Decision No. 12,678

(April 3, 1992)

James R. Sandner, Esq., attorney for petitioner, James D. Bilik, Esq., of counsel

Ingerman, Smith, Greenberg, Gross, Richmond, Heidelberger, Reich & Scricca, Esqs., attorneys for respondent board of education, Lawrence W. Reich, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals from a determination that she has less seniority than respondent Jennings in the special subject tenure area of home economics. The appeal must be sustained.

Respondent Rockville Centre Union Free School District ("the district") has employed petitioner to teach home economics, in various capacities, since 1975. Petitioner worked as a full-time regular substitute for the 1975-76 school year. From September 1, 1976 until November 30, 1977, she was employed part-time. From December 1, 1977 until February 1, 1981, she worked again as a full-time regular home economics substitute, replacing a teacher who was on maternity leave. On February 1, 1981, petitioner returned to part-time work, continuing in that capacity until June 30, 1981.

On September 10, 1981, the district appointed petitioner to a three-year probationary period in home economics, effective September 1, 1981. She served two years of the probationary appointment, until September 1, 1983 when the district "excessed" her pursuant to Education Law '2510. From September 1, 1983 until January 7, 1985, petitioner served as a part-time home economics teacher. She worked full-time as a regular home economics substitute from January 7, 1985 until June 30, 1985. On May 9, 1985 the district appointed petitioner to her third year of probation, effective September 1, 1985. On April 15, 1986, the board of education granted petitioner tenure in home economics, effective September 1, 1986.

Respondent Jennings served the district as a part-time home economics teacher during the 1980-81 school year. On June 10, 1981, the board of education appointed her to a three-year probationary period, effective September 1, 1981. Jennings received tenure in home economics in September 1984. She has taught full-time, continuously, since her probationary appointment in 1981.

On May 7, 1991, the district abolished one home economics position and advised petitioner that, as the least senior teacher, she would be excessed effective September 1, 1991. Petitioner commenced this appeal on September 25, 1991.

The parties agree that, when the district abolished the home economics position in 1991, respondent Jennings had ten years of service for purposes of seniority. The parties also agree that petitioner is entitled to seniority credit for her three years of probation and five years of service as a tenured teacher. Petitioner contends, however, that she is also entitled to seniority credit for the regular full-time substitute service rendered prior to her probationary appointment in 1981. Petitioner argues that, credited with such service, she has greater seniority than respondent Jennings and, consequently, that she should not have been excessed.

The protections of seniority accrue when a teacher is appointed to a probationary position (see, Matter of Lezette v Board of Educ., 35 NY2d 272, 282; Matter of Leitner, 14 Ed Dept Rep 14). Substitute teachers appointed to fill temporary vacancies, who are not subsequently appointed to probation, do not acquire seniority rights under the Education Law (see, e.g., Matter of Linderberry, 15 Ed Dept Rep 174). In 1943, however, the Commissioner of Education held that computation of a probationary or tenured teacher's seniority should include full-time regular substitute service rendered prior to the teacher's appointment to probation (Matter of Ducey, 65 St Dept Rep 65). This holding has been observed consistently, ever since (see, Matter of Crandall, 20 Ed Dept Rep 16; Matter of Silver, 19 Ed Dept Rep 444; Matter of Matera, 17 Ed Dept Rep 459). Consequently, under Ducey, 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.

Citing Education Law '2509(1)(a), respondents argue that Ducey and its progeny do not apply in this case because petitioner's full-time regular substitute service did not immediately precede her probationary appointment. This argument cannot prevail. Pursuant to Education Law '2509, a teacher who receives a probationary appointment is entitled to two years of credit toward completion of the probationary period, for service rendered as a regular substitute in the tenure area of appointment (Education Law '2509[1][a]; Matter of Crandall, 20 Ed Dept Rep 16, 17). Such credit is frequently called "Jarema" credit. Respondents state that Jarema credit is only available when regular substitute service has been rendered immediately prior to the teacher's probationary appointment. Jarema credit, however, is not the issue in this appeal. Rather, the issue before me is "seniority" credit under Education Law '2510. There is a distinction between Jarema credit and seniority credit.

Unlike Education Law '2509, which sets forth general provisions relating to tenure, the limited purpose of '2510 "is to provide a mandatory preference in rehiring for those unfortunate school employees who lose their positions through the practice of `excessing'" (Matter of Brewer v Board of Educ., 51 NY2d 855, 857). While I do not pass on the accuracy of respondents' assertion that substitute service must immediately precede probation for purposes of Jarema credit, I find, in any event, that there is no such requirement for purposes of computing seniority.

Teachers lose their seniority rights when they sever service with the school district (Matter of Ducey, 65 St Dept Rep 65, 68, supra). A teacher whose full-time service is interrupted by part-time service in the same district, however, does not lose the right to claim such prior full-time service for purposes of seniority (Matter of Walsh, 17 Ed Dept Rep 434; Matter of Blanchard, 14 Ed Dept Rep 260). The Regulations of the Commissioner of Education, moreover, define seniority as:

The foregoing, read with Ducey's holding that seniority should include full-time regular substitute service, compels a conclusion in this case that, for purposes of seniority, petitioner served the district continuously since 1975 and is therefore entitled to seniority credit for her full-time substitute service between December 1, 1977 and February 1, 1981 and during the 1975-76 school year. I need not address respondent's additional arguments regarding petitioner's full-time substitute service in 1985, since petitioner exceeds respondent Jennings in seniority without the 1985 service.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent recalculate petitioner's seniority in accordance with this decision and, if it is determined that petitioner was not the least senior teacher in the special subject tenure area of home economics on September 1, 1991, that petitioner be reinstated to her position with full back pay and benefits.

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