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."

Right to an appointment

Right to an appointment

Mitchell v Board of Education, Appellate Division

From time to time an individual on a civil service eligible list will sue in an effort to obtain an appointment to a vacant position that the appointing authority has decided not to fill. Assuming that the appointing authority is acting in good faith, it is well settled that an appointing authority is not required to fill a vacant position even if a mandatory eligible list for the title exists. This was one of the issues involved in the Mitchell case.

Robert L. Mitchell was eligible and reachable for appointment as an Area Manager of School Maintenance. In fact he alleged that he was "next on the list" for  appointment to the title when the New York City Board of Education abolished two of its four area manager positions. The two positions apparently were vacant at the time they were abolished.

Mitchell sued, seeking a court order directing  his appointment to one of the two abolished positions. The Appellate Division dismissed his position, holding that Mitchell "has not demonstrated any entitlement to relief under the circumstances presented."

Here Mitchell had two problems. First, as the Appellate Division noted, even assuming that he was entitled to consideration for either of the two abolished area manager positions, he was not, as a matter of law, entitled to appointment to the title.

It is well settled that an appointing authority is not required to fill a position that is vacant simply because there is a mandatory, or preferred, eligible list for the title.

 As the Board of Education conceded, Mitchell was eligible for one of the two remaining area manager positions, should one become available prior to the expiration of the eligible list and it elected to fill it.

Further, selection for the appointment would be subject to the so-called "rule of three," Civil Service Law §61. Mitchell would not have any automatic right to selection for appointment merely because he was the highest ranking eligible on the list.

As another illustration as to why Mitchell had no right to an appointment as an area manager, assume that one of the two remaining area manager positions were to be abolished. Presumably a preferred list would be established as a result.

If the remaining area manager position were later to become vacant, clearly the individual on the preferred list would be certified for appointment first, notwithstanding the existence of any eligible list resulting from a competitive examination for the title, including the list on which Mitchell's name appeared.

Writ of Mandamus

Writ of Mandamus

2018 NY Slip Op 07694, Court of Appeals

In this action the Court of Appeals affirmed the Appellate Division's dismissing the Plaintiffs' petition seeking a writ of mandamus to compel the New York City Police Department and the New York City Department of Health and Mental Hygiene to enforce certain laws.

The court explained that a writ of mandamus "is an extraordinary remedy 'that is available only in limited circumstances,'" citing Matter of County of Chemung v Shah, 28 NY3d 244. Mandamus, said the Court of Appeals, is available as a remedy "only to enforce a clear legal right where the public official has failed to perform a duty enjoined by law."

Further, although mandamus to compel "is an appropriate remedy to enforce the performance of a ministerial duty, it is well settled that it will not be awarded to compel an act in respect to which [a public] officer may exercise judgment or discretion," as the court held in Matter of Gimprich v Board of Educ. of City of N.Y., 306 NY 401.

As to what constitutes a "discretionary acts" such acts involve the exercise of reasoned judgment which could typically produce different acceptable results in contrast to ministerial acts involving "direct adherence to a governing rule or standard with a compulsory result." Indeed, mandamus may only be used to compel a public officer to execute a legal duty; it may not "direct how [the officer] shall perform that duty," as was noted in People ex rel. Schau v McWilliams, 185 NY 92.

In this action the enforcement of the laws cited by the Plaintiffs would involve some exercise of discretion. Additionally, Plaintiffs did not seek to compel the performance of ministerial duties but, rather, seek to compel a particular outcome. Thus, concluded the Court of Appeals, "mandamus is not the appropriate vehicle for the relief sought."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_07694.htm

Discretionary acts by a public official

Discretionary acts by a public official

Discretionary acts by a public official involve the exercise of reasoned judgment which could typically produce different acceptable results whereas a ministerial act envisions direct adherence to a governing rule or standard with a compulsory result, Tango v Tulevech, 61 NY2d 34.

Pre-hearing suspension without pay

Pre-hearing suspension without pay

Gilbert v Homar, 520 US 924

Is a public employee entitled to a hearing before he or she may be suspended without pay? In Gilbert v Homer the U.S. Circuit Court of Appeals, Third Circuit, ruled that a public employee is always entitled to a hearing before being suspended without pay. According to ruling, while a public employer may be justified in suspending an employee immediately, and before it is possible to conduct a hearing, "the added suspension of pay" requires that a hearing be conducted before removing the individual from the payroll.

Ultimately the United States Supreme Court held that a pre-deprivation hearing is not required where, as here, an employee is suspended without pay after having been convicted of a felony, because that conviction (1) “demonstrate[s] that the [deprivation] is not arbitrary” and (2) “serve[s] to assure that the . . . employer’s decision . . . is not ‘baseless or unwarranted.”

§75 of New York's Civil Service Law authorizes the suspension of an employee without pay for up to 30 days once he or she has been served with disciplinary charges. This raises the question of the possible impact of the Gilbert ruling in §75 suspension without pay situations. It may be possible to distinguish the Gilbert case from a §75 situation because of the limited duration of the suspension under §75 - 30 days - and the fact that the employee would be awarded back pay for any such suspension if acquitted of the charges.

What about a provision in a Taylor Law agreement providing for the immediate suspension of an employee without pay upon the occurrence of certain events? Probably the courts would take a more narrow view in applying Gilbert in such cases on the theory that the parties had agreed to the suspension without pay in the course of collective bargaining.

The decision is posted on the Internet at:

https://www.law.cornell.edu/supct/html/96-651.ZO.html