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Hodgson Russ Victory for Portville District Benefits Schools Across NYS

Attorneys from Hodgson Russ LLP, led by Hugh M. Russ III and Julia M. Hilliker, have secured a victory on behalf of client Portville Central School District at the New York State Court of Appeals. The Court of Appeals is New York State’s highest court.

The decision, which protects the school district’s statutory right to terminate a non-tenured administrator at any point during a statutorily mandated three-year probationary period, constitutes a victory for all districts and school boards state-wide.

The case involved a position for an assistant principal that the district created in 2002, and the appointment of John Consedine for a three-year probationary appointment to the position. Consedine was given a written agreement with the terms and conditions of his appointment. In spring 2003, the district was forced to abolish the position due to budgetary constraints, and Consedine filed suit against the district, claiming that his agreement constituted a contract for a set duration and alleging the district breached the contract by abolishing the position.

The district argued that, pursuant to Education Law § 3012, which states that a probationary employee may be terminated at will at any time during the three-year probationary appointment, the district was prohibited from giving Consedine a contract for a set duration. Consedine responded by alleging the district waived its right to terminate by entering into the written agreement. The district took the position that, even if it could waive its statutory right, the agreement did not expressly state a waiver had occurred, and therefore the district remained free to terminate Consedine at any time.

After New York State Supreme Court ruled in favor of Consedine and the Fourth Department affirmed the decision, the Court of Appeals, on April 7, 2009, reversed the prior decisions and issued a written opinion that clarifies a district's rights in hiring a non-tenured administrator. It is extremely rare for the Court of Appeals to reverse prior decisions. A reversal such as this signals that the case either establishes new or redefines prior New York law.

The Court of Appeals ruled that, while a district can waive its statutory right to terminate a non-tenured administrator at any time during the mandated three-year probationary period, the document at issue between Consedine and the district, which was arguably a contract for a set duration, did not contain a waiver. Without the waiver, the district retained its statutory right under Education Law § 3012 to terminate Consedine at any time.

Russ noted, “This decision has critical implications across New York State for all school districts. Going forward, the court’s holding will need to be considered before any district enters into a contract with a non-tenured administrator.”

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