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Decision No. 14,554

Appeal of HOWARD THOMPSON from action of the Board of Education of the Brewster Central School District regarding the termination of his services as a probationary teacher.

Decision No. 14554

(March 28, 2001)

Peter Carparelli, Esq., attorney for petitioner

Donoghue, Thomas, Auslander & Drohan, attorneys for respondent, Rochelle J. Auslander, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the termination of his services as a probationary teacher by the Board of Education of the Brewster Central School District ("respondent"). The appeal must be dismissed.

On August 24, 1999, respondent appointed petitioner to a probationary physical education teaching position at Brewster High School. It is undisputed that at the time of his appointment, petitioner was not certified to teach in New York State. However, Mark Lewis, Superintendent of the Brewster Central School District, states that during his interview, petitioner indicated he had taken the New York State Teacher Certification Examination ("NYSTCE") and expected to be fully certified within a matter of weeks and that he was also in the process of seeking regional certification. It appears from the record that petitioner applied for a New York State teaching certificate on or about July 28, 1999 and completed an application for a Northeast Regional Credential on August 3, 1999.

On October 30, 1999, petitioner took the NYSTCE. On or about December 7, 1999, petitioner was notified that he passed the Liberal Arts and Sciences ("LAST") portion of the test, but did not pass the Secondary Assessment of Teaching Skills-Written ("ATS-W") portion. Shortly thereafter, petitioner wrote to the NYSTCE testing service requesting reconsideration of his score on the ATS-W part of the exam.

By letter dated January 11, 2000, the district"s Assistant Superintendent, Stephen Graeber, advised petitioner that the district had not yet received a copy of either a regional or New York State certification. The letter further advised petitioner that his position with the district would be in jeopardy within thirty working days from the date of the letter (February 22, 2000) if the matter was not addressed immediately. By letter dated January 21, 2000, petitioner informed Mr. Graeber of his NYSTCE results and indicated that he had appealed the score he received on the ATS-W portion of the examination. Petitioner further indicated that he had decided not to pursue a Northeast Regional Credential. By letter dated February 4, 2000, petitioner was informed by the NYSTCE testing service that the written component of his examination would not be rescored.

On February 14, 2000, Mr. Lewis advised petitioner that pursuant to "Section 3012(2)(c) [sic] of New York State Education Law" he was being terminated, effective immediately, from his probationary position as a physical education teacher at Brewster High School because he was not State certified. At a special meeting held on March 14, 2000, respondent terminated petitioner, effective February 14, 2000.

Petitioner contends that respondent wrongly and arbitrarily terminated him without prior notice and an opportunity to be heard in violation of Education Law "3031. Petitioner seeks a reversal of respondent"s determination and reinstatement to his previous position effective February 14, 2000 with full salary and benefits until such time as proper termination proceedings are commenced. Respondent contends that petitioner was not certified to teach in New York State and as such has no entitlement to back pay under any circumstances.

Pursuant to Education Law "3012(1)(a), the services of a probationary teacher may be discontinued at any time during the probationary period and the dismissal of a probationary teacher will not be set aside unless the teacher shows that the board terminated service for a constitutionally impermissible reason (Appeal of Janes, 33 Ed Dept Rep 6, Decision No. 12,957). Education Law "3031 provides that a teacher whose services are to be terminated during the probationary period must be given notice at least thirty days prior to the board meeting at which such recommendation will be considered. If a majority of the board accepts the recommendation and votes to dismiss, the teacher must be given thirty days" written notice of termination (Education Law "3019-a). Failure to provide such notice entitles the teacher to whatever salary may be due for the thirty days following the formal notice terminating his services (Appeal of Thier, 36 Ed Dept Rep 222, Decision No. 13,706; Appeal of Fillie-Faboe, 34 id. 643, Decision No. 13,438; Appeal of Fink, 33 id. 340, Decision No. 13,069). However, a teacher who is uncertifed at the time of initial hiring, is not entitled to back pay for failure to provide the requisite notice (Sullivan v.Windham-Ashland-Jewitt C.S.D., 212 AD2d 63, [3rd Dept 1995]).

Education Law "3001 sets forth the qualifications of teachers, one of which is State certification. Moreover, Education Law ""3009(1) and 3010 prohibit the payment of school district funds to an uncertified teacher (Smith v. Board of Education of Wallkill C.S.D., 102 AD2d 655 [3rd Dept 1984]; Appeal of Pivorunas, 29 Ed Dept Rep 172, Decision No. 12,257). In this case, petitioner was terminated because he was not State certified. There is no evidence that his termination was for a constitutionally impermissible reason. Furthermore, although respondent failed to provide the notice required by Education Law ""3019-a and 3031, petitioner is not entitled to the relief requested. By virtue of his uncertified status at the time of his initial hiring, petitioner was unqualified and therefore is precluded from availing himself of any compensatory remedy to which he would otherwise be entitled

for respondent"s failure to comply with the requisite notice requirements.