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Decision No. 12,683

Appeal of MARY MADDEN-LYNCH from action of the Board of Education of the Port Chester-Rye Union Free School District and Anthony J. Napoli, superintendent, regarding the termination of her services as a teacher.

Decision No. 12,683

(April 14, 1992)

Francis J. Sisca, Esq., attorney for respondents

SOBOL, Commissioner.--Petitioner appeals from the action of respondents in terminating her services as a probationary teacher. The appeal is sustained in part.

On or about August 23, 1989, respondent granted petitioner a three-year probationary appointment as an elementary teacher, effective September 1, 1989. On November 1, 1991, respondent superintendent verbally notified petitioner that he would recommend to the board at its December 18, 1991 meeting that petitioner's probationary appointment be terminated immediately. That decision was confirmed by the superintendent in a letter to petitioner dated November 13, 1991. By letter dated December 19, 1991, petitioner was notified that her employment had been terminated by the board on December 18, 1991.

Petitioner maintains that her termination is invalid because she was improperly fired in response to her request for an emergency medical leave. Petitioner further maintains that her termination was improper since she was not given a specific reason for her termination, was not given a hearing on the matter and because respondent failed to follow requisite procedures.

Respondents deny that petitioner's services were terminated because she requested an emergency medical leave. Petitioner offers no proof to dispute respondents' denials on this issue. While respondents are not clear as to why petitioner was fired, they maintain that the reasons for their action were discussed with petitioner when she met with the superintendent on November 1, 1991. Papers supplied by petitioner indicate that at that meeting, the superintendent discussed petitioner's failure to follow district policy regarding the handling of funds for a class trip and a specific deficiency in her teaching methods.

Pursuant to Education Law "3031, a probationary teacher is entitled to be notified of a recommendation that his or her services be discontinued at least 30 days prior to the board meeting at which that recommendation is to be considered. Petitioner received such notification on November 1 and 13, 1991. The section further provides that a teacher may request in writing, not later than 21 days prior to the board meeting, that he or she be furnished with a written statement giving the reasons for such recommendation. The record fails to show that petitioner ever requested such a statement. Consequently, respondents' failure to provide a written reason for their dismissal of petitioner is not a basis for overturning that decision (Matter of Norden, 23 Ed Dept Rep 94).

There is also no basis for granting petitioner's request for a hearing on this matter. A probationary teacher serves at will and is not entitled to a hearing unless it can be shown that the teacher's dismissal was for a constitutionally impermissible reason (Castro v. Bd. of Ed., 777 F. Supp. 1113; Garbo v. Bd. of Ed., 61 AD2d 983, 402 NYS2d 606; Bergstein v. Bd. of Ed., 42 AD2d 591, 344 NYS2d 732) or that the reasons given have a stigmatizing effect upon the employee and the employer disseminates those reasons (Lentilie v. Egan, 61 NY2d 874, 474 NYS2d 467). Failure to follow district policies or a deficiency in teaching methods do not rise to a stigma of constitutional proportions (see La Borde v. Franklin Parish School Bd., 510 F2d 590; Orshan v. Anker, 550 F.Supp. 538; Lombard v. Bd. of Ed., 440 F. Supp. 577), and there is no allegation or proof that the charge was made available to future employers or made public by respondents (Gentile v. Wallen, 562 F2d 193).

Pursuant to Education Law "3019-a, a teacher whose services are to be terminated during the probationary period must be given written notice at least 30 days prior thereto. As was stated in Matter of Tedesco (4 Ed Dept Rep 3):

Since the dismissal must be by the Board, the 30 days' notice required by section 3019-a cannot be given until after the Board has acted. The effect of these provisions is that the Board action cannot be effective until 30 days after notice thereof is given to the teacher.

It is clear that the 30-day notice required by "3031 cannot run concurrently with the notice required by "3019-a. (Matter of Durcan, 18 Ed Dept Rep 30; Matter of Slater, 12 id. 275; Matter of Nazzaro, 7 id. 31). The purpose of the former is to allow a teacher an opportunity to present to the board of education a response to the superintendent's reasons for recommending dismissal before the board votes on whether to discontinue the teacher's services, while the purpose of the latter is to allow a teacher whose services have been discontinued an opportunity to seek other employment (Matter of Sternberg, 12 Ed Dept Rep 277).

While respondents failed to give petitioner 30 days' notice of her dismissal as required by "3019-a, that failure does not make her dismissal ineffective, but merely entitles her to 30 days salary (Matter of Sternberg, supra; Matter of Currier, 10 Ed Dept Rep 51; Matter of Maillet, 9 id. 190).

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS HEREBY ORDERED that the Board of Education of the Port Chester-Rye Union Free School District pay petitioner the equivalent of 30 days' salary.

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