* Subsequent History: Matter of Putnam-Northern Westchester Bd. of Coop. Educ. Servs. v Mills; Supreme Court, Albany County (Ferradino, J.); Judgment granted petition and annulled Commissioner’s decision; August 24, 2006; affd 46 AD3d 1062 (3d Dept 2007). *

Appeal of LORRAINE GALLUZZO from action of the Putnam-Northern Westchester Board of Cooperative Educational Services and James T. Langlois, District Superintendent, regarding termination of employment.

Decision No. 15,328

(November 23, 2005)

James R. Sandner, Esq., attorney for petitioner, Neil J. Dudich, Esq., of counsel

Shaw and Perelson, LLP, attorneys for respondents, David S. Shaw, Beth L. Sims and Jillian E. Cass, Esqs., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Putnam-Northern Westchester Board of Cooperative Educational Services (“BOCES” or “respondent board”) and its district superintendent to terminate her services.  The appeal must be sustained in part.

Petitioner worked as a teaching assistant with the Southern Westchester Board of Cooperative Educational Services (“Southern BOCES”) from 1987 until 2000, acquiring tenure as a teaching assistant effective August 31, 1991.  In October 2000, petitioner accepted a probationary position as a teacher for Southern BOCES, where she remained until she was laid off in June 2002.

By application dated June 24, 2002, petitioner applied to respondent board for a cosmetology teaching position.  On the second page of the application, petitioner indicated that she had previously been granted tenure as a teaching assistant in Southern BOCES in 1991.  By letter dated September 9, 2002, BOCES’ human resources director (“director”) informed petitioner that respondent board had approved her three-year probationary appointment as a teacher in the cosmetology tenure area effective September 1, 2002.

By letter dated April 11, 2005, the director informed petitioner that the district superintendent would recommend the termination of her probationary appointment at respondent board’s May 24, 2005 meeting.  At that meeting, respondent board adopted a resolution terminating petitioner’s employment effective June 30, 2005.  This appeal ensued.  Petitioner’s request for interim relief was denied on July 13, 2005.

Petitioner argues that her prior tenure in Southern BOCES reduced her probationary period to two years.  She therefore contends that she completed her probationary period with BOCES on August 31, 2004 and acquired tenure by estoppel when BOCES failed to take any action prior to that date and permitted her to teach beyond the expiration of her probationary term.  Petitioner maintains that her termination therefore violated Education Law §§3014, 3020, and 3020-a, and was arbitrary, capricious and an abuse of discretion.  She seeks reinstatement as a full-time tenured teacher in the tenure area of cosmetology effective June 30, 2005, with full back pay, seniority and all other benefits, including but not limited to expenses incurred to maintain health care following her termination.  Petitioner also seeks attorneys’ fees, costs and disbursements.

Respondents assert that petitioner fails to demonstrate a clear legal right to the relief requested.  They argue that petitioner’s prior tenure as a teaching assistant did not operate to reduce her probationary term as a teacher.  Respondents also contend that because petitioner failed to request or demand a reduced probationary term when appointed, she cannot now seek equitable relief of tenure by estoppel.

Initially, I must address a procedural issue.  Subsequent to the filing of their memoranda of law, both parties submitted letter briefs, which essentially reiterate their legal arguments.  Section 276.4 of the Commissioner's regulations provides that reply memoranda will be accepted only with the prior approval of the Commissioner, which neither party requested.  Therefore, I have not considered the letter briefs (see Appeal of Kelly, 45 Ed Dept Rep ___, Decision No. 15,253; Appeal of Schadtle, 40 id. 60, Decision No. 14,421).

The issue of whether a probationary teacher who previously received tenure as a teaching assistant is entitled to a reduced probationary period was recently and squarely addressed in Appeal of Alexander, 44 Ed Dept Rep 274, Decision No. 15,172.  Although Alexander concerned Education Law §3012(1)(a), the operative language of Education Law §3014(1) is identical.  Section 3014(1) provides in pertinent part:

Administrative assistants, supervisors, teachers and all other members of the teaching and supervising staff of the board of cooperative educational services shall be appointed . . . for a probationary period of not to exceed three years; provided, however, that in the case of a teacher who has been appointed on tenure in a school district within the state, the board of cooperative educational services where currently employed, or another board of cooperative educational services, and who was not dismissed from such district or board as a result of charges brought pursuant to subdivision one of section three thousand twenty-a of this chapter, the probationary period shall not exceed two years (emphasis added).

Respondents in this case, as in Alexander, argue that the statute should be read to require that the prior tenure appointment must have been as a teacher, because a teacher’s required qualifications and duties differ substantially from those of a teaching assistant, and a person holding prior tenure as a teaching assistant has never been previously evaluated as a teacher.  I rejected that argument in Alexander and I similarly reject respondents’ arguments here for the same reasons.

As I stated in Alexander, citing Matter of Gould v. Board of Educ. (81 NY2d 446, 450-451):

The language of . . .[§3012(1)(a)] is plain and the meaning unambiguous.  Because of petitioner’s previous tenure . . . the acquired term of her probationary service had been reduced from three years to two years.  The statute itself is self-executing.  It makes no difference that her tenured status was in a different tenure area in another school district . . . .

Tenure by estoppel “results when a school board fails to take the action required by law to grant or deny tenure and, with full knowledge and consent, permits a teacher to continue to teach beyond the expiration of [the] probationary term” (Matter of Lindsey v Board of Educ., 72 AD2d 185, 186).  Here, petitioner’s required probationary period had unquestionably been reduced from three years to two years . . . .  It is of no legal significance that respondents did not know that petitioner’s continued employment would enable her to acquire tenure by estoppel (see, Lindsey, supra; Matter of Dwyer v Board of Educ., 61 AD2d 859).

In Alexander I further held:

While the word “teacher” has a somewhat fluid meaning in the Education Law (see, e.g., Matter of Madison-Oneida BOCES v. Mills, 2 AD3rd 1240; aff’d ____ NY3d ___, December 21, 2004), the word “tenure” does not.  If the Legislature intended to exclude prior tenure as a teaching assistant for purposes of a shortened probationary period, it could simply have done so.  To carve out an exception to the clear phrase “in the case of a teacher who has been appointed on tenure” with respect to prior tenure as a teaching assistant would be an incursion on the province of the Legislature, and I decline to do so.

In this case, as in Alexander, there is no question that petitioner received prior tenure as a teaching assistant in a different tenure area in another district.  Furthermore, respondents admit that they knew of the prior award of tenure at the time of petitioner’s probationary appointment based on her employment application.  Since petitioner clearly served more than two years as a probationary teacher, under the rationale of Alexander she is entitled to tenure by estoppel.

In making this determination, I expressly reject the holding in Matter of Abbott v. Barker Cent. School Dist. Bd. of Educ., 305 AD2d 1104, and respondents’ reliance thereon, to the extent it is inconsistent with Alexander and Matter of Gould v. Board of Educ. (see 28 NY Jur 2d, Courts and Judges §220).

Petitioner’s claims for attorneys’ fees, costs and disbursements, however, must be dismissed.  The Commissioner has no authority to award monetary damages, costs or reimbursements in an appeal pursuant to Education Law §310 (Appeal of T.R. and M.D., 43 Ed Dept Rep 411, Decision No. 15,036; Appeal of L.D. and M.D., 43 id. 144, Decision No. 14,947; Appeal of Moore, 41 id. 436, Decision No. 14,738).

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that petitioner acquired tenure by estoppel prior to her termination; and

IT IS FURTHER ORDERED that petitioner be restored to a tenured position as a teacher of cosmetology; and

IT IS FURTHER ORDERED that respondent board pay to petitioner back pay and benefits retroactive to June 30, 2005, less any compensation she may have otherwise earned.

END OF FILE