Baronoff v. Board of Ed., Union Free School Dist. No. 18

• Decision Date: 19 January 1973
• Citation: 340 N.Y.S.2d 128,72 Misc.2d 959
• Parties: Application of Alfred BARONOFF, Petitioner, For an order pursuant to Article 78 of the Civil Practice Law and Rules v. The BOARD OF EDUCATION, UNION FREE SCHOOL DISTRICT NUMBER 18, New York, Respondent.
• Court: New York Supreme Court

Page 128

340 N.Y.S.2d 128

72 Misc.2d 959

Application of Alfred BARONOFF, Petitioner, For an order pursuant to Article 78 of the Civil Practice Law and Rules v. The BOARD OF EDUCATION, UNION FREE SCHOOL DISTRICT NUMBER 18, New York, Respondent.

Supreme Court, Nassau County.

Jan. 19, 1973.

James F. Van Norman, Mineola, for petitioner.

Cullen & Dykman, Garden City, for respondent.

BERTRAM HERNETT, Justice.

By letter dated June 22, 1972, the Superintendent of the Garden City Public Schools notified Alfred Baronoff, the teaching principle of Locust School since September 1969, that his tenure had been denied, and his services terminated effective June 30, 1972. In this Article 78 proceeding, Mr. Baronoff seeks to annul that determination as arbitrary and unlawful.

A. The Dispute Over Tenure

While denying that the Superintendent and the Board of Education had any grounds to justify denying him tenure, Mr. Baronoff does not contest his dismissal on the merits, perhaps recognizing that the granting or denial of tenure is solely within the discretion of the Board of Education, conclusive in the absence of any arbitrary, discriminatory, or irregular aspect. Matter of Pinto v. Wynstra, 22 A.D.2d 914, 255 N.Y.S.2d 536; Clausen v. Board of Education of the City of New York, 39 A.D.2d 708, 331 N.Y.S.2d 855; Cf. Tischler v. Board of Education of Monroe Woodberry Central School Dist. No. 1, 37 A.D.2d 261, 323 N.Y.S.2d 508. Instead, Mr. Baronoff claims that prior to his dismissal, he had already acquired tenure rights by acquiescence because of time served beyond the probationary period specified under prior provisions of the Education Law, and that, in any event, procedures used to deny him tenutre were irregular. B. Statutory Changes in Teacher Tenure

The tenure rights of public school teachers and principals have undergone substantial changes in recent years by way of statutory amendment. At the time of Mr. Baronoff's initial appointment May 19, 1969, Education Law § 3012(1) provided for a three year probationary period, and where tenure was not to be recommended, a written notice to that effect, without any hearing requirement, was required at least 60 days prior to the probationary period's expiration. Then, in 1971, the probationary period was extended to five years for teachers only. Principals were exempted from any probationary period at all, as well as any tenure attainment, they being dischargeable 'at any time on the recommendation' of the superintendent of schools. Laws 1971, Ch. 116 § 1. This intermediate legislation threatened principals who were not already in tenured positions. Perhaps realizing this, the New York State Legislature amended Education Law, § 3012 in the following year, and on June 8, 1972, the Governor signed into law Chapter 953 of the Laws of 1972, which, in Section 5, amended Chapter 116 of the Laws of 1971, retroactive to May 9, 1971, by adding the following section, in pertinent part:

§ 16. The provisions of this chapter (referring to Ch. 116 Laws 1971, changing tenure rights) shall not apply to persons who were employed as district superintendents, principals, supervisors and other members of the supervising staff, teachers and other members of the teaching staff in public school districts in this state who were appointed to a probationary period prior to May ninth, nineteen hundred seventy-one'. (parenthetical added).

C. Petitioner's Probationary Period

There being, to date, no further changes in Section 3012, the dust has now settled, at least temporarily, on tenure rights of teachers and principles after a period of legislative turmoil. We must now look to the governing law in effect at the time of the Board determination to deny Mr. Baronoff's tenure, which took place upon the recommendation of the Superintendent at a Board meeting on June 26, 1972. At that time, Mr. Baronoff fell into the class of teachers and principals whose three year probationary periods were resurrected by Chapter 953 of the Laws of 1972, having been appointed by letter in May 1969, 'prior to May ninth, nineteen hundred seventy one'.

But, at the same time, Mr. Baronoff was still in his probationary period which began running upon his actual commencement of work as teaching principal on September 1, 1969, not upon his notification of appointment. Matter of Dreyfuss v. Board of Education of Union Free School Dist. No. 3,72 Misc.2d 703, 339 N.Y.S.2d 547; Agresti v. Buscemi, 51 Misc.2d 474, 273 N.Y.S.2d 388, revd. on other grounds, 28 A.D.2d 877, 281 N.Y.S.2d 853, affd. 28 N.Y.2d 984, 323 N.Y.S.2d 171, 271 N.E.2d 701.

His probationary term would have run out on September 1, 1972, the three year anniversary of service commencement. Accordingly, none of the 1972 amendments, including the revised and simplified notice requirements, by their terms applicable only to persons whose probationary periods 'expired' or 'would have expired', see Ch. 953 § 5, Laws 1972, prior to June 30th or July 31st, 1972, applied to Mr. Baronoff who had over two months more to go when notified in June 1972 that his tenure had been disapproved.

D. Notice

Having said all this, the Court must still find against the principal under the statute. The timing of Mr. Baronoff's appointment and probationary period places him in a class of personnel who retained the old tenure rights including the concomitant prior written notice requirements. See, Matter of Mulholland v. Board of Education of Yorktown Central School Dist. No. 2, 70 Misc.2d 852, 855, 334 N.Y.S.2d 924, 927. Therefore, the notice provisions of the pre-1971 Section 3012(2), as reinstated by Chapter 953 § (5) Laws 1972, were applicable. These provided:

'(E)ach person who is not to be recommended for appointment on tenure, shall be so notified by the superintendent of schools in writing not later than sixty days immediately preceding the expiration of his probationary period'.

Mr. Baronoff was notified on June 22, 1972, over 60 days before his three year probationary period expired on ...