During a trial period, a teacher is an at-will employee whose services can be terminated at any time (see Haviland v. Yonkers Pub). Schools, 21 AD3d 527, 529). However, under the Education Act, the dismissal of such an employee is subject to the Superintendent`s recommendation (see p. 3012[a] [“The service of a person appointed to (a test centre mentioned in this section) may be highlighted at any time during this trial period, on the recommendation of the Superintendent of Schools, the majority of the school board or the administrators of a common school district” (addition to the resolution); Janes Appeal, 33 Ed Dept Rep 6 [Decision 12,957] [” Education Act 3012 provides that the services of a probation teacher may be suspended at any time during the probation period on the recommendation of the Superintendent ” (emphasized) ] In this case, the Superintendent granted the applicant an additional probationary year by the disputed agreement after the completion of his three-year trial period, without the knowledge and consent of the Board of Directors and without giving notice to the Board of Directors for his term of office (see section 3012[a][a] [for a three-year trial period] with the . 3012. Term ” (added mentions] ]. In doing so, the Superintendent refused to allow the Board of Directors, .dem body that controls the employment of teachers, to decide whether the Superintendent`s recommendation to extend the petitioner`s trial and to continue his investment in the petitioner`s activity as a test officer should, at that time, terminate or deny the jobs of petitioners and pursue other means of filling their position. In Matter of Ambramovich v. Board of Educ. (supra) the waiver was a compensation supplement. Here too, the agreement gave the petitioner the opportunity to perform as a teacher instead of being fired.
In return, he voluntarily agreed to relinquish any mandate because of his employment beyond the initial trial period (see Matter of Cohoes City School Dist. v Cohoes Teachers Assn., 40 N.Y.2d 774, affg 50 A.D.2d 24). We therefore conclude that, in these circumstances, the petitioner`s open, inactive and voluntary waiver is valid and should be enforced. We also note that this protocol clearly shows that Parliament`s express intention to reject the petitioner`s mandate in 1978 was violated and communicated in good faith to the petitioner. But the fact is that the obvious and immediate effect of the disputed agreement was to ensure and extend the petitioner`s employment with the defendant Pittsford Central School District (PCSD), and so I come to the conclusion that this is an employment contract involving a waiver. In practice, the petitioner would have been dismissed if she had not signed the disputed agreement on the basis of the defendant`s intention, Mary Alice Price, Superintendent of the PCSD (CSDP Superintendent) not to recommend to the petitioner a warrant at the end of the third year of the trial (cf. Matter of Yanoff/Commissioner of Educ. of State of N.Y., 66 A.D.2d 919 , 920, lv refused 47 N.Y.2d 711 [ (T)er Board of Education cannot give employment if there is no positive recommendation from the Superintendent”; see also Law 3031 on Education). In March 1979, the petitioner was informed in writing by the Superintendent that he intended to recommend to the Board of Directors at its next regular meeting in May 1979 that the petitioner would be denied the mandate.