den 7 NY3d 708).  No one disputes that petitioner’s teaching position was properly abolished before the effective date of the conditional tenure appointment.  Therefore, petitioner’s tenure never took effect.  Thus, when petitioner was recalled to a reading teacher position in June 2009, she was a probationary employee and not entitled to the procedural protections of §§3013, 3020 and 3020-a.

Generally, a board of education has the unfettered right to terminate a probationary teacher for any reason unless the employee establishes that he or she was terminated for a constitutionally impermissible reason or in violation of a statutory proscription (Education Law §3012[1][b]; Appeal of Hinson, 48 Ed Dept Rep 437, Decision No. 15,908; Appeal of McBeth, 43 id. 52, Decision No. 14,913).  While petitioner disagrees with the board’s determination to terminate her from her position, petitioner has failed to present any evidence that the reason for the board’s denial of tenure was in violation of any statute or the constitution.  Therefore, petitioner’s claims must be dismissed.

To the extent petitioner requests reimbursement for the costs and disbursements of the appeal and financial sanctions, the Commissioner has no authority to award monetary damages, costs or reimbursements in an appeal pursuant to Education Law §310 (Appeal of F.P., 46 Ed Dept Rep 134, Decision No. 15,465; Appeal of J.F. and D.F., 45 id. 241, Decision No. 15,310).

In light of the foregoing disposition, I need not address the parties’ remaining contentions. 

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent board place petitioner in a position of reading teacher in accordance with this decision, with back pay, seniority and benefits as of September 1, 2008, less any compensation she may have received in the interim.

END OF FILE.