In Averbach v. Board of Education of the New Paltz Central School District, 147 A.D.2d 152 (1989) an Assistant Superintendent for Business was appointed to a probationary term of employment pursuant to Education Law Section 3012(1)(b) under a three year written contract. The appointee was discharged prior to expiration of the contract term without being afforded the agreed upon due process rights. The Appellate Division held that the principle that the board of education could legally agree to augment evaluation procedures and even to limit or to forego its right to discharge the appointee during the probation period applied to individual negotiations as well as agreements negotiated by a collective bargaining unit because: (1) the proscription against fixed terms of employment, Education Law Section 3012(1)(b), did not bar agreements as to the terms and conditions of employment; (2) the board of education failed to identify any specific statutory provision that circumscribed its power to agree to additional due process rights; and (3) the contract did not impermissibly bind successor boards because it was not durational, permitted the discharge of the appointee during the probationary period, and did not impair a successor board’s right to discharge the appointee thereafter.
Since this decision there has been great interest in contracts for school business officials. There has also been a great deal of misinterpretation and misunderstanding of that case – – misunderstanding not only on the part of business officials, but also on the part of school boards and superintendents. The law relating to the right of a school business official to have a contract of employment has as many facets as there are differences in the way the school business official jobs are classified and filled.
The assistant superintendent’s position described in Averbach v. New Paltz Board of Education is only one of several types of positions or job classifications that school business officials hold. The rights of the person holding a school district administrator’s certificate and given a probationary appointment as a school district administrator are not the same as those of a Civil Service employee.
Averbach was a case involving an Assistant Superintendent for Business who had a three year probationary appointment enhanced by a contract that provided procedural safeguards during the probationary period. The Court stated that contracts were not prohibited and then stated in substance that while there could not be a contract that fixes the duration of employment, it was proper to have a contract that fixes the terms and conditions of employment, indeed a critical distinction. There are several types of business office personnel affected by the Averbach decision.
One set of circumstances is a contract that covers a probationary period which is not durational but rather lasts for the period prescribed by the Education Law. The word “durational” has a particular meaning in the Court’s opinion and in our view that is a critical word in this area.
A second contract would be for a tenured employee. Could the contract be for a stated term? Yes, as far as benefits granted during and after employment are concerned but a contract for the duration of employment which sets forth how long the employee will be employed is of no effect since the employee already has tenure. Thus, the contract could provide for fifty days of vacation a year for two years or four years, but it would not provide when the employment ends – – except the contract might provide for a due process hearing prior to termination. Without a contract the tenured employee has the job for as long as there is a job and the employee can only be terminated by a Section 3020-a proceeding.
A third employee is a civil service probationary employee – – this person could be treated the same as in Averbach but the probationary period is very short for civil service. The employer cannot give up the right to terminate the employee at the end of the probationary period. Thus, the contract is rather meaningless because of the short duration. Would an employer give such a meaningless contract? Probably not, and trying to get such a contract might well be a sure way not to get the job in the first place.
The fourth employee is a civil service permanent employee. This person usually has the benefit of being in the competitive class of the classified service and has the protection provided by Section 75 of the Civil Service Law. The contract can provide benefits for a fixed period such as pay and leave and provide due process prior to termination, but much of those benefits are already built into Civil Service Law provisions and its accompanying regulations.
A fifth employee is the public officer such as the District Treasurer. This person is appointed by the Board of Education and serves at the pleasure of the Board of Education. This person cannot be appointed for more than the length of office of the appointing Board which means one year. It is a statutory position and there are decisions which hold that the public interest prevents giving such persons appointments for longer than the period of time of the appointing Board. Harrison Central School v. Nyquist, 59 A.D.2d 434 (1977); Lake v. Binghamton Housing Authority, 130 A.D.2d 913 (1987). In Lake the Court upheld the employee’s benefits contained in the agreement including a termination benefit, Lake, at p. 914.
While the length of employment is critical, the benefits and terms of employment are the most critical elements of a contract.
Terms and benefits probably can be negotiated and can be obtained, but unless you have tenure, these benefits can end rather quickly. A contract will do very little to help the Civil Service probationary employee, the provisional employee or the District Treasurer.
A model contract has been developed as an example of a contract that could be negotiated and is on the New York State Association of School Business Officials (NYSASBO) web site. It was assembled from an assortment of documents. Each person has priorities when it comes to negotiating employment benefits. Not all of the items that you might want are included in this document, and there are some items that may have no value to you – – or at least not enough value to be worth negotiating.
The most critical elements of any contract should include:
– Salary, with annual raises;
– Annual evaluations;
– Job duty description;
– Health insurance coverage for either individual, two person or family;
– Health insurance in retirement for the business official and spouse;
– Annual vacation day allotment;
– Annual sick day allotment;
– The right, upon separation from service to be paid accumulated (accrued) sick and vacation time; and
– Adequate notification in the event of position abolition or office reorganization.
Authored By: William F. Ryan, Jr., Esq.
