Becker v. Board of Ed. of Middleburgh Central School Dist. No. 1 of Towns of Middleburgh, Fulton, Broome, Blenheim and Schoharie, Schoharie County, and Berne, Albany County

• Decision Date: 19 January 1961
• Citation: 172 N.E.2d 568,9 N.Y.2d 111,211 N.Y.S.2d 193
• Parties: , 172 N.E.2d 568 In the Matter of Frances BECKER, Appellant, v. BOARD OF EDUCATION OF MIDDLEBURGH CENTRAL SCHOOL DISTRICT NO. 1 OF the TOWNS OFMIDDLEBURGH, FULTON, BROOME, BLENHEIM AND SCHOHARIE, SCHOHARIE COUNTY, ANDBERNE, ALBANY COUNTY, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 193

211 N.Y.S.2d 193

9 N.Y.2d 111, 172 N.E.2d 568

In the Matter of Frances BECKER, Appellant, v. BOARD OF EDUCATION OF MIDDLEBURGH CENTRAL SCHOOL DISTRICT

NO. 1 OF the TOWNS OFMIDDLEBURGH, FULTON, BROOME,

BLENHEIM AND SCHOHARIE, SCHOHARIE

COUNTY, ANDBERNE, ALBANY

COUNTY, Respondent.

Court of Appeals of New York.

Jan. 19, 1961.

F. Walter Bliss, Schoharie, for appellant.

John B. Bingham, Middleburgh, for respondent.

Charles A. Brind, Jr., John P. Jehu, Elizabeth M. Eastman and George B. Farrington, Albany, for Commissioner of Education of the State of New York, amicus curiae.

John E. Glenn, Albany, for New York State Teachers Ass'n, amicus curiae.

DESMOND, Chief Judge.

By permission of the Appellate Division, Third Department, petitioner-appellant Frances Becker appeals here from a unanimous order of that court affirming a Special Term order.

This is a mandamus-type article 78 proceeding brought against the Middleburgh Central School District to compel that body to reinstate petitioner as a teacher and to grant her tenure. Respondent's position, most simply stated, is that petitioner never acquired tenure because, although she was employed by the district as a teacher for about six years, she never taught in one 'AREA' OR CATEGORY OF SUBJECT MATTER BEYOND the three-year period which this district validly set as its probationary period. Petitioner's position, shortly stated for present purposes, is twofold: first, that she got tenure when she taught more than the three-year probationary period even though she moved from one 'area' or category to another; and, second, that she actually taught for more than three years in one particular 'area' since, after she had taught three years in one 'area' as an elementary grade teacher, she did some part-time work in remedial reading as part of that same 'area'.

The statute involved is section 3013 of the Education Law, Consol.Laws, c. 16, and the really pertinent part therein is subdivision 2 which says that on or before the expiration of a probationary term the district superintendent of schools shall formally recommend to the board for tenure appointment those teachers whose probationary services have been found satisfactory. The subdivision further says that any teacher not recommended for tenure shall have 60 days' notice thereof prior to the end of the probationary period and that those teachers who are kept on pursuant to such recommendation after the expiration of the probationary period shall have tenure, which means, of course, that they may be removed on charges only. The respondent argues (and the courts below held) that to earn tenure the teacher must teach more than the prescribed probationary term in the same 'area' of instruction, and, for support of its argument, relies on a ruling appearing in a pamphlet issued by the State Education Department in 1953. The department's ruling was that tenure classifications are by areas, meaning that to acquire tenure one must serve more than the probationary period in one particular area. Included in the ruling was this statement: 'After a teacher has acquired tenure he may not be transferred to a position in a different tenure area without his consent. When so transferred the teacher begins a new probationary period in the new area. He does not, however, lose the tenure in the area where he was employed prior to transfer.' The Commissioner of Education has in cases other than petitioner's applied that same ruling.

As the Special Term opinion in this case points out, there is nothing in the statute itself referring directly to this matter of 'area' but, again according to Special Term, the intent of the statute and the common sense of the thing seem to be that tenure results from continuing a teacher in the same kind of teaching job after she has satisfactorily served for the full probationary. period in that particular category of teaching. Other than the rulings and decisions of the State Commissioner above referred to, there seems to be no controlling authority available for decision of the present appeal.

The facts as to petitioner's teaching experience are as follows: in 1952 she was appointed an elementary teacher in the schools of this district for a probationary period of three years and at the end of three years was given recommendations for tenure by the appropriate supervisory officials. Respondent board did not, however, act on the recommendations. Instead, in March, 1955, during the original three-year period, the board offered petitioner an appointment as a special or kindergarten teacher (a different 'area') for a period to begin in July, 1955, that is, for the school year beginning in the Autumn of 1955. She accepted that position and taught kindergarten classes for two full school years. In the Summer of 1957 she accepted still another kind of appointment, in the high school or secondary department as a teacher of French and Latin, those being subjects on which she had been issued a teaching certificate. This, according to the board, was a new or third 'area' probationary appointment. Petitioner continued to do this high school teaching during the 1957-58 school year and at the end of that school year (June, 1958) she was informed that she would no longer be employed. During the 1957-58 school year, besides her high school work in French and Latin, she taught remedial reading to eighth grade students for two 40-minute periods per week. The board asserts and Special Term held that the only probationary period she ever completed was the first one that is, her service for three years beginning in 1952 as a grade school teacher in the elementary department. As to the part-time or remedial reading service, the argument of respondent is that this was an incidental or...