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Decision No. 13,275

Appeal of GRANTHAM THOMAS from action of the Orange-Ulster Board of Cooperative Educational Services and Kevin Copoys, Interim District Superintendent, regarding teacher dismissal.

Decision No. 13,275

(October 25, 1994)

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

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

SOBOL, Commissioner.--Petitioner appeals his termination by respondent Orange-Ulster Board of Cooperative Educational Services ("respondent BOCES") from his position as a teacher of adult and continuing education at the Otisville Federal Correction Facility. The appeal must be dismissed.

On September 1, 1988, petitioner received certification in Secondary English. From August 1, 1988 until September 30, 1993, BOCES annually appointed petitioner to a full-time position at the Otisville Federal Correction Facility. Petitioner's job functions were to offer instruction in adult basic education and high school equivalency courses. The courses taught by petitioner could not be used to gain credits to obtain a high school diploma. In fact, no high school credit courses were offered by BOCES at the correctional facility. Petitioner was employed by the BOCES Office of Adult and Continuing Education. This department is distinct from the BOCES department that oversees those teachers employed to teach courses for students seeking high school diplomas. Petitioner and fellow employees of the BOCES Office of Adult and Continuing Education are covered by a collective bargaining agreement separate from the collective bargaining agreement which covers elementary and secondary school teachers.

The annual appointment notices signed by petitioner stated his appointment was as a teacher of high school equivalency/adult basic education. These annual notices also stated that "tenure does not apply." A notice was signed by petitioner prior to each annual appointment, which continued from August 1, 1988 until June 30, 1994. On August 24, 1993, respondent notified petitioner that his employment would not be renewed and that as of September 30, 1994, his employment would be terminated. This appeal followed.

Petitioner argues that his termination could only be effective if done in compliance with Education Law '3020-a because he has tenure by estoppel. Petitioner claims to have tenure by estoppel because respondent should have granted him a three year probationary appointment commencing August 1, 1988 through July 31, 1991 and subsequently granted him tenure on July 31, 1991.

Respondent contends petitioner cannot have tenure, as there is no tenure area defined by the Commissioner of Education which covers petitioner's teaching duties. (I note that petitioner does not specify in what tenure area he is entitled to be tenured.) Furthermore, respondent argues that even if there were a tenure area for petitioner, he waived his right to tenure by signing his annual appointment letter which stated that tenure did not apply to his position.

The tenure areas for teachers in New York State are specified in Part 30 of the Rules of the Board of Regents (8 NYCRR 30.1, et seq.). School districts are not free to restructure or create tenure areas (Baer v. Nyquist, 34 NY2d 291). The Court in Baer stated:

...further broadening of the tenure area concept must be effected only by prospective rule-making by the Board of Regents incorporating proper standards, pursuant to section 207 of the Education Law, or by the Legislature itself.

The Regents rules contemplate tenure for elementary, middle and secondary school teachers. Additionally, there are special subject tenure areas specifically delineated for BOCES employees (8 NYCRR '30.8). None of these tenure areas relate to teachers of adult and continuing education. Therefore, there is no tenure area specified in the Regents rules which is applicable to petitioner's job functions.

Moreover, all of the tenure areas specified in the Regents rules are for teachers of students eligible to receive a public school education, i.e., those persons under 21 years of age who have not received a high school diploma (Education Law '3202). The record reflects that 98% of the inmates petitioner was assigned to teach were over 21 years old. The tenure rules and regulations are not designed to cover teachers of adult and continuing education at federal correction facilities.

Furthermore, even if petitioner could have been appointed to a probationary term, he waived whatever rights he had to such an appointment. A BOCES is authorized to employ a teacher for a limited term in a position which carries with it no tenure rights, provided the teacher knowingly and freely waives any expectation of tenure and there is no evidence of duress or coercion (Feinerman v. BOCES of Nassau County, 48 NY2d 491; Appeal of Yastion, 33 Ed Dept Rep 639). 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 misled 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 September 30, 1994. While petitioner contends that he did not knowingly waive his tenure rights, I find that argument unpersuasive in view of the clear notification contained on the annual appointment notice, which petitioner signed, that tenure would not be granted for his position.

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