Labor & Employment Law

The Remus and Shaffer decisions by the New York State Court of Appeals sets out the court's view with respect to the effective date of a teacher's employment rights flowing from holding a tenured appointment.

The Remus case challenged a ruling by the Appellate Division, Fourth Department; the Shaffer decision was made in response to the "certification of the question" by the U.S. Circuit Court of Appeals, Second Circuit [NY].

The ruling, which concerned the tenure status of individuals employed in unclassified service positions, has significant implications with respect to an appointing authority's ability to rescind a permanent appointment to a position in the classified service prior to its effective date as well.

Both the Remus and Shaffer cases involve essentially the same question:

May the appointing authority rescind its earlier action granting a probationary teacher tenure if such action is taken prior to the effective date of the teacher's attaining tenure status?

The Remus Case

On June 4, 1998, in accordance with the recommendation of the superintendent, the Tonawanda school board adopted a resolution appointing probationary teacher Jill Remus "to a tenured position effective September 2, 1998."

A short time later, in response to an inquiry by her school principal, Remus admitted that she had joined students in drinking alcoholic beverages while acting as a chaperone during a school-sponsored student exchange program in Costa Rica notwithstanding the school's "zero tolerance" policy as to the consumption of alcohol at school-sponsored events.

On August 31, 1998, the School Board adopted a resolution rescinding its resolution giving Remus a "conditional tenure appointment" and terminated her employment as a probationary teacher. This action by the board followed Remus' declining an offer to extend her probationary period for an additional year that was made to her earlier in the day. Remus appealed the Board's action, claiming she had attained tenure and could not be summarily dismissed.

The Shaffer Case

The Schenectady Superintendent of Schools told probationer Sharon Shaffer that because of her excessive absences from work, he would recommend that the Schenectady City School District Board of Education discontinue her employment as of June 30, 1998.

On May 29, 1998, the Superintendent submitted a report to the Board recommending that it approve tenured appointments for the 33 teachers he had listed in the report. Shaffer's name was included on the list, with an effective tenure date of September 1, 1998. On June 2, 1998, the Board adopted a resolution granting all 33 teachers listed tenure. This action by the Board was then distributed to the public.

Informed that "Shaffer's name was included on the tenure recommendation list because of a clerical error," the Superintendent told Shaffer that the Board would rescind its June 2 resolution unless she agreed to resign. Shaffer refused to resign.

A special board meeting was held on June 17, 1998, during which the Board adopted a resolution rescinding its action granting tenure to the 33 teachers for the reason that the prior resolution "contained a clerical error."

The Board then adopted a new resolution granting tenure to teachers on a revised list. Shaffer's name was not on this new list. Shaffer appealed, contending that she had attained tenure as a result of the Board's action on June 2, and thus was entitled to the protections of Section 3020-a of the Education Law.

The Court of Appeals said that both cases present a common threshold issue:

Does a Board of Education resolution that grants tenure to a teacher effective on a specified future date pursuant to the provisions of Education Law Section 2509[1], immediately entitle that teacher to the benefits of tenure?

The Court of Appeal's conclusion: A teacher granted tenure effective on a [specified] future date is not entitled to the benefits of tenure until the effective date specified in the resolution.

The Court explained that the Education Law draws a distinction between probationary teachers and tenured teachers. Probationary teachers can be terminated at any time during the probationary period, for any reason and without a hearing while tenured teachers hold their positions during good behavior and competent service, and are subject to dismissal only after formal disciplinary proceedings.[1]

The basic argument advanced by both Remus and Shaffer is that once they were granted tenure by action of the board pursuant to Section 2509 of the Education Law, their employment could not be terminated except for cause after notice and hearing. In their view, their tenure status accrued upon adoption of the resolution granting them tenure by the board and could not be rescinded by a subsequent resolution adopted by the board.

The Schenectady City School District, and the Appellate Division in deciding the Remus case, took the view that a formal offer and acceptance of tenure was required for tenure to become operative before the expiration of the three-year probationary period and such an offer and acceptance was not present insofar as either Remus or Shaffer was concerned.

The Court of Appeals disagreed with this argument, commenting that the Education Law does not require a formal offer and acceptance of a tenure appointment and, "given the express grant of power to make tenure appointments before the end of the probationary period, no reason exists to inject such a requirement into the statute."

Noting that this specific issue -- rescinding an appointment prior to its effective date -- was not addressed in Weinbrown v Board of Education, 28 NY2d 474, a case cited by both school districts in support of their respective arguments, the Court of Appeals held that:

A Board resolution granting a probationary teacher tenure effective on a future date (one set either to coincide with the end of or to occur before the end of that teacher's probationary period) confers tenure upon the teacher only as of that specified future date.

These decisions suggest that any permanent appointment, or contingent permanent appointment, that is subject to a probationary period, or an appointment based on reinstatement from a preferred list, whether in the classified service or the unclassified service, may be rescinded prior to its effective date by the appointing authority, provided such action (1) is not otherwise prohibited by law and (2) would not otherwise constitute unlawful discrimination.

It may be significant that the decision refers to the appointing authority's granting tenure effective on a specified future date insofar as trigging the individual's tenure rights are concerned. If, on the other hand, no "future date" is specified, it could be argued that the individual attains his or her tenure rights immediately upon the act granting such status by the appointing authority.

The effective date of appointment insofar as rescinding an appointment would not be particularly relevant in the case of a provisional or a temporary appointment as provisional and temporary employees may be dismissed at any time and without a pre-termination hearing unless a collective bargaining agreement otherwise provides.

[1] Typically probationers in the classified service may be summarily dismissed from their position only after completing the minimum period of their probationary period and prior to the end of their probationary period. However, there is not bar to granting a probationary employee tenure status at any time during his or her probationary period.