Page 27 - WCBA Appellate Practice Committee CLE May 2024-Handout

review the determination, which, in effect, terminated his employment. The petitioner claimed that his
termination was improper as he had acquired tenure by estoppel through his prior service as a
substitute teacher for the New York City Department of Education for a period of two years. The
Supreme Court, in effect, denied the petition and dismissed the proceeding, determining that the
petitioner was not entitled to tenure by estoppel because his service as a substitute teacher was
performed outside the school district. The petitioner then appealed. Tenure by estoppel occurs when a
school board accepts the continued services of a teacher without taking action required by law of either
granting or denying tenure prior to the expiration of the teacher’s probationary term. A teacher who has
acquired tenure by estoppel, but is improperly terminated, is entitled to, among other things,
reinstatement and back pay. The purpose of a teacher’s probationary period is to provide a school
district the opportunity to evaluate the teacher prior to granting tenure. This probationary period can be
reduced through “Jarema credit.” First introduced by Assemblyman Stephen J. Jarema in 1936, this
credit allows a teacher to receive a reduced probationary period of two years, instead of the standard
four years, provided that they had previously served as a substitute teacher for two years. A version of
“Jarema credit” was adopted into Education Law Section § 3012. This Court found that the Supreme
Court correctly determined, pursuant to Education Law § 3012, that a probationary teacher may only
receive “Jarema credit” toward tenure for substitute teaching in the same district in which they are
seeking tenure. In making this determination, this Court looked to the statutory construction and
legislative history of Education Law § 3012. The plain language of Education Law § 3012(1)(a)(ii)
expressly provides that a reduced, three-year probationary period applies to both teachers granted
tenure in the same school district and teachers granted tenure in a different school district within the
state. There is no such qualifying language with respect to teachers who had previously worked as
substitute teachers. Thus, this Court, in construing the statute as a whole, found that the exclusion of
such qualifying language, with respect to substitute teachers who worked in a different school district,
supports the conclusion that the petitioner was not entitled to “Jarema credit” for his service as a
substitute teacher outside the school district. This Court’s conclusion is consistent with the legislative
history of the “Jarema credit” as the intention was for school districts to begin their evaluations of
teachers during their time as substitute teachers and to prevent substitutes from having to restart their
probationary period. Specifically, Deputy Commission and Counsel of the State Education Department
stated that the bill was to assist teachers “appointed in a city who [have] already been serving in that
city as a substitute teacher for a period of two years.” This Court noted that if an individual was a
substitute teacher in a school district for two years, then had a probationary period as a regular teacher
of two years, they would be subject to the same four years of evaluation as an individual who did not
serve as a substitute teacher. If the section were to be construed differently, it would allow individuals
who had previously worked as a substitute teacher in a different school district to only have two years
to be evaluated for tenure, which is inconsistent with the stated intent of “Jarema credit.” Thus, the
petitioner was not entitled to “Jarema credit” as his service as a substitute teacher occurred outside the
school district. Since the petitioner did not serve the full four year probationary period required under
Education Law § 3012 and was not entitled to a “Jarema credit,” he could not establish tenure by
estoppel and the school district’s determination, in effect, to terminate his employment was not error.

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