GRANTING AND DENYING TENURE AND … tenure packet.pdf · Reply to Probationary Teacher's Request...

GRANTING AND DENYING TENURE AND

DISCONTINUING PROBATIONARY SERVICE

PREPARED BY:

Monroe 2-Orleans BOCES Labor Relations Service

3599 Big Ridge Road

Spencerport, New York 14559

Telephone: (585) 352-2603

Facsimile: (585) 352-2660

([email protected])

Updated: Annually since 1998

2017 Monroe 2-Orleans BOCES Labor Relations Service. All Rights Reserved.

mailto:[email protected]

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TABLE OF CONTENTS

Page

Outline of Laws 4 - 9

Letters and Resolutions

Granting Tenure

Recommending Granting of Tenure - Initial Letter 10

Tenure Appointment - Resolution 11

Appointment to Tenure - Letter After Board Meeting 12

Denying Tenure

Deny Tenure at the End of the Probationary Appointment - Initial Letter 13

Reply to Probationary Teacher's Request for Reasons for Recommendation of 14

Denial of or Rejection of Tenure or Discontinuing Services Pursuant to

Education Law § 3031

Deny Tenure – Resolution 15

Denial of Tenure After Board Meeting - Letter 16

Recommending Tenure and Board Rejections

Advisory Vote to Reject Superintendent’s 17

Recommendation to Grant Tenure (1st Board Meeting) - Resolution

Board Rejects the Superintendent’s Recommendation to Grant Tenure - 18

Letter

Reply to Probationary Teacher's Request for Reasons when Board votes down 19

Superintendent’s Recommendation to Grant Probationary Teacher Tenure

Pursuant to Education Law § 3031 - Letter

Reject Superintendent’s Recommendation for Tenure 20

(2nd

Board Meeting) - Resolution

Discontinuing Probationary Employee’s Services

Discontinuance of Probationary Teacher’s Employment Prior to Completion 21-22

of Probationary Period with Education Law § 3031 - Letter

3

Reply to Probationary Teacher's Request for Reasons for Recommendation of 23

Dismissal Prior to the End of the Probationary Period Pursuant to

Education Law § 3031 - Letter

Discontinue Services of Probationary Teacher - Resolution 24

Discontinuing Probationary Teacher's Services After Board Meeting 25

(Board votes to terminate services) - Letter

Reasons

Sample Reasons for Denial of Tenure or Discontinuing Services 26-28

Reasons that are Not Sufficiently Specific to Deny Tenure or 29

Discontinue Services

Extension of Probationary Period

JUUL Agreement 30-31

Extension of Probationary Period (JUUL Agreement) – Resolution 32

Timelines for Granting or Denying Tenure

Timeline for Tenure Denial or Discontinuing Appendix A

Services Prior to the End of the

Probationary Period and 2017 Calendar

Timeline to Grant Tenure or Board’s Appendix B

Rejection of Tenure Recommendations

and 2017 Calendar

4

GRANTING AND DENYING TENURE AND

DISCONTINUING PROBATIONARY SERVICE

(Throughout this packet, the word “teacher” is used. Please know these procedures

apply equally to administrators and teaching assistants.)

I. LEGAL AUTHORITY

New York State Education Law requires the Superintendent to make one of the following

written recommendations regarding certified staff: (1) recommending a probationary

teacher, teaching assistant1 or administrator for appointment of tenure whose services are

found to be competent, efficient and satisfactory; (2) not recommending tenure; or (3)

recommending discontinuing probationary teacher's services. [NY Education Law §§

3012(2), 3014, 3019-a, and 3031]. Tenure considerations occur upon expiration of four

years of probation. The probationary period may be reduced to three years where the

teacher was tenured in another district or in another tenure area in the same district or

receives credit for long-term substitute service immediately preceding the probationary

appointment. [Robins v. Blaney, 59 NY2d 393 (1983)]; Appeal of Zalaman, 49 Ed. Dept.

Rep. 15,953 (2009)]. Combing prior tenure and long-term subservice could reduce the

probation to two years. (Noting that a probationary teacher pulled off the PEL for a long-

term substitute position is not entitled to credit toward the probationary period for that

long-term substitute assignment because that long-term substitute service did not occur

prior to the initial probationary appointment)]. This reduction to two years does not apply

to administrators.2

The teacher’s APPR score must now be a significant factor in the tenure determination

process. [NY Education Law § 3012-c and § 3012-d]. While “significant factor” is not

defined, the district’s APPR plan may impose additional procedural requirements to what

is laid out herein.

II. DENYING TENURE

A. 60-Day Notice

The Superintendent must provide written notification to the probationary teacher no

later than 60 days prior to expiration of the probationary period of the

recommendation to deny tenure.

Note: Remember to check the Collective Bargaining Agreement which may require a

longer notification period.

B. 30-Day Notice The probationary teacher must be provided with 30 days written notice prior to the

date of the board meeting to consider the Superintendent's recommendation to deny

1 Teaching assistant is one recognized tenure area. As a result, teaching assistants are placed on three or four years

of probation, and are granted or denied tenure. Boards cannot create specialized or subdivided tenure areas

specifically for teaching assistants based on the nature of the specific classroom. 2 The commissioner and the courts have yet to determine whether the two year reduced probationary period also

applies to teaching assistants.

5

tenure and discontinue services. Failure to provide this notice may deprive the

teacher of their right to present a written reply to the recommendation. The

Commissioner could force the Board to reconsider their decision, with proper notice

and with consideration of any written response. [Appeal of Gold, 34 Ed. Dept. Rep.

372, Decision No. 13,347 (1995)].

Note: Be sure to check the Collective Bargaining Agreement because the Collective

Bargaining Agreement may contain a longer notification period or a just cause

provision with other specific timelines.

C. Teacher Request Reasons – 21-Day Notice A teacher may submit a written request asking the reasons for the Superintendent’s

recommendation to deny tenure no later than 21 days before that board meeting.

D. Superintendent Response to Reasons – 7-Day Notice The Superintendent must provide reasons in writing within 7 days of such request.

3

E. Types of Reasons The reasons cannot be discriminatory, defamatory, or a violation of free speech

rights.4

F. Teacher Response to Reasons – 7 Days A teacher may file a written response to the Superintendent's reasons with the district

clerk no later than 7 days before the board meeting.

G. Teacher’s Last Day The teacher's services are discontinued no less than 30 days after the board meeting.

However, they are still expected to finish out the school year if the 30 days ends on or

before June 30. The Board must pass a resolution terminating the teacher’s services

with an effective date no less than 30 days after the board meeting but usually at the

end of the school year. If this 30 days spills into the summer, the teacher is not paid

during that time as long as proper notices are given. A teacher must be notified after

the date of the board meeting, specifying the teacher’s termination date which will

take effective 30 days after Board action. If the district misses the 30 days’ notice,

the teacher would not be reinstated but be paid for the number of days of missed

notice even if the days occur over the summer. [Vetter v. Ravena-Coeymans-Selkirk

CSD, 14 NY3d 729 (2010)]. Payments for days of missed notice are not offset by

earnings or unemployment benefits [Matter of Pascal v. Board of Educ. NY City

School Dist., 100 AD2d 622 (2d Dept. 1984)].

3 Sample reasons are attached on pages 26- 29.

4 A teacher was denied tenure after making out a sexual harassment complaint and threatened a sexual harassment

lawsuit. The district denied tenure and the court found a viable retaliation claim. The negative performance

evaluation, the alleged reason for the denial of tenure, occurred only after he threatened the sexual harassment

lawsuit. [New Paltz Central School District v. Donaldson, 41 AD3d 1138 (3d Dept. 2007)].

6

H. Board’s Rights The Board cannot overturn the Superintendent’s recommendation to deny tenure and

effectively grant tenure. The Board cannot grant tenure without the Superintendent's

recommendation. The board can only urge the Superintendent to change his/her

recommendation.

III. GRANTING TENURE

A. 30-Day Notice

A teacher must be notified in writing 30 days prior to the date of the board meeting at

which the Superintendent recommends granting tenure.

Note: Be sure to check the Collective Bargaining Agreement because the Collective

Bargaining Agreement may contain a longer notification period.

B. Date of Tenure Tenure is granted on the date specified in the Board resolution, not the date of the

board meeting where the board acted to grant tenure. Generally, an appointment on

tenure does not become effective until the future date so specified in the Board of

Education resolution. Only as of that future date is the tenure appointment deemed

effective (conferring all benefits and rights of tenure) and the educator no longer

classified as a probationary employee. [See Matter of Remus v. Board of Educ. for

Tonawanda City School Dist., 96 NY2d 271 (2001); Mahoney v. Mills, 29 AD3d

1043 (3d Dept. 2006); Appeal of Dickinson, 51 Ed. Dept. Rep. 16,256 (2011); Appeal

of Dickinson, 49 Ed. Dept. Rep. 16,082 (2010); Appeal of Mahoney, 43 Ed. Dept.

Rep. 15,060 (2004)].

However, one exception exists. An appointment on tenure can be conferred on a

probationary educator prior to the effective date specified in the board of education

resolution by a formal offer and acceptance of the position, in writing, by the

educator. [Weinbrown v. Board of Educ. of Union Free School Dist. No. 15, Town of

Hempstead, 28 NY2d 474 (1971)].

C. Resignation and Tenure Date A teacher who resigns or whose resignation is effective before the tenure date

specified in that Board resolution, cannot claim to be tenured.

D. Absence of Teacher and Tenure A teacher who is on record as an employee of the District on the date specified in the

resolution that the teacher has been granted tenure is tenured even if that teacher is

not physically teaching on that date (i.e., is ill, is disabled, on jury duty, etc.).

E. Board Rejects Tenure The vote is advisory only if the Board votes to reject the Superintendent’s

recommendation. The Board will take action at a second Board meeting. In that case:

1. 30-Day Notice

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The teacher must be notified in writing about the board's rejection of the

Superintendent's recommendation of tenure and be notified in writing as to the

date of the second board meeting no later than 30 days prior to the second

board meeting.

2. Teacher Response 21-Day Notice A teacher may submit a written request asking the reasons for the board’s

recommendation to deny tenure no later than 21 days before that second board

meeting.

3. Superintendent Response 7-Day Notice The board must respond in writing as to the reasons within 7 days.

5The

reasons cannot be discriminatory, defamatory, or a violation of free speech

rights.6

4. Teacher Response to Reasons 7-Day Notice The teacher may file a written response to the board's reasons no later than 7

days prior to the second board meeting.

5. Teacher’s Last Day The teacher's services are discontinued no less than 30 days after the board

meeting. However, they are still expected to finish out the school year if the

30 days ends on or before June 30. The Board must pass a resolution

terminating the teacher’s services with an effective date no less than 30 days

after the board meeting but usually at the end of the school year. If this 30

days spills into the summer, the teacher is not paid during that time as long as

proper notices are given. A teacher must be notified after the date of the

board meeting, specifying the teacher’s termination date which will take

effective 30 days after Board action. If the district misses the 30 days’ notice,

the teacher would not be reinstated but be paid for the number of days of

missed notice even if the days occur over the summer. [Vetter v. Ravena-

Coeymans-Selkirk CSD, 14 NY3d 729 (2010)]. Payments for days of missed

notice are not offset by earnings or unemployment benefits [Matter of Pascal

v. Board of Educ. NY City School Dist., 100 AD2d 622 (2d Dept. 1984)].

IV. DISCONTINUE PROBATIONARY TEACHER SERVICES (NO TENURE

CONSIDERATION)

A. 30-Day Notice

5 Sample reasons attached on pages 26-29.




lawsuit. [New Paltz Central School District v. Donaldson, [41 AD3d 1138 (3d Dept. 2007)]. See footnote 3 (New

Paltz Central School District v. Donaldson) (Tenure denied after sexual harassment complaint).

8

The teacher must be notified in writing of the Superintendent's recommendation to

discontinue services and date of the second board meeting no later than 30 days prior

to the board meeting.

B. Teacher Response - 21-Day Notice A teacher may submit a written request asking the reasons for the Superintendent’s

recommendation to discontinue services no later than 21 days before that board

meeting.

C. Superintendent Response - 7-Day Notice The Superintendent will provide reasons in writing within 7 days of such request.

7

The reasons cannot be discriminatory, defamatory, or a violation of free speech

rights.8

D. Teacher Response to Reasons - 7-Day Notice A teacher may file a written response to the Superintendent's reasons with the district

clerk no later than 7 days before the board meeting.

E. Teacher Last Day

The teacher's services are discontinued no less than 30 days after the board meeting.

However, they are still expected to finish out the school year if the 30 days ends on or

before June 30. The Board must pass a resolution terminating the teacher’s services

with an effective date no less than 30 days after the board meeting but usually at the

end of the school year. If this 30 days spills into the summer, the teacher is not paid

during that time as long as proper notices are given. A teacher must be notified after

the date of the board meeting, specifying the teacher’s termination date which will

take effective 30 days after Board action. If the district misses the 30 days’ notice,

the teacher would not be reinstated but be paid for the number of days of missed

notice even if the days occur over the summer. [Vetter v. Ravena-Coeymans-Selkirk

CSD, 14 NY3d 729 (2010)]. Payments for days of missed notice are not offset by

earnings or unemployment benefits [Matter of Pascal v. Board of Educ. NY City

School Dist., 100 AD2d 622 (2d Dept. 1984)].

V. PROCEDURAL CONSIDERATIONS

A. Counting Days Use calendar days to calculate the time lines, excluding legal holidays.

B. Board Hearing

7 Sample reasons attached on pages 26-29.




lawsuit. [New Paltz Central School District v. Donaldson, [41 AD3d 1138 (3d Dept. 2007)]. See footnote 3 (New

Paltz Central School District v. Donaldson) (Tenure denied after sexual harassment complaint).

9

No right for probationer to have a Board "hearing" arguing he/she should be granted

tenure or services not to be terminated, unless Collective Bargaining Agreement or

practice provides otherwise.

C. Board Vote Grant tenure by majority vote of the board. Board cannot grant tenure without

Superintendent's recommendation.

D. Tenure by Estoppel Tenure by estoppel arises where Board fails to grant or deny tenure and knowingly

allows teacher to continue teaching.

E. JUUL Agreements JUUL agreement may be entered into to extend probationary period for multiple years

but typically for one year at a time for teachers and teaching assistants only.

F. Effective Date of Tenure Tenure is effective on the date designated in the board resolution, NOT on the date of

the board meeting where the board acted to grant tenure.

G. Collective Bargaining Agreements Collective Bargaining Agreements may require additional or other notice time frames

in addition to the 60 and 30-day notices as provided in the law. As a result, be sure to

review the Collective Bargaining Agreement.

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SAMPLE LETTER TO TEACHER/TEACHING ASSISTANT/ADMINISTRATOR

RECOMMENDING GRANTING OF TENURE

NOTE: This letter should be received at least thirty (30) days prior to the board meeting.

(Date)

(Name)

(Address)

(City, State, Zip)

RE: Recommendation Tenure Be Granted

Dear (Teacher/Teaching Assistant/Administrator’s Name),

This is to inform you that I will be recommending to the Board of Education at its (Date)

meeting that you be granted tenure.

Very truly yours,

(Name)

Superintendent of Schools

(Name) Central School District

cc: Personnel File

11

SAMPLE RESOLUTION – TENURE APPOINTMENT

NOTE: A number of board agendas contain the blanket resolution instead of this one to accept

the following personnel matters and then just list the names of the teachers whose services are to

be discontinued.

Moved by (name) and seconded by (name) that, upon the recommendation of the

Superintendent, (teacher’s name)* who is (provisionally/initially or permanently/professionally)

certified in the (name of certification areas taken directly from a copy of the certification

document) area, is hereby appointed to a tenured position in the (tenure area –See 8 NYCRR Part

30-1) tenure area effective on (insert date on Board Resolution not date Board acted).

*If a Teaching Assistant or Administrator, change verbiage as appropriate

12

SAMPLE LETTER – LETTER TO TEACHER/TEACHING

ASSISTANT/ADMINISTRATOR AFTER APPOINTMENT TO TENURE

NOTE: For use with Tenure Resolution

(Date)

(Name)

(Address)

(City, State, Zip)

RE: Tenure Appointment

Dear (Teacher/Teaching Assistant/Administrator’s Name):

At the (date) meeting of the Board of Education, upon recommendation of the

Superintendent, you were appointed to a tenured position in the (see Part 30 of Commissioner

Regulations for a list of tenure areas) tenure area. Your tenure appointment is effective on (insert

date on Board Resolution not date board acted).

Very truly yours,

(Name)



cc: Personnel file

13

SAMPLE LETTER – LETTER TO TEACHER/TEACHING

ASSISTANT/ADMINISTRATOR DENYING TENURE AT THE END OF THE

PROBATIONARY APPOINTMENT

NOTE: This letter should either be hand delivered with a witness or sent certified mail return

receipt requested. This letter must be received by the teacher/teaching assistant/administrator at

least 30 days prior to the Board meeting at which the Superintendent’s recommendation is to be

considered and at least 60 days prior to the expiration of the probationary period. The letter must

include a copy of New York State Education Law § 3031.

(Date)

(Name)

(Address)

(City, State, Zip)

RE: Tenure Not to be Granted

Termination of Employment


This letter is to notify you, pursuant to New York State Education Law §§ 3031 and 3012 (3014

for BOCES’ teachers) that I will not recommend to the Board of Education that you be granted

tenure. The Board of Education will be notified and will review my recommendation that you

not be granted tenure at its regular meeting on (date). Your employment as a probationary

teacher/teaching assistant/administrator would terminate effective (date 30 days after date of

board meeting).

Enclosed for your reference is a copy of Section 3031 of the New York State Education Law.

Very truly yours,

(Name)



cc: Personnel File

Enc.: New York State Education Law § 3031

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REPLY TO A PROBATIONARY TEACHER’S REQUEST FOR REASONS PURSUANT

TO EDUCATION LAW § 3031 -- When the Superintendent does not recommend tenure at the

end of the probationary period

NOTE: Letter must be sent by the District Clerk within 7 days of teacher request.

(Date)

(Name)

(Address)

(City, State, Zip)

RE: Request for Reasons for Denial of Tenure


In your (date) letter you requested the reasons why I did not recommend you be granted tenure.

The following reasons are provided to you pursuant to Education Law § 3031:

(Refer to sample reasons on pages 26-29.)

Based upon the above reason[s], the Board of Education will act on (date) to deny you tenure.

Therefore, your probationary period will expire on (date) and your employment with the district

will effectively terminate on (date).

Very truly yours,

(Name)



cc: Personnel File

15

SAMPLE RESOLUTION TO DENY TENURE



be discontinued.

BE IT HEREBY RESOLVED, that the Board of Education of the (Name) School

District denies tenure to (Name), since (Name) was not recommended by the Superintendent for

tenure in the position of (Title) in the (Tenure Area), and, as a result, the services of (Name) as

(Title) will be discontinued and terminate effective (date 30 days from the date of the board

meeting).

16

SAMPLE LETTER – DENIAL OF TENURE AFTER BOARD MEETING

(Date)

(Name)

(Address)

(City, State, Zip)

RE: Denial of Tenure and Services Discontinued


This is to inform you that at the Board of Education meeting on (Date), the Superintendent did

not recommend you for tenure. As a result the board took this action and your services as a

(Title) will terminate, effective (date 30 days after date of board meeting).

Very truly yours,

(Name)



cc: Personnel File

17

SAMPLE RESOLUTION FOR ADVISORY VOTE TO REJECT SUPERINTENDENT’S

RECOMMENDATION TO GRANT TENURE (1ST

BOARD MEETING)



be discontinued.

BE IT HEREBY RESOLVED that the Board of Education of the (Name) Central

School District rejects the Superintendent’s recommendation to grant tenure to

(Teacher/Teaching Assistant/Administrator’s Name) in the (Title). Such vote is advisory and the

board will reconsider and take action at its (date of next board meeting at least 30 days from the

date of that board meeting) board meeting.

18

SAMPLE LETTER – LETTER TO PROBATIONARY TEACHER/TEACHING

ASSISTANT/ADMINISTRATOR WHEN THE BOARD OF EDUCATION REJECTS

THE SUPERINTENDENT’S RECOMMENDATION TO GRANT TENURE

NOTE: Letter must be sent by the District Clerk or President of the Board of Education 30 days

prior to the date of the meeting. A copy of New York State Education Law § 3031 must be

enclosed with the letter.

(Date)

(Name)

(Address)

(City, State, Zip)

RE: Notification of the Board’s intention to deny tenure pursuant to New York State

Education Law § 3031(b)

Dear (Teacher/Teaching Assistant/Administrator’s Name):

This is to notify you that the Board of Education rejected the recommendation of the

Superintendent to grant you tenure in (tenure area) at its (date) meeting.

In accordance with New York State Education Law § 3031(b), such vote is advisory. The Board

will take final action on the Superintendent’s recommendation at its (date) meeting.

Enclosed for your reference is a copy of Section 3031 of the New York State Education Law.

Very truly yours,

(Name)

President of the Board of Education


cc: Personnel File

Enc.: Education Law § 3031

19

SAMPLE LETTER – REPLY TO A PROBATIONARY TEACHER/TEACHING

ASSISTANT/ADMINISTRATOR REQUEST FOR REASONS PURSUANT TO

EDUCATION LAW § 3031 – When a Board of Education votes down the Superintendent’s

recommendation that a probationary teacher be granted tenure.

NOTE: Your reasons must be generated in accordance with each particular circumstance. These

aforementioned reasons on pages 26-29 were found acceptable by either the Commissioner or

Courts.

(Date)

(Name)

(Address)

(City, State, Zip)

RE: Request for Reasons for Denial of Tenure

Dear __________:

In your (date) letter you requested reasons for the Board of Education’s action which rejected the

recommendation of the Superintendent of Schools that you be granted tenure. Pursuant to

Education Law § 3031, the Board’s response to your request is as follows:

(Refer to reasons on pages 26-29)

Based upon the above reason[s], the Board of Education will act on (date) to reject the

recommendation that you be granted tenure. Final action to deny you tenure will be taken at the

Board of Education meeting to be held on (date).

Very truly yours,

(Name), President

Board of Education


OR

(Name), Superintendent of Schools


cc: Personnel File

20

SAMPLE RESOLUTION TO REJECT SUPERINTENDENT’S RECOMMENDATION

TO GRANT TENURE (2ND

BOARD MEETING)



be discontinued.

BE IT HEREBY RESOLVED that the Board of Education of the (Name) Central

School District rejects the Superintendent's recommendation that (Name) be granted tenure and

hereby denies tenure to (Name) as (Title) and, as a result, (Name) services will be discontinued

and terminated as (Title), effective (30 days from the date of the board meeting).

21

SAMPLE LETTER – DISCONTINUANCE OF A PROBATIONARY

TEACHER/TEACHING ASSISTANT/ADMINISTRATOR’S EMPLOYMENT PRIOR

TO THE COMPLETION OF THE PROBATIONARY PERIOD

NOTE: This letter should either be hand delivered with a witness or sent certified mail return

receipt requested.

NOTE: This letter must be received by the teacher at least 30 days prior to the Board meeting at

which the Superintendent’s recommendation is to be considered. Pursuant to Education Law §

3019(a), the effective date of the discontinuance of services must be at least 30 days after the

Board of Education acts, and the teacher must be notified of the Board’s action to discontinue

services.

(Date)

(Name)

(Address)

(City, State, Zip)

RE: Probationary Services Discontinued

Dear (Name),

This is to notify you, pursuant to State Education Law § 3031, that I will be recommending to the

(Name) School Board of Education that your services as a probationary teacher/teaching

assistant/administrator of (tenure area) in the (Name) School District to be discontinued effective

(date). The Board of Education will act on this recommendation at its meeting on (date). New

York State Education Law § 3031 outlining your rights is enclosed for your review.*

Very truly yours,

(Name)



cc: Personnel file

Enc.

*See next page

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TEACHERS AND ADMINISTRATORS § 3031 ENCLOSURE

§ 3031. Procedure when tenure not to be granted at conclusion of probationary period or

when services to be discontinued

Notwithstanding any other provision of this chapter and except in cities having a population of

one million or more:

(a) boards of education, trustees of common school districts and boards of cooperative

educational services shall review all recommendations not to appoint a person on tenure, and,

teachers employed on probation by any school district or by any board of cooperative

educational services, as to whom a recommendation is to be made that appointment on tenure not

be granted or that their services be discontinued shall, at least thirty days prior to the board

meeting at which such recommendation is to be considered, be notified of such intended

recommendation and the date of the board meeting at which it is to be considered. Such teacher

may, not later than twenty-one days prior to such meeting, request in writing that he is furnished

with a written statement giving the reasons for such recommendation and within seven days

thereafter such written statement shall be furnished. Such teacher may file a written response to

such statement with the district clerk not later than seven days prior to the date of the board

meeting.

(b) Where a board of education, trustees of a common school district, or board of cooperative

educational services votes to reject the recommendation of a superintendent of schools, district

superintendent or district principal to grant tenure to any teacher employed on probation, such

vote shall be considered advisory and at least thirty days prior to the board meeting at which

such recommendation is to be finally considered, the board shall notify said teacher of its

intention to deny tenure and the date of the board meeting at which it will take final action. Such

teacher may, not later than twenty-one days prior to such meeting, request in writing that he is

furnished with a written statement giving the board’s reasons for such intended action and within

seven days thereafter such written statement should be furnished. Such teacher may file a

written response to such statement with the district clerk not later than seven days prior to the

date of the board meeting.

(c) This section shall not be construed as modifying existing law with respect to the right of

probationary teachers or the powers and duties of boards of education, trustees of common

school districts or boards of cooperative educational services, with respect to the discontinuance

of services of teachers or appointments on tenure of teachers.

Added L.1972, c.866, § 1; amended L.1976, c.493,§ 1; L.1980, c.442 § 4; L. 1985, c. 232, § 1; L.

1993, c. 691, § 1.

23

SAMPLE LETTER – REPLY TO A PROBATIONARY TEACHER/TEACHING

ASSISTANT/ADMINISTRATOR’S REQUEST FOR REASONS PURSUANT TO

EDUCATION LAW § 3031 -- When the Superintendent recommends a probationary

teacher/teaching assistant/administrator’s dismissal prior to the end of the probationary period

NOTE: Your reasons must be generated in accordance with each particular circumstance. These

aforementioned reasons on pages 26-29 were found acceptable by either the Commissioner or

Courts

(Date)

(Name)

(Address)

(City, State, Zip)

RE: Request for Reasons for Dismissal

Dear (Name):

In your (date) letter you requested the reasons why I recommended your probationary period be

terminated. The following reasons are provided to you pursuant to Education Law § 3031:

(Refer to the reasons listed on pages 26-29)

Based upon the above reason[s], the Board of Education will act on (date) to terminate your

probationary period. Your appointment and employment as a probationary teacher will terminate

effective (date).

Very truly yours,

(Name), President

Board of Education


cc: Personnel File

24

SAMPLE RESOLUTION TO DISCONTINUE THE SERVICES OF A PROBATIONARY

TEACHER/TEACHING ASSISTANT/ADMINISTRATOR



be discontinued.

BE IT HEREBY RESOLVED that upon the recommendation of the Superintendent,

the services of (Name), as a probationary (Title) in the tenure area of (Name of Area) be hereby

discontinued and services terminated, effective (Date 30 days from the date of the board

meeting).

25

SAMPLE LETTER – DISCONTINUING PROBATIONARY TEACHER/TEACHING

ASSISTANT/ADMINISTRATOR’S SERVICES AFTER BOARD MEETING

Via Certified Mail and/or Personal Delivery with Affidavit of Service

(Date)

(Name)

(Address)

(City, State, Zip)

RE: Services Discontinued

Dear (Name),

This is to inform you that at the Board of Education meeting on (Date), the board voted to

terminate your services as a probationary (Title), effective (30 days after date of board meeting).

Very truly yours,

(Name)



cc: Personnel File

26

SAMPLE REASONS FOR DENIAL OF TENURE OR DISCONTINUING SERVICES

The following is a list of reasons the Commissioner has found valid for tenure denial or

discontinuing service. These reasons for tenure denial were valid prior to the enactment of

Education Law § 3012-c. A district’s APPR plan may incorporate some of these reasons as

“standards” thus making them part of the significant factor for tenure determinations. A district

can still terminate a teacher for reasons other than those contained within the new APPR law

such as possession or use of drugs at school, or student contact, etc., where those actions are not

related to instructional performance:

1. Teacher refused to discuss assignment of grades with school administration.

2. Teacher did not properly and adequately plan his/her classroom work and classroom

presentation and, as a result, his/her conduct and attitude evidenced a lack of concern for the

school.

3. Ineffective or insufficient classroom management.

4. Inappropriate use of instructional materials.

5. Inadequate teaching skills.

6. Teaching techniques directionless in terms of goals and objectives that students can

understand.

7. Did not demonstrate an ability to establish and maintain effective rapport with students.

8. Did not demonstrate minimum satisfactory ability in the planning and organization of the

guidance department program.

9. Did not attend to guidance functions on a timely basis.

10. Insufficient class control.

11. Inflexibility and rigidity in pupil interactions.

12. Inability to deal with pupils – argumentative attitude.

13. Inadequate lesson planning.

14. Lack of cohesion in classroom presentation.

15. Inefficient use of class time.

16. Failure to act on the recommendation of the building principal.

27


(CONTINUED)

17. Arriving late to school on a daily basis.

18. Ineffective student discipline.

19. Failed to present a satisfactory health certificate from a physician (MD) approved by the

Board pursuant to Article _____ Paragraph _____ of the Agreement between the Teachers’

Association and the Central School District.

20. Failed to demonstrate satisfactory supervision of the classroom for leaving pupils unattended

on occasion.

21. Failed to demonstrate a proper professional appearance and image, which is especially

important for a teacher of .

22. Demonstrated unprofessional conduct at the in-service program held (Date) by continuously

engaging in conversation during the course of the presentation.

23. Demonstrated an unsatisfactory ability to work cooperatively with fellow faculty and staff in

the organization of District-related activities.

24. Ineffective student record keeping.

25. Insensitive to student needs.

26. Inability to motivate students.

27. Failure to perform duty assignments satisfactorily.

28. Unsuccessful in assignment as a teacher of the visually impaired.

29. Formal reviews were mixed with regard to classroom management skills.

30. Unable to work cooperatively with faculty and staff.

31. Failure to properly manage the classroom environment.

32. Failure to work cooperatively with a special education aide.

33. Failure to adequately supervise students.

34. Failure to adequately address improper student behavior.

28


(CONTINUED)

35. Taking a student on a “walking trip” in the schools’ neighborhood in violation of a recently

issued directive from school administration prohibiting such trips.

36. Inadequate contact with students, including counseling.

37. Failure to timely provide information needed to complete students’ schedules.

38. Unfamiliarity with the district’s (name of program).

39. Inability to describe next year’s schedule at a Committee on Special Education (CSE)

meeting.

40. Lack of awareness of responsibilities relating to a collaborative grant.

41. Inability to provide requested information on a CSE meeting.

42. Alleged excessive use of sick and personal days.

43. A pattern of absences occurring on days surrounding weekends and holidays.

44. Poor planning.

45. Excessive use of independent study.

46. Inability to control the class.

47. Faulty grammar.

48. Leaving students unsupervised.

49. Inability to relate to students and staff.

50. Ineffective communication with parents.

51. Inappropriate guidance for students.

29

SAMPLE REASONS THAT ARE NOT SUFFICIENTLY SPECIFIC TO DENY TENURE

OR DISCONTINUE SERVICES

1. Failed to incorporate administrative suggestions into instruction.

2. Attained the status of superior teachers but has not demonstrated superior teaching ability.

3. Over-all performance has not been up to the level of expectancy of the school.

30

SAMPLE JUUL AGREEMENT

NOTE: The Board must pass a resolution accepting the agreement, see page 32.

We recommend that the Board should ratify the agreement due to the following court

case: The JUUL agreement was never presented to nor ratified by the school board. At the end

of the teacher’s fourth year, the teacher was notified that she again would not be recommended

for tenure and that her appointment as a probationary teacher would end that year. The teacher

commenced an action seeking reinstatement as an employee/teacher with the district with tenure,

plus a judgment declaring that she has tenure with the district. The court determined that a

JUUL agreement that has not been approved by a school board is impermissible. However, in

this case the court also concluded that the teacher was blocked from denying she had waived her

right to tenure despite the school board’s failure to authorize or ratify the agreement. [Matter of

Marshall v. Pittsford Cent. Sch. Dist., 100 AD3d 1498 (4th

Dept. 2012)]

Agreement made between (Teacher’s Name) and the (Name of School), (Superintendent

of Schools) and (Teachers' Association).

Recitals

1. The Teacher is a probationary teacher in the (Name of School) School District.

2. The Teacher’s probationary period will end on (Date).

3. The Superintendent has informed the Teacher that the Teacher will not be recommended

for tenure at the termination of the probationary period.

4. The parties understand that this will result in the termination of the Teacher from

employment.

5. The Superintendent has informed the Teacher that (he/she) would be willing to

recommend an extension of the probationary period for a one-year term.

6. The Teacher is in the bargaining unit represented by the Association and subject to the

negotiated agreement between the (Name of School) School District and the Teachers’

Association.

The parties, in consideration of the above Recitals, agree as follows:

1. The Teacher acknowledges that (his/her) initial probationary period will terminate on

(Date), and further understands that (he/she) will not be recommended for tenure at this time.

2. The Teacher hereby agrees to a one-year extension of (his/her) probationary period from

(Date) to (Date).

3. The Teacher waives any right to claim status as a tenured teacher.

31

4. The Teacher agrees that (he/she) will waive any right to claim tenure by estoppel or

acquiescence as a result of this extension.

5. The parties agree that no provision of the New York State Education Law nor any

provision of the negotiated agreement between the Association and the District compels

additional or extension time beyond the agreed time frame in paragraph #2 above.

6. The Teacher agrees that New York State Education Law § 3031, will govern any and all

dismissal procedures at the end of this extended probationary period.

7. The parties agree that all remaining rights and benefits of the Teachers Association

contract will remain in full force and effect for the Teacher during the period of the extension

with the exception of the waiver as noted in paragraphs #4 and #5 above.

8. The Teacher has been given the opportunity to consult with the Association or any

private counsel (he/she) may have chosen.

9. The Teacher acknowledges and agrees that the extension of this probationary period is

made with full knowledge of (his/her) rights and that this Agreement is made knowingly and

freely.

10. The Teacher further agrees that this Agreement is being entered into without any

coercion on the part of the District for (him/her) to do so.

11. The Teacher further acknowledges and agrees that the fact of the extension of the

probationary period does not contain any guarantee of the granting of tenure at the end of said

extension.

12. The Teacher understands that upon conclusion of the one-year extension the Board of

Education may either grant or deny tenure with the same consequences as if it took place

(Date).

13. The parties understand and agree that the terms of this document are subject to the

approval by the Board of Education of the (Name of School) School District to the granting of

this extension.

14. The parties agree that this Agreement shall not constitute a custom, precedent or practice

and shall not be used, nor shall there be testimony thereto, in any administrative or legal forum

except in regard to its enforcement.

By:

Teachers Association Date

By:

Superintendent Date

By:

Teacher Date

32

SAMPLE RESOLUTION – EXTENSION OF PROBATIONARY PERIOD (JUUL

AGREEMENT)

BE IT HEREBY RESOLVED upon the recommendation of the Superintendent, the

Board hereby accepts the terms of and authorizes the Superintendent to execute a memorandum

of agreement among the District, the (Name of Association) and (teacher’s name) providing for

the extension of the probationary appointment of (teacher’s name) in the (name of tenure area)

tenure area through (date).

APPENDIX A

TIMELINE FOR TENURE DENIAL OR DISCONTINUING

SERVICES PRIOR TO THE END OF THE

PROBATIONARY PERIOD

4/1 4/19 (A) 5/18 (B) 5/30 (C) 6/6 (D) 6/13 (E) 6/20 (F) 6/30 (G) 7/31 (H) Good working

knowledge of

recommendation

to grant/deny

tenure.

Notice to

probationary teacher

not recommending

tenure.

(Not later than 60

days before

expiration of

probationary period)

Notice to teacher at

6/20 meeting that

board will consider

discontinuing

services. (30 days)

Teacher

submits

written request

for statement

of reasons no

later than 21

days before

board meeting.

Superintendent's

response to

teacher's request

within 7 days of

letter.

Teacher files

response with

board no later

than 7 days

before board

meeting.

Board meeting

where tenure

denied or

services

discontinued.

Send notice

ASAP.

Expiration of

probationary

period.

Effective date

of

discontinuance

of services

notice letter to

teacher of

discontinuing

services not

less than 30

days, taking

July 4 into

consideration.

60 days (A)

30 days (B) 30 days (H)

21 days (C)

7 days (D) 7 days (E)

Note: Sound practice dictates to account for exigent circumstances that any notice the district provides is well beyond the minimum statutory time limit. Thus, even though in

B, above, the district must send a letter 30 days prior to the board meeting, sending the letter 34-35 days prior is better practice. All dates take into consideration the

exclusion of Memorial Day and July 4 holidays.

Key: The alphanumeric letters correspond to the calendar on the succeeding page.

APPENDIX A

April 2017

Mon. Tues. Wed. Thurs. Fri. Sat. Sun.

1 2

3 4 5 6 7 8 9

10 11 12 13 14 15 16

17 18 19A 20 21 22 23

24 25 26 27 28 29 30

May 2017


1 2 3 4 5 6 7

8 9 10 11 12 13 14

15 16 17 18B 19 20 21

22 23 24 25 26 27 28

29 30C 31

June 2017


1 2 3 4

5 6D 7 8 9 10 11

12 13E 14 15 16 17 18

19 20F 21 22 23 24 25

26 27 28 29 30G

July 2017


1 2

3 4 5 6 7 8 9

10 11 12 13 14 15 16

17 18 19 20 21 22 23

24 25 26 27 28 29 30

31H

APPENDIX B

TIMELINE TO GRANT TENURE OR BOARD'S

REJECTION OF TENURE RECOMMENDATION 5/19 (A) 6/20 (B) 6/21 (C) 6/30 (D) 7/5 (E) 7/11 (F) 7/18 (G) 7/25 (H) 7/26 (I) 8/25 (J)

Notice to

grant

tenure

(30 days

notice

before

board

meeting)

Board Meeting.

Board rejects

superintendent’s

tenure

recommendation,

advisory decision,

or board grants

tenure. If the

board grants

tenure, tenure is

effective on date

specified in the

board resolution,

not on date board

acted.

If board rejects

tenure

recommendation,

letter to teacher

regarding next

board meeting,

must receive

letter no later than

30 days prior to

the board

meeting, taking

July 4 into

consideration.

Probation

ary period

expires

Teacher’s

last

day to

request

reasons for

denial of

tenure (21

days before

meeting).

Board’s

response

within 7

days of

7/5

letter.

Teacher’s

response no

later than 7

days prior to

the board

meeting.

Next board

meeting

where

Board

meets to

deny

tenure.

Letter to deny

tenure and

discontinue

services

effective after

board meeting

(30 days).

30 days,

effective

date to

discontinue

services.

30 days (A) 30 days (C) 30 days (J)

21 days (D)

7 days (F) 7 days (G)

Note: Sound practice dictates to account for exigent circumstances that any notice the district provides is well beyond the minimum statutory time limit. Thus,

even though in A, above, the district must send a letter 30 days prior to the board meeting, sending the letter 34-35 days prior is better practice. All

dates take into account exclusion of Memorial Day and July 4th

holiday.

Key: The alphanumeric letters correspond to the calendar on the succeeding page.

APPENDIX B

May 2017


1 2 3 4 5 6 7

8 9 10 11 12 13 14

15 16 17 18 19A 20 21

22 23 24 25 26 27 28

29 30 31

June 2017


1 2 3 4

5 6 7 8 9 10 11

12 13 14 15 16 17 18

19 20B 21C 22 23 24 25

26 27 28 29 30D

July 2017


1 2

3 4 5E 6 7 8 9

10 11F 12 13 14 15 16

17 18G 19 20 21 22 23

24 25H 26I 27 28 29 30

31

August 2017


1 2 3 4 5 6

7 8 9 10 11 12 13

14 15 16 17 18 19 20

21 22 23 24 25J 26 27

28 29 30 31

GRANTING AND DENYING TENURE AND … tenure packet.pdf · Reply to Probationary Teacher's Request...

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Transcript of GRANTING AND DENYING TENURE AND … tenure packet.pdf · Reply to Probationary Teacher's Request...