Decision No. 13,564

(March 8, 1996)

MILLS, Commissioner.--Petitioner appeals the termination of her employment as a teacher by the Buffalo City School District ("respondent"). The appeal must be dismissed.

The underlying facts of this case are undisputed. In September 1991, petitioner began to serve a two-year probationary period as a vocal music teacher in respondent school district. In a letter dated September 20, 1993, respondent's secretary notified petitioner that she had successfully completed probation. That letter additionally stated that respondent's superintendent would recommend petitioner for tenure and permanent certification upon completion of her fifth year preparatory requirement (i.e., obtaining a master's degree within five years of one's probationary appointment) and advised her that she would be dismissed if she failed to complete the requirement within the specified time period. In a letter dated March 9, 1995, a school principal and the director of music for respondent notified petitioner that she would not be recommended for tenure and that she would be terminated at the end of the school year. Respondent's assistant superintendent confirmed this information in a letter to petitioner dated May 31, 1995.

Petitioner contends that her termination was wrongful. She argues that since she successfully completed her probationary period, respondent was obligated to allow her until September 1996 to complete her educational requirements, and that in the interim respondent could only dismiss her for cause following a hearing. In addition, petitioner relies on provisions of the Education Law which require that the superintendent of schools notify a teacher when tenure will not be recommended and argues that she did not receive proper notice from the superintendent. She seeks restoration of her position and of all benefits and emoluments.

Respondent contends that it complied with Education Law ''2573 and 3031. It argues that during petitioner's post-probationary period, she was not a tenured teacher and, therefore, could not rely on the protections of tenure. With respect to the notice requirement, respondent contends that such ministerial duties of the superintendent are delegable to the assistant superintendent.

This case involves conflicting interpretations of Education Law ''2573(1) and (6). Originally, the Education Law envisioned that a teacher would serve a probationary period from one to three years ('2573(1)). At the end of the probationary period, the teacher would either receive tenure or be dismissed (id.). "The purpose of the tenure law is `to give security to competent members of the educational system in the positions to which they have been appointed'" (Matter of Boyd v. Collins, 11 NY2d 228, 233 citing Matter of Monan v. Board of Educ., 280 AD 14, 18). Once tenured, the teacher could only be dismissed for cause after a hearing, held in compliance with Education Law '3020-a ('2573(6)).

During the 1960's, due to teacher shortages, teachers were serving their probationary periods and receiving tenure before they fully completed their educational requirements (New York State Legislative Annual - 1969 at 216). Once tenure was granted, districts were precluded from dismissing a teacher for failing to complete those requirements (Matter of Mannix, 24 AD2d 481). In Mannix, the court concluded:

In 1969, the Legislature responded by amending '2573(1) of the Education Law, adding the following language:

In doing so, the Legislature created a post-probationary, pre-tenure period. The issue in this case is whether, during that period, a teacher has tenure-like protections against dismissal without cause or a hearing.

Petitioner contends that the answer lies in '2573(6) which states:

Petitioner contends that since she satisfactorily completed her probationary period, the district is obligated to grant her a permanent certificate of appointment upon completion of her educational requirements and that, until then, '2573(6) protects her against removal without cause and a hearing.

I disagree. Section 2573(6) does not address this situation. It speaks to the situation in which a permanent certificate is granted immediately upon completion of a probationary period, and as such receives the protections of tenure.

Therefore, I must conclude that the amendments to subdivision 1, which created this interim period, were intended in essence to extend the probationary period, pending the completion of educational requirements, at which time tenure, and its commensurate protections, would be granted. The amendments to subdivision 1 precluded a teacher from achieving tenure without completing his/her educational requirements. They did not extend tenure-like protections to those whose probationary period had expired, as the Legislature could have effected if it so wished. Those protections are the essence of the tenure laws, and the added language specifically states that tenure would not be acquired unless and until educational requirements have been completed.

In addition, the legislative history to Chapter 822 offers no indication that tenure-like protections were intended (Chapter 822, Laws of 1969, Bill Jacket). The Legislature reacted to the holding in Mannix and apparently intended to preclude a situation in which a teacher who failed to complete his/her education requirements could be protected from dismissal.

Petitioner further argues that '2573 specifies that a person not being recommended for tenure be notified by the superintendent of schools. Although in this case the notice was signed by the assistant superintendent rather than the superintendent, I find respondent's technical violation de minimis, not resulting in prejudice to petitioner. Therefore, I do not find this technical irregularity to be sufficient grounds to restore petitioner to her position.

THE APPEAL IS DISMISSED.

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