A July 7, 2022 Commissioner decision makes clear that if a probationary teacher requests a statement of reasons for termination, the school district/BOCES must provide specific, detailed reasons. Providing less will not be legally compliant.
Any school district or BOCES that will consider a recommendation to terminate a teacher or administrator’s probationary period must notify the teacher/administrator at least 30 days in advance of the board meeting when the termination recommendation will be considered. (NYS Education Law § 3031) The effective date of such termination must be at least 30 days following the date the board acts on such recommendation. (NYS Education Law Section § 3019-a)
Once the teacher/administrator receives notice of the meeting when the board will consider the recommendation to terminate employment, not later than 21 days prior to such meeting, (s)he may request (in writing) a written statement of reasons for the recommendation. Within seven days of the request, the district/BOCES must furnish a statement of reasons. The teacher/administrator may respond (in writing) not later than seven days before the board meeting when the board will act on the recommendation to terminate employment.
In Appeal of Rickson, Decision No.18,147 (2022), the Commissioner zeroed in on the required statement of reasons given by the BOCES. There, the BOCES district superintendent notified a teacher in February 2022 of her intent to recommend, at the March 21, 2022 meeting, that the board of education discontinue the teacher’s probationary service, effective April 21, 2022. The teacher requested a written statement of reasons for the termination. The district superintendent provided one. The reasons given were: (1) use of controversial materials that had no valid curricular purpose; (2) failure to utilize approved curriculum for instruction; and (3) use of BOCES resources to promote misinformation. The board of education approved the teacher’s termination at its March 21, 2022 meeting.
Following termination, the teacher appealed to the Commissioner of Education. She alleged, among other claims, that she was wrongfully terminated because she exercised her First Amendment rights and because she engaged in protected union activity. She asked the Commissioner to reverse her termination and reinstate her with back pay and access to accrued leave time.
BOCES denied the teacher’s contentions and asserted that it terminated the teacher’s employment for legitimate, non-discriminatory reasons.
Unfortunately, the Commissioner found BOCES’ statement of reasons “too vague” to allow the teacher to ascertain whether any of the reasons were constitutionally or statutorily impermissible. The Commissioner held that without providing any dates or specific details, BOCES deprived the teacher of her ability to argue that her conduct was protected by the United States or New York Constitutions.
The Commissioner remanded the matter to BOCES with a direction that the superintendent resubmit the statement of reasons containing appropriate specifics within seven days. If such reasons were subsequently determined to be unlawful or not accepted by the board, per the Commissioner, the teacher would be entitled to back pay and benefits from the date of dismissal.
This ruling is significant. The Commissioner did not defer to the broad judgment of the BOCES as employer. Instead, she took very seriously the due process provided through a statement of reasons and gave it significant weight. School districts and BOCES should take particular note.
Key Takeaways and Practice Pointers
- Take Care and Document: Taking the time to adequately document performance deficiencies and/or behavioral concerns in violation of policies, the code of conduct and directives throughout the probationary period will best position the superintendent/district to issue a statement of reasons containing the required dates and specific details, if requested by the probationer upon notice of a recommended termination of employment.
- Remember Legal Rights: While the services of a probationary teacher or administrator may be discontinued at any time and for any reason during the probationary period, unless the teacher or administrator demonstrates a constitutionally impermissible purpose, legal violation or bad faith, the absence of well-documented and/or specified performance deficiencies and/or behavioral concerns may result in a question of fact regarding whether the dismissal was lawful and based on legitimate business reasons or whether such alleged reasons are a pretext for unlawful conduct.
- Articulate and Be Specific: A lack of adequate documentation or specificity in a statement of reasons provided to the probationer may result in adverse consequences, such as a sustained appeal by the Commissioner of Education and/or a probable cause determination by the New York State Division of Human Rights (meaning the case moves forward to a hearing), in a case alleging discrimination or retaliation. Do not be left with a lack of documentation or specificity when it comes time to recommend a probationer be terminated.
Please contact Sara Visingard or the attorney with whom you typically work for related questions or guidance.
This alert is not a substitute for advice of counsel on specific legal issues.
Harris Beach has offices throughout New York state, including Albany, Buffalo, Ithaca, New York City, Rochester, Saratoga Springs, Syracuse, Uniondale and White Plains, as well as Washington D.C., New Haven, Connecticut and Newark, New Jersey.