Hacker v Questar III
Annotate this CaseDecided on December 31, 2005
Supreme Court, Columbia County
Kimberly Hacker, Petitioner,
against
Questar III, formerly known as Rensselaer- Columbia-Greene Board of Cooperative Educational Services, Respondent.
10460-05
Petitioner: Cooper, Erving & Savage, LLP
By Phillip G. Steck, Esq.
Respondent: Whiteman, Osterman & Hannah
by Robert T. Schofield, Esq.
John G. Connor, J.
Petitioner moves by Order to Show Cause for an order and judgment declaring Petitioner acquired tenure by estoppel as a school psychologist and directing her reinstatement pursuant to CPLR Article 78. Petitioner alleges the determination of the Respondent was arbitrary, capricious, irrational, illegal and an abuse of discretion. Respondent opposes the application and interposes a general denial and alleges the matter should be dismissed for failure to state a cause of action, for failure to serve a Notice of Claim pursuant to Education Law § 3813, for failing to exhaust her administrative remedies as primary jurisdiction is vested in the Commissioner of Education, by accepting a part-time position knowing it would extend her probationary period [*2]and since she did not attain three years of full-time service in a probationary appointment, she is not entitled to tenure by estoppel.
On October 4, 2001, Petitioner was appointed by Respondent's Board of Education to a three-year probationary appointment beginning September 12, 2001. Petitioner served the first two years of her probationary term as a full-time school psychologist for the 2001/2002 and 2002/2003 school years. Respondent notified Petitioner that her position was going to be less than full time in the third year of her appointment in order to protect against a reduction in funding. In the third year of her employment Petitioner's job as school psychologist was reduced to a .7 FTE (Full Time Equivalent) appointment; Petitioner was also employed in an unpaid position at the school as a .3 FTE school administrative intern. The School Board did not appoint Petitioner to either of the FTE positions. In October 2003, Respondent received additional funding and decided to restore Petitioner's position to a full time 1.0 FTE position. Petitioner chose to continue the .7 FTE and .3 FTE. Respondent alleges that they informed Petitioner that failure to accept the restored position would impact her tenure status. Respondent argues that Petitioner only worked part-time in her third year of employment, and Petitioner was a probationary employee at the time of her resignation. Respondent further alleges that Petitioner was offered the opportunity to return to the full-time position and a Notice of Recall Acceptance/Declination form was issued to Petitioner. In addition, Respondent alleges due to the interruption to the full-time probationary appointment, Petitioner's probationary periods and tenure tracking records were amended to reflect a tenure date of September 20, 2005.
Petitioner returned to the full-time position for the 2004/2005 school year. In June 2005, Respondent determined it would not recommend tenure for Petitioner to the Board of Education. On June 30, 2005 Petitioner offered her resignation as school psychologist and her resignation was accepted by the Board of Education. Petitioner attempted to rescind her resignation on September 2, 2005. On September 19, 2005 the Respondent advised Petitioner her resignation had been accepted by the Board.
Petitioner alleges she was treated as a full-time psychologist although she was paid a reduced salary due to the administrative internship. Petitioner alleges she did not realize she had acquired tenure by estoppel when she offered her resignation letter. Petitioner alleges the representations of the Respondent pertaining to tenure were false and her resignation was procured under false pretenses. Petitioner resigned from her position in her fourth year of employment.
With respect to the issue of whether Petitioner had to file a Notice of Claim pursuant to Education Law 3813, the Court finds that the filing of a Notice of Claim is not a condition precedent to an action to enforce tenure rights; the action was brought to vindicate the public's interest in teachers' tenure rights, and seeks only equitable relief. See, Kight v. Wyandanch Union Free School District, 56 NY2d 606 (1982). Furthermore, the Court does not find that the doctrine of primary jurisdiction applies since the determination under review does not require the specialized knowledge or expertise of the Commissioner of Education. See, Langston v. Iroquois Central School District, 291 AD2d 845 (4th Dept. 2002). The issues presented are primarily legal in scope and the Court is, therefore, more suited to make the determination of whether Petitioner is entitled to tenure by estoppel. See, Gould v. Board of Education of the Sewanhaka Central High School District, 81 NY2d 446 (1993). Petitioner was [*3]not required to bring the application before the Commissioner of Education as a condition precedent to commencing suit. See, Gould, supra.
At the time of her resignation, neither Petitioner or Respondents were cognizant that she had obtained tenure by estoppel. Tenure by estoppel results when a school board fails to take action required by law to grant or deny tenure and permits a teacher to continue to teach beyond the expiration of the probationary period. Id., at 451. Petitioner was given an opportunity to resign from her "probationary" position in order to avoid the stigma associated with not receiving tenure. A teacher who has obtained tenure cannot unknowingly relinquish her rights in the tenured position by resigning. See, Id., at 451-452.
Since the Board of Education never modified the term of the Petitioner's probationary employment, and since Petitioner continued to serve in said position for more than three years, Petitioner is entitled to tenure by estoppel. See, McKinney's Cons. Laws of NY, Book 16, Education Law §§3012, 3014; Gould, supra. The rules regarding tenure are designed to prevent school administrators from modifying a teacher's position within the probationary period to start the tenure period running anew or to transfer a teacher to a non-tenured track. See, Feinerman v. Board of Cooperative Educational Services of Nassau County, 48 NY2d 491 (1979); Baer v. Nyquist, 34 NY2d 291 (1974). The Board of Education must formally change or alter a teacher's appointment and the same should be accompanied by a formal written waiver of a teacher's tenure rights. See, Id.; McManus v. Board of Education of the Hempstead Union Free School District, 87 NY2d 183 (1995).
Here Respondents cannot produce either a resolution from the Board of Education modifying Petitioner's probationary period of employment, or written proof that Petitioner knowingly relinquished her right to an uninterrupted probationary period. The fact that she may have accommodated her superior by accepting a modification of her position is to no avail. Without following the appropriate protocols requiring an action by the Board of Education to modify an employee's probationary term and a formal written waiver signed by the employee waiving her right to continue in a three year probationary appointment, the Respondent has deprived Petitioner of the safeguards established by law to protect teachers' tenure rights. Thus, regardless of the number of hours worked by Petitioner as a school psychologist in her third year of employment, she was employed by Respondents for more than three years in the position approved by the Board of Education, and is therefore, entitled to tenure by estoppel. Accordingly, the CPLR Article 78 petition is granted and Petitioner is entitled to tenure by estoppel and reinstatement to her position as school psychologist. All papers including this Decision and Order are returned to counsel for Petitioner for filing and service. The signing of this Decision and Order shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provisions of this rule in regard to filing, entry and Notice of Entry.
SO ORDERED.
Dated:December 31, 2005
Hudson, New York
JOHN G. CONNOR
Justice of the Supreme Court
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