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Decision No. 13,176

Appeal of EDWARD YASTION from action of the Orange/Ulster Board of Cooperative Educational Services and Kevin J. Colpoys, interim District Superintendent, relating to termination of employment.

Decision No. 13,176

(May 9, 1994)

James R. Sandner, Esq., attorney for petitioner, John H. Jurgens, Esq., of counsel

Rains & Pogrebin, P.C., attorneys for respondents, Ernest R. Stolzer, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals respondent's termination of his position as a school counselor. The appeal must be dismissed.

Petitioner was originally employed by the Orange/Ulster Board of Cooperative Educational Services ("BOCES" or "respondent") in September 1989 as an unpaid guidance counselor intern. On December 7, 1989 respondent appointed petitioner to the position of "school counselor" effective December 1, 1989. The minutes of the meeting at which respondent made petitioner's appointment indicate that "this is a new, temporary position." From 1989 to 1993, respondent annually renewed petitioner's employment as a school counselor. Although petitioner signed several salary agreements, the parties dispute whether petitioner and the assistant superintendent ever discussed these agreements. The salary agreements for 1990, 1991 and 1992 state that tenure does not apply to petitioner's position. On June 1, 1993, respondent notified petitioner that his services would be terminated effective July 30, 1993. This appeal ensued.

Petitioner alleges that he filled a permanent vacancy on the teaching staff and that he was granted a probationary appointment effective September 1, 1989. Petitioner also alleges that he did not waive his rights to tenure, that his termination should be rescinded and that respondent should reinstate him to the position with back pay, seniority and benefits. Respondent contends that the petition fails to state a valid claim and is untimely. Respondent also contends that petitioner's employment was always temporary in nature and that petitioner was aware of his status.

Before reaching the merits, I will address the procedural issues. Respondent contends that petitioner fails to state a valid claim with respect to a violation of Education Law '3012 or 8 NYCRR Part 30. I disagree. Petitioner claims that respondent failed to appoint him to a probationary appointment as required by Education Law '3012 and instead improperly appointed him to a temporary position. I find that petitioner has stated a valid claim and decline to dismiss the petition on that basis.

I also find unpersuasive respondent's attempts to characterize the petition as untimely because it was not served until almost one year from August 30, 1992, the date petitioner claims he was first entitled to tenure. Respondent contends that the appeal must be dismissed as untimely since it was not commenced within 30 days of the act complained of, as required by 8 NYCRR 275.16. As petitioner asserts, the failure to grant tenure, if improper, is in the nature of a continuing wrong. Petitioner's failure to complain in August 1992 does not, therefore, bar his complaint now (Appeal of Sroka, 31 Ed Dept Rep 513). In addition, the appeal was commenced within 30 days of respondent's termination of petitioner's appointment. I, therefore, decline to dismiss the petition as untimely.

However, the appeal must be dismissed on the merits. Petitioner alleges that respondent has violated Education Law '3012(1)(a) by appointing him to a temporary position when the intent of the statute is to have teachers appointed to probationary appointments leading to tenure. Petitioner states that respondent hired him to fill a permanent vacancy. However, petitioner fails to prove that the position in question was a permanent vacancy. The minutes of respondent's meeting approving the appointment indicate that "this is a new, temporary position." There is no other evidence in the record before me that this was a permanent vacancy on respondent's staff. If it was, respondent would have been prohibited from making a temporary appointment to such position, since it is a violation of Education Law '3012 to make temporary appointments to permanent vacancies in an effort to circumvent the tenure law (Serritella v. Board of Education of the Westbury School District, 58 AD2d 645; Matter of Cardo, 8 Ed Dept Rep 182).

Petitioner further alleges that he did not waive his right to appointment to a probationary term and that respondent violated his tenure rights. However, the record indicates that petitioner signed a series of annual salary agreements between 1990 and 1993 and that those salary agreements specifically stated that petitioner was not eligible for tenure. Respondent claims that petitioner knowingly and freely signed these agreements and at all times was aware of the temporary nature of his position. In Matter of Feinerman v. Board of Cooperative Educational Services of Nassau County, 48 NY2d 491, the Court of Appeals held that a BOCES is not precluded from employing a teacher for a limited term in a position which carries with it no tenure rights if the teacher knowingly and freely waives any expectation of tenure and there is no evidence of duress or coercion. In this case, petitioner signed a series of salary agreements that specifically stated "tenure does not apply." There is no evidence in the record that petitioner was mislead or coerced into signing these agreements. There is also no evidence that respondent represented to petitioner that despite these agreements, his position carried a tenure appointment. Therefore, respondent acted within its authority to terminate petitioner's employment effective July 30, 1993.

I have considered petitioner's other contentions and find them without merit.