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Eligibility for ?Jarema Credit" depends on the tenure area of the earlier held tenured employment

Eligibility for ?Jarema Credit" depends on the tenure area of the earlier held tenured employment
Appeal of Julia Zalaman from action of the Board of Education of the Katonah-Lewisboro Union Free School District and Superintendent Robert J. Roelle regarding termination of employment, Decisions of the Commissioner of Education, Decision No. 15,953

The Board of Education of the Katonah-Lewisboro Union Free School District voted to terminate teaching assistant Julia Zalaman?s at the end of her three-year probationary period.

Zalaman objected, contending that she had attained tenure as a teaching assistant because she was entitled to ?Jarema Credit? based on her earlier having attained tenure as a teacher with the Elmsford Union Free School District. Zalaman argued that she was entitled to a truncated ?two-year probationary period? pursuant to Education Law §3012(1)(a),* i.e., she was entitled to so-called ?Jarema Credit? and thus had attained tenure as a teaching assistant with Katonah-Lewisboro by estoppel.

Katonah-Lewisboro, on the other hand, said that Zalaman was not entitled to Jarema Credit and thus did not obtain tenure by estoppel because ?her status as a prior tenured teacher does not entitle her to a shortened probationary period as a teaching assistant.?**

The Commissioner rejected Zalaman?s argument that ?for purposes of tenure and seniority rights under Education Law, the term ?teacher? includes teaching assistants as well as other professional educators.?

The Commissioner noted that the term ?teacher? has different meanings in various contexts in the Education Law. For example, the Commissioner said that the Court of Appeals has found that for the purposes of the abolition of positions and lay offs, seniority protection afforded tenured teachers also applies to teaching assistants, who serve in the special subject tenure area of teaching assistant.

However, said the Commissioner, ?The Appellate Division ? recently considered the tenure status of teaching assistants vis-à-vis teachers in determining eligibility for a reduced probationary period? and in Putnam Northern Westchester BOCES, et al. v. Mills, et al. (46 AD3d 1062), ruled that a newly appointed BOCES teacher was not entitled to a reduced probationary period although she held prior tenure as a teaching assistant.

The Court?s rationale: The statutory ?language [of Education Law §3014] does not specifically provide that the reduced probationary period should be available to teachers previously tenured in nonteaching positions? in view of the ?drastically different? duties and qualifications between teaching assistants and teachers.

Although Zalaman had previously attained tenure as a teacher, here she had been appointed to the positon of teaching assistant, not as a teacher. Applying the rational used by the court in Putnam, the Commissioner ruled that §3012(1)(a) was not applicable in Zalaman?s situation and thus she was not entitled to a reduced probationary period. Accordingly, she did not obtain tenure by estoppel and the Commissioner dismissed her appeal.

* Education Law §§3012(1)(a) and 3014(1) provide for the reduction of the ?normal three-year the probationary period to two years ?where a teacher held tenure with another school district within the state.? §3012 applies to school districts other than city districts; §3014 applies to boards of cooperative educational services (BOCES). Typically this is referred to as "Jarema Credit."

** Tenure by estoppel results when a school board fails to take the action required by law to deny tenure to the individual and, ?with full knowledge? of the situation, the board permits the individual to continue in the position after the required probationary period has ended.

The decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume49/d15953.htm

Full post as published by New York Public Personnel Law on August 11, 2009 (boomark / email).