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Decision No. 14,557

Appeal of ARTHUR G. MACDONALD from action of the Board of Education of the City School District of the City of North Tonawanda, and John H. George, Superintendent, regarding teacher termination.

Decision No. 14,557

(April 12, 2001)

James R. Sandner, Esq., attorney for petitioner, Mary Scalise Perillo, Esq., of counsel

Norton/Radin/Hoover/Freedman, attorneys for respondents, Andrew J. Freedman, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the termination of his services by the Board of Education of the City School District of the City of North Tonawanda ("respondent"), and John H. George, Superintendent. The appeal must be dismissed.

From September 1972 until June 1990, petitioner was a music teacher in the Kenmore-Tonawanda Union Free School District and received tenure there. Petitioner subsequently served as a part-time music teacher (.6 FTE ["full-time equivalent"]) in respondent's district from September 1991 until February 1992. In February 1992, respondent appointed petitioner as a full-time long-term substitute music teacher. Petitioner was reappointed annually to this position through June 1997. In September 1997, respondent appointed petitioner as a part-time (.8 FTE) music teacher through June 1998.

In July 1998, respondent appointed petitioner to a two-year probationary term in the tenure area of Music K-12, commencing September 8, 1998 until September 8, 2000. By letter dated June 19, 2000, Superintendent John H. George informed petitioner that he would not make an affirmative recommendation for his appointment on tenure to respondent at its July 12, 2000 meeting. Respondent terminated petitioner's services as a probationary teacher on July 12, 2000. This appeal ensued.

Petitioner asserts that, pursuant to Education Law ""2509(1)(a) and 3012(1)(a), he should have received two years credit (known as "Jarema" credit) for his continuous long-term substitute teaching in the district. Petitioner contends that with Jarema credit, his probationary period would have terminated September 8, 1999, and that he therefore acquired tenure by estoppel and acquiescence when respondent permitted him to continue working for the district beyond September 8, 1999. He seeks reinstatement as a fully tenured teacher in the tenure area of Music K-12.

Respondent asserts that by accepting the part-time (.8 FTE) position for the 1997-98 school year, petitioner created a "gap" year in his full-time employment with the district. Respondent contends that as a result of this gap, petitioner is not entitled to receive Jarema credit for his long-term substitute service, since the full-time substitute service did not immediately precede petitioner's probationary appointment. Respondent also asserts that petitioner effectively waived any right to receive Jarema credit when he knowingly accepted his two-year probationary appointment. Additionally, respondent contends that petitioner cannot unilaterally change the employment agreement he signed and accepted for a probationary period beginning September 8, 1998 and expiring on September 8, 2000.

Education Law "2509(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; . . . in the case of a teacher who has been appointed on tenure in another school district within the state . . . the probationary period shall not exceed two years. . . (emphasis added).

Although respondent's appointment letter does not specify, the probationary term commencing on September 8, 1998, was presumably for two, rather than three years, because petitioner had been previously tenured in another district (Education Law ""2509[1][a] and 3012[a][1]). Petitioner argues, however, that he is entitled to two years Jarema credit for his substitute service, rather than one year credit for previous tenure, and that he received tenure by estoppel when he continued to work beyond September 8, 1999, the end of the first probationary year. 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 Speichler v. Board of Coop. Educ. Servs., 90 NY2d 110; Emma v. Schenectady City School District, 28 F.Supp.2d 711 [N.D.N.Y. 1998]).

Petitioner correctly asserts that where a teacher is entitled to both probationary periods specified in Education Law ""2509(1)(a) and 3012(1)(a), the shorter of the two probationary periods governs (Appeal of Balandis, 27 Ed Dept Rep 359, Decision No. 11,975). Hence, the inquiry in the instant case is whether petitioner is entitled to Jarema credit for his substitute service.

In order to earn Jarema credit, regular substitute service must be performed before the probationary service begins (Matter of Robins v. Blaney, 59 NY2d 393; Matter of Negri, 19 Ed Dept Rep 35, Decision No. 10,015, aff'd sub nom, Matter of Negri v. Ambach, Supreme Ct., Albany County, Hughes, J., Feb 11, 1980) and must be continuous for at least one school term (Matter of Lifson v. Board of Educ., 66 NY2d 896; Appeal of Czajkowski, 34 Ed Dept Rep 589, Decision No. 13,418). Petitioner's substitute service preceded his probationary appointment in July 1998 and was for more than one term.

However, respondent contends that in order to qualify for Jarema credit, the regular, full-time substitute service must immediately precede the probationary appointment. Since petitioner accepted a part-time (.8 FTE) appointment in the year immediately preceding his probationary appointment, respondent argues that his full-time substitute service rendered prior to the part-time appointment cannot count for Jarema credit. (Petitioner does not dispute that he is not entitled to credit for the year of part-time service (see, Matter of Lilley v. Mills, 274 AD2d 644 (3rd Dept); Matter of Ceparano v. Ambach, 53 NY2d 873; Appeal of Longshore, 32 Ed Dept Rep 311, Decision No. 12,839).

Petitioner analogizes to cases involving seniority credit, that since Matter of Ducey (65 St Dept Rep 65), decided in 1943, have held that once a teacher is appointed to a probationary position, the teacher's prior full-time regular substitute service in the tenure area of appointment counts for purposes of seniority (Kransdorf v. Northport UFSD, 81 NY2d 871; Appeal of Haff, 35 Ed Dept Rep 130, Decision No. 13,489; Appeal of Carey, 31 id. 394, Decision No. 12,678). In Appeal of Carey, supra, the Commissioner determined that such full-time service counts for seniority purposes even if it does not immediately precede the probationary appointment, because it was interrupted by part-time service. Petitioner argues that the same position should prevail regarding his claim for Jarema credit.

However, as the Commissioner noted in Appeal of Carey, supra, there is a distinction between seniority credit and Jarema credit:

Seniority credit recognizes continuous full-time service rendered to a school district. Unlike [Jarema] credit, it may not be used to obligate a board of education to grant tenure to a teacher. Rather, the board retains its authority and responsibility to make tenure decisions without regard to a teacher's accumulated seniority. Seniority, then, relates only to a teacher's rights vis-a-vis other teachers. In such a context, it is reasonable to assume that teachers will be retained according to their length of continuous service, whether such service was all rendered subsequent to a probationary appointment or was rendered partly before and partly after such an appointment (Matter of Crandall, 20 Ed Dept Rep 16, 19).

The Commissioner in Carey also noted that the definition of seniority has been codified in 8 NYCRR "30.1(f) as:

length of service in a designated tenure area, rather than length of service in the district; such service need not have been consecutive but shall during each term for which seniority credit is sought, have constituted a substantial portion of the time of the professional educator (emphasis added).

There is no similar regulation defining service for Jarema credit, and the statute is ambiguous regarding whether the regular substitute service must be consecutive. However, the legislative history sheds some light. In his May 12, 1936 sponsoring memorandum to amend then-section 872 of the Education Law, Assemblyman Jarema noted that existing law permitted a probationary period of not less than one year, but not to exceed three years. His amendment proposed to limit probationary service for a teacher to the minimum of one year if the teacher had served as a regular substitute for two years. He noted that:

. . .an individual who has served as a substitute and is subsequently appointed as a regular teacher should be given service credit for salary purposes. Thus a person who has served as a substitute for two years and is subsequently appointed as a regular teacher, receives the salary of a third year teacher. . .The purpose of the probationary period is to find out whether the person is suited to the profession. This can be determined over a three year period irrespective of whether one is called a substitute or a regular probationary teacher (emphasis added). (Mem in Support, Bill Jacket, L1936, ch 680, at 36-37.)

Although neither Assemblyman Jarema nor the statute specified that the substitute service immediately precede the probationary appointment, the explanatory memorandum clearly contemplated a "three-year period," with the appointee receiving the salary of a "third-year" teacher. Moreover, previous commissioners have consistently determined that for Jarema credit, the substitute service must immediately precede the probationary appointment.  As early as 1980, Commissioner Ambach determined that:

Pursuant to Education Law "2509(1)(a), a teacher who receives a probationary appointment is entitled to up to two years of credit toward completion of the probationary period for service rendered as a regular substitute teacher in the same subject immediately prior to such appointment. . . Jarema credit must be limited to two years immediately prior to a probationary appointment . . . (emphasis added) Matter of Crandall, et al., 20 Ed Dept Rep 16, 17-18, Decision No. 10,294).


(See, also, Appeal of Longshore, supra; "regular substitute teacher service immediately preceding the probationary period may shorten the probationary period to one year").

I see no reason to deviate from the long-standing interpretation that regular substitute service must immediately precede a probationary appointment for a teacher to be eligible for Jarema credit. As the Court of Appeals has consistently recognized:

In case of doubt, or ambiguity, in the law it is a well-known rule that the practical construction that has been given to a law by those charged with the duty of enforcing it, as well as those for whose benefit it has passed, takes on almost the force of judicial interpretation . . . the construction given statutes and regulations by the agency responsible for their administration, if not irrational or unreasonable, should be upheld (Matter of Lezette v. Bd. of Educ., 35 NY2d 272, 281).

Accordingly, since petitioner's service was interrupted by a year of part-time service, he is not entitled to Jarema credit. In light of this disposition, I need not address respondent's other arguments.