Rathbone v. Board of Ed. of Hamilton Central School Dist., Madison County

• Decision Date: 27 March 1975
• Citation: 47 A.D.2d 172,365 N.Y.S.2d 909
• Parties: In the Matter of Valorie RATHBONE, Respondent, v. BOARD OF EDUCATION OF the HAMILTON CENTRAL SCHOOL DISTRICT, MADISON COUNTY,New York, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 909

365 N.Y.S.2d 909

47 A.D.2d 172

In the Matter of Valorie RATHBONE, Respondent, v. BOARD OF EDUCATION OF the HAMILTON CENTRAL SCHOOL DISTRICT MADISON COUNTY,New York, Appellant.

Supreme Court Appellate Division, Third Department.

March 27, 1975.

Joe Shapiro, Hamilton, for appellant.

Bernard F. Ashe, Albany (Ivor R. Moskowitz, Albany, of counsel), for respondent.

Before HERLIHY, P.J., and GREENBLOTT, SWEENEY, MAIN and LARKIN, JJ.

PER CURIAM.

These are appeals (1) from a judgment of the Supreme Court at Special Term, entered May 13, 1974 in Chemung County, which granted petitioner's application, in a proceeding pursuant to CPLR article 78, directing that she be reinstated in her probationary teaching position, and further directing the parties to appear at an Equity Term for trial on the issue of interim salary and benefits, and (2) from an order of said court, entered May 28, 1974, which denied appellant's motion for a change of venue to Madison County.

Petitioner was appointed by appellant Board of Education as a French teacher in the Hamilton Central School District to a five-year probationary term of service effective July 1, 1971. On April 10, 1973 she was notified by the district superintendent that pursuant to section 3031 of the Education Law he intended to recommend that her services by discontinued. Petitioner thereafter requested the reason therefor, and by letter dated April 18, 1973 the district superintendent set forth the following reason: 'The reason for the intended recommendation is that your over-all performance as a teacher has not been up to the level of expectancy of the Hamilton Central School.' Petitioner was given no further particulars at the meeting of appellant Board of Education held on May 21, 1973. Petitioner thereafter commenced this article 78 proceeding to annul that determination. Special Term concluded that there was a failure to comply with section 3031 because the reason stated for the superintendent's recommendation was too vague and reinstated her in her former probationary teaching position. It also denied appellant's motion for change of venue. These appeals ensued.

Initially, the denial of a change of venue to Madison County should be affirmed. (CPLR 504, 506, subd. (b).)

Section 3031 of the Education Law was enacted in 1972 and became effective July 1, 1972. Where here relevant, it provides, '(N)otwithstanding any other provision of this chapter * * * teachers employed on probation by any school district * * * as to whom a recommendation is to be made * * * that their services be discontinued shall, at least thirty days prior to the board meeting at which such recommendation is to be considered, be notified of such intended recommendation and the date of the board meeting at which it is to be considered. Such teacher may, not later than twenty-one days prior to such meeting, request in writing that he be furnished with a written statement giving the reasons for such recommendation and within seven days thereafter such written statement shall be furnished. Such teacher may file a written response to such statement with the district clerk not later than seven days prior to the date of the board meeting.' The final paragraph provides, 'This section shall not be construed as modifying existing law with respect to the rights of probationary teachers or the powers and duties of boards of education * * * with respect to the discontinuance of services of teachers * * *.'

First, there is no merit to appellant's contention that this statute does not apply in petitioner's case. It is clearly applicable to the discontinuance of a probationary teacher after July 1, 1972, and petitioner's services were recommended to be discontinued after such date.

The primary issue raised on this appeal is whether there was compliance with section 3031 in petitioner's case. This issue is one of first impression. Section 3031, in essence, provides that when it is recommended that a probationary teacher's services are to be discontinued, he may request written reasons therefor and respond thereto prior to board action. So long as the reasons given for such recommendation involve or imply no violation of positive law, no denial of due process resulting in a deprivation of liberty or property, no discriminatory practice or complaint of retaliation, or no breach of a collective bargaining or arbitration agreement, there is no requirement that a hearing be given on the decision not to retain such probationary teacher. (Board of Regents of State Colleges v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548; Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570; Matter of Lezette v. Board of Educ., Hudson City School Dist., 35 N.Y.2d 272, 278, 360 N.Y.S.2d 869, 873, 319 N.E.2d 189, 192.) The reason given to petitioner for the recommendation that her services be discontinued did not involve or imply any of these. She was, therefore, not entitled to a hearing before the board.

As hereinbefore observed, the reason given by the Superintendent for his recommendation that petitioner's services as a probationary teacher be discontinued was 'that (her) overall performance as a teacher has not been up to the level of expectancy of the Hamilton Central School'. Having received this response to her request for the reason for the recommendation that her services be discontinued, the question arises as to what would be the petitioner's response which had to be filed within the prescribed seven-day period. She would be limited pretty much to a general denial which demonstrates that the reason given by the District Superintendent is vague and does not give her sufficient information so that she may properly respond. The Superintendent should have given the petitioner some specifics as to why her performance was not satisfactory, for example, was her classroom work unsatisfactory, was there a lack of classroom discipline, was the work of the children not up to the required standards or was there a personal reason. Any one or more reasons would then give the petitioner an opportunity of replying and possibly defending her teacher performance.

It must be assumed that the Legislature in...