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Failure to give a probationary educator timely notice of termination obligates school district to provide one day?s pay for each day notice was late

Failure to give a probationary educator timely notice of termination obligates school district to provide one day?s pay for each day notice was late
Matter of Vetter v Board of Educ., Ravena-Coeymans-Selkirk Cent. School Dist., 2010 NY Slip Op 01012, Decided on February 11, 2010, Court of Appeals

David Vetter was employed as a probationary teacher by the Ravena-Coeymans-Selkirk Central School District. Based on allegations of misconduct, on June 21, 2006, the Board of Education voted to terminate Vetter -- who had not yet completed his probationary period -- effective July 21, 2006.

The Board, however, did not give Vetter any written notice of its action until almost a month later ? two days before his termination was to be effective. Vetter then sued seeking an award of salary for 28 days due to the Board's violation of Education Law §3019-a and attorney fees.*

§3019-a requires school authorities desiring to terminate the services of a teacher during his or her probationary period to give "a written notice thereof to such teacher at least thirty days prior to the effective date of such termination of services."

Supreme Court denied Vetter?s Education Law §3019-a claim but granted his application for attorneys' fees. The Appellate Division modified Supreme Court's ruling by reversing the award of counsel fees, noting that Vetter ?was not entitled to 28 days of pay because the applicable notice period occurred during summer vacation,? during which time Vetter would not have otherwise received compensation (see 53 AD3d 847).

The Court of Appeals observed that Education Law §3019-a requires school authorities to give probationary teachers written notice of termination at least 30 days before the effective date of termination.** In addition, said the court, where a probationary teacher is not recommended for tenure, the superintendent must issue written notice of that decision no later than 60 days before the probationary period expires, citing Education Law §2573 [1] [a].

The purpose of these notice provisions is to allow teachers whose services are to be discontinued a period of time to seek other employment. Although the law does not set out any sanctions in the event the 30-day and 60-day notice are not provided, in Matter of Tucker v Board of Educ., Community School Dist. No. 10, 82 NY2d 274, the Court of Appeals held that teachers are entitled to "one day's pay for each day that the [Education Law §2573(1)(a)] notice was late."

Rejecting the Board?s argument that although it failed to comply with Education Law §3019-a, a compensation remedy would be inappropriate because the 28 days fell during summer vacation when Vetter would not have been paid any salary had he received timely notice, the Court ruled that Vetter was entitled to one day of pay for each day the required notice was late, i.e., 28 days of pay.

The ?same was true in Tucker, where a portion of the 52-day period extended into July and August,? said the court and ruled that Vetter was entitled to an award of 28 days' salary.

The Court of Appeals, however, did agree with the Appellate Division?s ruling that Vetter was not entitled to attorney fees.

* Vetter petition also asked Supreme Court to direct the Board to give him a name-clearing hearing, which the Board elected to provide. However, the fact that one may vindicate himself or herself at a name-clearing hearing does not entitle the individual to reinstatement to, or reemployment in, his or her former position.

** The decision notes that Education Law §3019-a ?correspondingly obligates? probationary teachers to provide at least 30 days' written notice prior to leaving their positions. Failure to comply with this mandate subjects the teacher to disciplinary sanctions to be imposed by the Commissioner of Education.

Full post as published by New York Public Personnel Law on February 12, 2010 (boomark / email).