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Decision No. 12,718

Appeal of WILLIAM SROKA from action of the Board of Education of the Auburn Enlarged City School District relating to termination of employment.

Decision No. 12,718

(June 16, 1992)

Bernard F. Ashe, Esq., attorney for petitioner, Kevin H. Harren, Esq., of counsel

Cuddy, Durgala and Timian, Esqs., attorneys for respondent, Milan M. Durgula, Esq., counsel

SOBOL, Commissioner.--Petitioner challenges the manner in which his position with the Auburn Enlarged City School District was initiated and terminated. The appeal must be sustained in part.

For more than 10 years, respondent has maintained an in-school suspension (ISS) program. At the high school, the program was initially supervised by a social studies teacher and later by a guidance counsellor. During the 1988-89 school year, the ISS program at the high school was supervised by several guidance counsellors on a rotating basis.

Petitioner is certified as a secondary social studies teacher. In September 1989, he was hired by respondent as a per diem substitute teacher. In May 1990, he was granted an appointment as a long-term substitute teacher in the area of the "ISS program." The appointment was to terminate on June 22, 1990 and was effective as of September 5, 1989. While petitioner occasionally acted as a hall monitor during the 1989-90 school year, the vast majority of his time was spent supervising the ISS program at the high school. Before the start of the 1990-91 school year, respondent notified petitioner that it would again be employing petitioner as a per diem substitute. Again, petitioner spent almost all of his time supervising the ISS program. On November 13,1990, respondent discontinued the ISS program and petitioner’s services were terminated.

Before reviewing the merits of this appeal, it is necessary to address a procedural issue. Respondent contends that this appeal involves its alleged failure to grant petitioner a probationary appointment in September 1989. Since this appeal was commenced on December 12, 1990, respondent contends that it must be dismissed as untimely because it was not commenced within 30 days of the act complained of by petitioner (8 NYCRR 275.16). I disagree. Respondent’s failure to grant petitioner a probationary appointment, if improper, is in the nature of a continuing wrong, and petitioner’s failure to complain in September 1989 does not bar his complaint. In addition, the appeal was commenced within 30 days of respondent abolishing the position at issue.

Petitioner maintains that the position of supervisor of the ISS program, for which he was hired in September 1989, was a permanent vacancy on the teaching staff that respondent was required to fill by the appointment of a teacher to a probationary period in accordance with Education Law " 3012(1), and that the position could not be filled by the appointment of a substitute teacher. Education Law " 3012(1) provides that teachers shall be appointed by a board of education, upon a recommendation of the superintendent, for a three-year probationary appointment. There is no authority for the employment of a substitute teacher to any position for which there exists a permanent vacancy (Matter of Cardo, 8 Ed Dept Rep 182). If a board improperly employs a substitute teacher in a position that is permanently vacant, the services of that substitute teacher are deemed to be as a probationary teacher (Matter of McPhillips, 13 Ed Dept Rep 95; Matter ofCardo, supra,).

Respondent contends that the position offered to petitioner was not a permanent vacancy because it had never formally created a teaching position for its ISS program and no such position was ever listed on the organizational chart of the district. I find that argument unpersuasive. Since the inception of its ISS program, respondent has employed probationary or tenured teachers or guidance counsellors to supervise that program. Petitioner was employed to perform the same duties previously performed by those teachers and guidance counsellors. The fact that respondent never formally acted to create the position or listed the position in its organizational chart is immaterial. Whether a position has been created and a vacancy exists in that position is determined by legal principles. As stated by the Court of Appeals in Ricca v.Bd. of Ed., 47 NY2d 385, 418 NYS2d 345:

A school district may not avoid strict application of the statutory scheme for granting tenure to qualified and experienced teachers by the stratagem of unduly delaying formal appointment of a teacher to a position which the teacher is in fact already filling. The tenure system is not an arbitrary mechanism designed to allow a school board to readily evade its mandate by the creation of technical obstacles on a qualified teacher’s trail to tenure (see Matter of Baer v. Nyquist, 34 N.Y. 2d 291, 357 N.Y.S.2d 442, 313 N.E.2d 751). Rather it is a legislative expression of a firm public policy determination that the interests of the public in the education of our youth can best be served by a system designed to foster academic freedom in our schools and to protect competent teachers from the abuses they might be subjected to if they could be dismissed at the whim of their supervisors. In order to effectuate these convergent purposes, it is necessary to construe the tenure system broadly in favor of the teacher, and to strictly police procedures which might result in the corruption of that system by manipulation of the requirements for tenure. This is not to suggest that the school board in this instance acted with bad faith or from any improper motive. Even "good faith" violations of the tenure system must be forbidden, lest the entire edifice crumble from the cumulative effect of numerous well-intentioned exceptions.

There is no indication in the record that respondent acted with bad faith or from an improper motive. However, all that is relevant is that the appointment of a substitute teacher to the ISS vacant position was a violation of the tenure statutes and that Mr. Sroka was entitled to a probationary appointment.

As a probationary teacher, petitioner maintains that respondent did not properly terminate his employment with the school district. Specifically, petitioner contends that respondent did not comply with Education Law "" 3012,3019-a and 3031 when it terminated his services. Education Law "" 3012 and 3031 set forth procedures to be followed when the services of a probationary teacher are discontinued because the board is not satisfied with the performance of that teacher. Those sections provide that the services of a probationary employee may be discontinued on the recommendation of the superintendent, by a majority vote of the board of education. The teacher is provided with notice of the superintendent’s recommendation, and opportunity to request the reasons for the recommendation and an opportunity to respond. Petitioner argues that because the superintendent did not recommend that petitioner’s services be discontinued and he was not given notice of a superintendent’s recommendation, he was not properly dismissed. However, petitioner has misconstrued respondent’s action. On November 13, 1990 respondent abolished the ISS program and the position that petitioner held. A decision to abolish a position is authorized pursuant to Education Law " 2510(2) and does not require a recommendation of the superintendent (see Matter ofBranche, 11 Ed Dept Rep 311, 312; Matter of Welborn, 16 id. 267).

Concerning the adequacy of the notice to petitioner, Education Law " 3019-a provides that when a board of education seeks to terminate the services of a probationary teacher, it must give a written notice to the teacher at least 30 days prior to the effective date of the termination. As noted above, however, respondent in this instance did not terminate petitioner, but instead abolished the ISS program, and the position held by petitioner. There is no statutory provision requiring that employees be given notice of termination of employment by reason of an abolition of a position prior to abolition (Matter of Steadman, 15 Ed Dept Rep 298).

Petitioner, however, as a probationary employee who has had his position abolished, is entitled to have his name placed on a preferred eligible list of candidates for appointment to future vacancies, pursuant to Education law "2510(3). In light of the fact that the issue has not been raised by either party and there is insufficient data in the record, this decision does not address the question of whether respondent, when it abolished the ISS position, discontinued the services of the teacher having the least seniority in the system within the tenure area of the position abolished. (See Education Law "2510[2]). It is also not clear from the record in which tenure area the ISS position is properly placed. Depending upon the exact duties involved, it may be in one of several areas, including the social studies academic tenure area.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent correct its records to show that petitioner was granted a probationary appointment in an appropriate tenure area, effective September 5, 1989 and that respondent place petitioner’s name on a preferred eligible list pursuant to Education Law " 2510.

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