November 19, 2018

Substitute service credit

Substitute service credit
Hudson v Hempstead UFSD, NYS Supreme Court

The Hudson case concerned the proper counting of service as a substitute teacher for the purposes of determining if a teacher had obtained tenure. The ruling emphasizes the importance of considering substitute service in making tenure decisions for probationary employees.

The Supreme Court commented in its decision that this was a case of "first impression." That is, the issue of crediting service as a "permanent substitute" had never before been litigated in New York State.

A probationary employee is deemed to have acquired tenure "by estoppel"  if the employer fails or neglects to take timely action to terminate the services of the probationer prior to end of his or her maximum period of probation.

In the Hudson case, Shawn Hudson had served as a per-diem substitute elementary school teacher for a number of years with the Hempstead Union Free School District. The District then appointed him as a "permanent substitute" for a teacher while she was on maternity leave for the school year.  Hudson was subsequently appointed as an elementary school teacher subject to a two-year probationary period. The probationary period was to end February 1, 1995.

Prior to the end of this probationary period, Hudson signed a document advising him that the superintendent would not recommend him for tenure at the end of his probationary period and that his probationary period would be extended for another year and would now run through February 1, 1996. The document also contained a waiver whereby Hudson agreed not to claim tenure by estoppel based on his employment with the District after February 1, 1995.

On December 12, 1994 Hudson was told in a letter that his probationary period would not be extended after all and that he was terminated effective February 1, 1995.  Hudson sued.

Hudson argued that (1) he had acquired tenure by estoppel and (2) as a tenured teacher, he could not be discharged without formal proceedings being taken pursuant to Education Law. How could Hudson argue this given the fact that he had waived his right to tenure by estoppel? Hudson asserted and the Court agreed that the District's letter dated December 12, 1994 rendered Hudson's waiver of any claim to tenure by estoppel null and void. Simply put, when the District reneged on its offer of an additional year of probation, all bets were off.

NOTE: The Court ruled that Hudson's state of mind when he signed the letter was not relevant to the issue of whether or not he was actually entitled to credit towards tenure.

Hudson's claim of tenure by estoppel amounted to a counting of the days he served. He contended that by tacking together all of his service in the District, he had served a total of three or more years with Hempstead and therefore was entitled to "Jarema Credit."*He included his service as a full-time substitute teacher for one school year, other  service as a substitute for the District, his service as a "permanent substitute," and his probationary service.

The District contended that only Hudson's full-time substitute service (one school year) and his time as a probationary teacher (slightly less than two years) should be counted and credited toward the three-year service requirement for tenure. Thus, argued the District's "no hearing was required under the Education Law and it had the right to discharge [Hudson] without cause."

The Court said that central to resolving the dispute between the parties was the calculation of Jarema credit. That determination, in turn, depended on whether Hudson was to be given credit for the time he served as a "permanent substitute." To resolve the issue, the Court said it must first look to the regulations of the Commissioner of Education in an attempt to find the classifications of the various categories of teacher service.

Was the position "permanent substitute" analogous to a "regular substitute" within the meaning of §3012.1(a)?  Here the Court decided  that it was and that the Board of Education was "estopped from denying Hudson Jarema Credit for the time in which he served as a "permanent substitute."

According to the ruling,  "the provisions of the Education Law applicable to the granting of tenure are in derogation of the common law and should be strictly construed." The Court said that "a board of education may not deny tenure and other rights to its employees by refusing to designate such employees by the appropriate title or by designating their positions as "acting" or "temporary."

Citing Ricca v Board of Education, 47 NY2d 385. the Court concluded that whether or not a Board of Education acted intentionally to circumvent the tenure laws is not determinative because "even good faith violations of the tenure system must be forbidden, lest the entire edifice crumble from the cumulative effect of numerous well-intentioned exceptions."

Another argument made by Hempstead was that Hudson's periods of service in which the he served as a regular substitute must have been immediately preceded his probationary appointment to be considered. The District contended that because Hudson served certain semesters less than full time prior to his probationary period, he could not qualify for Jarema credit.

Not so, said the Court.  "While the Commissioner of Education noted in Matter of Carey, 31 Ed. Dept. Rep. 394 (1992), that there is a distinction between seniority credit and 'Jarema Credit,' he did not state that in order to qualify for 'Jarema Credit,' the full-time substitute work must come immediately before the probationary appointment."

In addition, the Court commented that "... §3012 does not impose such a requirement and it is permissible for a teacher to achieve tenure by estoppel ... by tacking together two non-continuous periods of service," quoting from Lindsey v Mt. Morris Board of Education, 172 AD2d 185.

The Court decided that Hudson's "service sufficient to allow the petitioner to qualify for 'Jarema Credit' for the regular substitute periods in which he served."

Concluding that Hudson had attained tenure by estoppel and thus "should not have been discharged without formal proceedings pursuant to Education Law §3012(2) being brought," the Court ruled that he was entitled to back pay for the period following his termination, subject to an adjustment based on Hudson's "mitigation of those damages."

* §2509.1(a), the "Jarema Act," provides that the statutory three-year probationary period for teachers is reduced to one year if the teacher rendered satisfactory service as a "regular substitute" for two years or more prior to the teacher's probationary appointment by the same school district. The probationary period is not to exceed two years in situations involving the appointment of a probationary teacher who was tenured in another school district.  The Education Commissioner has  distinguished between "Jarema Credit" and "seniority credit" for the purposes of §2510. He said that  seniority credit recognizes continuous full-time service in a  school district and unlike Jarema credit,  may not be used  to obligate a board to grant tenure to a teacher. Tenure decisions may be  made  without  regard to a teacher's  accumulated  seniority. Citing  Matter of Crandall (20 Ed. Dept. Rep. 16),  the Commissioner said "seniority, then,  relates only to a teacher's rights vis-à-vis other teachers" such as may be relevant in a layoff situation. The Commissioner observed that in such a context, "it is reasonable to assume that  teachers  will  be  retained according  to  the  length  of continuous [i.e., uninterrupted] service, whether  such  service  was  all  rendered subsequent to a probationary appointment or was rendered partly before and partly after such an appointment."


Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed 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.
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 neither the publisher nor members of the staff are 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.