CPLR Article 78 petition dismissed as untimely, barred by the Doctrine of Res Judicata and barred by the Doctrine of Collateral Estoppel

Supreme Court rejected the CPLR Article 78 action filed by the Petitioner [Plaintiff] again seeking a court order annulling the decision of the New York City Department of Education [DOE] terminating Petitioner's employment.

Plaintiff had challenged her being appointed as a probationary employee by DOE upon her reinstatement to a position with the agency in 2009 after she had been terminated from her from her position in 2010. Plaintiff contending that she had attained tenure by estoppel* and thus could be removed from her position only after "notice and hearing" pursuant to the controlling disciplinary procedure and being found guilty of one or more of charges filed against her.

Supreme Court, considering a number of procedural issues, held that Plaintiff's instant Article 78 petition was [1] untimely, [2] barred by the Doctrine of Res Judicata and [3] barred by the Doctrine of Collateral Estoppel, dismissed the proceeding. 

As to the basis underlying the Supreme Court's rulings on these procedural matters:

1. The commencement of an action at law is deemed "untimely" if the required petition or similar instrument is not filed with the judicial or quasi-judicial tribunal having jurisdiction within the period of time specified by the relevant law, rule or regulation or, in some instances, the terms of a collective bargaining agreement negotiated pursuant to Article 14 of the New York State Civil Service Law, the so-called "Taylor Law";

2. The Doctrine of Res Judicata bars considering claims that could have been advanced in an earlier judicial or quasi-judicial proceeding in the course of a subsequent litigation; and

3. The Doctrine of Collateral Estoppel providesthat when an issue of fact has once been determined by a judicial or quasi-judicial body of competent jurisdiction the determination is conclusive as to the controverted issues and cannot again be litigated by the same parties in any future litigation.

Plaintiff appealed the Supreme Court's ruling. The Appellate Division, however,  unanimously affirmed the Supreme Court's decision, explaining:

a. Plaintiff's challenge with respect to her probationary status upon reinstatement by DOE in 2009 and the discontinuance of her employment under color of her being a "probationary employee" in 2010 was untimely and to the extent Plaintiff submitted a renewed challenge against DOE in 2015 concerning such action by DOE, it was similarly barred; and

b. Supreme Court correctly determined that the instant proceeding was barred by res judicata and collateral estoppel as Plaintiff had asserted claims arising from her reinstatement and subsequent discontinuance from her position by DOE in actions that raised the same issue with respect to her allegation that she had attained "tenure by estoppel" in two actions she had brought in federal court, one in 2011 and a second in 2013, and another such action she brought in state court in 2015. 

* * Tenure by estoppel, also referred to as tenure by acquisition, tenure by default, or tenure by inaction, results "by operation of law" in the event the appointing authority does not lawfully terminate the probationary employee on or before the last day of the individual's original, or extended, probationary period.

Click HEREto access the Appellate Division's ruling.

 

An educator's claim of tenure by estoppel may be defeated if the educator agrees to an extension of his or her probationary period

An educator's claim of tenure by estoppel may be defeated if the educator agrees to an extension of his or her probationary period

Slutsky-Nava v Yonkers City School Dist. Bd. of Educ., 2015 NY Slip Op 07670, Appellate Division, Second Department

A teacher may attain tenure by estoppel* when a school board accepts the continued services of a teacher 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.

In this CPLR Article 78 action a teacher [Teacher] asked to court to review a determination of the Yonkers City School District Board of Education [Yonkers] terminating Teacher’s employment as an elementary school teacher. Supreme Court granted Yonkers’ motion to dismiss Teacher’s petition and Teacher appealed.

According to the decision, Teacher was appointed by Yonkers as an elementary school teacher subject to Teacher’s satisfactorily completing a three-year probationary period which was to run through September 2, 2011. Teacher, however, was laid off from her position, effective June 31, 2011. In August 2012, she was again offered a position as an elementary school teacher, starting September 1, 2012.**

Upon her reemployment Teacher was told that, as a result of having been laid off, her probationary period was being extended to November 4, 2012. She signed the offer of employment, which clearly stated that her "expected date of tenure [would] be on November 4, 2012." The petitioner's employment was terminated on October 17, 2012, after she received an unsatisfactory rating.

The Appellate Division said that Teacher’s “probationary period was properly extended to November 4, 2012 since she signed an offer of employment which specified that she would not become eligible for tenure until November 4, 2012.” As Yonkers terminated the Teacher’s employment prior to the expiration of her probationary period and she did not perform the duties of a teacher after November 4, 2012, Supreme Court properly determined that, even accepting the allegations in the Teacher’s petition as true, she could not have acquired tenure by estoppel.

The court also rejected Teacher’s claim that Education Law §2573(15),***which, among other things, describes certain factors to be considered in calculating service for the purposes of determining a teacher's probationary period, holding that §2573(15) did not apply to the facts of this case.

The Appellate Division then held that “[s]ince the allegations of the petition were insufficient to state a cause of action to review [Yonkers’] determination based on the theory of tenure by estoppel, the Supreme Court properly granted [its] motion to dismiss the petition and, in effect, dismissed the proceeding.” 

* Also sometimes referred to as tenure by acquisition, tenure by default or tenure by inaction.

** Presumably [1] Yonkers abolished a position in the elementary tenure area, [2] Teacher was the least senior employee in that tenure area and her name was placed on a preferred list and [3] Teacher was subsequently appointed from the preferred list.

*** §2573(15), which applies to city school districts of cities with one hundred twenty-five thousand inhabitants or more, provides as follows: “15. Notwithstanding any other provision of this section [2573] no period in any school year for which there is no required service and/or for which no compensation is provided shall in any event constitute a break or suspension of probationary period or continuity of tenure rights of any of the persons hereinabove described.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_07670.htm

__________________

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Tenure by estoppel

Tenure by estoppel
Wamsley v East Ramapo Central School District, 281 AD2d 633

If a school board neglects to take timely action to discontinue the services of a probationary teacher or administrator, the individual will attain what is termed “tenure by estoppel.” The Court of Appeals addressed the issue of an individual obtaining “tenure by estoppel” in the Sewanhaka case [Gould v Sewanhaka Central High School District, 81 NY2d 446].

However, “tenure by estoppel” is not limited to individuals in the unclassified service such as teachers and school administrators -- employees in the classified service also may attain tenure by estoppel as the Wamsley case demonstrates.

On October 5, 1998, East Ramapo appointed George Wamsley to the position of school bus driver, a classified service position in the noncompetitive class. Wamsley's appointment was subject to his satisfactorily completing a 26-week probationary period.

On August 18, 1999 the school district's personnel officer wrote to Wamsley advising him that he was to be dismissed because his service during his probationary period had been deemed unsatisfactory by his supervisors. Wamsley was terminated from his position effective August 25, 1999.

Wamsley sued, contending that his probationary term had expired before he was discharged and he held a tenured appointment. He also claimed that he was entitled to a “pretermination hearing” because he was an “exempt volunteer firefighter.”

The Appellate Division agreed with Wamsley's argument that he was no longer a probationary employee at the time he was discharged. In the words of the court, Wamsley's “probationary term began on October 5, 1998, and ended 26 weeks later ... as permissibly extended by his days of absence.”*

Accordingly, Wamsley's 26-week period, not having otherwise been extended as permitted by the rules of the Rockland Civil Service Commission, “expired long before his employment was terminated.”

However, there were other elements to consider concerning Wamsley's claim of a right to a pretermination hearing.

The due process procedures set out in Section 75 of the Civil Service Law are not available to a noncompetitive class employee who has less than five years of continuous service unless the individual is a veteran who served in time of war or is an “exempt volunteer firefighter.”

According to the Appellate Division, Wamsley claimed, but never established, that he was entitled to the protections of Section 75 because he was an exempt volunteer firefighter.

The Appellate Division concluded that although clearly Wamsley was not a probationer at the time of is dismissal, he raised a triable issue of fact with respect to his claim of Section 75 rights based on his status as an exempt volunteer firefighter.

According, a hearing on this aspect of this complaint was required and the matter was returned to State Supreme Court “for resolution of that factual issue.”

Two technical elements concerning exempt volunteer firefighter status should be noted:

1. The individual claiming exempt volunteer firefighter status has the burden of demonstrating that he or she enjoys such status [People v Hayes, 135 AD 19]; and

2. Notice of the fact that the individual is an exempt volunteer firefighter must be given to the employer prior to the individual's effective date of termination [Badman v Falk, 4 AD2d 149].

* Although decision indicates that Wamsley “became permanent” after the expiration of his 26-week probationary term, “probationary employees” in fact hold permanent appointments as of the effective date of his or her appointment to the position and may enjoy limited tenure rights. For example, courts have ruled that probationers are entitled to notice and hearing if the appointing authority decides to dismiss the individual during his or her minimum period of probation. In contrast, a probationer may be dismissed without notice and hearing after completing his or her minimum period of probation and prior to the expiration of his or her maximum period of probation. 

Tenure by estoppel

Tenure by estoppel
Wamsley v East Ramapo Central School District, 281 A.D.2d 633

If a school board neglects to take timely action to discontinue the services of a probationary teacher or administrator, the individual will attain what is termed "tenure by estoppel." The Court of Appeals addressed the issue of an individual obtaining "tenure by estoppel" in the Sewanhaka case [Gould v Sewanhaka Central High School District, 81 NY2d 446].

However, "tenure by estoppel" is not limited to individuals in the unclassified service such as teachers and school administrators -- employees in the classified service also may attain tenure by estoppel as the Wamsley decision demonstrates.

On October 5, 1998, East Ramapo appointed George Wamsley to the position of school bus driver, a classified service position in the noncompetitive class. Wamsley's appointment was subject to his satisfactorily completing a 26-week probationary period.*

On August 18, 1999 the school district's personnel officer wrote to Wamsley advising him that he was to be dismissed because his service during his probationary period had been deemed unsatisfactory by his supervisors. Wamsley was terminated from his position effective August 25, 1999.

Wamsley sued, contending that his probationary term had expired before he was discharged and thus he held a tenured appointment. He also claimed that he was entitled to a "pretermination hearing" because he was an "exempt volunteer firefighter."

The Appellate Division agreed with Wamsley's argument that he was no longer a probationary employee at the time he was discharged.

In the words of the court, Wamsley's "probationary term began on October 5, 1998, and ended 26 weeks later ... as permissibly extended by his days of absence."**

Accordingly, Wamsley's 26-week period, not having otherwise been extended as permitted by the rules of the Rockland Civil Service Commission, "expired long before his employment was terminated."

However, there were other elements to consider concerning Wamsley's claim of a right to a pretermination hearing.

The due process procedures set out in Section 75 of the Civil Service Law are not available to a noncompetitive class employee who has less than five years of continuous service*** unless the individual is a veteran who served in time of war or is an "exempt volunteer firefighter."

According to the Appellate Division, Wamsley claimed, but never established, that he was entitled to the protections of Section 75**** because he was an exempt volunteer firefighter.

The Appellate Division concluded that although clearly Wamsley was not a probationer at the time of is dismissal, he raised a triable issue of fact with respect to his claim of Section 75 rights based on his status as an exempt volunteer firefighter.

According, a hearing on this aspect of this complaint was required and the matter was returned to State Supreme Court "for resolution of that factual issue."

Two technical elements concerning exempt volunteer firefighter status should be noted:

1. The individual claiming exempt volunteer firefighter status has the burden of demonstrating that he or she enjoys such status [People v Hayes, 135 AD 19]; and

2. Notice of the fact that the individual is an exempt volunteer firefighter must be given to the employer prior to the individual's effective date of termination [Badman v Falk, 4 AD2d 149].

* Although decision states that Wamsley "became permanent" after the expiration of his 26-week probationary term, "probationary employees" in fact hold permanent appointments and may enjoy limited tenure rights. For example, courts have ruled that probationers are entitled to notice and hearing if the appointing authority decides to dismiss the individual during his or her minimum period of probation. In contrast, a probationer may be dismissed without notice and hearing after completing his or her minimum period of probation and prior to the expiration of his or her maximum period of probation.

** The Appellate Division said that as Wamsley "was absent, at most, 5 1/2 days during the 26-week period," his maximum period of probationary had ended expired long before his employment was terminated.

*** Section 75(c), in pertinent part, provides that an employee holding a position in the non-competitive class ... who since his last entry into service has completed at least five years of continuous service in the non-competitive class ....

**** Section 75(b), in pertinent part, extends the Section 75 rights available to tenured employees in the competitive class to a permanent employee in the classified service who is an exempt volunteer firefighter as defined in the general municipal law, except when a person described in this paragraph holds the position of private secretary, cashier or deputy of any official or department.

A series of annual appointments as an educator may not result in tenure by estoppel

A series of annual appointments as an educator may not result in tenure by estoppel

Mohr v Salamanca City School District, 267 A.D.2d 983

Seniority is one of the critical elements in determining the retention of an employee in layoff situations. Such seniority, however, is a function of having tenure with the individual’s employer, as the Mohr case demonstrates. As Mohr demonstrates, tenure is attained as a result of being continued in service after completing a probationary period and not simply completing a series of annual appointments.

Brian Mohr was appointed as a teacher’s aide in Salamanca’s Bilingual Education Program in 1978. He was reappointed annually to that position until 1982 when he was appointed as a Title VII funded Bilingual Resource Teacher [BFT] for one year.

In determining seniority for the purposes of a layoff, the District found that Mohr, the least senior teacher, and he was terminated. Mohr sued, contending that because of his earlier service with the district, he was not the least senior teacher in his tenure area. Mohr argued that he had acquired tenure by estoppel as a teacher as a result of his service with the district from 1987 through and including 1992. He claimed that this entitled him to “bump” a teacher in the Seneca Language/Iroquois Culture tenure area with less seniority or, alternatively, to be placed on the preferred list for employment in “similar positions”.

The Appellate Division said “Supreme Court properly rejected those contentions.”

According to the decision, although an individual who completes his or her probationary period may attain tenure by estoppel, Mohr had not been appointed to a “tenure track” position until 1993. Each of Mohr’s pre-1993 employments by the district was dependent on the district’s receiving grant funds. As Mohr had been employed under a series of one-year contracts rather than for a “probationary term,” the court said that he could not, and did not, attain tenure by estoppel. This meant that Mohr could not “bump” a teacher with less service with the district.

In Yastion v Mills, 229 A.D.2d 775, the Appellate Division held that a teacher may work on a year-to-year contractual basis and never acquire tenure even after three years of service. Orange-Ulster BOCES had appointed Yastion to a federally funded position and his annual employment contracts specifically indicated that “tenure does not apply to this position.”

Mohr was no more successful with his claim that he should be placed on a preferred list. The Appellate Division said that “it is well settled that a teacher is entitled to be placed on a preferred eligible list if he or she is certified in the same or a similar tenure area.”

Pointing out that Mohr was not certified to teach in the Elementary Education or a similar tenure area, the court said that while he held a permit that was the equivalent of certification to teach Seneca Language/Iroquois Culture, “the closest tenure area to Seneca Language/Iroquois Culture is the foreign languages tenure area, which, said the court, applies to seventh grade and above, not to the elementary grades.” Accordingly, the Appellate Division dismissed this branch of his appeal as well, holding that Mohr was not “entitled to placement on a preferred eligibility list.”

Layoff, reinstatement and tenure by estoppel considered

Layoff, reinstatement and tenure by estoppel considered
Decisions of the Commissioner of Education, Decision #16256

Full text of the decision

1. Appeal of MARY DICKINSON from action of the Board of Education of the Deer Park Union Free School District and Lynn Hadity relating to preferred eligibility rights.

2. Appeal of MARY DICKINSON from action of the Board of Education of the Deer Park Union Free School District regarding teacher termination.



KING, JR., Acting Commissioner.--On or about March 31, 2009, petitioner commenced an appeal pursuant to Education Law §310 challenging the determination of the Board of Education of the Deer Park Union Free School District (“board” or “respondent board”) to appoint Lynn Hadity as a reading teacher (“Dickinson I”).  In a separate appeal commenced on or about July 22, 2009, petitioner challenged the actions of the board terminating her employment (“Dickinson II”).

On June 30, 2010, a decision was rendered, consolidating the two appeals (Appeals of Dickinson, 49 Ed Dept Rep 463, Decision No. 16,082) and concluding in Dickinson I that the board violated petitioner’s rights when it failed to recall her to the vacant reading teacher position created in the 2008-2009 school year and ordering that she be reinstated to a reading teacher position with back pay, seniority and benefits as of September 1, 2008; and, concluding in Dickinson II, that when petitioner was recalled to a reading teacher position in June 2009, she was a probationary employee not entitled to the procedural protections of Education Law §§3013, 3020 and 3020-a and, therefore, was properly terminated on July 28, 2009.[1]

Pursuant to Article 78 of the Civil Practice Law and Rules, respondent appealed the decision to Supreme Court, Albany County.  In a decision dated February 22, 2011, the court ordered that the petition be granted solely to the extent of vacating the Commissioner’s determination in Dickinson II and remanded the matter to the Commissioner “for clarification on the effect of his determination in Dickinson I on petitioner’s tenure claims raised in Dickinson II and the basis upon which such determination is made.”[2]  Accordingly, as remanded by the court, I have considered petitioner’s tenure claims in Dickinson II in light of Dickinson I.

Pursuant to §276.5 of the Commissioner’s regulations, respondent board submitted a memorandum of law addressing the effect of the decision in Dickinson I on petitioner’s tenure status.[3]  The board alleges that the decision in Dickinson I properly did not interfere with its authority to grant or withhold tenure from petitioner.  The board seeks a determination that its recall and termination of petitioner as a probationary teacher was proper, that petitioner did not obtain tenure by virtue of Dickinson I and that petitioner is entitled only to the salary, seniority and benefits of a probationary reading teacher as of September 1, 2008 until her termination on August 31, 2009, less any compensation she received in the interim.

On or about September 1, 2005, petitioner was appointed as a remedial reading teacher in the district, subject to a two-year probationary period.  On April 24, 2007, the board granted petitioner tenure in reading, effective August 31, 2007.  On June 30, 2007, petitioner’s position was abolished and her name was placed on the district’s preferred eligibility list for a reading position.

Dickinson I held, inter alia, that the board violated petitioner’s rights when it failed to notify and recall her to an elementary school reading teacher position created for the 2008-2009 school year and ordered that petitioner “be reinstated to a reading teacher position with back pay, seniority and benefits as of September 1, 2008, less any compensation she may have received in the interim.”

Petitioner’s reinstatement on September 1, 2008 by order pursuant to Dickinson I did not result in her acquiring tenure in the district.  As previously noted in Dickinson II, in Remus v Bd. of Educ. for Tonawanda City School Dist. (96 NY2d 271, 278), the Court of Appeals held that a board of education resolution that grants tenure to a teacher effective on a specified future date “confers tenure upon the teacher only as of that specified future date.”  (see Mahoney v Mills, 29 AD3d 1043, lv to app den 7 NY3d 708).  There is no dispute that petitioner’s teaching position was properly abolished on June 30, 2007, prior to the August 31, 2007 effective date of the conditional tenure appointment on August 31, 2007.  Therefore, petitioner’s tenure never took effect.

Consequently, when petitioner was “recalled and appointed” as of September 1, 2008, by virtue of the order in Dickinson I, it was to a probationary position in the reading tenure area.  Although she was awarded back pay, petitioner never rendered any further actual service in that tenure area.  Therefore, petitioner was a probationary employee when the board acted to recall her to a reading position on June 23, 2009 and simultaneously rescinded her conditional tenure appointment.  Accordingly, petitioner was a probationary employee when she was terminated by respondent and was not entitled to the procedural protections of Education Law §§3013, 3020 and 3020-a.
Nor does the decision in Dickinson I result in petitioner acquiring “tenure by estoppel”. 

“Tenure by estoppel ‘results when a school board fails to take the action required by law to grant or deny tenure and, with full knowledge and consent, permits a teacher to continue to teach beyond the expiration of the probationary term’” (Matter of Gould v. Bd. of Educ. of the Sewankhaka Cent. High School Dist. et al., 81 NY2d 446, citing Matter of Lindsey v Bd. of Educ., of Mount Morris Cent. School Dist., et al., 72 AD2d 185, 186) (emphasis added).  This is not the situation before me.  Here, the board did not knowingly permit petitioner to teach beyond the expiration of her probationary term but, instead, was ordered in Dickinson I to reinstate her retroactively to September 1, 2008.  It is noteworthy that, when the board did act to recall petitioner on June 23, 2009 to a probationary position in the reading tenure area, it simultaneously rescinded its April 24, 2007 conditional appointment of petitioner in that tenure area.  Indeed, petitioner never rendered any further service in the reading tenure area under the reasonable expectation that it would lead to tenure.   As such, the board did not itself acquiesce or consent to the continuance of her employment in the district and, consequently, petitioner did not acquire tenure by estoppel (see LaBarr v Board of Ed. Of Union Free School Dist. No. 1, Town of Hempstead, 425 F Supp 219 [EDNY 1977]).

Based on the foregoing, I find that the relief provided in Dickinson I had no effect on petitioner’s tenure status and, therefore, the rationale for dismissing petitioner’s tenure claims as set forth in the decision in Dickinson II remains unaltered (Appeals of Dickinson, 49 Ed Dept Rep 463, Decision No. 16,082).

While petitioner disagrees with the board’s determination to terminate her from her position, petitioner has failed to present any evidence that the reason for the board’s denial of tenure was in violation of any statute or the constitution.  Accordingly, having determined that the decision and order in Dickinson I had no effect on petitioner’s tenure claims raised in Dickinson II, I hereby affirm and adopt the findings and determination in Dickinson II in its entirety for the reasons set forth therein and in this decision.

THE APPEAL IS DISMISSED.

[1] The facts and procedural history are set forth in the original decision. 
[2] As ordered by Supreme Court, the sole issue for consideration is the effect of the determination in Dickinson I on petitioner’s tenure claims raised in Dickinson II.  To the extent the parties attempt to introduce arguments not directly relevant to the tenure issue, I have not considered them.
[3] By letter dated April 8, 2011, my Office of Counsel notified each party of the opportunity to submit additional affidavits and memoranda of law on the sole issue of the effect of Dickinson I on petitioner’s tenure status.  Petitioner did not submit any further papers or memorandum.

Juul Agreement entered into by the parties extending a teacher’s probationary period held valid notwithstanding its not being presented to and approved by the school board

Juul Agreement* entered into by the parties extending a teacher’s probationary period held valid notwithstanding its not being presented to and approved by the school board

Marshall v Pittsford Cent. Sch. Dist., 2012 NY Slip Op 07791

A probationary teacher [T] had “the expectation that her probationary period would last for three years.”

At the end of her third probationary year T was informed by the School Superintendent that the Superintendent would not be recommended T to the school board for tenure. In lieu of termination, T entered into a Juul agreement* with the school district. Accordingly, T was granted a fourth probationary year in exchange for the waiver of her right to a claim of tenure by estoppel.

Although the Juul Agreement was signed by T, the Teacher’s Association President and the School Superintendent, it was neither presented to nor ratified by the school board.

Prior to the end of T’s fourth probationary year, the Superintendent again advised T that the she would not recommend T for tenure. T was also told that her appointment as a probationary teacher with school district would end on June 30.

The school board voted to deny T tenure, whereupon T filed a petition pursuant to CPLR Article 78 seeking a court order "declaring" that she has tenure with the School District.

Supreme Court dismissed T’s petition; the Appellate Division affirmed the lower court’s ruling.

The Appellate Division explained that the record establishes that the Juul agreement between T and the school district was fairly made, holding that “T is estopped from challenging its validity, including the waiver of her right to tenure by estoppel contained therein.”

Conceding that the Juul agreement had not approved by the school board, which omission was characterized by the Appellate Division as “an impermissible abdication of a school board's responsibility to act as trustee …,” the court said that nevertheless agreed with [the school district] that T was equitably estopped** from disaffirming the Juul agreement despite the school board's failure to authorize or ratify it.

Here, said the court, the Superintendent unequivocally stated that she did not intend to recommend T for tenure at the end of her third probationary year based on T's evaluations and input from the Principal. In lieu of the Superintendent's recommending to the Board that T be denied tenure, the parties entered into the Juul agreement.

Further, said the Appellate Division the agreement expressly stated that "the Superintendent . . . has informed [T] that she will not be recommended for tenure at the end of her probationary period (June 30, 2010); and . . . the Superintendent has informed [T] that she is willing to recommend an extension of her probationary period for one year."

The agreement signed by the parties identified above also included a clause that stated that T "accepts the extension of her probationary period until June 30, 2011," and that T "agrees that she waives any right to claim status as tenured teacher by estoppel, acquiescence or any other reason as a result of this extension."

Inasmuch as the record establishes that the Juulagreement was fairly made, the Appellate Division ruled that T is estopped from challenging its validity and may not now disavow her waiver of her right to tenure by estoppel.

*  In Juul v Board of Education, 76 A.D.2d 837, [Affirmed 55 NY2d 648], the Appellate Division held that agreements to extend probationary periods are valid and enforceable when found to be a "knowing and voluntary waiver of the protections afforded by the Education Law."

** The Appellate Division said that “"Equitable estoppel is imposed by law in the interest of fairness to prevent the enforcement of rights which would work a fraud or injustice upon the person against whom enforcement is sought and who, in justifiable reliance upon the opposing party's words or conduct, has been misled into acting upon the belief that such enforcement would not be sought."

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_07791.htm

Accumulating eligibility towards tenure via so-called "Jarema credit"

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".

 

Matter of DeNigris v Smithtown Cent. Sch. Dist.

2023 NY Slip Op 03783

Decided on July 12, 2023

Appellate Division, Second Department

Ford, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

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]

Determining the availability of Jarema credit for the purposes of attaining tenure [2015 NY Slip Op 04847]

Only educators holding valid New York State teacher’s certificate are entitled to Jarema service credit in meeting probationary service requirements [Goldberg and the NYC Department of Education, Decisions of the Commissioner of Education 15763.]

Determining service credit for the purpose of attaining tenure by educators serving as substitute employees [https://www.leagle.com/decision/199720090ny2d110119]

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

Acquiring tenure in the position by tenure by "operation of law," sometimes referred to as tenure by estoppel or tenure by acquiesce

Acquiring tenure in a position by "operation of law," sometimes referred to as  tenure by estoppel or tenure by acquiesce
Matter of Mogilski v Westbury Union Free Sch. Dist., 2018 NY Slip Op 01063, Appellate Division, Second Department

Should the appointing authority fail, or neglect, to timely notify a probationer that he or she is to be terminated for failure to satisfactorily complete his or her probationary period  on or before the end of the individual's probationary period, the employee is deemed to have obtained tenure by "operation of law," sometimes referred to as  tenure by estoppel or tenure by acquiesce.

In Mogilski v Westbury Union Free School District the Appellate Division determined that Mogilski had obtained tenure in his position by "operation of law."

Westbury Union Free School District [District] appointed Anthony Mogilski as a Supervisor of School Facilities and Operations on September 21, 2015 subject to Mogilski's satisfactory completion of a 26-week probationary period scheduled to end March 21 next following.  On February 2, 2016, the District informed Mogilski that his probationary period was being extended for 12 days due to school closings for holidays, which, said the District, extended his probationary period through April 6, 2016.

The District's request for the extension was approved by the Nassau County Civil Service Commission [Commission] and on March 28 the School Board of Education adopted a resolution terminating Mogilski's employment "effective the last day of his probationary period, which is March 29, 2016 ...." A termination of employment letter was delivered to Mogilski on March 29.

On March 29, however, the District was informed by the Commission that it had incorrectly "authorized the extension" of Mogilski's probationary period for 12 days when the extension should have been 6 days, thereby resulting Mogilski'sprobationary period "officially" ending on March 29 rather than April 6.

Mogilskifiled an Article 78 petition seeking a court order reinstating him to his former position in which he alleged that the District exceeded its jurisdiction, and acted arbitrarily,  capriciously, and irrationally in extending his probationary period. He contended that the Commission's rules with respect to a probationer's term being extended for authorized or unauthorized absences on "workdays" does not authorize such an extension for school closings on holidays.*

Although Supreme Court denied Mogilski's petition, holding it was not an abuse of discretion for the District to treat absences resulting from "holiday" school closings the same as absences for sick leave, vacation, jury duty, and other authorized or  unauthorized absences for purposes of extending a probationer's term, the Appellate Division disagreed and reversed Supreme Court's ruling.

The Appellate Division explained that the relevant Commission rule indicated that "it is proper to extend a probationary term by the number of 'workdays' an employee is 'absent' or 'workdays' an employee missed due to sick leave, vacation, or jury duty" and that this court had previously ruled "it is rational to interpret 'workdays' to include 'all of those days when [Mogilski's] presence would normally have been required.'" However, said the court, a school closing due to a holiday "is not a day when [Mogilski's]would have required" to work and the extension of his probationary period in consideration of the school being closed due to a holiday was improper.

The court directed the District to reinstate Mogilski to his position of Supervisor of School Facilities and Operations with back pay and all benefits of his employment.

* 4 NYCRR 4.5(g), addressing absence during probationary term with respect to employees of the State as the employer, in pertinent part, provides that "Any periods of authorized or unauthorized absence aggregating up to 10 workdays during the probationary term, or aggregating up to 20 workdays if the probationary term or maximum term exceeds 26 weeks, may, in the discretion of the appointing authority, be considered as time served in the probationary term ... Any such periods of absence not so considered by the appointing authority as time served in the probationary term, and any periods of absence in excess of periods considered by the appointing authority as time served in the probationary term pursuant to this subdivision, shall not be counted as time served in the probationary term. The minimum and maximum periods of the probationary term of any employee shall be extended by the number of workdays of his absence which, pursuant to this subdivision, are not counted as time served in the probationary term."

Many local civil service commissions and personnel officers have adopted a similar rule.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_01063.htm

Tenure by estoppel

Tenure by estoppel

Andrews v Board of Educ. of the City School Dist. of the City of New York, 2012 NY Slip Op 00845, Appellate Division, First Department

Education Law §§2573(1)(a) and 3012(2) requires that a probationary employee whose employment will not be continued be given the 60-day written notice that he or she was not recommended for tenure.

Although Dana Andrews was not given the required written notice and claimed to have taught for one day after the expiration of her probationary term, the Appellate Division ruled that Andrews had not acquired tenure by estoppel.

The court said that the record shows that the New York City Department of Education [DOE] “did not, ‘with full knowledge and consent,’ permit her to continue to teach after her probationary term expired.” According to the decision, it was undisputed that Andrews was informed in May 2009 that her employment would be discontinued, “and when she reported for duty on September 8, 2009, she was told immediately that she had been terminated, and was given no further assignments.”

Explaining that Andrews was not paid for working on September 8, 2009 and the DOE’s actions "speak loudly against any supposition that [DOE] meant to perpetuate [Andrews's] employment" the Appellate Division affirmed Supreme Court’s denial of her petition seeking a court order declaring that she had attained tenure by estoppel.

Tenure by estoppel "results when a school board fails to take the action required by law to grant or deny tenure and, with full knowledge and consent, permits a teacher to continue to teach beyond the expiration of the probationary term," [Lindsey v Board of Education of Mt. Morris Central School District, 72 AD2d 18].

However, in Tucker v Board of Education, 189 AD2d 704, the Appellate Division held that Tucker was entitled to pay corresponding to the number of days for which she was not provided the statutory 60 days of notice.

The Court of Appeals affirmed the Appellate Division’s determination [see 82 N.Y.2d 274]. The court noted that while the law does not specially provide for a remedy in the event the notice requirement is not met, the courts and the Commissioner of Education have consistently held that in cases involving intentional delay or as a result of oversight, teachers are to be awarded one day of pay for each day that the notice was late.

The Court of Appeals explained that the purpose of the statute's 60-day notice requirement is to afford probationary teachers a reasonable period of time, before the end of their probationary period, to make plans for the upcoming school year and is a rule founded on reasons of practicality and fairness to probationary teachers. It said that there was nothing in the statute or its legislative history indicating that there should be an exception to law's broader purpose of providing probationary teachers with minimal notice of tenure denials to enable them to seek other employment.

The Andrews decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_00845.htm

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:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_05804.htm

Determining service credit for the purpose of attaining tenure by educators serving as substitute employees

As this ruling by the Court of Appeals [Court] indicates, a substitute teacher may satisfy probationary service requirements using "Jarema credit"* attain tenure as §2509(1)(a) of the Education Law allows a teacher to apply service as a "regular substitute" towards completion of the probationary term required for tenure.

If a probationer substitutes for a teacher who is on leave for an indefinite period, is he or she a "regular substitute" and thus eligible for Jarema credit? Yes said the Court. Further, the teacher can be deemed to have earned this credit retroactively, even if the district explicitly described the conditions of employment differently in the hiring process.

In other words, one can become a "regular substitute" by virtue of one's service even if the job was described differently at is onset. The Court explained that the "ambiguous statutory term 'regular substitute' should be defined by the actual nature and continuity of the substitute service, not by the anticipated duration of the replaced teacher's absence."

Jarema credit may open the door to tenure by estoppel should a school board accepts the continued services of a teacher, but fail to take the action required by law to either grant or deny tenure prior to the expiration of the educator's probationary term..

In this instance, a Board of Cooperative Educational Services [BOCES] employed two types of substitute teachers: "per diem substitutes" and "regular substitutes."

Per diem teachers were employed for an indefinite period in order to cover the absences of regular teachers.  Per diem teachers were paid at a daily rate and had limited employment benefits.

In contrast, BOCES' "regular substitutes" were teachers who received a "special appointment for a fixed time." Regular substitutes were typically paid from a salary line temporarily available because the regular teacher was on a leave of absence. Regular substitutes also received a prorated annual salary with full benefits.

In adjudicating an educator's claim that she had attained tenure by estoppel the Court held that  "... as probationary periods are employed to determine if appointees are 'competent, efficient and satisfactory' for purposes of recommending tenure, there is no reason why [the educator's] service following her initial appointment should be considered anything less than time accrued towards reducing the [mandatory] probationary period the statute requires."

Thus opined the Court, tenure evaluations can be made regardless of the title under which the probationer serves. A school board may not undermine the policies behind the tenure system and artificially extend the probationary period by designating a position "acting" or "temporary," said the Court.

In addition, the Court rejected BOCES' argument that sanctioning a "surprise" acquisition of tenure by estoppel would both saddle school districts with the administrative burden of tracking the probationary term for teachers on a day-to-day basis and deny them the full statutory period in which to consider qualifications for tenure.

The Court said that such an argument assumes the wrong perspective on the tenure rules.

It said that its prior opinions has made clear that tenure rules should be read so as to discourage a board's use of technical obstacles and manipulable labels that can deprive a qualified teacher of tenure rights. Further, the distinction between "definite" and "indefinite" leaves does not in fact assure BOCES predictability or certainty since a "definite term" is not a requirement for regular substitute service. Indeed, even where a regular substitute is engaged for a "definite term" to replace a tenured teacher, the absence may end unexpectedly and the tenured teacher can insist upon early return to the encumbered position.

Noting that in this instance the educator had continuous service with BOCES, the Court ruled that she was entitled to Jarema credit that, when combined with her additional service with BOCES, entitled her to tenure.

* Typically referred to by the name of the bill's sponsor, then Member of the Assembly  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….”

The decision is posted on the Internet at:

https://www.leagle.com/decision/199720090ny2d1101193