Lindsey v. Board of Ed. of Mt. Morris Central School Dist.

• Decision Date: 24 January 1980
• Citation: 424 N.Y.S.2d 575,72 A.D.2d 185
• Parties: In the Matter of the Application of Janet LINDSEY, Respondent, v. BOARD OF EDUCATION OF MT. MORRIS CENTRAL SCHOOL DISTRICT and Henry H. Zygadlo, Supervising Principal, Appellants.
• Court: New York Supreme Court — Appellate Division

Page 575

424 N.Y.S.2d 575

72 A.D.2d 185

In the Matter of the Application of Janet LINDSEY, Respondent, v. BOARD OF EDUCATION OF MT. MORRIS CENTRAL SCHOOL DISTRICT and Henry H. Zygadlo, Supervising Principal, Appellants.

Supreme Court, Appellate Division, Fourth Department.

Jan. 24, 1980.

Harris, Beach, Wilcox, Rubin & Levey, Rochester (Susan Robfogel, Rochester, of counsel), for appellants.

Paul Klein, New York Educators Association, Albany (Janet Axelrod, Albany, of counsel), for respondent.

Before CARDAMONE, J. P., and SIMONS, HANCOCK, DOERR and MOULE, JJ.

SIMONS, Justice:

Respondents, Board of Education of Mt. Morris Central School District and the District's Supervising Principal, appeal from a judgment determining that petitioner Janet Lindsey has acquired tenure by estoppel and directing her reinstatement with back pay. 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 her probationary term (Matter of Marcus v. Board of Educ. of Cohoes City School Dist., 64 A.D.2d 475, 410 N.Y.S.2d 178; and see Matter of Matthews v. Nyquist, 67 A.D.2d 790, 412 N.Y.S.2d 501, app. dsmd. 47 N.Y.2d 800; Matter of Dwyer v. Board of Educ. of Cazenovia Cent. School Dist., 61 A.D.2d 859, 402 N.Y.S.2d 67; Matter of Silver v. Board of Educ. of West Canada Val. Cent. School Dist., Newport, 46 A.D.2d 427, 362 N.Y.S.2d 638; Matter of Macera, 10 Ed.Dept.Rep. 232, 233; Matter of Downey, 72 St.Dept.Rep. 29). The central issue of this appeal is whether petitioner may complete her statutory probationary period, and thereby achieve tenure by estoppel, by tacking together two noncontinuous periods of service. ¹ We hold she may.

Briefly, petitioner had been a public school music teacher for approximately nine years before moving to Mt. Morris and she had previously been granted tenure by the Syracuse City School District. She was first employed by respondent as a full-time music teacher for a five-year probationary period (as the statute then provided), effective February 16, 1971, reappointed for a full year in 1971-1972 and then recommended for reappointment for the 1972-1973 school year. She was not reappointed for 1972-1973, however. During the spring of 1972 respondent's Chief School Officer informed her that because of financial problems the Board intended to discontinue its program and contract with the Board of Cooperative Educational Services (BOCES) to supply music instruction. He suggested that petitioner apply to BOCES for employment, which she did, and in July, 1972 she was appointed a part-time music instructor by BOCES for the year 1972-1973. She was reappointed by BOCES for the year 1974-1975. During these two years petitioner continued to teach at the Mt. Morris Central School as she had before, but as an employee of BOCES, not of respondent. Respondent Board did not abolish petitioner's job (see Education Law, § 2510) and it did not terminate her services (see former Education Law, § 3013, subd. 1). Neither did petitioner submit a formal resignation to respondents (see Education Law, § 3019-a). At the trial she claimed that respondents promised that her tenure rights with the School District would be protected during this BOCES employment notwithstanding the change in employers. Respondents deny any such promise and Trial Term made no finding of fact which would support an equitable estoppel (see Matter of Moritz v. Board of Educ. of Gowanda Cent. School Dist., 60 A.D.2d 161, 400 N.Y.S.2d 247).

In 1974 respondents decided to restore the district music program and petitioner was rehired after she and 28 other candidates had been screened for the job. The Board minutes indicate neither the nature nor the length of her employment. She worked for the District continuously thereafter until she received a notice on March 18, 1976 that her services would be terminated on June 30, 1976.

Trial term, in a thoughtful and thorough decision, found that petitioner had been wrongfully discharged. By adding her service from February, 1971 to June, 1972 with her service from September, 1974 to June, 1976, it found that she had acquired tenure by estoppel because the Board had consented to petitioner's employment beyond the statutory probationary period. ² Respondents contend that these two noncontinuous periods may not be combined; that when the Board rehired petitioner the rehiring was for a three-year probationary term and she was not entitled to add her 1971-1972 service to this because that employment was terminated by her voluntary resignation. They assert that while the Board minutes were silent on the term of employment, the notice of appointment and salary notices stated that petitioner was serving a three-year probationary term commencing September, 1974, and petitioner accepted the employment on these terms without complaint.

Statutory analysis begins with Section 3013 of the Education Law (the District is now governed by Section 3012, see L.1978, ch. 358) which grants the District Board of Education the authority to hire and fire teachers. It requires that teacher appointments be made from a list recommended by the District Superintendent (or the District Principal (see L.1975, ch. 436)) for a probationary period not to exceed three years. Similarly, the statute provides that the employment of a teacher serving a probationary term may be terminated at any time during the probationary period by the Board upon recommendation of the District Superintendent (or principal) (Education Law, § 3013, subd. 1). The statute requires that the Board grant or deny tenure on or before the expiration of the probationary term and teachers receiving tenure hold their positions during good behavior and competent and efficient service, subject to dismissal only in accordance with the provisions of section 3020-a of the Education Law. A probationary teacher, on the other hand, may be terminated without a hearing and without specifying a reason for the termination (Matter of Butler v. Allen, 29 A.D.2d 799, 287 N.Y.S.2d 197; Matter of Pinto v. Wynstra, 22 A.D.2d 914, 255 N.Y.S.2d 536; but see Education Law, § 3031). If the Board denies tenure the statute requires notice to the probationary teacher before the probationary appointment expires (Education Law, § 3013, subd. 2). Finally, while a Board of Education, acting in good faith, may abolish a teaching position, it must provide the opportunity for the affected teacher to be reemployed by placing the teacher's name on a preferred eligible list (Education Law, § 2510, subd. 3; Matter of Lezette v. Board of Educ. Hudson City School Dist., 35 N.Y.2d 272, 279, 360 N.Y.S.2d 869, 874, 319 N.E.2d 189, 193; Matter of Young v. Board of Educ. of Cent. School Dist. No. 6, Town of Huntington, 35 N.Y.2d 31, 358 N.Y.S.2d 709, 315 N.E.2d 768; Matter of Silver v. Board of Educ. of West Canada Val. Cent. School Dist., Newport, 46 A.D.2d 427, 362 N.Y.S.2d 638, supra). These statutory provisions are designed to attract qualified teachers and to provide them with academic independence and reasonable job security by granting tenure after a successful period of probation (see, generally, Matter of Baer v. Nyquist, 34 N.Y.2d 291, 295, 357 N.Y.S.2d 442, 444-45, 313 N.E.2d 751, 753; Matter of Moritz v. Board of Educ. of Gowanda Cent. School Dist., 60 A.D.2d 161, 166-167, 400 N.Y.S.2d 247, 250-251, supra). A school District failing to adhere to the prescribed procedures continues the employment of a teacher beyond the probationary period at the risk of later being estopped from denying her tenure (see Matter of Lezette v. Board of Educ. Hudson City School Dist., 35 N.Y.2d 272, 360 N.Y.S.2d 869, 319 N.E.2d 189, supra).

Although respondents urge it, nothing in the tenure statutes requires that probationary service be continuous, and since the Board did not terminate petitioner's employment or abolish her position, the decisive issue is whether, as respondents maintain, petitioner voluntarily resigned her position by accepting employment with BOCES for the 1972-1973 and 1973-1974 academic years. If she did, there was a complete break in her service and she could not count the time accrued in prior years for purposes of achieving tenure (see Matter of Doering v. Hinrichs, 289 N.Y. 29, 33, 43 N.E.2d 709, 710-711).

Trial Term found that petitioner had not voluntarily resigned; that her job was to be left vacant for financial reasons; and that respondents urged her to transfer to BOCES to ease the financial problems of the School District. It found that she had no choice but to seek other employment. The court noted that petitioner changed jobs at a reduction in salary to herself but without any noticeable lessening of her duties because during her two years of BOCES employment petitioner taught virtually the same classes as she did when employed by respondent (less only study hall assignments), she taught in the same building and rooms, and she taught the pupils of respondent School District. Under the circumstances, it found, as do we, that petitioner did not voluntarily terminate her services with respondent in 1972. The distinction to be made is between an employee who voluntarily quits a job while the job remains available and an employee who accepts alternative employment when her job has been discontinued or her employment wrongfully terminated. In the latter case, both the courts and the Commissioner have held that no resignation will be implied (Matter of Board of Educ. of City School Dist. of City of Poughkeepsie v. Allen, 52 Misc.2d 959, 277 N.Y.S.2d 204, affd. 30 A.D.2d 742, 291 N.Y.S.2d 243; Matter of Brown, 15 Ed.Dept.Rep. 479; Matter of Gumpert, 10 Ed.Dept.Rep. 77).

The School District could have resolved this situation by...