
    In the Matter of Frances Becker, Appellant, v. Board of Education of Middleburgh Central School District No. 1, of the Towns of Middleburgh, Fulton, Broome, Blenheim and Schoharie, Schoharie County, and Berne, Albany County, Respondent.
    Argued December 1, 1960;
    decided January 19, 1961.
    
      
      F. Walter Bliss and Francis J. Hollotvay for appellant.
    I. There exists no authority by statute or otherwise for the creation and existence of so-called “ tenure areas therefore, appellant’s continued employment by respondent beyond the three-year probationary term in any area of teaching results in petitioner’s acquisition of tenure rights. (Matter of Carter v. Kalamejski, 255 App. Div. 694, 280 N. Y. 803; Walcott v. Fisher, 274 App. Div. 339, 299 N. Y. 688; Matter of Ford, 49 N. Y. St. Dept. Rep. 178; Matter of Downey, 72 N. Y. St. Dept. Rep. 29; Matter of Sanders, 72 N. Y. St. Dept. Rep. 39; Matter of Nyboe v. Allen, 10 Misc 2d 895; Matter of Feldbauer, 65 N. Y. St. Dept. Rep. 68; Matter of Monan v. Board of Educ. of City of Buffalo, 280 App. Div. 14; Matter of O’Connor v. Emerson, 113 Misc. 472, 196 App. Div. 807, 232 N. Y. 561; Moore v. Board of Educ. of City of N. Y., 121 App. Div. 862, 195 N. Y. 614; Boyd v. Collins, 10 A D 2d 584.) II. Appellant has acquired tenure rights through completion of the three-year probationary period from September, 1952 to June, 1955, in the elementary level, coupled with her teaching remedial reading in the elementary level for the school year 1957-1958.
    
      John■ B. Bingham for respondent.
    I. The petition fails to establish that appellant ever was appointed to tenure or ever acquired tenure as a matter of law pursuant to section 3013 of the Education Law. (Matter of Holm v. Board of Educ. of City of Rochester, 260 N. Y. 572; Matter of Downey, 72 N. Y. St. Dept. Rep. 29; Matter of McManus, 64 N. Y. St. Dept. Rep. 99; 
      Matter of Feldbauer, 65 N. Y. St. Dept. Rep. 68.) II. Both the probationary appointment made on March 6, 1952 and the appointment made on July 31, 1957 were properly terminated. III. During all the time in which appellant was employed by respondent, tenure areas were in existence and had been established by the Department of Education of the State of New York in the administration of section 3013 of the Education Law. (Matter of Monan v. Board of Educ. of City of Buffalo, 280 App. Div. 14.) IV. Any proceeding to review acts of respondent should have been commenced within four months after the determination to be reviewed became final. The proceeding herein was not brought within the time limits as prescribed by section 1286 of the Civil Practice Act. (Matter of Holm v. Board of Educ. of City of Rochester, 260 N. Y. 572; Matter of Downey, 72 N. Y. St. Dept. Rep. 29.) V. The actions of the Department of Education in establishing and designating tenure areas or fields of teaching cannot be reviewed in a proceeding brought under section 78 to review the actions of respondent. VI. The Education Department of the State of New York in administering section 3013 of the Education Law had the authority to establish tenure areas of teaching and administration.
    
      Charles A. Brind, John P. Jehu, Elisabeth M. Eastman and George B. Farrington for Commissioner of Education of the State of New York, amicus curiae.
    
    I. The statute clearly provides for tenure areas. (Matter of McMaster v. Owens, 275 App. Div. 506; Matter of O’Connor v. Emerson, 196 App. Div. 807.) II. The Legislature refused to enact appellant’s theory in 1958 (A. Int. 1570, Pr. No. 1572; S. Int. 951, Pr. No. 954). III. Collateral attacks upon judicial decisions of the Commissioner of Education are improper. (Matter of Chapin v. Board of Educ. of City of Buffalo, 291 N. Y. 241; Matter of Board of Educ. of City of N. Y. v. Allen, 6 N Y 2d 127; McCollum v. Board of Educ., 333 U. S. 203; Osterhoudt v. Rigney, 98 N. Y. 222; People ex rel. McCabe v. Matthies, 179 N. Y. 242.) IV. Long-established construction of a statute by the administrative agency charged with its administration is entitled to great weight. (Matter of Armitage v. Board of Educ. of City of Auburn, 122 Misc. 586, 210 App. Div. 812, 240 N. Y. 548; Bullock v. Cooley, 225 N. Y. 566; Kings County Light. Co. v. City of New York, 176 App. Div. 175, 221 N. Y. 500; Matter of McMaster v. Owens, 193 Misc. 284, 275 App. Div. 506; Board v. Hearst Pub., 322 U. S. 111; Rochester Tel. Corp. v. United States, 307 U. S. 125.)
    
      John E. Glenn for New York State Teachers Association, amicus curice.
    
    I. The language of the tenure statute does not literally or by implication indicate an intent or purpose of its legislative authors that the failure or omission by the Board of Education to act upon the recommendation of the District Superintendent shall have the legal effect of denial of tenure. (Matter of Wohlsen, 67 N. Y. St. Dept. Rep. 44; Matter of Graves v. Barber, 193 Misc. 326; Walcott v. Fisher, 274 App. Div. 339, 299 N. Y. 688; Kauffman & Sons Saddlery Co. v. Miller, 298 N. Y. 38; People v. Ryan, 274 N. Y. 149; Matter of Cherkis v. Impellitteri, 307 N. Y. 132.) II. A duly certified teacher, whose employment by a school district has been continuous and who, after regular appointment by a majority vote of the Board of Education, has served a full probationary period and has been duly recommended by the District Superintendent for appoint-ment on tenure in such tenure area, and subsequent to the expiration of such probationary period is employed to perform and thereupon renders any regularly scheduled services in the tenure area for which such probationary requirement has been fulfilled and requisite recommendation provided, does thereby acquire tenure in such area by operation of law, with the same legal effect as though such Board of Education had by majority vote duly appointed such teacher on tenure at or before the expiration of such probationary period. (Matter of Cummings v. Board of Educ., 278 App. Div. 874.)
   Chief Judge Desmond.

By permission of the Appellate Division, Third Department, petitioner-appellant Frances Becker appeals here from a unanimous order of that court affirming a Special Term order.

This is a mandamus-type article 78 proceeding brought against the Middleburgh Central School District to compel that body to reinstate petitioner as a teacher and to grant her tenure. Respondent’s position, most simply stated, is that petitioner never acquired tenure because, although she was employed by the district as a teacher for about six years, she never taught in one “ area ” or category of subject matter beyond the three-year period which this district validly set as its probationary period. Petitioner’s position, shortly stated for present purposes, is twofold: first, that she got tenure when she taught more than the three-year probationary period even though she moved from one “area” or category to another; and, second, that she actually taught for more than three years in one particular ‘ ‘ area ’ ’ since, after she had taught three years in one 1 area ’ ’ as an elementary grade teacher, she did some part-time work in remedial reading as part of that same “ area

The statute involved is section 3013 of the Education Law and the really pertinent part therein is subdivision 2 which says that on or before the expiration of a probationary term the district superintendent of schools shall formally recommend to the board for tenure appointment those teachers whose probationary services have been found satisfactory. The subdivision further says that any teacher not recommended for tenure shall have 60 days ’ notice thereof prior to the end of the probationary period and that those teachers who are kept on pursuant to such recommendation after the expiration of the probationary period shall have tenure, which means, of course, that they may be removed on charges only. The respondent argues (and the courts below held) that to earn tenure the teacher must teach more than the prescribed probationary term in the same “ area ” of instruction, and, for support of its argument, relies on a ruling appearing in a pamphlet issued by the State Education Department in 1953. The department’s ruling was that tenure classifications are by areas, meaning that to acquire tenure one must serve more than the probationary period in one particular area. Included in the ruling was this statement: ‘ ‘ After a teacher has acquired tenure he may not be transferred to a position in a different tenure area without his consent. When so transferred the teacher begins a new probationary period in the new area. He does not, however, lose the tenure in the area where he was employed prior to transfer.” The Commissioner of Education has in cases other than petitioner’s applied that same ruling.

As the Special Term opinion in this case points out, there is nothing in the statute itself referring directly to this matter of ‘ area ’ ’ but, again according to Special Term, the intent of the statute and the common sense of the thing seem to be that tenure results from continuing a teacher in the same kind of teaching job after she has satisfactorily served for the full probationary period in that particular category of teaching. Other than the rulings and decisions of the State Commissioner above referred to, there seems to be no controlling authority available for decision of the present appeal.

The facts as to petitioner’s teaching experience are as follows: in 1952 she was appointed an elementary teacher in the schools of this district for a probationary period of three years and at the end of three years was given recommendations for tenure by the appropriate supervisory officials. Respondent board did not, however, act on the recommendations. Instead, in March, 1955, during the original three-year period, the board offered petitioner an appointment as a special or kindergarten teacher (a different “ area ”) for a period to begin in July, 1955, that is, for the school year beginning in the Autumn of 1955. She accepted that position and taught kindergarten classes for two full school years. In the Summer of 1957 she accepted still another kind of appointment, in the high school or secondary department as a teacher of French and Latin, those being subjects on which she had been issued a teaching certificate. This, according to the board, was a new or third “ area ” probationary appointment. Petitioner continued to do this high school teaching during the 1957-58 school year and at the end of that school year (June, 1958) she was informed that she would no longer be employed. During the 1957-58 school year, besides her high school work in French and Latin, she taught remedial reading to eighth grade students for two 40-minute periods per week. The board asserts and Special Term held that the only probationary period she ever completed was the first one — that is, her service for three years beginning in 1952 as a grade school teacher in the elementary department. As to the part-time or remedial reading service, the argument of respondent is that this was an incidental or sideline job and that it could not be the basis of additional probationary credit. We think that latter is correct since it hardly seems reasonable that a teacher can, during a three-year probationary period, get credit for more than three years by doing a little extra work in another field. It is generally significant that each time petitioner was appointed, that is, in 1952,1955 and 1957, her notice of appointment from the board said that the particular appointment was for a probationary period of three years. We agree with petitioner that her acceptance of an appointment so labeled ‘1 probationary ’ ’ would not necessarily amount to a waiver of her statutory rights but there must be some relevance in the fact that she was notified each time that it was a new probationary appointment (which is the antithesis of tenure) and that she never objected until she was dropped from employment. In other words, the offer and acceptance of a new probationary appointment must have meant to an informed person like petitioner that tenure was being denied her at that point. Petitioner argues, however, that since this statutory system is obviously for the benefit of teachers “ waiver ” has no place in the picture at all.

The principal thrust of petitioner’s argument is that, since the statute does not mention “area” in reference to tenure, the school authorities cannot write that concept in and that if a teacher has been allowed to extend her teaching service beyond the- three years she automatically gets tenure. At this point we note a conflict between the brief filed by petitioner and that of the State Teachers Association, as amicus curia, for reversal. Petitioner says there is no such thing as 1‘ area tenures ’ ’. The Association says there are such but that, nevertheless, a teacher allowed to serve beyond the probationary term even in a different area automatically gets tenure. The latter position seems to raise more problems than it solves. It would mean that after a teacher has served more than three years or other valid probationary period (for instance, as a kindergarten teacher) but her services as such have been found to be unsatisfactory or no longer required, the board could not give her a further probationary tryout as a grade school teacher but would have to discharge her.

Petitioner makes an argument from two decisions by the Commissioner in the departmental cases of Feldbauer and Trani. Petitioner’s point is that the Commissioner’s original rulings as to “ tenure areas ” was based on the old division of the public school system into eight years of elementary and four years of secondary school with different salary schedules for each, and that, with the new concept of six years of elementary and six years of high school and with the present equality of salary grades for all teachers, the 11 tenure area ’ ’ idea and ruling has no basis any more. The answer is, we think, that, while the specific divisions into areas may change and have changed, petitioner never had more than three years’ service in any area.

The State Commissioner of Education as amicus curias makes the argument that the phrase ‘ ‘ so appointed to any such positions ” (italics ours) in section 3013 (subd. 1) and the mandating therein of probationary periods necessarily requires for tenure probationary service in one particular teaching position, not a series of different kinds of teaching jobs. The Commissioner points out, also, that the Legislature in 1958 refused to add language providing that “Any service” after appointment shall constitute part of the probationary period. The strongest arguments for affirmance are: first, that modern concepts of education carefully distinguish between teaching competence in various teaching fields rather than hold that 11 all teachers are alike ’ ’; second, that the statute has been for years construed administratively as contemplating ‘ ‘ area tenure ’ ’; and, third, that whatever the possible unfairness to this petitioner from an affirmance, reversal could produce State-wide chaos.

The order should be affirmed, without costs.

Froessel, J. (dissenting).

We dissent and vote to reverse. There is no statute or other appropriate authority for the creation or existence of the so-called 11 tenure areas ’ ’ established by rule in this case. As a consequence of this decision, a teacher, competent and capable in all respects, may, at the will of a school board, be effectively deprived of tenure even after years of service. In our opinion, the Legislature certainly did not intend such result.

Alternatively, we may add, even under the so-called ‘ area ’ ’ system, it may be found that petitioner acquired tenure. She was appointed an elementary teacher, was recommended for tenure by the appropriate supervisory officials at the end of a three-year probationary period, and later she taught remedial reading at the elementary level for two periods a week for a full school year. Her service in the elementary ‘ ‘ area'’ ’ may thus be found to exceed three years as required for tenure.

The orders of the Appellate Division and Special Term should be reversed, and the motion to dismiss the petition denied, with costs.

Judges Dye, Fuld and Burke concur with Chief Judge Desmond; Judge Froessel dissents in an opinion in which Judge Van Voorhis concurs; Judge Foster taking no part.

Order affirmed.  