In this decision
the Appellate Division explains why the Petitioner was not eligible for including "Jarema
credit"*
for his service as a substitute teacher outside of the respondent Smithtown Central School
District.
Absent such credit, it is undisputed that the Petitioner did not serve the
full probationary period of four years in the School District required by
Education Law §3012, and therefore could not establish tenure by estoppel.
The Appellate Division described its decision, the text of which is set out
below, as "apparently one of first impression for an appellate court in
this State", wherein a teacher serving a probationary period claims to have accumulated "Jarema credit" for the purpose of attaining tenure in his current school district as the result of his earlier employment in a "different school
district".
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Matter of DeNigris v Smithtown Cent. Sch. Dist. |
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2023 NY Slip Op 03783
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Decided on July 12, 2023
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Appellate Division,
Second Department
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Ford, J.
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Published by New York State Law Reporting
Bureau pursuant to Judiciary Law § 431.
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This opinion is
uncorrected and subject to revision before publication in the Official
Reports.
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Decided on July 12, 2023 SUPREME COURT OF THE STATE OF NEW YORK Appellate
Division, Second Judicial Department
VALERIE BRATHWAITE NELSON, J.P.
ROBERT J. MILLER
WILLIAM G. FORD
DEBORAH A. DOWLING, JJ.
2021-09160
(Index No. 610064/20)
In the Matter of
Christopher DeNigris, appellant,
v
Smithtown Central School District, respondent.
APPEAL by the
petitioner, in a proceeding pursuant to CPLR article 78 to review a determination
of Smithtown Central School District dated January
29, 2020,
in effect, terminating the petitioner's employment, from a judgment of the
Supreme Court (Maureen T. Liccione, J.), dated November
10, 2021,
and entered in Suffolk County. The judgment, in effect,
denied the petition and dismissed the proceeding.
Ricotta &
Marks, P.C., Long Island City, NY (Thomas A. Ricotta of
counsel), for appellant.
Ingerman Smith,
LLP, Hauppauge, NY (Steven A. Goodstadt and
Keith T. Olsen of counsel), for respondent.
FORD, J.
OPINION &
ORDER
The narrow issue
presented on this appeal, apparently one of first impression for an appellate
court in this State, is whether a teacher may accumulate credit towards tenure,
also known as "Jarema credit," pursuant to Education Law §3012, for
time spent teaching as a regular substitute teacher in a district other than
the district in which the teacher is seeking tenure. For the reasons set forth
below, we conclude that a teacher is only entitled to "Jarema credit"
for regular substitute service if said service was completed in the district in
which the teacher is seeking tenure.
I. Relevant
Facts
From January 2014
until September 2017, the petitioner was employed by the New York City
Department of Education as a special education substitute teacher. He was then
appointed to a probationary term as a special education teacher in the Smithtown Central School District (hereinafter the School District), located in Suffolk County. The School District noted in the petitioner's
appointment letter that his anticipated probationary period would run from September
1, 2017,
until August 31, 2021.
In a letter dated January
29, 2020,
the School
District's
superintendent informed the petitioner that he would be recommending that the
Board of Education terminate the petitioner's probationary appointment
effective June 30, 2020, and that the Board of
Education would vote on the recommendation at a meeting on May
12, 2020.
The petitioner sent a letter requesting that he be provided with the reasons
for his termination from the School District. In response, the
superintendent stated that the petitioner was being terminated based upon his
"instructional delivery, grading practices and record keeping, parent
communication, [and] concerns related to interpersonal relationships with staff
members."
The petitioner
resigned from the School District prior to his termination. The Board of Education
accepted his resignation effective June 30,
2020.
Thereafter, the
petitioner commenced the instant CPLR article 78 proceeding to review the January
29, 2020
determination, in effect, terminating his employment. The petitioner claimed,
inter alia, that his termination was improper because he had acquired tenure by
estoppel due to his prior service as a substitute teacher for the New York City
Department of Education. The Supreme Court, in effect, denied the petition and
dismissed the proceeding, determining that the petitioner was not entitled to
tenure by estoppel because his service as a substitute teacher was performed
outside of the School District. The petitioner appeals, and we affirm for the
reasons set forth below.
II. Legislative
History of the "Jarema credit"
"The
Education Law specifically distinguishes between probationary teachers and
tenured teachers" (Matter of Brown v Board of Educ. of Mahopac Cent. Sch. Dist.,
129 AD3d 1067, 1070). The purpose of the probationary period is to provide
"a school district an opportunity to evaluate an individual's performance
as a teacher prior to granting tenure" (id. at 1071). A teacher's
"probationary period can, however, be reduced . . . through 'Jarema
credit,' named for the bill's sponsor, Assemblyman Stephen J. Jarema" (Matter
of Speichler v Board of Coop. Educ. Servs., Second Supervisory Dist., 90
NY2d 110, 114).
In 1936, Jarema
sponsored a bill that would reduce the probationary period for a teacher who
had "rendered satisfactory service as a regular substitute for a period of
two years" (Assembly Mem in Support, Bill Jacket, L 1936, ch 680 at 2
[emphasis omitted]). The reasoning for this Depression-era bill, as explained
by Jarema, was that requiring the full statutory term of probationary service
was "unfair to the teacher who has given many years as a substitute"
(Mem in Support, Bill Jacket, L 1936, ch 680 at 36). Jarema noted that
"[t]he purpose of the probationary period is to find out whether the
person is suited to the profession. This can be determined over a [specific time]
period irrespective of whether one is called a substitute or a regular
probationary teacher" (id. at 37). In a Memorandum for the Governor
in relation to the bill, Deputy Commissioner and Counsel of the State Education
Department, Ernest E. Cole, further explained that
"[t]he
apparent purpose [of the bill] is to limit the probationary period . . . for a
teacher appointed in a city who has already been serving in that city as a
substitute teacher for a period of two years. The purpose of a probationary
period, as I understand it, is to enable the school officials to become aware
of a person's teaching ability. I assume that the sponsors of this bill believe
that all of this information may be obtained while the person is serving as a
substitute . . . . This seems reasonable to me" (Mem of the Deputy Commr
& Counsel for the State Educ Dept, Bill Jacket, L 1936, ch 680 at 34
[emphasis added]).
A version of the
"Jarema credit" has been adopted into Education Law § 3012, which
provides as follows:
"Teachers . .
. who are appointed on or after July first, two thousand fifteen, shall be
appointed . . . for a probationary period of four years, except that in the
case of a teacher who has rendered satisfactory service as a regular substitute
for a period of two years and, if a classroom teacher, has received annual
professional performance review ratings in each of those years, or has rendered
satisfactory service as a seasonally licensed per session teacher of swimming
in day schools who has served in that capacity for a period of two years and
has been appointed to teach the same subject in day schools, on an annual
salary, the teacher shall be appointed for a probationary period of two years;
provided, however, that in the case of a teacher who has been appointed on
tenure in another school district within the state, the school district where
currently employed, or a board of cooperative educational services, and who was
not dismissed from such district or board as a result of charges brought
pursuant to [Education Law § 3020-a or § 3020-b], the teacher shall be
appointed for a probationary period of three years; provided that, in the case
of a classroom teacher, the teacher demonstrates that he or she received an
annual professional performance review rating pursuant to [Education Law §
3012-c or § 3012-d] in his or her final year of service in such other school
district or board of cooperative educational services" (id. §
3012[1][a][ii]).
This appeal
requires this Court to decide whether the "Jarema credit," as memorialized
in Education Law § 3012, applies to regular substitute teaching performed
outside of the school district in which a teacher is seeking tenure.
III. Tenure by
Estoppel
"The
Legislature designed the tenure system 'to foster academic freedom in our
schools and to protect competent teachers from the abuses they might be
subjected to if they could be dismissed at the whim of their supervisors'"
(Matter of Berrios v Board of Educ. of Yonkers City School
Dist., 87 AD3d 329, 331, quoting Ricca v Board of Educ. of City
School Dist. of City of N.Y., 47 NY2d 385, 391). "At the expiration of
the probationary term, the superintendent of schools shall make a written report
to the board of education recommending for appointment on tenure those persons
who have been found competent, efficient and satisfactory" (Matter of
Brown v Board of Educ. of Mahopac Cent. Sch. Dist., 129 AD3d at 1070).
"The employment of probationary teachers can be terminated at any time
during the probationary period, without any reason and without a hearing"
(id.). "By contrast, tenured teachers hold their positions during
good behavior and competent service, and are subject to dismissal only after
formal disciplinary proceedings" (id.). "A teacher who is not
to be recommended for tenure must be so notified in writing no later than 60
days before the expiration of his or her probationary period" (id.).
"Tenure by
estoppel 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" (Matter of Berrios v Board of Educ. of Yonkers City
School Dist., 87 AD3d at 332 [internal quotation marks omitted]). "A
teacher who has acquired tenure by estoppel, but is nonetheless improperly
terminated, is entitled to reinstatement, retroactive to the last date of
employment, back pay, and all accrued benefits" (Matter of Brown v
Board of Educ. of Mahopac Cent. Sch. Dist., 129 AD3d at 1071). Here, the
petitioner claims that he has established tenure by estoppel pursuant to
Education Law § 3012, based upon his service as a regular substitute teacher in
the New York City Department of Education prior to his appointment as a
probationary teacher in the School District. Accordingly, he contends that his
termination, in effect, by the School District, without formal
disciplinary proceedings, was affected by an error of law (see CPLR
7803[3]).
IV. Analysis
The Supreme Court
correctly determined that, pursuant to Education Law § 3012, a probationary
teacher may receive "Jarema credit" towards tenure only for
substitute teaching performed in the same district in which the teacher is
seeking tenure. The "well-established rules of statutory construction
direct that" an analysis of a statute "begins with the language of
the statute" (Colon v Martin, 35 NY3d 75, 78 [internal quotation
marks omitted]). "This is because the primary consideration is to
ascertain the legislature's intent, of which the text itself is generally the
best evidence" (id. at 78 [internal quotation marks omitted]; see Matter of Walsh v New York State Comptroller, 34
NY3d 520, 524). A court should construe unambiguous language to give effect
to its plain meaning (see Matter of Lemma v Nassau County Police Officer Indem.
Bd., 31 NY3d 523, 528). "Further, a statute must be construed as a
whole and . . . its various sections must be considered together and with
reference to each other" (Colon v Martin, 35 NY3d at 78 [internal
quotation marks omitted]). "The maxim expressio unius est exclusio
alterius applie[s] in the construction of the statutes, so that where a law
expressly describes a particular act, thing or person to which it shall apply,
an irrefutable inference must be drawn that what is omitted or not included was
intended to be omitted or excluded" (Matter of Benjamin v New York City Empls. Retirement Sys.,
170 AD3d 714, 716 [internal quotation marks omitted]). "In other
words, the doctrine is an 'interpretive maxim that the inclusion of a
particular thing in a statute implies an intent to exclude other things not
included'" (Colon v Martin, 35 NY3d at 78, quoting Cruz v TD Bank, N.A., 22 NY3d 61, 72).
Education Law §
3012(1)(a)(ii) specifically delineates that a reduced, three-year probationary
period applies both to teachers who were granted tenure in the same school
district and to teachers who were granted tenure in a different school district
within the state. Thus, the legislature explicitly indicated its intent that a
prior grant of tenure would entitle a teacher to a three-year probationary term
rather than a four-year probationary term if they sought tenure for a second
time, regardless of where in New York they had previously been
granted tenure. The legislature included no such qualifying language when
discussing teachers who had worked as regular substitutes (see id.).
Accordingly, construing the statute as a whole, the exclusion of qualifying
language regarding teaching in a different school district when discussing
substitute teaching supports the conclusion that the petitioner was not
entitled to "Jarema credit" for substitute teaching outside of the
School District (see e.g. Colon v Martin, 35 NY3d 75).
This conclusion is
also consistent with the legislative history of the "Jarema credit."
As evidenced by Jarema's memorandum in support of his bill, his proposal was
not intended to provide teachers who had served as regular substitutes shorter
probationary periods than other individuals. Rather, he intended for school
districts to begin their evaluations of teachers during their time as regular
substitutes, as opposed to forcing regular substitutes to start their
pre-tenure time anew when they obtained a probationary appointment.
Specifically, Jarema recognized that a teacher's abilities could be evaluated
within a particular number of years regardless of whether the teacher was a
substitute or probationary teacher during those years (see Mem in
Support, Bill Jacket, L 1936, ch 680 at 37). This interpretation is further
strengthened by the understanding of the Deputy Commissioner and Counsel of the
State Education Department, who specified that the bill was intended to help
teachers "appointed in a city who [have] already been serving in that
city as a substitute teacher for a period of two years" (Mem of the
Deputy Commr & Counsel for the State Educ Dept, Bill Jacket, L 1936, ch 680
at 34 [emphasis added]).
Education Law §
3012(1)(a)(ii) provides for a four-year probationary period for teachers
generally and a two-year probationary period for teachers who have worked as
regular substitutes for two years. Where a teacher works as a regular
substitute for two years and as a probationary appointment for two years, all
within the same school district, that school district will have had a full four
years to evaluate the teacher's performance before making a tenure decision.
Thus, regular substitutes within one school district are in the same position
as probationary teachers who did not begin as regular substitutes. On the other
hand, if this section were construed to include substitute service performed
outside of the current school district, then the current school district would
only have two years to evaluate the teacher's performance. This result would be
inconsistent with Jarema's stated intent (see Mem in Support, Bill
Jacket, L 1936, ch 680 at 37).
Accordingly, the
Supreme Court properly determined that the petitioner was not entitled to
"Jarema credit" for his service as a substitute teacher outside of
the School
District.
Without this credit, it is undisputed that the petitioner did not serve the
full probationary period of four years in the School District required by
Education Law § 3012, and therefore could not establish tenure by estoppel.
Thus, the School
District's
determination, in effect, to terminate the petitioner's employment was not
affected by an error of law (see CPLR 7803[3]).
Therefore, the
judgment is affirmed.
BRATHWAITE NELSON,
J.P., MILLER and DOWLING, JJ., concur.
ORDERED that the
judgment is affirmed, with costs.
ENTER:
Maria T. Fasulo
Clerk of the Court
* Other decision concerning
Jarema Credit summarized in NYPPL include:
Jarema
credit and eligibilty for tenure [Barbaccia v Locust Valley CSD, 282 AD2d
674]
Jarema
Credit and probationary service (Decisions of the
Commissioner of Education, 14,557, April 12, 2001 [MacDonald and the North Tonawanda City School District])
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]
Tenure
by estoppel (Matter of Andrews v Board of Educ. of the City School Dist. of
the City of N.Y., 2010 NY Slip Op 32963(U), [Not selected for publication in
the Official Reports]); http://www.courts.state.ny.us/reporter/pdfs/2010/2010_32963.pdf