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Decision No. 13,241

Appeal of MARGARET TUCKER CHISHOLM from action of the Board of Education of the Voorheesville Central School District regarding termination of employment.

Decision No. 13,241

(August 3, 1994)

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

Whiteman, Osterman & Hanna, Esqs., attorneys for respondent, Melvin H. Osterman and Sonya Del Peral, Esqs., of counsel

SOBOL, Commissioner.--Petitioner appeals her dismissal by respondent board of education, asserting that she has acquired tenure by acquiescence. She seeks an order declaring respondent's termination of her services null and void and that she is a tenured employee of the district. The appeal must be dismissed.

On August 8, 1988, respondent appointed petitioner to a full-time probationary appointment pursuant to Education Law '3012 in the music tenure area. Petitioner served in the position during the 1988-89 and 1989-90 school years and from September 1990 until December 17, 1990, when she began an unpaid child care leave. At that time, petitioner had 109.5 days remaining in her probationary appointment.

On May 6, 1991, while petitioner was on leave, respondent abolished a full-time music position, identified petitioner as the least senior teacher within that tenure area and discontinued her services effective June 30, 1991. At that same meeting, respondent established a half-time music position effective June 30, 1991. By letter dated May 7, 1991, respondent offered the new part-time position to petitioner and notified her that the part-time position would "not lead to a tenured appointment." By letter dated May 16, 1991, petitioner accepted the half-time position and served in that capacity during the entire 1991-92 school year. For the 1992-93 school year, petitioner's part-time position was expanded to a "sixty percent" position.

On May 10, 1993, respondent abolished petitioner's part-time position effective June 30, 1993. At that time, respondent also created a full-time music position in anticipation of projected increases in class size. Pursuant to Education Law '2510, respondent appointed petitioner to the full-time position, and petitioner resumed full-time employment at the beginning of the 1993-94 school year.

By letter dated December 17, 1993, respondent's superintendent informed petitioner that he would recommend to respondent that she be denied tenure and that her services be terminated as of February 28, 1994. This appeal ensued.

Petitioner asserts that she acquired tenured by acquiescence and may only be dismissed in accordance with Education Law '3020-a. She argues that by virtue of her part-time service rendered immediately after the involuntary reduction of her full-time service, she gained tenure in March of 1992. Respondent contends that petitioner's part-time service did not constitute probationary service for the purpose of acquiring tenure, and the involuntary reduction of petitioner's position to part time is irrelevant to the issue in this case.

Generally, part-time teaching does not constitute probationary service leading to tenure (Matter of Rosenberg v. Board of Education of the Westbury Public Schools, 51 AD2d 551; Matter of Nyboe v. Allen, 7 AD2d 822; Matter of Nanni, 23 Ed Dept Rep 444; Matter of Matthews, 15 id. 316). However, a board of education may be bound by a provision in a collective bargaining agreement which provides that credit towards tenure may be acquired by part-time service (Matter of Schlosser v. Board of Education of the East Ramapo CSD, 47 NY2d 811). In this case, petitioner provides no evidence of such a provision in the collective bargaining agreement applicable to teachers in respondent's school district. A board of education also may be bound by a unilaterally adopted practice of according credit towards tenure for part-time service (Matter of Moritz v. Board of Education of the Gowanda CSD, et al., 60 AD2d 161). There is also no evidence in the record that respondent has adopted such a policy.

Petitioner relies upon Abrams v. Ambach, 43 AD2d 883, and Matter of Blanchard, 14 Ed Dept Rep 260, to support her assertion that she has acquired tenure by acquiescence by virtue of her part-time service rendered immediately after an involuntary reduction from full-time service. However, both decisions involve the seniority rights of teachers who have already been awarded tenure, and do not address how a probationary teacher may acquire tenure. Petitioner also cites Matter of Schlosser v. Board of Education of the East Ramapo CSD, supra. In that case, the Appellate Division, Second Department (62 AD2d 207) opined in dicta that a probationary teacher should be able to obtain tenure by acquiescence for part-time service if his or her position was converted from full-time to part-time at the request of the board of education. In support of that opinion, the court cited Matter of Blanchard, supra. However, as noted above, Blanchard involves the rights of a tenured teacher to accumulate seniority after his position had been reduced to part time at the request of the board of education. The Schlosser decision involved the granting of tenure for part-time service pursuant to a specific provision in a collective bargaining agreement. That decision did not address the general ability of probationary teachers to gain tenure after a teacher's full-time position is reduced to part time at the request of the board of education.

While the Commissioner of Education did rule in Matter of Blanchard, supra, that part-time service rendered by a tenured teacher after his or her position had been converted from a full-time position was still entitled to accrue seniority, that decision involved an interpretation of the seniority rights of a teacher pursuant to Education Law '2510 and not how a probationary teacher may successfully complete a probationary employment period pursuant to Education Law '3012. Accordingly, that decision and Schlosser are inapposite to the issue before me.

Probationary teachers clearly do not have the same rights as tenured teachers and should not be treated identically. Once a teacher has been granted tenure, that individual may not be disciplined or removed for incompetence or misconduct without being afforded the due process procedures established in Education Law '3020-a. Regrettably, '3020-a has historically been an expensive and time-consuming mechanism for school districts to remove inadequately performing teachers. It is, therefore, imperative for a board of education to have an adequate opportunity to evaluate a teacher before granting that individual the protection that tenure affords. A proper evaluation should include the opportunity for a board of education to assess the merits of a teacher dealing with a full teaching assignment. As noted above, a board of education may freely agree to limit its opportunity to evaluate a probationary teacher in a collective bargaining agreement. However, in view of the permanent consequences of the extension of tenure to a teacher, the unilateral limitation of a school board's ability to evaluate a probationary teacher would be educationally unsound.

I also note that in Matter of Rosenberg v. Board of Education of the Westbury Public Schools, supra, the court rejected a teacher's claim that she acquired tenure by acquiescence because of part-time service (rendered after full-time service at the request of the teacher), when she had been assured by an assistant superintendent of schools that her service on a part-time basis would constitute a continuation of her probationary period (see also Matter of Ceparano, 17 Ed Dept Rep 298, 301). The Court in Rosenberg further stated that the necessary service to gain tenure "must be full-time employment."

The Court of Appeals in Matter of Ceparano v. Ambach, 53 NY2d 873, also rejected the assertion that part-time service rendered after reduction of a full-time position at the request of the teacher does not qualify an individual for tenure by acquiescence. In discussing the provisions of Education Law '3012 and part-time service, the Court stated:

Inasmuch as the statute does not expressly provide a probationary term for part-time teachers, the denial of tenure credit for part-time service is not arbitrary. While public policy does not prohibit a contractual provision giving tenure credit for part-time service (Matter of Schlosser v. Board of Educ., 47 NY2d 811), nothing mandates credit in the absence of such provision. Having failed to complete the probationary term with the required service, petitioner may not claim tenure by estoppel or acquiescence. (Emphasis supplied).

Moreover, in Matter of Pine and Costello, 18 Ed Dept Rep 207, this same issue was raised and rejected. A teacher's part-time service rendered after an involuntary reduction from two years of full-time employment as a probationary teacher was deemed an insufficient basis for acquiring tenure by acquiescence.