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August 17, 2012

Only educators holding valid New York State teacher’s certificate are entitled to Jarema service credit in meeting probationary service requirements


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

A per diem substitute teacher and worked for a total of 12 days pursuant to a temporary license allowing him to teach while at the same time working toward certification. The teacher was subsequently assigned to a regular, full-time substitute teaching position and ultimately received a provisional certificate from the State Department of Education as an English teacher.

He was then appointed to a probationary teaching and was given one year of credit towards his probationary period for the two complete terms in which he served as a regular substitute.

The teacher was given an unsatisfactory rating in his annual review and was notified that his services as a probationer would be discontinued. He appealed his termination, claiming that he acquired tenure by estoppel and could not be terminated after that point without a due process hearing held in accordance with Education Law §§3020 and 3020-a. He also argued that that his substitute service qualified for credit of approximately one year, three months and 18 days, and thereby reduced his probationary period as a teacher with the Department pursuant to Education Law §2573(1).

Rejecting the teacher’s appeal the Commissioner of Education cited Education Law §2573(1)(a), which states, in pertinent part, “Teachers ... shall be appointed ... 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;....”

In addition, the Commissioner noted that “Parallel provisions are found in Education Law §§2509(1)(a) and 3012(1)(a).”

Thus, a teacher can apply service as a “regular substitute” toward completion of the three-year probationary term required for tenure – commonly referred to as “Jarema credit.”

In order to earn Jarema credit, however, a teacher must serve as a regular substitute continuously for at least one school term immediately proceeding the probationary period. The Commissioner also noted, “Jarema credit cannot be given to a regular substitute who does not possess a valid New York State teacher’s certificate.”

August 16, 2012

Off-duty police officer not acting in the performance of his or her duties at the time of his or her injury not eligible for General Municipal Law §207-c benefits


Off-duty police officer not acting in the performance of his or her duties at the time of his or her injury not eligible for General Municipal Law §207-c benefits
Martin v Clarkstown, 2012 NY Slip Op 51482(U), Supreme Court, Rockland County [Not selected for publications in the Official Reports]

Daniel Martin, a Clarkstown police officer, was injured in the line of duty and was approved for certain benefits pursuant to General Municipal Law Section §207-c.

Section §207-c provides, in relevant part, that “Any . . . member of a police force of any county, city of less than one million population, town or village … so as to necessitate medical or other lawful remedial treatment shall be paid by the municipality by which he is employed the full amount of his regular salary or wages until his disability arising therefrom has ceased, and, in addition such municipality shall be liable for all medical treatment and hospital care necessitated by reason of such injury or illness….”

Martin returned to work after recovering from the injury. He, however, later suffered a second injury that prevented him from performing the duties of his position. This injury occurred at his home while Martin was off-duty. Martin contended that his second injury was the result of his having suffered his earlier job-related injury.

When his request for §207-c benefits in consideration of this second injury was denied by the Department, Martin filed an Article 78 petition challenging the Department’s decision. In support of his petition, he submitted a number of documents from physicians indicating his second injury was related to the first injury to Supreme Court.

Martin contended that “because the second injury was related to the first injury, he should have received benefits pursuant to §207-c.” Essentially Martin argued that his second injury was a "reoccurrence of his acknowledged GML §207-c injury."

Clarkstown disagreed, arguing that §207-c benefits are not available with respect to injuries suffered by an off-duty police officer who was not acting in the performance of his or her duties at the time of his or her injury.

Supreme Court rejected Martin’s petition, holding that it was well settled that in order to demonstrate entitlement to §207-c a claimant must prove a direct causal relationship between his or her job duties and the resulting illness or injury, citing Brunner v. Bertoni, 91 AD3d 1100. In Brunner the Appellate Division said §207-c benefits were not available to an individual if his or her performing the duties of the position were not a direct cause of the injury or disease.

Sustaining the Department’s administrative determination, Supreme Court ruled that because Martin had not suffer his second injury while he was engaged in “the performance of his duties" he was not entitled to §207-c benefits. Further, the court found that the Department’s determination with respect to Martin’s second injury had a rational basis and was neither arbitrary nor capricious.

The decision is posted on the Internet at:

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General Municipal Law§§ 207-a and 207-c- a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder and other disability retirement issues is available from the Public Employment Law Press. Click on http://section207.blogspot.com/ for additional information about this electronic reference manual.

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Workers’ Compensation benefits for injury as a participant in an “off-duty athletic event” depends of the nature of the employer’s sponsorship


Workers’ Compensation benefits for injury as a participant in an “off-duty athletic event” depends of the nature of the employer’s sponsorship
Huff v Department of Corrections, 52 AD3d 1003

Cheryl Huff, a correction officer, was employed at the Greene Correctional Facility in Greene County. She was injured while practicing volleyball for the employer's "Olympics," while playing on a team representing another correctional facility.

The Workers' Compensation Board approved Huff’s application for workers’ compensation benefits, ruling that her injury arose out of and in the course of her employment. The employer and its Workers’ Compensation Insurance carrier appealed the Board’s ruling.

Initially the Appellate Division noted that where an employee is neither required nor compensated to participate in an off-duty athletic-related activity, an injury attributable to such participation is compensable only when the employer "otherwise sponsors the activity," citing Section 10.1 of the Workers' Compensation Law.

As to what constitutes sponsorship, the court said sponsorship has been found when there is an affirmative act or overt encouragement by the employer for the employee to participate in the activity.

The problem, here, however, was that the Workers’ Compensation Appeals Board's finding that Huff was eligible for workers’ compensation benefit for the injury that she sustained in the course of training for the Olympics for another Corrections facility’s team was contrary to a previous Board decision having almost identical facts.

The Appellate Division pointed out that the Board had previously ruled that a corrections employee's injury while training to represent the facility in a statewide athletic competition was not compensable because the employer did not sponsor or encourage participation in the activity.

In such situations the Appellate Division said that is was incumbent on the administrative body to “set forth a rational explanation for doing so or such determination will be deemed arbitrary and capricious.”

Holding that the Board has not provided a rational basis for departing from its own precedent, the Appellate Division vacated its ruling and remitted the matter to the Workers' Compensation Board “for further proceedings not inconsistent with this Court's decision.”

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New York Public Personnel Law Blog Editor Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
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