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Decision No. 13,268

Appeal of CAROLE CIAIO from action of the Board of Education of the Hicksville Union Free School District relating to appointment on tenure.

Decision No. 13,268

(September 29, 1994)

Edward Cherney, Esq., attorney for petitioner

Thurm & Heller, Esqs., attorneys for respondent, Milton Thurm, Esq., of counsel

SHELDON, Acting Commissioner.--Petitioner appeals the decision of the Board of Education of the Hicksville Union Free School District ("respondent") to terminate her services at the close of the 1992-93 school year. Petitioner requests that I vacate respondent's decision, determine that she acquired tenure by acquiescence as of September 1, 1990 and direct respondent to reinstate her with the seniority status she would have had if she had been granted tenure, together with back pay benefits and any other losses she sustained. The appeal must be dismissed.

The Board of Cooperative Educational Services of Nassau County (BOCES) employed petitioner as a part-time teacher beginning in September 1987 and ending at the conclusion of the 1988-89 school year. During the period of her BOCES employment, petitioner was assigned to teach English as a second language (ESL) in an elementary school of the Hicksville Union Free School District. Petitioner's personnel records, including her appointment notices, clearly indicate that she would not earn tenure in conjunction with this part-time BOCES employment. On or about July 25, 1989, petitioner advised BOCES that she was resigning effective August 1, 1989.

On or about September 1, 1989, respondent Hicksville appointed petitioner to a position as an ESL teacher in its school district. On March 12, 1992, petitioner wrote a letter to respondent, characterized by petitioner as a "waiver of tenure rights," which recognized that her probationary period as a teacher was scheduled to expire on August 31, 1992 and acknowledged that she had been advised that her principal did not intend to recommend to respondent's superintendent that she be granted tenure. Petitioner additionally agreed in this letter to a one-year extension of her probationary period and that she would not claim tenure by estoppel as a result of her employment in Hicksville beyond August 31, 1992. The letter further reflected petitioner's understanding that, at the end of this one-year extended probationary period, respondent could either grant or refuse tenure with the same consequences and in exactly the same manner as if such action took place at the time of the letter. Petitioner's letter was countersigned by the local union president.

On March 12, 1993, respondent's superintendent wrote to petitioner advising her that, after review of petitioner's performance and upon the recommendation of her building principal, he would be recommending that the board terminate her probationary appointment effective June 30, 1993, in accordance with Education Law '3031. On April 29, 1993, petitioner was advised that respondent had voted to terminate her services at the close of business on June 25, 1993. On or about July 22, 1993, petitioner commenced this appeal by serving the notice of petition and petition upon the school district clerk.

Petitioner contends that based upon her service as an ESL teacher in respondent's district commencing in 1987, she acquired tenure by acquiescence on or about June 1990, and respondent's attempted termination of her services in June 1993 was without legal force or effect. Petitioner, therefore, asserts that she is entitled to a determination that she acquired tenure by estoppel on September 1, 1990 as well as reinstatement of her seniority status as if she had been granted tenure on that day, with back pay and benefits.

Respondent contends that petitioner's service as a part-time BOCES employee from September 1987 until she resigned from that position effective August 1989, does not entitle her to any tenure rights. Respondent specifically argues that the fact that petitioner was assigned by the BOCES to work as a teacher in its schools during this period does not entitle her to probationary service credit toward tenure in respondent's district pursuant to Education Law '3012.

The documents comprising the record before me clearly establish that petitioner was employed as a part-time ESL instructor in the BOCES from September 1987 until she commenced her probationary appointment in respondent's school district in September 1989. Petitioner's assertion that she was respondent's employee during this period is not in any manner supported by the record. The mere fact that under respondent's contract with BOCES, petitioner was assigned to teach in the elementary school in respondent's district does not establish that she has acquired any tenure rights in that district. Moreover, petitioner's March 12, 1992 letter acknowledging that her probationary period was due to expire in August 1992 is additional evidence that clearly demonstrates that petitioner understood the nature of her rights when she requested that respondent extend her probationary period. A probationary teacher may waive any claim to tenure for service beyond his or her original probationary period, and such waivers are enforceable (Feinerman vs. Board of Cooperative Educational Services of Nassau County, 48 NY2d 491; Juul vs. Board of Education of Hempstead Union Free School District, 76 AD2d 837).

Moreover, petitioner's part-time service with BOCES does not entitle her to tenure in that position (Appeal of Audrey Margolies, 16 Ed Dept Rep 404). Consequently, petitioner has no legal right under Education Law '3014-b relating to the tenure status of employees in a BOCES whose educational program is taken over by a board of education. Section 3014-b would only become relevant in this case if petitioner had established that she was a tenured employee of the BOCES. She has failed to do this.