Appeal of DONALD S. GOLDBERG from action of Joel I. Klein, Chancellor of the New York City Department of Education, and Daniel Purus, Local Instructional Superintendent of District 25 of the New York City Department of Education, regarding termination of a probationary appointment.

Decision No. 15,763

(June 17, 2008)

 

James R. Sandner, Esq., attorney for petitioner, Neil J. Dudich, Esq., of counsel

Michael A. Cardozo, Corporation Counsel, attorney for respondents, Joshua Fay, Esq., counsel

MILLS, Commissioner.--Petitioner appeals a determination by the New York City Department of Education (“Department”) to terminate his services.  The appeal must be dismissed.

Petitioner was first employed by the Department as a per diem substitute teacher for a total of 12 days during the fall term between September 4, 2001 and January 31, 2002.  Because petitioner did not hold a valid teaching certificate at that time, his employment was permitted only under the terms of a temporary license issued by the New York State Education Department (“SED”) to the Department that allowed petitioner to teach while at the same time working toward certification.  On February 1, 2002, petitioner was assigned to a regular, full-time substitute teaching position at Intermediate School No. 25 (“I.S. 25”), located within the Department’s Administrative District 25.  Petitioner served in this position through the spring and fall 2002 terms until May 18, 2003 of the spring 2003 term.  During the spring 2003 term, petitioner received a provisional certificate from SED as an English teacher effective February 1, 2003.

Petitioner received satisfactory observation reports dated April 23 and October 28, 2002.  On each of petitioner’s end-of-year reviews dated June 17, 2002 and June 13, 2003, during the period of his regular substitute service, his performance was evaluated “satisfactory” by his supervising principal.

On May 19, 2003, petitioner was appointed to a probationary teaching position at I.S. 25 within the tenure area of English.  He was given one year of credit towards his probationary period for the two complete terms in which he served as a regular substitute. Petitioner continued his probationary position as an English teacher at I.S. 25 until he was excessed to J.H.S. No. 185, where he was observed and evaluated on nine occasions by the principal or assistant principal. 

Petitioner received an unsatisfactory rating in his annual review for the 2004-2005 school year and was notified by letter dated May 6, 2005, that his services as a probationer would be discontinued on May 18, 2005 and that he would be paid until June 7, 2005.  Petitioner received a second letter dated May 16, 2005, notifying him of his discontinuance and date of last payment.  Both letters from the local instructional superintendent informed petitioner that his discontinuance was based on the reason included in the documentation he received with his unsatisfactory rating sheet.  This appeal ensued.  Petitioner’s request for interim relief was denied.

Petitioner claims that he acquired tenure by estoppel on or about February 1, 2005 and could not be terminated after that point without a due process hearing held in accordance with Education Law §§3020 and 3020-a.  Petitioner contends that his substitute service between February 1, 2002 and May 18, 2003 qualifies 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).  Petitioner also contends that the Department failed to take the action required by law to grant or deny tenure and permitted petitioner to teach beyond the expiration of his probationary term.  Petitioner claims a property right in his position and a right to retain it subject to being discharged for cause in accordance with the provisions of Education Law §§3020 and 3020-a.   Petitioner asserts that respondents’ summary deprivation of his employment violated Education Law §§3012, 3020 and 3020-a, violated lawful procedures, and was arbitrary, capricious and an abuse of discretion. 

Petitioner contends further that respondents failed to give petitioner notice 60 days prior to the expiration of his probationary period that he was not to be recommended for appointment on tenure as required by Education Law §2573(1)(a).  Petitioner seeks an order declaring that he acquired tenure with the Department in the area of English prior to the termination of his employment and annulling that termination.  Petitioner also requests an order reinstating him effective May 17, 2005 as a full-time teacher tenured in the subject area of English, nuncprotunc, together with full pay, seniority and all other benefits and emoluments of employment.   If petitioner is not awarded tenure by estoppel, he requests in the alternative, an award of back pay for each day the notice required by Education Law §2573(1) was deficient.  Petitioner also seeks an order that respondents pay his attorney’s fees, costs and disbursements related to this proceeding.

Respondents assert that petitioner did not acquire tenure by estoppel and is not entitled to Jarema credit under the bylaws of the Board of Education, Division C, Article 1, Section 100(3) for the spring 2003 term because his service was for a total of 75 school days, and not for a period of a “term or more.”  Respondents contend that petitioner’s probationary period was scheduled to conclude on May 19, 2005 and his service was discontinued on May 17, 2005, so he could not have completed his probation or have attained tenure by estoppel.  Respondents assert that petitioner had no protected property interest in his position and was not entitled to notice and a hearing as required for tenured teachers under Education Law §3020-a.  Respondents admit the failure to give petitioner notice 60 days prior to the expiration of his probationary period that he was not to be recommended for appointment on tenure and affirmatively state that petitioner was paid for 30 days following his receipt of the notice and will receive 30 additional days of pay.  Respondents ask that the petition be dismissed in its entirety. 

     Education Law §2573(1)(a) 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; ....

Parallel provisions are found in Education Law §§2509(1)(a) and 3012(1)(a).      Under these provisions, a teacher can apply service as a “regular substitute” toward completion of the three-year probationary term required for tenure.  This credit is known as Jarema credit.  In order to earn Jarema credit, a teacher must serve as a regular substitute continuously for at least one school term immediately proceeding the probationary period (Matter of Speichler v. Bd. of Coop. Educ. Servs., 90 NY2d 110; Appeal of Goldman, 43 Ed Dept Rep 338, Decision No. 15,011; Appeal of Creswell, 41 id. 235, Decision No. 14,673)  Whether a teacher has served as a regular substitute continuously for at least one term is defined by the nature and continuity of the substitute service actually performed (Matter of Speichler v. Bd. of Coop. Educ. Servs., 90 NY2d 110; Appeal of Goldman, 43 Ed Dept Rep 338, Decision No. 15,011; Appeal of MacDonald, 40 id. 560, Decision No. 14,557, judgment granted dismissing petition to review, MacDonald v. Mills, Sup. Ct., Albany Co., Special Term (Canfield, J.), January 11, 2002, n.o.r.).

Petitioner argues that he should be given Jarema credit for the entire period of his “regular substitute” service from February 1, 2002 until May 19, 2003 reducing his three-year probationary period by one year, three months and 18 days, so that it expired on or about February 1, 2005.  However, Jarema credit cannot be given to a regular substitute who does not possess a valid New York State teacher’s certificate (seePierce v. Monroe 2-Orleans Bd. of Coop. Educ. Servs., 195 Misc 2d 178, aff’d 12 AD3d 1046, citing Matter of Speichler v. Bd. of Coop. Educ. Servs., 90 NY2d 110).  As the court stated in Pierce, if Jarema credit were given to a regular substitute who did not possess a valid teacher’s certificate, it could lead to “the anomalous result of [a teacher] earning tenure by estoppel prior to even obtaining a provisional teacher’s certificate” (Pierce, 195 Misc 2d at 182).  Petitioner’s provisional teacher’s certificate, issued by SED, was not effective until February 1, 2003.  Consequently, petitioner was not entitled to Jarema credit for his service prior to that date and therefore, was still serving a probationary period on May 18, 2005.  Therefore, I find that petitioner did not acquire tenure by estoppel on February 1, 2005 and was lawfully terminated on May 18, 2005, during his probationary period. 

With respect to petitioner’s claim that he was not given timely notice, Education Law §2573(l)(a) requires 60 days notice to a probationary teacher immediately preceding the expiration of his probationary period.  Respondents admit failing to provide timely notice but assert that petitioner was paid for 30 days following his receipt of the notice and would be paid for an additional 30 days.  Petitioner’s reply does not dispute respondents’ assertion.  The record does not, therefore, support an award of back pay for each day the notice required by Education Law §2573(1)(a) was deficient because petitioner has already been compensated.

In light of this disposition, I need not consider the parties’ remaining contentions.

THE APPEAL IS DISMISSED.

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