Say what?
Do you really believe that after the DOE gets you to resign or you voluntarily resign, they will welcome you back and return your hard-earned tenure to you?
I have a bridge to sell you.
If you resign and decide to come back so that you can get a tenured position, I believe your chances of getting to this goal is zero. The NYC DOE is currently spending too much money and time to throw tenured pedagogues out.
However, I guess there will be a few lucky ones who know where to pass the buck.....
Betsy Combier
betsy.combier@gmail.com
Editor, NYC Rubber Room Reporter
Editor, Parentadvocates.org
Editor, New York Court Corruption
Editor, National Public Voice
Editor, The NYC Public Voice
Is a tenured teacher who resigns from teaching and then subsequently applies and is hired to teach at another school automatically entitled to tenure in the new position?by edlawfaqs |
No. Chancellor's Regulation C205 provides that a tenured teacher who resigns "remain[s ] tenured," but requires the teacher to first submit a written request to withdraw his or her resignation, subject to a medical examination and the approval of the Chancellor.
The petitioner, a culinary arts teacher attained tenure in his license area and then resigned from the DOE to pursue a professional culinary career. Within 5 years he applied for and obtained a position in the same license area at a different school.
His principal advised him that he did not have tenure and upon further inquiry and consultation with a UFT representative filed a formal written request to withdraw his resignation. After the DOE insisted that he still did not have tenure because he never filed a timely request to withdraw his resignation, he brought a proceeding in Court.
The matter was appealed to the Court of Appeals, our highest state court and his appeal was dismissed.
The Court of Appeals held that a tenured teacher who resigns , and later seeks to return as a tenured teacher, must strictly comply with the regulation and submit a written request to withdraw his or her prior resignation.
2016 NY Slip Op 02553
IN THE M ATTER OF GRANT SPRINGER, Appellant,
v.
BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK, ET AL.,
Respondents.
No.
41.
Court of Appeals of New York.
Decided
April 5, 2016.
Michael J.
DelPiano, for appellant. Devin Slack, for respondents.
Opinion by Chief
Judge DiFiore. Judges Pigott, Rivera, AbdusSalaam, Stein, Fahey and Garcia
concur. DIFIORE, Chief Judge.
The issue presented
on this appeal is whether a tenured school teacher who resigns from teaching, and then subsequently applies and
is hired to teach at another school,
is automatically entitled to tenure
in the new position. Specifically at issue in this determination is paragraph 29 of New York City Board of Education Chancellor's Regulation C205 (C205[29]
or the Regulation).
The Regulation provides that a
tenured teacher who resigns "remain[s]
tenured," but requires the
teacher to first submit a written request to
withdraw his or her
resignation, subject to
a medical examination and the approval of the Chancellor. We hold that a tenured
teacher who resigns, and later seeks to
return as a tenured teacher, must strictly
comply with the regulation and submit a written request to withdraw
his or her prior resignation.
I.
Petitioner was
employed as a teacher in the catering license area at M288 — Food and Finance
High School, located in Community School District No. 2 in Manhattan, beginning
in September 2001. In January 2011, after achieving tenure, petitioner
voluntarily resigned to pursue a career as a corporate chef. He had never been
the subject of formal disciplinary charges nor had he ever received an annual
rating of "unsatisfactory" prior to his resignation. Several months
later, petitioner decided to return to teaching. After a stint as a substitute
teacher, petitioner applied for fulltime teaching positions in the summer of
2011.
In October 2011,
petitioner was hired as a teacher in the catering license area at M415 —
Wadleigh Secondary School for the Performing and Visual Arts (Wadleigh),
located in Community School District No. 3 in Manhattan. He was hired under his
prior license and file number and at the same salary he received at the time of
his resignation. Herma Hall, the principal of Wadleigh who hired petitioner,
knew that he had resigned with tenure in January 2011.
During the 20112012 school year,
Hall was replaced by a new principal, Tyee Chin.
In April 2012, Chin informed petitioner that he
believed petitioner did not have tenure. At that time, six months
after his reinstatement, upon the
advice of his union representative,
petitioner submitted a form to withdraw
his resignation. Respondents told
petitioner that the form would not be processed
because it was submitted too late. In May 2012, petitioner received a rating of
"unsatisfactory" for the 20112012 school
year. As a result, petitioner was terminated effective June 22, 2012. Prior to his termination, petitioner was not served with disciplinary
charges in accordance with the procedures for removing a tenured teacher set forth in
Education Law § 3020a.
Petitioner never
filed a grievance or other administrative
proceeding related to the
events detailed above. Instead, in October 2012, petitioner brought this
CPLR article 78 proceeding against respondents.
Petitioner argued that under paragraphs
28 and 29 of Chancellor's Regulation C205, as well as the collective bargaining agreement (CBA) between the Board and the teachers' union, he "was a tenured teacher upon his reappointment" and, therefore,
"[r]espondents' decision to
terminate his employment without just cause and
without following the procedures" in Education Law § 3020a was
unlawful and "arbitrary and capricious,
or an abuse of discretion." Petitioner sought reinstatement
to his teaching position at
Wadleigh and related relief.
Respondents
crossmoved to dismiss the petition, contending, among other things, that the
petition failed to state a cause of action and that petitioner failed to
exhaust his administrative remedies. Supreme Court granted the cross motion,
denied the petition, and dismissed the proceeding, concluding that the petition
was "premature for failure to exhaust administrative remedies."
Petitioner appealed.
The Appellate
Division unanimously affirmed, but on a different ground (121 AD3d 473 [1st
Dept 2014]). The court concluded that "[t]here is no question that
petitioner failed to comply with . . . C205(28) and C205(29), which govern
withdrawal of a resignation and restoration to tenure. Hence, when petitioner
was rehired by a principal, his tenure was not ipso facto restored" (id. at 473474). That same panel granted
the portion of petitioner's subsequent motion seeking leave to appeal to this
Court, certifying the following question of law: "Was the [Appellate
Division] order . . . properly made." We now affirm.
II.
Pursuant to
Education Law § 2590h, the Chancellor has the
authority to promulgate regulations "necessary or convenient" to the
administration of the public school
system (Education Law § 2590h
[16]). Relevant to this appeal, paragraph
28 of Chancellor's Regulation C205, entitled "Withdrawal of Resignation Generally," describes
the general procedure for withdrawing a resignation. Paragraph 29
of Chancellor's Regulation C205, entitled "Withdrawal of Resignation Within Five Years by Tenured Staff," describes the
procedure for the withdrawal of resignation by tenured teachers to
permit them to return to teaching with tenure.
There is no
dispute that petitioner was a tenured teacher upon his resignation in January
2011; the question is whether, upon his hire at a new school in October 2012,
he was reinstated with tenure. C205(29) provides, in relevant part:
"[A]
nonsupervisory pedagogical employee who had attained permanent tenure prior to
the date of resignation shall, remain tenured and, upon written request, be
permitted to withdraw such resignation subject only to medical examination and
the approval of the Chancellor, provided that reinstatement is made on or
before the opening of school in September next following five years after the
effective date of resignation. If reinstatement is made after this date, a two
year probationary period will be required."
By its very
terms, C205(29) provides that a tenured teacher who has resigned may avoid a
probationary term in a new position by submitting a "written request"
to withdraw the prior resignation. That request will be "subject only to
medical examination and the approval of the Chancellor," so long as
reinstatement is made in accordance with the timing requirements set forth in
the Regulation. The CBA between the Board and the teachers' union contains a
parallel provision.
Petitioner argues
that he complied with the requirements of the Regulation when he applied in
writing for various teaching positions. He maintains that when the Board
rehired him in October 2011, within five years of his prior resignation, the
Board effectively accepted the withdrawal of his resignation. Therefore,
petitioner submits that he was a tenured teacher at the time of his termination
in June 2012 and that the Board violated his due process rights by failing to
provide him with the procedural protections required by Education Law § 3020a.
According to respondents,
petitioner ignores the important role
of the written request for withdrawal, most notably the Chancellor's role in the process. By virtue of the written request,
the Chancellor is afforded the opportunity to assess
the teacher's work history and
competence and may reject a request
to withdraw a resignation. Further,
the procedure permits important hiring information
to be conveyed to a hiring
principal, including the fact that the teacher would have full tenure rights in
the teacher's new position.
III.
The tenets of
statutory construction apply equally to administrative rules and
regulations (Matter of CortlandClinton, Inc. v New York State Dept. of Health, 59
AD2d 228, 231 [4th Dept 1977]).
We construe
the Regulation in accordance with its plain language (see Matter
of Raritan Dev. Corp. v Silva,
91 NY2d 98, 107 [1997]). By its plain terms,
C205(29) requires submission of a written request for withdrawal of resignation prior to
a teacher's reinstatement with
tenure. "It is an accepted rule that all parts of a statute are intended to
be given effect and that a
statutory construction which renders one part
meaningless should be avoided" (Rocovich v Consol. Edison
Co., 78 NY2d 509, 515 [1991]).
If, as petitioner argues, postresignation
application and hiring alone
were sufficient to
withdraw a prior resignation, then the language of the regulation requiring "written request . . .
subject only to
medical examination and the approval of the Chancellor," would have no
meaning. C205(29)'s provision that a written request be subject to the
Chancellor's approval gives the Chancellor the opportunity to reject a request
to withdraw a resignation. Under petitioner's theory, the Chancellor's role in
the process is entirely eliminated. Petitioner's interpretation of the
Regulation is not in keeping with its plain language.
Because
petitioner did not withdraw his resignation through the mechanism of a written
request, the requirements of C205(29) were not met and petitioner was not
reinstated with tenure.
This result does
not minimize the public policy interests that have prompted this Court to "construe the tenure system broadly
in favor of the teacher, and to strictly police procedures which might result
in the corruption of that system" (Ricca v Board of Educ. of City School Dist. of City of N.Y., 47
NY2d 385, 391 [1979]; see Matter of Gould v Board of Educ. of Sewanhaka Cent. High School Dist., 81 NY2d 446, 454 [1993]). Nor
does it undermine this Court's recognition
that a tenured teacher has a
"protected property interest
in [his or] her position"
and right to retain that position absent discharge in
accordance with Education Law §
3020a (Gould, 81 NY2d at 451). As we have also
recognized, a teacher may "relinquish [his or] her tenured rights . . . voluntarily by resigning" (id.). C205(29) contains
the procedural requirements for a teacher who
has voluntarily resigned from a tenured teaching position to
be reinstated with tenure.
Petitioner does not challenge
the validity or constitutionality of
the Regulation itself,
but argues only that he complied with the Regulation by submitting applications for jobs and being hired
to a new position. He did not.
Absent a written request to withdraw
his resignation, a request subject to the Chancellor's approval,
petitioner failed to meet
the requirements of C205(29) for reinstatement with tenure.
We do not address
the effect of petitioner's April 2012 written request to withdraw his
resignation, which he submitted six months after he was hired at Wadleigh. Any
argument related to that request is not before the Court in this proceeding.
Accordingly, the
order of the Appellate Division should be affirmed, with costs, and the
certified question not answered as unnecessary.
Order affirmed, with costs, and
certified question not answered upon the ground that it is unnecessary.
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