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Decision No. 12,833

Appeal of JUDY CHARLAND from action of the Board of Education of the Saranac Lake Central School District regarding termination of services.

Decision No. 12,833

(November 9, 1992)

New York State School Administrators Association, attorney for petitioner, Beverly R. Hackett, Esq., of counsel

Arthur F. Grisham, Esq., attorney for respondent

SOBOL, Commissioner.--Petitioner, asserting that she had acquired tenure by acquiescence, appeals from her dismissal by respondent board of education. She seeks an order declaring respondent's action null and void and granting her tenure status. The appeal must be dismissed.

Petitioner entered into an employment contract with respondent covering July 1, 1989 through June 30, 1992, to serve as the administrative assistant to the superintendent. Respondent granted petitioner a three year probationary appointment on July 19, 1989. Petitioner's actual employment commenced on August 1, 1989, and it is uncontested that her probationary term ended on July 31, 1992.

On April 9, 1992, the superintendent notified petitioner that she intended to recommend petitioner for tenure at the May 20, 1992 board meeting. No action was taken on petitioner's tenure status at the May 20, 1992 meeting. At the June 17, 1992 board meeting, respondent voted to deny tenure to petitioner, effective August 1, 1992. By letter dated June 18, 1992, the superintendent informed petitioner that the board had failed to grant tenure. Because petitioner's counsel insisted that respondent had failed to comply with Education Law '3031, respondent sent petitioner a July 2, 1992 letter asserting that the June action was preliminary and that final action would be taken on August 3, 1992.

On July 24, 1992, respondent sent petitioner a letter explaining why the board voted to deny tenure:

1. You have failed to develop a consistently cooperative working relationship with many staff members. This has caused some dissention among the staff in terms of their feeling that they are not a strong part of the curriculum development process.

2. When we asked whether you could "soften" your approach, our strong sense is that you were unwilling to attempt to make changes.

Petitioner responded on July 27, 1992, stating that respondent's rationale was not specific enough to warrant a response, and she cited three exemplary performance reviews by two superintendents, outstanding letters of reference, positive support from colleagues, and a high level of involvement by teaching staff as evidence that respondent's action was inappropriate.

In a letter dated July 31, 1992, respondent notified petitioner that her last day of employment was July 31, 1992. On August 3 and 4, 1992, petitioner reported for work. On August 3, 1992, respondent voted to deny tenure to petitioner. Respondent again notified petitioner of her dismissal on August 4, 1992. This appeal ensued.

Petitioner asserts that the answer is procedurally defective. She also contends that the manner in which respondent dismissed her violated Education Law '3031 and her contract. Consequently, she claims that she has acquired tenure by acquiescence and estoppel.

Respondent contends that petitioner is not entitled to the protections of Education Law '3031. In the alternative, respondent argues that it substantially complied with '3031 and, at most, petitioner is entitled to additional compensation for working one day subsequent to her termination. Respondent further contends that petitioner does not have tenure by acquiescence and estoppel, because respondent did not acquiesce to her working beyond July 31, 1992, the final day of her probationary appointment. Respondent further asserts that, upon the expiration of her contract on June 30, 1992, petitioner lost all contractual rights. Therefore, she was not entitled to the termination procedures delineated in the contract. Respondent also asserts that petitioner's reply raises new allegations which are not responsive to the affirmative defenses and should not be considered. Finally, respondent contends that its answer does comply with Commissioner's regulations because the school district attorney verified the answer.

I will first address the procedural issues raised. Petitioner contends that respondent's answer must be excluded due to improper verification. An answer must be verified by any person familiar with the facts underlying the appeal (8 NYCRR '275.5). The answer was verified by respondent's attorney. The record reflects that the issues and facts involved in this case deal with provisions in petitioner's contract and the application of various provisions of the Education Law. The person most likely to have personal familiarity with the facts and issues involved in this case is the school district attorney. Therefore, I find that the answer was properly verified.

Respondent asserts that the reply cannot be considered because it raises new issues. A reply is not meant to buttress allegations in the petition or to belatedly add assertions which should have been included in the petition (Application of Verity, 31 Ed Dept Rep 485; Matter of Pronin, 27 id. 203). A review of the record reveals that petitioner's reply papers contain new material which was not previously set forth in the petition (8 NYCRR 275.14). Therefore, I will not consider the material belatedly added by petitioner in the reply.

I find petitioner's contention that respondent violated her contract in dismissing her without a hearing, without merit. Employment of an assistant superintendent is governed by Education Law '3012(1)(b), which provides for employment at will. However, a school district may agree with an assistant superintendent on the terms and conditions of employment, provided they do not specify by contract the duration of the appointment (Averback v. Board of Education of the New Paltz Central School District, 147 AD2d 152; Matter of Hoffman, 18 Ed Dept Rep 466; Matter of Karamessinis, 17 id. 372). A contract of this nature permits a board to discharge an administrator for cause during the probationary term and leaves wholly unimpaired its right to terminate her employment at the conclusion of the term (Averback, supra.; Matter of Foster, 28 Ed Dept Rep 29). Petitioner and respondent both assert that although there was a contract, it contained no term of duration. While the contract furnished procedural safeguards to petitioner during the statutory three-year period, it left respondent free to discharge petitioner at the conclusion of the term. The term concluded on June 30, 1992. Regardless of the fact that the contract was not signed by the parties until August 1, 1989, the term of duration specified was not modified. Because petitioner was dismissed after June 30, 1992, the termination provisions in the contract are inapplicable.

I reject petitioner's attempt to apply Education Law '3031 to her termination. If the law expressly applies to a particular act, then there is an irrefutable inference that what is omitted is intended to be excluded (People v. Laing v. Wade, 79 NY2d 166; Alonzo M. v. New York City Dept of Probation, 72 NY2d 662; Patrolmen's Benev. Asso. v. City of New York, 41 NY2d 205; Rozler v. Franger, 46 NY2d 760). Furthermore, a statute is to be construed as of the time of its enactment, and changing circumstances will not alter the meaning of the plain and ordinary language (State of New York v. Ford Motor Co., 74 NY2d 495; Schrader v. Carney, 180 AD2d 200; People v. Reilly, 20 Misc. 2d 139). When enacted, '3031 was only intended to apply to teachers, as is clear from its language.

The statute does not state it is applicable to administrators (Matter of McGinley, 23 Ed Dept Rep 350; Matter of Cahill, 23 id. 427). Section 3031 was enacted by Chapter 866 of the Laws of 1972. Subsequently, Chapter 468 of the Laws of 1975 added Education Law '3012(1)(b) to provide administrators' probationary terms. The legislative history of the amendment to '3012(1)(b) makes no reference to the applicability of '3031. Had the Legislature intended '3031 to apply, it would have amended the statute accordingly (Matter of Oleksa, Supreme Court, Nassau County, Index No. 12974/91 n.o.r., Justice Saladino). Even though there was an amendment to '3012, it does not mean the language of '3031 must be interpreted to include terms which were deliberately excluded when the statute was drafted. I find Education Law '3031 to be inapplicable to administrators serving probationary terms pursuant to Education Law '3012(1)(b).

The question thus becomes what process is due a probationary employee prior to dismissal. Notice and an opportunity to be heard are required where an employee's good name, reputation, honor or integrity are at stake in terminating an employee, Board of Regents v. Roth, 408 US 564. As long as the motivating factor for the dismissal is not an infringement of a constitutional right, and the terminated employee's reputation is not impugned, then there is no due process violation when a probationary employee is dismissed without a hearing (Mt. Healthy City School District v. Doyle, 429 US 274).

Here, petitioner does not even assert that her reputation was impugned or her constitutional rights violated. Accordingly, a hearing was not required. Nevertheless, respondent made petitioner aware by letter dated June 18, 1992 of respondent's intention to deny petitioner tenure effective August 1, 1992. This was more than thirty days notice and more than teachers are afforded statutorily (Education Law '3019-a affords teachers thirty days' notice of termination). Accordingly, I find that respondent followed procedures properly in terminating petitioner.

Finally, I reject petitioner's assertion that her service beyond the end of her probation entitles her to tenure by acquiescence or estoppel. Tenure by acquiescence results only where a teacher continues to teach beyond the probationary period with the knowledge and consent of the board of education and where the board has not acted to grant or deny tenure (Murgavin v. Nyquist, 48 AD2d 727, aff'd 39 NY2d 1003; Rosenberg v. BOE, 51 AD2d 551; Matter of Greebel, 14 Ed Dept Rep 305). The record reflects that petitioner's probation ended on July 31, 1992. She was informed of the termination of her probation and her denial of tenure on June 17, 1992 and again on July 31, 1992. Given these facts, her decision to attend work on August 3 and August 4, 1992 cannot be construed to be with the consent of the board of education. Therefore, she has not attained tenure by estoppel or acquiescence.