Appeal of SHARON GOLDMAN from action of the Board of Education of the Lawrence Union Free School District, Superintendent Mark Rosenbaum and Melissa Sherman regarding tenure and seniority credit.

Decision No. 15,011

(January 8, 2004)

James R. Sandner, Esq., attorney for petitioner, Mitchell H. Rubenstein, Esq., of counsel

Minerva & D'Agostino P.C., attorneys for respondents Board of Education of the Lawrence Union Free School District and Superintendent Mark Rosenbaum, Dominick M. Minerva and William J. Fielding, Esqs., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Lawrence Union Free School District (“respondent board”) that she is not entitled to tenure credit (known as “Jarema credit”) or seniority credit for her service as a substitute teacher during the 1998-1999 and 1999-2000 school years.  The appeal must be sustained.

On September 2, 1998, petitioner commenced employment with the Lawrence Union Free School District (“district”) as a substitute reading teacher.  The district’s superintendent referred to the position as a “long-term per diem substitute” position in a September 16, 1998 letter confirming petitioner’s employment. 

During the 1998-1999 and 1999-2000 school years, petitioner substituted for a teacher who was absent because of a back injury.  Petitioner substituted for that teacher

every school day of both school years, except that medical and personal reasons caused her to be absent for four days during the first term of the 1998-1999 school year, two days during the second term of the 1998-1999 school year, five days during the first term of the 1999-2000 school year, and four full days and two half days during the second term of the 1999-2000 school year.

During both the 1998-1999 and 1999-2000 school years, petitioner’s supervisor observed petitioner in the classroom and prepared written reports evaluating petitioner’s performance.  The reports referred to petitioner as a regular substitute. Petitioner prepared lesson plans for every school day which were reviewed and approved by her supervisor. When petitioner was absent from school, she followed the same procedure for notifying the district of her absence as followed by teachers labeled “regular substitutes” by respondent board.  Petitioner did not receive pay or benefits when absent. 

By letter dated July 13, 2000, the district’s superintendent notified respondent Sherman that he was offering her a probationary reading teacher position commencing September 1, 2000, subject to respondent board’s approval.  By letter dated August 8, 2000, the district’s superintendent notified petitioner that he was offering her a probationary reading teacher position commencing September 1, 2000, subject to respondent board’s approval.  On August 15, 2000, respondent board appointed both petitioner and Sherman to probationary reading teacher positions effective September 1, 2000.  On May 28, 2002, respondent board abolished these positions and terminated petitioner and Sherman effective June 30, 2002.

During the summer of 2002, respondent board appointed petitioner to a part-time reading teacher position (.6 full-time equivalent) effective September 1, 2002, and appointed Sherman to a full-time regular substitute reading teacher position also effective September 1, 2002. 

On January 21, 2003, respondent board re-appointed Sherman to a position as a full-time probationary reading teacher, and appointed petitioner to a full-time regular substitute reading teacher position.  Respondent board deemed both appointments effective December 8, 2002.  This appeal ensued.

Petitioner asserts that she should have received two years’ Jarema credit and two years’ seniority credit for her service as a substitute teacher during the 1998-1999 and 1999-2000 school years.  She contends that, with Jarema credit, her probationary period terminated September 2, 2001, and that she therefore acquired tenure by estoppel when respondent board permitted her to continue working for the district beyond that date.   She also asserts that because the additional seniority credit makes her senior to Sherman, she is entitled to be re-appointed to the full-time reading teacher position to which Sherman was re-appointed effective December 8, 2002.  She seeks reinstatement as a full-time tenured reading teacher effective December 8, 2002, together with back pay and benefits.

Respondent board and respondent superintendent assert that petitioner is not entitled to Jarema credit or seniority credit for her service as a substitute teacher during the 1998-1999 and 1999-2000 school years.  They contend that only teachers who serve as “regular substitutes” are entitled to such credit, and that petitioner did not serve as a “regular substitute” during this time because she was absent on several occasions during each term of the 1998-1999 and 1999-2000 school years.

Respondent Sherman has been served with all pleadings, affidavits and briefs in this proceeding.  However, she has not filed an answer or otherwise appeared.  I also note that, pursuant to §276.5 of the Commissioner’s regulations, I have accepted and considered all of the additional pleadings, affidavits and exhibits submitted by the parties.

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; . . . (emphasis added).

Parallel provisions are found in Education Law §§2509(1)(a) and 2573(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 preceding the probationary period (Matter of Speichler v. Board of Coop. Educ. Servs., 90 NY2d 110; Appeal of Creswell, 41 Ed Dept Rep 235, Decision No. 14,673; 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.).  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, supra).

The following facts concerning the nature and continuity of petitioner’s substitute service lead me to conclude that petitioner did perform regular substitute service continuously for each term of the 1998-1999 and 1999-2000 school years:  petitioner substituted for the same teacher from the beginning to the end of each term; petitioner’s supervisor prepared written classroom observation reports evaluating petitioner’s performance which referred to petitioner as a regular substitute; she prepared lesson plans for every day of the regular teacher’s absence which were approved by petitioner’s supervisor; and petitioner reported her absences in the same manner as teachers labeled by respondent board “regular substitutes”.

Respondent board and respondent superintendent argue that petitioner did not serve as a “regular substitute” teacher because she was absent for two to five days each term and, therefore, her service as a substitute was neither “continuous” nor for a “full term.”  In Matter of Speichler, supra, the Court determined that where a substitute teacher taught every school day of a term she was entitled to Jarema credit for that term even though she was labeled a “per diem substitute.” The Court cited Appeal of Czajkowski, 34 Ed Dept Rep 589, Decision No. 13,418, for the proposition that had the teacher “… missed even a few

days, she might not have qualified for Jarema credit” (Matter of Speichler, supra).  In Appeal of Czajkowksi, Commissioner Sobol concluded that a teacher was not entitled to Jarema credit where the teacher taught every day of the term, except the first day, because the teacher did not teach for a full term.  While the Court’s decision in Matter of Speichler seems to indicate that a few absences might, depending on the totality of circumstances, impact whether the nature and continuity of the substitute service was as a regular substitute for a full term, the Court does not hold that a few absences necessarily preclude a finding that a teacher served continuously for a full term as a regular substitute teacher.

     I find that Appeal of Czajkowski, supra, Matter of Motak, 16 Ed Dept Rep 358, Decision No. 9,429, and Matter of Lifson, 66 NY2d 896, upon which respondent board and superintendent rely, are all distinguishable from the present case. The substitute teachers in those cases did not start or finish their teaching assignments until after the terms at issue began and ended, respectively. Thus, in those cases, the teachers did not meet the requirement that the teacher substitute for at least a full term. 

In the present case, petitioner did substitute for one teacher continuously from the beginning to the end of each of the four terms of the 1998-1999 and 1999-2000 school years.  As noted above, although she was absent for two to five days each term, she prepared lesson plans for those days which were approved by her supervisor, and reported her absences for those days in the same manner as required of teachers deemed “regular substitutes” by the district.  Thus, I find that petitioner should have received Jarema credit for the 1998-1999 and 1999-2000 school years.

Tenure by estoppel results when a school board accepts the continued services of a teacher, 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, supra; Appeal of MacDonald, supra).  With Jarema credit for the 1998-1999 and 1999-2000 school years, petitioner’s probationary period expired on September 2, 2001.  Respondent board failed to take any action by law to either grant or deny petitioner tenure prior to that date.  Accordingly, petitioner acquired tenure by estoppel effective September 3, 2001.

I also find that petitioner should have received seniority credit for the 1998-1999 and 1999-2000 school years.  Education Law §3013(3)(a) addresses the reinstatement rights of a teacher whose position has been abolished:

If an office or position is abolished or if it is consolidated with another position without creating a new position, the person filling such position at the time of its abolishment or consolidation shall be placed upon a preferred eligible list of candidates for appointment to a vacancy that then exists or that may thereafter occur in an office or position similar to the one which such person filled without reduction in salary or increment, provided the record of such person has been one of faithful, competent service in the office or position he or she has filled. The persons on such preferred list shall be reinstated or appointed to such vacancies in such corresponding or similar positions in the order of their length of service in the system at any time within seven years from the date of abolition or consolidation of such office or position. (emphasis added)

Parallel provisions are found in Education Law §§2510(3)(a) and 2585(4).

The parties agree that the reading teacher position that Sherman was appointed to effective December 8, 2002 is similar to petitioner’s reading teacher position, which was abolished effective June 30, 2002.   Thus, under Education Law §3013(3)(a), petitioner was entitled to be appointed to that position ahead of Sherman if petitioner had longer service with the district than Sherman.  The parties also agree that petitioner has greater seniority than Sherman if petitioner is credited with her service as a substitute teacher for the 1998-1999 and 1999-2000 school years.  Respondent board and respondent superintendent assert, however, that petitioner is not entitled to seniority credit for her service as a substitute during the 1998-1999 and 1999-2000 school years because petitioner did not serve as a “regular substitute” during that period. 

Computation of a teacher’s seniority includes full-time regular substitute service rendered immediately prior

to the teacher’s probationary appointment (Appeal of Lamb, 42 Ed Dept Rep __, Decision No. 14,895; Matter of Crandall and Toth, 20 id. 16, Decision No. 10,294).  In determining whether a teacher has served as a regular substitute for purposes of seniority credit, a functional approach examining the nature and continuity of the service, similar to that used in the Jarema credit analysis, is used (Matter of Speichler, supra; Matter of Matera, 17 Ed Dept Rep 459, Decision No. 9701; Matter of Silver, 19 id. 444, Decision No. 10,206).

Based on the facts discussed above, I conclude that petitioner did serve as a “regular substitute” during the 1998-1999 and 1999-2000 school years for purposes of seniority credit. Thus, she should have received seniority credit for her service during those school years, except she should not receive credit for the days she was absent because unpaid days are not included for purposes of determining seniority  (Matter of Halayko, 23 Ed Dept Rep 384, Decision No. 11,254).  Because petitioner has greater seniority than Sherman for purposes of calculating length of service under Education Law §3013(3)(a), she was entitled to be re-appointed to the full-time reading teacher position effective December 8, 2002 ahead of Sherman.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent board re-calculate petitioner’s seniority credit to include her service as a full-time regular substitute teacher during the 1998-1999 and 1999-2000 school years; and

IT IS FURTHER ORDERED that respondent board re-appoint petitioner as a tenured reading teacher effective December 8, 2002; and

IT IS FURTHER ORDERED that respondent board pay petitioner the back salary and benefits that she would have earned as a tenured reading teacher effective December 8, 2002; and

IT IS FURTHER ORDERED that the back salary and benefits ordered to be paid under the previous paragraph be proportionately reduced by: (a) the salary and benefits paid by respondent board to petitioner for services rendered after December 8, 2002; and (b) the amount of compensation petitioner may have earned from other employment after December 8, 2002.

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