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Decision No. 14,673

Appeal of DARLENE CRESWELL from action of the Board of Education of the Churchville-Chili Central School District regarding teacher tenure.

Decision No. 14,673

(December 20, 2001)

Janet Axelrod, Esq., attorney for petitioner, Robert W. Klingensmith, Jr., Esq., of counsel

Lynda M. VanCoske, Esq., attorney for respondent

MILLS, Commissioner.--Petitioner appeals the effective date of the tenure granted to her by the Board of Education of the Churchville-Chili Central School District ("respondent"). The appeal must be sustained.

On September 1, 1998, respondent employed petitioner as a long-term substitute teacher in the special education tenure area. Petitioner provided instruction in this capacity for the full 1998-1999 school year. In September 1999, respondent appointed petitioner to a 36-month probationary teaching position in the same tenure area. On April 10, 2001, respondent voted to grant petitioner tenure, effective November 1, 2001. This appeal ensued.

The parties agree that petitioner is entitled to credit for her service as a regular substitute teacher during the 1998-1999 school year ("Jarema" credit) pursuant to Education Law "3012(1)(a). However, petitioner asserts that she should be credited with a full year of Jarema credit (for the period from September 1, 1998 - August 31, 1999), that her two-year probationary period terminated on August 31, 2001 and, therefore, her tenure should have become effective on September 1, 2001. In contrast, respondent claims that petitioner is entitled to only ten months Jarema credit for her substitute service in the 1998-1999 school year, and that petitioner must, therefore, serve an additional two months of probation through October 31, 2001, making the effective date of her tenure November 1, 2001.

Education Law "3012(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. . ..

Respondent concedes that a three-year probationary period for a teacher spans 36 months and includes the months of July and August. Respondent also concedes that the actual instructional service rendered by a probationary teacher over that 36-month period is only 30 months. Respondent proceeds to argue, however, that since petitioner's long-term substitute employment extended only from September 1998 through June 1999, petitioner is entitled to only ten months credit for her service during the 1998-1999 school year as a long-term substitute teacher. Relying on Robins v. Blaney, 465 N.Y.S. 2d 868 (1983), respondent argues that although the summer months are properly included when calculating the length of a teacher's probationary period, they should not be included when crediting the probationary service of a long-term substitute teacher employed for less than 12 months (September through June).

Respondent's arguments are specious and without merit. The plain language of Education Law "3012(1)(a) refers to a probationary period of three years and a reduction of the three-year probationary period by yearly intervals for prior substitute service or for prior tenure in another district. The only instance in which months, rather than years, are considered in calculating the length of substitute service for Jarema credit, is when determining whether the regular substitute service is continuous for a "term." It is well-settled that in order to earn Jarema credit, the regular substitute service must be continuous for a 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; Matter of Griswold, 1 id. 527). As early as 1943, the court recognized that the concept of "year" for tenure purposes is a calendar year. In Matter of Ducey (65 St. Dept. Rep. 65), the Court stated: "where the probationary period is fixed at three years, and three calendar years have elapsed at the time tenure is accorded . . . (emphasis added)." Seealso, Emma v. Schenectady City School District, 28 F.Supp.2d 711 (N.D.N.Y. 1998) ("The probationary period is measured by the calendar, rather the school year").

Furthermore, respondent's reliance on Robins v. Blaney is misplaced. In Robins, the Court held that petitioner Robins could receive credit only for substitute service rendered prior to his first probationary appointment, not subsequent to it. The Court did not distinguish between the type or duration of appointment (probationary vs. substitute), but focused only on when the probationary appointment was made relative to when the substitute service was rendered. The Court credited petitioner Robins with the time he served pursuant to his probationary appointment (the initial 16 months plus a subsequent 17 months), but did not award petitioner Jarema credit for the 18 intervening months when he was a long- term substitute, since that substitute service followed the initial probationary appointment. As respondent acknowledges, the Court included the summer months in calculating both the months of service for the two probationary periods and for the period of substitute service, making no distinction between them. Similarly, the summer months must be counted in this case.

Also meritless is respondent's argument that a school district needs an additional two months to evaluate a long-term substitute, as compared with a "probationary appointment." As respondent notes, the actual instructional service rendered by a teacher serving a three-year (36-month) probationary period is 30 months, the same number of months rendered by petitioner.

Accordingly, I find that respondent has miscalculated petitioner's probationary period and her effective tenure date. Having served for one full school year (1998-1999) as a long-term substitute, followed by two full school years (1999-2000 and 2000-2001) as a full-time probationary teacher, I find that petitioner's probationary period terminated on August 31, 2001, and her tenure is, therefore, effective as of September 1, 2001.


IT IS ORDERED that respondent adjust petitioner's tenure date retroactive to September 1, 2001.