Extending the probationary period of an individual

Extending the probationary period of an individual Appeal of Anne M. Christiano, Decisions of the Commissioner of Education, Commissioner's decision No. 16,217 A "Juul Agreement" between an educator and his or her appointing authority extends the educator's probationary period rather than terminate the educator at the end of his or her probationary period for not completing his or her probationary period satisfactorily. This is typically done in an effort to provide the educator with an opportunity to improve his or her performance and thereby become eligible for tenure in the position. Such an agreement, when "open, knowing and voluntary," waives the educator's right to claim tenure by estoppel.* At the end of the extended probationary period the school district may grant or deny tenure [see Juul v. Board of Educ. of Hempstead UFSD, 76 AD2d 837, affirmed, 55 N.Y.2d 648].** Anne M. Christiano, then serving as a probationary principal, and the Johnstown City School District had entered into a Juul Agreement. At the end of the extended period of Christiano's probation the superintendent recommended Christiano for tenure. The school board, however, voted to reject the superintendent's recommendation and denied Christiano tenure with the district. Christiano, alleging that the board acted in bad faith and was arbitrary and capricious in denying her tenure, appealed to the Commissioner, asking that he overturn the school board's tenure determination and that he remove those members of the board "who voted against granting her tenure." After addressing a number of procedural issues, the Commissioner said that with respect to the merits of Christiano's claim regarding the denial of tenure, Education Law §3012(1)(b) provides that the service of a principal "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." Further, said the Commissioner, "… a board of education has the unfettered right to terminate a probationary principal's employment for any reason, unless the employee establishes that he or she was terminated for a constitutionally impermissible reason or in violation of a statutory proscription." In any event, in an appeal to the Commissioner the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief. In this instance the Commissioner ruled that while there were positive comments in the record about her administrative abilities, Christiano had not alleged or established that she was terminated for a constitutionally impermissible reason or in violation of a statutory proscription. Accordingly, the Commissioner found that Christiano has failed to meet her burden of proof. As to Christiano's petition to remove certain members of the school board, the Commissioner said that she had failed to establish facts sufficient to warrant removal of the individually named board members pursuant to Education Law §306. The Commissioner pointed out that "A member of the board of education or a school officer may be removed from office pursuant to Education Law §306 when it is proven to the satisfaction of the Commissioner that the board member or school officer has engaged in a willful violation or neglect of duty under the Education Law or has willfully disobeyed a decision, order, rule or regulation of the Board of Regents or Commissioner of Education." Finding that Christiano had failed to establish that the individual members of the school board named in her appeal "intentionally acted with a wrongful purpose to disregard a lawful duty or violate a legal requirement," the Commissioner ruled that she had failed to establish any ground for their removal under Education Law §306. * A probationary employee may attain tenure by estoppel [sometimes referred to as "tenure by acquiescence"] when the appointing authority accepts the continued services of the individual, but fails to take the action required by law to either grant or deny the individual tenure prior to the expiration of the employee's probationary term, [see McManus v Hempstead Union Free School District, 87 NY2d 183]. Continuation on the payroll for a brief period after the expiration of a probationary period for administrative convenience, such as to coincide with the end of a payroll period, does not automatically result in the individual attaining tenure by estoppel [Mendez v Valenti, 101 AD2d 612]. ** A procedure is available to the appointing authority with respect to probationers serving in positions in the Classified Service of the State as an employer. 4 NYCRR 4.5(b) (5)(ii), in pertinent part, permits an appointing authority to offer a probationer deemed not to have satisfactorily completed his or her probationary period an opportunity to serve a second probationary term "in which case the appointment may be made permanent at any time after completion of 12 weeks of service, or the employment [may be] terminated at any time after the completion of 8 weeks of service and on or before the completion of 26 weeks of service." A similar rule has been adopted by many local civil service commissions. The Commissioner's decision is posted on the Internet at: http://www.counsel.nysed.gov/Decisions/volume50/d16217.htm .

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