Moritz v. Board of Ed., Gowanda Central School Dist.

• Decision Date: 16 December 1977
• Citation: 400 N.Y.S.2d 247,60 A.D.2d 161
• Parties: Application of Margaret MORITZ, Petitioner, v. BOARD OF EDUCATION, GOWANDA CENTRAL SCHOOL DISTRICT, Robert J. Eaton, Alfred O. Falk, Helen P. Kelley, Willis W. Marvin, Donald H. Milks, Richard F. Thomas and Martin Seneca, as Members of the Board of Education of the Gowanda Central School District, and Barbara Lewandowski, Respondents.
• Court: New York Supreme Court — Appellate Division

Page 247

400 N.Y.S.2d 247

60 A.D.2d 161

Application of Margaret MORITZ, Petitioner, v. BOARD OF EDUCATION, GOWANDA CENTRAL SCHOOL DISTRICT, Robert J. Eaton, Alfred O. Falk, Helen P. Kelley, Willis W. Marvin Donald H. Milks, Richard F. Thomas and Martin Seneca, as Members of the Board of Education of the Gowanda Central School District, and Barbara Lewandowski, Respondents.

Supreme Court, Appellate Division, Fourth Department.

Dec. 16, 1977.

Bernard F. Ashe, Albany (Emanuel Tabachnick, Williamsville, of counsel), for petitioner.

Cash & Lippert, P. C., Franklinville (J. Richard Lippert, Franklinville, of counsel), for respondent, Lewandowski.

Roger E. Pyle, Gowanda, for remaining respondents.

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

SIMONS, Justice.

Petitioner brings this Article 78 proceeding challenging the action of respondent Board of Education in terminating her service as a teacher in the Gowanda Central School District. She seeks reinstatement as a tenured employee with back pay and full benefits from March 1, 1976 to the present. On June 9, 1976 petitioner was elected to the Board of Education of the Gowanda Central School District. She took office on July 1, 1976.

The primary issue before us is whether principles of equitable estoppel may be applied to foreclose the respondent School Board from asserting now that its prior grant of tenure to petitioner was invalid.

Petitioner was hired by the Gowanda Central School District during the school year 1967-1968 when the Board decided to expand its language program in junior high school. The pupil enrollment did not warrant hiring another full-time language teacher and the Board therefore hired petitioner part-time and granted her a three-year probationary appointment. She was assigned to teach four German classes and received two-thirds pay for her duties. She continued on part-time probationary status at half pay during the 1968-1969 and the 1969-1970 school years and at the conclusion of her third year, she was awarded tenure by the Board, effective September 1, 1970. She continued to teach part-time until the year 1974-1975 and was compensated at pay which varied from one-quarter to two-thirds of full pay. During the school year 1974-1975 petitioner was assigned as a full-time teacher to teach four French classes in senior high school. Throughout her period of employment, petitioner received retirement and fringe benefits as if she were a full-time teacher, and she advanced in grade automatically so that at the time of her discharge in March, 1976 she was on Step 10 of the pay scale.

When petitioner was hired in 1967 her children were two and six years of age and concededly petitioner had no desire to teach full-time until they entered school. In the fall of 1970 a new full-time German teacher was employed for one year and she in turn was replaced in the fall of 1971 by respondent Lewandowski. Petitioner, however, did not request appointment to the full-time teaching vacancy available in German in either year, although both of her children were then of school age and she believed that she was a tenured teacher with seniority over both appointees. Respondent Lewandowski was certified in German in 1972 and was granted tenure in June, 1974, effective in September, 1974.

In the fall of 1973 the Board began to "phase out" its junior high school language program. It was during this period that petitioner, for the first time, complained to the superintendent about her part-time job and her assignment in French. All part-time teaching positions were abolished as of September 1, 1974 and as noted, petitioner was assigned as a full-time French teacher in senior high school for the year 1974-1975, replacing a teacher who had taken a leave of absence.

Petitioner was certified to teach German and French and in the fall of 1975 the School District had one full-time French position and one full-time German position. Respondent Lewandowski occupied the full-time German position and another teacher, senior to both petitioner and respondent Lewandowski returned from her previous year's leave of absence and resumed teaching French.

Thus, during the 1975-1976 school year there was no unfilled French or German position. The only vacancies which existed were in Mathematics and Spanish, subjects which petitioner was not qualified to teach. The Board offered to place her on an eligibility list, and when petitioner requested full-time employment, the Board assigned her to teach Spanish. She accepted the Spanish position under protest and advised the Board that she was exercising her rights of seniority to teach French or German, pursuant to section 2510 of the Education Law. The Board then instituted proceedings pursuant to section 3020-a of the Education Law, charging (1) that petitioner had been granted tenure illegally (it had been so advised by counsel to the State Education Department in April, 1975) and (2) that petitioner was incompetent to teach Spanish. The second charge requested removal pursuant to paragraph (b) of subdivision 2 of section 3012 but the language used purports to charge incompetency resulting from petitioner's lack of certification in Spanish pursuant to paragraph (c) of subdivision 2 of section 3012.

After a hearing, the panel declined to rule on the question of tenure and dismissed the first charge. By a vote of two to one it held against petitioner on the second charge. It recommended that petitioner's service be terminated but that, pursuant to section 2510, subdivision 3 of the Education Law, she be placed on a preferred eligibility list for a period of four years for any position she was qualified to teach and that her seniority be computed from September 1, 1974.

After considering the report of the hearing panel, respondent Board of Education also refused to pass on the question of tenure and it voted to terminate petitioner's services because she had failed to "obtain or maintain" certification in Spanish. It granted her seniority from September 1, 1974 until her suspension on September 8, 1975 and declared that she had waived her right to be placed on the preferred eligibility list by demanding assignment to an area in which she was uncertified. On March 1, 1976 the Board ordered petitioner dismissed and this Article 78 proceeding followed.

From these facts, it is apparent that petitioner's service as a part-time teacher from 1967 until at least 1973 was by the agreement of the parties and that the Board's grant of tenure in 1970 was with full knowledge that her probationary appointment and employment was for part-time work. Petitioner's probationary appointment and the Board's subsequent grant of tenure met all the formal requirements of section 3012 of the Education Law but they were not warranted because part-time service by a teacher does not constitute probationary service for purposes of acquiring tenure (Matter of Rosenburg v. Board of Educ. of Westbury Public Schools, 51 A.D.2d 551, 378 N.Y.S.2d 433; Matter of Nyboe v. Allen, 7 A.D.2d 822, 181 N.Y.S.2d 132; Matter of Zannitto, 14 Ed.Dept.Rep. 16; Matter of Parker, 12 Ed.Dept.Rep. 96; Matter of Gates, 12 Ed.Dept.Rep. 194; Matter of Sura, 12 Ed.Dept.Rep. 81). That being so, the issue is whether the Board may and should be estopped from disclaiming its actions.

We first distinguish, as the parties have, tenure by estoppel or acquiescence. It is possible, of course, for a full-time probationary teacher to achieve tenure by continuing beyond the expiration of the probationary term with the knowledge of the Board (see Matter of Mannix v. Board of Educ. of City of N. Y., 21 N.Y.2d 455, 288 N.Y.S.2d 881, 235 N.E.2d 892; Matter of Monan v. Board of Educ. of City of Buffalo, 280 App.Div. 14, 111 N.Y.S.2d 797; Matter of Nyboe v. Allen, supra ). That is not the case before us, however, for Ms. Moritz has never served a probationary period as a full-time teacher and if that were all there is to the case the Board would not be estopped from denying that she had acquired tenure by acquiescence as a result of her part-time service (Matter of Rosenberg v. Board of Educ. of City of Westbury, supra; Matter of Gates, supra). But that is not all there is to the case, for the Board not only placed petitioner on part-time probationary status for three years, it granted her tenure in writing upon the recommendation of the superintendent in 1970 and it did so will full knowledge of the facts of her past employment. The Board complied with the literal requirements of the statute and throughout petitioner's employment it accorded her all the benefits accorded to full-time teachers.

The doctrine of equitable estoppel applies to municipal corporations (see LaPorto v. Village of Philmont, 39 N.Y.2d 7, 382 N.Y.S.2d 703, 346 N.E.2d 503; Bender v. New York City Health & Hosps. Corp., 38 N.Y.2d 662, 382 N.Y.S.2d 18, 345 N.E.2d 759; Planet Constr. Corp. v. Board of Educ. of City of N. Y., 7 N.Y.2d 381, 198 N.Y.S.2d 68, 165 N.E.2d 758), but it may not be invoked to prevent a municipality from disclaiming the unauthorized or unlawful acts of its employees and thereby give vitality to otherwise illegal conduct (Town of Guilderland v. Swanson, 41 Misc.2d 398, 245 N.Y.S.2d 696, mod. 29 A.D.2d 717, 286 N.Y.S.2d 425, affd., 24 N.Y.2d 872, 301 N.Y.S.2d 622, 249 N.E.2d 467; Abell v. Hunter,211 App.Div 467, 207 N.Y.S. 203, affd., 240 N.Y. 702, 148 N.E. 765; People ex rel. Sweet v. Bd. of Supervisors of St. Lawrence Co., 101 App.Div. 327, 91 N.Y.S. 948). The Board now contends that its actions were void and that any grant of tenure on the basis of part-time work was beyond its statutorily granted powers and not a decision which may bind the District. We disagree.

The Legislature has delegated to Boards of Education broad power to hire and fire teachers (see Education Law, §§ 2503, 2554). This power was formerly exercised by employment contracts between the Board and the individual...