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Decision No. 13,181

Appeal of CAROL RUFF from action of the Board of Education of the Greenville Central School District regarding the termination of a probationary teacher.

Decision No. 13,181

(May 11, 1994)

Bernard F. Ashe, Esq., attorney for petitioner, Gerard John DeWolf, Sr., Esq., of counsel

Buchyn, O'Hare, Werner & Gallo, Esqs., attorneys for respondent, Kathryn McCary, Esq., of counsel

SOBOL, Commissioner.--Petitioner seeks to annul respondent's decision to accept the superintendent's recommendation to deny petitioner tenure. Petitioner also requests that I direct the superintendent to provide petitioner with a detailed statement of the reasons for the superintendent's recommendation and further direct respondent to consider her response to this statement in accordance with Education Law '3031. The appeal must be sustained in part.

On August 13, 1990, petitioner was appointed to a three-year probationary appointment in the elementary tenure area, effective September 4, 1990. On May 10, 1993, the superintendent advised petitioner that she would recommend to respondent board of education that petitioner be denied tenure. The superintendent also advised petitioner that the board of education would consider the recommendation at its June 14, 1993 meeting.

On May 17, 1993, petitioner asked the superintendent to provide her with a written statement of the reasons for the recommendation. On May 24, 1993, the superintendent wrote and advised petitioner that the reason she would not be recommended for tenure is that ". . . you failed to incorporate administrative suggestions into your instruction. . . ." On June 2, 1993, petitioner wrote to the superintendent claiming that she received the superintendent's statement on June 1, 1993, that it was not furnished in a timely manner and complained that the reasons given were not specific enough to allow her to fashion a meaningful response. Petitioner asked the superintendent to provide specific reasons for her recommendation.

On June 4, 1993, the superintendent wrote to petitioner stating that since petitioner had not received the reason for her recommendation within the time limits specified in the Education Law, petitioner's response to the superintendent's statement would be accepted at any time prior to the board meeting scheduled for June 14, 1993. However, the superintendent refused to provide a further statement of reasons for the recommendation not to grant tenure, stating that it was her belief that the statement already provided satisfied the obligation established by the Education Law. On June 5, petitioner again wrote to the superintendent, complained that the statement of reasons was inadequate, questioned the basis for the recommendation and again requested that she be provided with specific reasons.

Petitioner was advised by letter of June 21, 1993 that the board of education voted unanimously to deny her tenure and that her employment with the district would end on September 3, 1993. Petitioner commenced this appeal on July 13, 1993.

Petitioner first claims that the procedure employed by respondent violates Education Law '3012 because the superintendent failed to provide her with notice that she would not be recommended for tenure sixty days preceding the expiration of the probationary period (see Matter of Tucker v. Board of Education, 189 AD2d 704, motion for leave granted, 81 NY2d 709). Petitioner contends that she is therefore entitled to ten days' pay. This contention is without merit. The superintendent's recommendation was provided to petitioner on May 10, 1993. According to petitioner's notice of probationary appointment, her probationary period was to commence on September 4, 1990 and terminate on September 3, 1993. Therefore, the notice received by petitioner on May 10, 1993 was more than sixty days before the end of her probationary appointment and complied with '3012.

Petitioner also contends that the statement of reasons provided by the superintendent was insufficient because it was not detailed enough to allow her to make a meaningful response. When a probationary teacher requests a statement of reasons for a superintendent's recommendation, the reasons supplied must be sufficiently specific to afford the teacher an opportunity to make an intelligent and meaningful response to the stated reasons (Matter of Berman, 15 Ed Dept Rep 194; Matter of Egan, 15 id. 196; Matter of Rathbone v. Board of Education, 47 AD2d 172). Based upon my review of the record, I find the superintendent's original statement insufficient to allow petitioner to prepare a meaningful response. I note that the record contains a March 8, 1993 report of the superintendent's observation of petitioner as well as an affidavit from the superintendent which purports to supply specific reasons for not recommending tenure. However, neither the observation report nor the affidavit were previously provided to petitioner as the basis for the superintendent's recommendation. Therefore, the reasons supplied were inadequate. However, the appropriate relief to be accorded petitioner in this matter is not as readily ascertainable as my determination that the statement of reasons was inadequate. In connection with petitioner's request for back pay, the determination of the Appellate Division, Third Department in Rathbone, supra, supplies a remedy which is not completely applicable to this case (see Rathbone, at pg. 176). The major distinction is that while back pay was available in Rathbone because the petitioner's services were terminated in the midst of the probationary appointment, such relief cannot be granted in this case since petitioner's services were terminated effective with the end of her probationary appointment period (SeealsoMatter of Zunic, 13 Ed Dept Rep 11). Accordingly, the matter shall be remitted to respondent with the following direction:

1. The superintendent shall resubmit her recommendation, containing appropriate specifics of the reasons therefor, to petitioner and the board of education.

2. Petitioner shall be allowed to submit a response.

Any response supplied by petitioner will be included in any employment records maintained by respondent relating to petitioner's employment as a probationary teacher.

Petitioner's remaining requests for relief are denied and the petition is otherwise dismissed.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the parties proceed expeditiously in accordance with this decision.

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