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A school board waiver of its right to dismiss a probationary school administrator at any time during the probationary term must be explicitly stated

A school board waiver of its right to dismiss a probationary school administrator at any time during the probationary term must be explicitly stated
Consedine v Portville Cent. School Dist., 12 NY3d 286

The Portville Central School District appointed John R. Consedine as an assistant principal. Attaining tenure in such a position typically would be subject to the appointee?s successfully completing a three-year probationary period. In this instance, however, Consedine and the School District executed an employment contract, that in relevant part, stated, "[t]he District shall pay [Consedine] for his services an annual salary of $52,000 for the period of January 1, 2003 through December 31, 200[5]."

About six months later the School District told Consedine that budget constraints required the eliminated of his position and advised him that he would not be working in that capacity in the fall. Consedine sued, alleging breach of contract.

Supreme Court ruled that Consedine's employment contract was unambiguous, holding that "[A] school district is free to offer an administrator a three year probationary contract which cannot be terminated until the three years is over, and that is what occurred here."

The Appellate Division affirmed the Supreme Court?s ruling and the School District appealed.
The District contended that there could be no breach of contract as Education Law §3012 (1)(b)* ?expressly prohibits a school district from entering a contract guaranteeing a non-tenured administrator employment for a certain duration.? It also argued that ?even if no statutory prohibition existed, the contract at issue does not guarantee [Consedine?s] employment for a set duration.

The Court of Appeals held that the appointing authority's right to discharge a probationary school administrator at any time during the three-year probationary term (see Education Law §3012[1 [b]) may waived by entering into a durational, three-year employment contract, but, under the facts and circumstances in Consedine's situation, the school district did not waive its statutory right under §3012(1)(b).

Although, said the court, in the private section, the language used in the Consedine/Portville contract ?could arguably be construed as creating a contract with a specific duration,? in this instance whether the use such language amounts to a waiver of rights must be determined in light of the public policy concerns attending the employment of school administrators and supervisors and a school district's statutory right to discontinue a probationary administrator's service at any time for any or no reason during the probationary period.?

The answer, said the Court of Appeals, is that where, as here, ?public policy concerns are implicated, a school district will not be deemed to have waived its statutory rights under the Education Law without an explicit agreement between the parties or compelling evidence that the school district made a conscious decision to do so.?

It then concluded that ?the operative contractual language is simply too equivocal to establish that [Portville] school district consciously and expressly agreed to waive its statutory right under Education Law §3012(1)(b).?

Consedine served in a position in the Unclassified Service.** Such a situation is less likely to occur with respect to permanent appointment to a position in the Competitive Class of the State?s Civil Service as typically such appointments are subject to a minimum period of probation and a maximum period of probation.

Case law holds that an individual in the competitive class may be removed from his or her position at any time without ?notice and hearing? after completing his or her minimum period of probation and before completing his or her maximum period of probation.

In contrast, courts have ruled that if the appointing authority wishes to remove an individual from his or her position during the employee?s minimum period of probation, it may do so only after bringing disciplinary action against the employee and holding a disciplinary hearing or proceeding with a Taylor Law disciplinary arbitration [see McKee v. Jackson, 152 AD2d 54].

The court's rationale: the individual is entitled to a minimum period of time to demonstrate his or her ability to successfully perform the duties of the position.

* §3012(1)(b). provides that: "Principals, administrators, supervisors and all other members of the supervising staff of school districts . . . shall be appointed by the board of education . . . upon the recommendation of the superintendent of schools for a probationary period of three years. The service of a person appointed to any of such positions may be discontinued at any time during the probationary period on the recommendation of the superintendent of schools, by a majority vote of the board of education."

** Section 35.g of the Civil Service Law provides, in pertinent, part, ? (g) all persons employed by any title whatsoever as members of the teaching and supervisory staff of a school district, board of cooperative educational services or county vocational education and extension board, as certified to the state commission by the commissioner of education.?

Full post as published by New York Public Personnel Law on February 09, 2010 (boomark / email).