Decision No. 13,418

(June 6, 1995)

Bernard F. Ashe, Esq., attorney for petitioner, Kevin H. Harren, Esq., of counsel

Matthew R. Fletcher, Esq., attorney for respondent

SOBOL, Commissioner.--Petitioner appeals respondent's termination of her services as a probationary teacher of special education, effective July 17, 1994. She requests that I find she has acquired tenure prior to the termination of her employment and that I order her reinstatement. The appeal must be dismissed.

Respondent hired petitioner as a per diem substitute teacher aide on Monday, January 28, 1991. On January 29, 1991, respondent hired petitioner as a substitute teacher in the absence of Carolyn Misches, a teacher. On January 30 and 31, 1991, respondent employed petitioner as a per diem substitute teacher in the absence of Rocco Adriatico, a special education teacher. Petitioner contends that on January 30, 1991, respondent's supervisor of special education asked her to continue as a long-term substitute teacher for Mr. Adriatico. Respondent admits that the supervisor asked petitioner if she wished to continue substituting for Mr. Adriatico, but denies that petitioner was offered a long term or regular substitute position. On February 1, 1991, respondent employed petitioner as an "extra teacher", assisting Mr. Adriatico. On March 31, 1991, Mr. Adriatico submitted a request for paid sick leave from April 8, 1991 through the end of the school year.

At a meeting held on August 15, 1991, respondent accepted the resignation of Mr. Adriatico. At that same meeting, respondent appointed petitioner to a three year probationary period in the tenure area of general special education effective September 1, 1991. On January 16, 1994, respondent terminated petitioner's probationary employment effective July 17, 1994. Petitioner commenced this appeal on July 18, 1994.

Before reviewing the merits, I will address two procedural issues. Respondent contends that this appeal should be dismissed as untimely. An appeal to the Commissioner of Education pursuant to Education Law '310 must be commenced within 30 days from the making of the decision or the performance of the act complained of (8 NYCRR 275.16). The record indicates that petitioner commenced this appeal one day after the effective date of her dismissal. Accordingly, the appeal is timely (Appeal of England, 28 Ed Dept Rep 352; Matter of Boykin and Smith, 15 id. 348; Matter of Elkins, 14 id. 193).

Respondent also asserts that the appeal is barred by petitioner's prior election of remedies. In Matter of Board of Education, Commack UFSD v Ambach, 70 NY2d 501, the Court of Appeals determined that a school employee who elects to submit an issue for resolution through a contractual grievance procedure may not elect to bring an appeal to the Commissioner of Education for review of the same matter unless the employee can show that the union breached its duty of fair representation. The record shows that petitioner has filed a grievance regarding a contractual obligation involving observation and evaluation of petitioner. In this appeal, petitioner seeks credit toward obtaining tenure. Since the issue presented in this appeal is different from the issue argued in the grievance, petitioner has not made an election of remedies, and this appeal is not barred.

Turning to the merits, petitioner contends that she should have received credit toward her three year probationary term for the service she rendered as a substitute teacher during the spring 1991 school term, i.e., so-called "Jarema Act" credit for service as a regular substitute. She appears to contend that if her probationary period were computed including that service, her three-year period ended in January 1994 and that respondent, in knowingly allowing her to continue to serve beyond that point, permitted her to gain tenure by acquiescence. Petitioner further contends that once having gained tenure, respondent may not dismiss her without complying with Education Law '3020-a, which establishes the procedure required for dismissal of tenured teachers.

In Matter of Griswold, 1 Ed Dept Rep 527, 529, the Commissioner set forth the criteria for obtaining Jarema credit:

Respondent contends that petitioner's service during the spring 1991 term does not qualify for Jarema credit because that service was not for a period of a "term or more". Respondent further argues that during the spring 1991 term, petitioner was a per diem substitute rather than a long term, regular substitute.

The record establishes that petitioner was not employed as a regular substitute teacher on three days during the spring 1991 term - January 28, 29 and February 1, 1991. Notwithstanding that fact, petitioner essentially contends in her memorandum of law that she is entitled to Jarema credit for the spring 1991 term because her regular substitute service during that period was almost for the entire term. In support of that contention, petitioner cites dicta in Matter of Motak, 16 Ed Dept Rep 358, 359-60 which states that when a period of regular substitute service is "considerably" less than a full term, a board of education would have no reason to believe that such service is part of a teacher's probationary period. Thus, petitioner relies on Motak to contend that she is entitled to Jarema credit if her service is close to a full term. Petitioner, however, ignores the clear language in Motak, at p. 359, that a board of education "is not obligated to treat....[a substitute teacher's] service for less than a full term as a portion of the probationary period." (see also Lifson v Board of Education, Nanuet Public Schools, 109 AD2d 743, aff'd 66 NY2d 896).

Petitioner further argues that because the Education Law does not contain a definition of the term "regular substitute", the definition adopted by the Board of Education of the City School District of the City of New York should be adopted. Section 484 of that board's bylaws defines a regular substitute as a teacher assigned at the beginning of the term or within 15 days following the first day for the reporting of newly appointed teachers to a position open for a full term. I find that contention without merit. Section 484 of the bylaws defines regular substitute teacher for purposes of salary credit and not for purposes of determining eligibility for Jarema credit. In addition, there is simply no legal basis for imposing bylaws adopted by the New York City Board of Education on other school districts of the State. Moreover, petitioner's contention ignores the fact that the term "regular substitute" is defined in Matter of Ducey, 65 St. Dept. Rep. 65, 67, as an individual:

Accordingly, there is no basis to adopt the definition of regular substitute espoused by petitioner.

I have reviewed petitioner's remaining contentions and find them without merit. Because this appeal is dismissed, it is not necessary to address all the defenses raised by respondent.

THE APPEAL IS DISMISSED.

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