Opinion
January 17, 1974
Present — Del Vecchio, J.P., Marsh, Witmer and Cardamone, JJ.
Judgment unanimously affirmed, with costs. Memorandum: Petitioner retired from the teaching profession on June 30, 1961. In September, 1962 she was hired as an elementary school teacher by the respondent board under a first year probationary contract for the school year beginning July 1, 1962. She entered into a similar second year probationary contract for the school year beginning July 1, 1963 and a third year probationary contract for the school year beginning July 1, 1964. At the termination of the three years of probationary appointments, the recommendation of the Superintendent that she be given tenure effective September 1, 1965 was approved by the respondent board. At the time of each appointment by respondent section 503 Educ. of the Education Law provided that if a retired teacher receiving a retirement allowance returned to active service, payments of her retirement allowance were suspended during the time she was in active service. While section 211 Retire. Soc. Sec. of the Retirement and Social Security Law effective July 1, 1964 requires the approval of the Commissioner of Education upon a showing that there are not readily available other qualified persons, as a prerequisite to the employment by a school district of a "retired person", the record does not establish that petitioner was a "retired person" as defined by section 210 Retire. Soc. Sec. of the Retirement and Social Security Law at the time she was granted tenure. Her retirement allowance was suspended by the provisions of section 503 Educ. of the Education Law and she received no retirement allowance following her employment by respondent in September, 1962. It does not appear that she has since made application for voluntary retirement nor does it appear that her status under tenure has been terminated after a hearing on charges as provided by section 3013 Educ. of the Education Law. No valid basis therefore appears for the termination of petitioner's services by respondent at the beginning of the 1971-1972 year.