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Decision No. 13,999

Appeal of ROBERT LILLEY from action of the Board of Education of the George Junior Republic Union Free School District, relating to teacher tenure.

Decision No. 13999

(August 21, 1998)

James R. Sandner, Esq., attorney for petitioner, Gerard John De Wolf, Esq., of counsel

Bond, Schoeneck & King, LLP, attorneys for respondent, Thomas G. Eron and Virginia A. Piekarski, Esqs., of counsel

MILLS, Commissioner.--Petitioner appeals the termination of his services by the Board of Education of the George Junior Republic Union Free School District ("respondent"). The appeal must be dismissed.

In October 1993, respondent hired petitioner to perform certain services for the district as a school psychologist. Petitioner originally claimed that he was appointed as a "full-time 'per diem' substitute," but during the course of the appeal has dropped his claim to have been a substitute, and argues instead that he occupied a vacant, unencumbered position. Respondent claims that petitioner was hired as a part-time, per diem school psychologist, and served in that capacity for the remainder of the 1993-1994 school year.

Between October 1993 and June 1994, the number of students who were provided psychological services by respondent grew from 55 to 85. Upon the recommendation of its superintendent, respondent created a full-time, salaried school psychologist position at its meeting of September 22, 1994, and appointed petitioner to a three-year probationary appointment effective July 1, 1994.

On May 2, 1997, respondent's superintendent advised petitioner that he would not recommend him for tenure. On June 30, 1997, respondent met and ratified the superintendent's determination to terminate petitioner effective June 30, 1997.

This appeal was commenced on July 23, 1997. Petitioner contends that he has been a full-time school psychologist employed by respondent since October 1993, and that he acquired tenure by estoppel on or about October 24, 1996, three years after his original hiring.

Respondent denies petitioner's claim to tenure, and asserts that its actions in June 1997 were proper and that petitioner's probationary appointment was properly terminated.

As noted above, petitioner originally claimed to have served as a substitute school psychologist from October 1993 to the end of the school year. However, during the course of the appeal petitioner abandoned that claim and has specifically stated that he does not claim "Jarema" credit for that school year. ("Jarema" credit is credit accrued as a substitute teacher and applied toward reducing the probationary period following a permanent appointment; see Education Law ""2509[1][a], 2573[1][a], 3012[1][a].) Instead, petitioner asserts that he "is entitled to probationary service credit for the 1993-94 school year by virtue of serving in an unencumbered teaching position."

Petitioner's theory is that the time spent as a per diem employee must be counted as probationary service toward the acquisition of tenure, because a probationary appointment is required for an unencumbered position, and the work performed by petitioner was essentially the same as the work he later performed subsequent to a formal probationary appointment (see, McManus v. Board of Education, Hempstead UFSD, 87 NY2d 183).

Although the parties make other arguments, the critical matter at issue in this appeal is whether or not petitioner's duties from October 1993 to June 1994 were full-time. It is clear from the record that beginning in October 1993 petitioner was a per diem employee, earning $188 per day. During that time period, he was not eligible for respondent's health insurance program, nor did he have any right to paid sick leave, personal leave, or vacation. Petitioner claims that he worked full-time from 8:30 a.m. to 3:30 p.m. daily, and reported to work "nearly" each and every day from October 26, 1993, through June 30, 1994. Petitioner claims that he was absent for no more than fifteen days during that period: ten sick days and five additional days of absence because of a misunderstanding as to the dates of a school recess.

Respondent, on the other hand, claims that petitioner was hired to replace a part-time, per diem school psychologist who had left prior to the 1993-1994 school year. Respondent at that time provided psychological services to only 55 students. Respondent further claims that petitioner's responsibilities were limited to conducting psychological assessments, attending meetings of the Committee on Special Education ("CSE") as school psychologist, report writing, and consulting with other employees. Respondent claims that when petitioner became a full-time employee on July 1, 1994, he assumed substantially greater duties, including serving as Chair of the CSE. After July 1, 1994, petitioner also became eligible for health insurance, paid sick leave, personal leave, and vacation. Respondent claims that there were numerous days on which petitioner did not work or otherwise perform any services during the 1993-1994 school year, and that he did not receive any compensation for those days. Respondent further claims that petitioner was not subject to any disciplinary action when he failed to report for duty during any of the five days where there was a misunderstanding as to school vacation, where a full-time employee would have been subject to discipline.

I find that the appeal must be dismissed because petitioner has failed to carry his burden of proof. As the parties recognize, in order for petitioner's service during the 1993-1994 school year to count toward the acquisition of tenure, the service must have been rendered on a full-time basis (Matter of Ceparano v. Ambach, 74 AD2d 978, reversed 53 NY2d 873; Appeal of Mau, 35 Ed Dept Rep 275; Matter of Nanni, et al., 23 id. 444). While petitioner cites a case where this rule was not enforced, that case involved unusual circumstances which are not present here (Matter of Moritz v. Board of Education, Gowanda CSD, 60 AD2d 16, where the board formally awarded tenure at the end of the probationary period, and the original probationary appointment was, incorrectly, for part-time services; the board was held estopped from denying the employee's tenured status).

In an appeal to the Commissioner, the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which he seeks relief (8 NYCRR "275.10; Appeal of Acme Bus Corporation, 37 Ed Dept Rep 219; Appeal of Catherine B., 37 id. 34; Appeals of Lindauer and McKee, 34 id. 596). I find that petitioner has not met this burden, and cannot prevail.

Respondent has established by the affidavits of two individuals with direct, personal knowledge of the facts that the person who held the school psychologist position prior to the beginning of the 1993-1994 school year was a part-time per diem employee. Petitioner has not addressed that claim in any way. I therefore find it likely that petitioner was also originally hired as a part-time, per diem employee. While petitioner alleges that he worked full-time, respondent disputes that claim, and petitioner presents no independent evidence to overcome respondent's position. I am, therefore, not persuaded that petitioner served in full-time status during the 1993-1994 school year. Petitioner did not acquire tenure, and his employment was effectively terminated prior to the completion of his probationary appointment.