TO SEARCH this database type in a word or phrase in the box in the upper left and any material containing the word or phrase will be displayed for your review.

Also, §22 of the New York State's General Construction Law, in pertinent part, provides that “Whenever words of the masculine or feminine gender appear in any law, rule or regulation, unless the sense of the sentence indicates otherwise, they shall be deemed to refer to both male or female persons.” NYPPL typically follows this protocol.

July 18, 2011

Accumulating tenure eligibility credit while serving as an “intern teacher” not authorized

Accumulating tenure eligibility credit while serving as an “intern teacher” not authorized
Matter of Berrios v Board of Educ. of Yonkers City School Dist., 2011 NY Slip Op 05804, Appellate Division, Second Department

The genesis of this case was the termination of Jesus Berrios by the Board of Education of the Yonkers City School District without a hearing. Berrios, contending that he had attained tenure in his position with the District by estoppel or acquiescence,*complained that the Board’s action violated his rights to due process as set out in Education Law §3020-a.

The thrust of Berrios’ argument was that he had “accumulate tenure credit” while teaching under “an intern teaching acquiesce certificate.” The Appellate Division rejected his theory, holding that in the absence of holding a valid teaching certificate, in contrast to being employed pursuant to an “intern certificate,” a teacher’s service could not be credited toward completion of a required probationary period.

The Appellate Division ruled that Berrios was terminated while serving as a probationary employee and such personnel may be terminated at any time during the probationary period without being given a reason and without a hearing.**

Another element in this case concerned so-called “Jarema Credit.”*** Noting that “[s]ervice as a substitute teacher does not constitute probationary service for purposes of obtaining tenure as a regular teacher,” the Appellate Division observed that the Court of Appeals had held that a substitute teacher's three-year probationary period can be reduced to one year if the individual is eligible for "Jarema" credit.

Where, however, a teacher has not served as a regular substitute in the year immediately preceding a probationary appointment, such service will not count towards Jarema credit. In addition, said the court, case law supported its conclusion that Jarema credit cannot be awarded to a regular substitute teacher who does not possess a valid New York State teacher's certificate.

The court explained that “[a]llowing a substitute teacher to accumulate tenure credit for time spent teaching pursuant to an intern certificate would mandate that a school board grant or deny tenure to that teacher before he or she obtained a valid teacher's certificate.”

Rejecting Berrios’ contention that he acquired tenure by estoppel, the Appellate Division noted that a contrary determination would discourage school districts from employing students authorized to teach pursuant to intern certificates, thereby depriving both the school districts and the teachers of that valuable experience.

In light of the foregoing, the Appellate Division decided that Supreme Court correctly determined that Berrios did not earn tenure by estoppel because his first year of teaching as a substitute pursuant to an intern certificate was not creditable toward tenure. Thus, the Supreme Court was correct in denying his the petition, and properly dismissed the proceeding.

* Tenure by estoppel or acquiesce results "when a school board accepts the continued services of a teacher or administrator, but fails to take the action required by law to either grant or deny tenure prior to the expiration of the teacher's probationary term" [McManus v Bd. of Educ. of Hempstead UFSD, 87 NY2d 183].

** See Education Law §2509[1][a]; §3014[1] N.B. The summary termination of a probationer, however, will not be permitted if it is determined to have been for an unconstitutional or unlawful purpose or reason.

*** Typically referred to by the name of the bill's sponsor, then Assemblyman Stephen J. Jarema, Education Law §2573[1][a], in pertinent part, provides that “Teachers and all other members of the teaching staff, authorized by section twenty-five hundred fifty-four of this article, shall be appointed by the board of education, upon the recommendation of the superintendent of schools, for a probationary period of three years, except that in the case of a teacher who has rendered satisfactory service as a regular substitute for a period of two years … the probationary period shall be limited to one year….”
:
**** Prior to February 2, 2004, the entry-level certificate for classroom teachers were denominated "provisional" and are now denominated "initial."

The decision is posted on the Internet at:

Public Personnel Law E-books

The Discipline Book - A concise guide to disciplinary actions involving public employees in New York State set out in a 700 page e-book. For more information click on http://booklocker.com/books/5215.html

A Reasonable Disciplinary Penalty Under the Circumstances - A 442-page e-book focusing on determining an appropriate disciplinary penalty to be imposed on an employee in the public service in instances where the employee has been found guilty of misconduct or incompetence. Now available in two formats - as a large, paperback print edition and as an e-book. For more information click on

http://booklocker.com/books/7401.html


The Layoff, Preferred List and Reinstatement Manual - A 645 page e-book reviewing the relevant laws, rules and regulations, and selected court and administrative decisions. For more information click on http://booklocker.com/books/5216.html


General Municipal Law §§207-a and 207-c - Disability Leave for fire, police and other public sector personnel - A 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder. For more information click on

http://booklocker.com/books/3916.html


Please Note:

Subsequent court and administrative rulings, or additions or amendments to laws, rules and regulations may have modified or clarified or vacated or reversed or otherwise have had an impact on the decisions summarized here. Accordingly, these summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.

THE MATERIAL ON THIS WEBSITE IS FOR INFORMATION ONLY. AGAIN, REMEMBER THAT CHANGES IN LAWS, RULES, REGULATIONS AND NEW COURT AND ADMINISTRATIVE DECISIONS MAY AFFECT THE ACCURACY OF THE INFORMATION PROVIDED IN THIS LAWBLOG.

THE MATERIAL PRESENTED IS NOT LEGAL ADVICE AND THE USE OF ANY MATERIAL POSTED ON THIS WEBSITE DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP.

Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material in this blog is presented with the understanding that the publisher, editor, contributors or members of the staff are not providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is advised to seek such advice from a competent professional.