Wednesday, May 26, 2010
Part-time service may affect eligibility for Jarema credit for the purposes of determining satisfying probationary service requirements
Arthur G. McDonald served as a tenured music teacher with the Kenmore-Tonawanda Union Free School District until June 1990.
In September 1991 North Tonawanda was appointed him as a part-time [.6 full-time equivalent] music teacher. He served in this capacity until February 1992, when the district appointed MacDonald as a full-time long-term substitute music teacher.
In September 1997, MacDonald's employment status underwent another change: the district appointed MacDonald as a part-time [.8 full-time equivalent] music teacher through June 1998.
In July 1998, MacDonald was appointed to a position in the Music K-12 tenure area subject to a two-year probationary term. By letter dated June 19, 2000, Superintendent John H. George informed MacDonald that he would not recommend him for retention as a tenured employee. The district terminated MacDonald's as a probationary teacher on July 12, 2000.
MacDonald objected, contending that in accordance with Education Law Sections 2509(1)(a) and 3012(1)(a), he should have received two years probationary service credit -- so-called "Jarema" credit -- for his continuous long-term substitute teaching in the district. He claimed that with such Jarema credit, his probationary period would have terminated September 8, 1999 rather than June 2000, and that he therefore acquired tenure by estoppel and acquiescence when district continued his employment beyond September 8, 1999.
The district, on the other hand, argued that by accepting the part-time (.8 FTE) position for the 1997-98 school year, MacDonald created a "gap" year in his full-time employment with the district and thus he is not entitled to receive Jarema credit for his long-term substitute service.
The Commissioner said that MacDonald "correctly asserts" that where a teacher is entitled to both probationary periods specified in Education Law Sections 2509(1)(a) and 3012(1)(a), the shorter of the two probationary periods governs. Accordingly, the issue to be resolved in this case is whether MacDonald is whether [McDonald] is entitled to Jarema credit for his full-time substitute service."
On this issue the Commissioner said that he saw no reason to deviate from the long-standing interpretation that regular substitute service must immediately precede a probationary appointment for a teacher to be eligible for Jarema credit.
Thus, said the Commissioner, because MacDonald's service was interrupted by a year of part-time service, he is not entitled to Jarema credit and dismissed his appeal.
Reprinted with permission New York Public Personnel Law
Mitchell H. Rubinstein