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Decision No. 13,389

Appeal of PEGGY K. ZURN from action of the Board of Education of the Mt. Markham Central School District with regard to the termination of teaching services.

Decision No. 13,389

(March 27, 1995)

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

Scolaro, Shulman, Cohen, Lawler & Burstein, P.C., attorneys for respondent, Norman H. Gross, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals respondent's termination of her employment on July 21, 1992. Petitioner seeks an order directing respondent to rescind its action and reinstate her to her former position as a tenured home economics teacher with back pay and benefits. The appeal must be sustained.

Petitioner was hired as a home economics teacher in the Mt. Markham Central School District in September 1986. Petitioner served a three-year probationary period and was granted tenure as a home economics teacher on or about April 18, 1989. When petitioner was hired by respondent, she had a provisional teaching certificate in home economics. That provisional certificate was valid for five years from the date of issuance (8 NYCRR 80.17[3]) and expired on August 31, 1989. As of August 31, 1989, petitioner had not completed work on a master's degree, a requirement for permanent certification.

Petitioner and respondent's superintendent subsequently applied to the State Education Department ("SED") for a temporary teaching license to permit her to continue working as a home economics teacher in the district. In a January 11, 1990 letter to respondent's superintendent, a senior certification specialist in SED's Office of Teaching stated:

Because of the lateness of the school year, we are approving the employment of Ms. Zurn as an uncertified teacher of home economics for the 1989-90 school year only. The temporary license, effective September 1, 1989 to August 31, 1990, will be prepared and sent directly to Mt. Markham Central Schools in the immediate future.

Ms. Zurn must complete deficiencies and be eligible for certification as of September 1, 1990 in order to be employed as a teacher of home economics for the 1990-91 school year. Under no circumstances will she be granted a temporary license to serve as an uncertified teacher of home economics beyond August 31, 1990.

Respondent continued to employ petitioner as a home economics teacher under this temporary license for the remainder of the 1989-90 school year.

At the end of that school year, petitioner resigned from her tenured position in home economics. In a June 11, 1990 letter to respondent, petitioner stated:

I regret to inform you that I must resign from my position as 7th and 8th grade Home and Careers instructor effective July 1, 1990. I have run out of time and cannot fulfill my masters degree requirement until October at the earliest. I have thoroughly enjoyed working with the teachers, students, and their parents at the middle school.

At its June 19, 1990 meeting, respondent accepted petitioner's resignation. In a letter dated June 20, 1990, respondent's superintendent advised petitioner that the board had accepted her resignation with regrets.

Subsequently, at its September 4, 1990 meeting, respondent adopted a resolution rehiring petitioner as a long-term substitute teacher of middle school home and careers, commencing September 1, 1990 and terminating on December 1, 1990. At its November 20, 1990 meeting, respondent changed petitioner's status and adopted a resolution appointing her as a probationary teacher in the home economics tenure area, effective December 3, 1990, for a probationary period commencing on September 1, 1990 and ending on August 31, 1992. Petitioner completed her master's degree in December 1990. Thereafter, petitioner applied for permanent certification in two areas -- health and home economics. SED issued permanent certification to petitioner in each area, effective February 1, 1991.

Upon reviewing petitioner's application for a permanent certificate in health, SED's senior certification specialist discovered petitioner had been employed by respondent as a home economics teacher from September 1, 1990 to January 31, 1991 without certification. In a letter dated April 4, 1991, SED advised respondent's superintendent that because petitioner's permanent certification in home economics did not commence until February 1, 1991, it was necessary for respondent and petitioner to apply for a temporary license covering petitioner's employment as an uncertified teacher during the first semester of the 1990-91 school year. On May 2, 1991, that application was submitted by petitioner and respondent's superintendent. On or about June 10, 1991, SED retroactively approved petitioner's employment as an uncertified teacher of home economics for the first semester of the 1990-91 school year, and petitioner was issued a temporary license in home economics for that semester.

Petitioner continued in her probationary appointment through the 1990-91 and 1991-92 school years. At the end of the 1991-92 school year, respondent's superintendent determined that petitioner did not merit tenure. By a memorandum dated June 16, 1992, the superintendent informed petitioner that he would recommend to respondent that she not be granted tenure. Respondent acted upon the superintendent's recommendation at its meeting of July 21, 1992 and terminated petitioner's employment, effective August 31, 1992. Petitioner argues that respondent's continuation of her employment after her resignation constitutes a constructive rescission of its prior acceptance of her resignation. Therefore, petitioner claims that she is a tenured teacher and respondent should have provided her with the due process protections afforded to tenured teachers under Education Law '3020-a prior to termination of her employment. Accordingly, petitioner claims that her termination from employment was illegal.

Respondent claims that petitioner resigned from her tenured position, that petitioner had no right to the tenured position after her resignation was accepted by respondent and that petitioner was legally terminated from her probationary appointment.

As a threshold matter, respondent claims that the appeal is untimely. An appeal must be commenced within 30 days after the making of the decision or the performance of the act complained of (8 NYCRR 275.16). Petitioner's allegations concern respondent's decision on July 21, 1992 to terminate her employment. Petitioner served the petition in this matter on respondent on August 18, 1992 -- within 30 days of respondent's decision to terminate her employment. Accordingly, I find the appeal to be timely.

The central issue in this case is whether petitioner, by her resignation, has voluntarily relinquished her rights to her tenured position. The Court of Appeals has held that where a teacher resigned her position under the mistaken belief, shared by the board of education, that the teacher was resigning from a probationary rather than a tenured position, the resignation was ineffective and may be rescinded (Matter of Gould v Board of Education of the Sewanhaka Central High School District, et al., 81 NY2d 446). Applying the principle of contract law that a contract is voidable and subject to rescission if at the time of the agreement the parties are operating under a substantial mutual mistake of fact, the Court in Gould rejected the school board's argument that the teacher's resignation was voluntary and irrevocable, and declared the resignation a nullity. (Id.)

Like Matter of Gould, supra, this case involves a resignation based on a mutual mistake of fact that is fundamental to petitioner's employment rights. On January 11, 1990, SED advised respondent's superintendent that "under no circumstances" would petitioner be granted a temporary license to serve as an uncertified teacher in home economics beyond August 31, 1990. Petitioner's inability to be certified after August 31, 1990 was fundamental to petitioner's employment rights because an employing board may not legally pay an uncertified teacher (see, Education Law '3009). On the basis of SED's representation, petitioner tendered her resignation to respondent on June 11, 1990, advising respondent that she had run out of time to complete her master's degree which is required for certification. On June 19, 1990, respondent accepted petitioner's resignation with regrets, thereby implicitly acknowledging that the reason for the resignation was petitioner's lack of certification.

Subsequently, at its September 1990 meeting, respondent rehired petitioner to her previous position as a home economics teacher, purportedly as a long-term substitute teacher. At its November 1990 meeting, respondent retroactively changed petitioner's status to a probationary teacher, recognizing that it had erred in treating petitioner's position as a regular substitute position because there was no incumbent in the position who was absent and expected to return (see, Appeal of Nettles, 31 Ed Dept Rep 437). There was no break in petitioner's employment after her resignation, and she held the same teaching position in home economics before and after her resignation. Therefore, petitioner's resignation was based on a mistake of fact that was fundamental to her employment rights -- that she would not be able to obtain a temporary license for the first semester of the 1990-91 school year. Therefore, as in Matter of Gould, supra, this resignation is ineffective and may be rescinded.

Moreover, respondent's decision at its November 1990 meeting to rehire petitioner as a probationary teacher, retroactive to September 1, 1990, without a break in service, constitutes a constructive rescission of its earlier acceptance of petitioner's resignation. That probationary appointment could only have been legally made if respondent believed that petitioner were eligible to receive a temporary license. Only duly certified or licensed teachers may legally be appointed to a probationary teaching position (Education Law '3001). Therefore, I also find that respondent's retroactive appointment of petitioner without a break in service to the same teaching position she held prior to her resignation constituted a constructive rescission of respondent's earlier acceptance of petitioner's resignation based on lack of certification (c.f., Matter of Mullen, 15 Ed Dept Rep 327 [continued employment without a probationary appointment constitutes a constructive rescission of a prior resignation]).

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent forthwith reinstate petitioner to a position within her tenure area; and

IT IS FURTHER ORDERED that respondent pay to petitioner the salary she would have earned from the effective date of the commencement of the 1992-93 school year to the

date of reinstatement, less any earnings petitioner may have had during this period from other employment.

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