Cheating on examination for disqualifying misconduct for the purposes of claiming unemployment insurance benefits
Kinch v Sweeney, Appellate Division, 244 AD2d 748
The Kinch case involved the dismissal of an individual found to have cheated on an examination.
Alden R. Kinch, a flight attendant, was discharged on the grounds that he had attempted to cheat on his annual Federal Aviation Authority examination.
The State's Unemployment Insurance Appeal Board ruled that Kinch had been discharged for a disqualifying reason and rejected his application for unemployment insurance benefits. The Appellate Division sustained the board's determination.
The court said that the Board's ruling, holding that Kinch's "apparent dishonesty in cheating ... was sufficient to constitute disqualifying misconduct" and was also potentially detrimental to his employer's interests in that it nullified the examination's accuracy in assessing whether he possessed the knowledge necessary to perform his job.
Probably the courts would adopt the same rationale in cases involving cheating on tests for unlawful drugs.
,
Summaries of, and commentaries on, selected court and administrative decisions and related matters affecting public employers and employees in New York State in particular and in other jurisdictions in general.
ARTIFICIAL INTELLIGENCE IS NOT USED, IN WHOLE OR IN PART, IN THE SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS PREPARED BY NYPPL
September 24, 2010
Labor organization sues local for non-payment of its membership dues
Labor organization sues local for non-payment of its membership dues
American Federation of School Administrators v Council of Administrators and Supervisors, 266 AD2d 417
The American Federation of School Administrators, AFL-CIO, sued its local affiliate in Nassau and Suffolk counties, the Council of Administrators and Supervisors, claiming it had not paid all of its dues.
Noting that federal law Federal District Courts jurisdiction over suits between labor organizations, a State Supreme Court justice dismissed the Federation’s complaint on the ground that the matter must be adjudicated in a Federal court. The Appellate Division, Second Department, disagreed and reversed the lower court’s ruling.
The Appellate Division said that the federal law did not deprive State courts of their existing jurisdiction. Further, said the Appellate Division “State remedies are not preempted where the activity is of ‘merely peripheral concern’ to the Labor Management Relations Act.”
Deciding that the dispute over the nonpayment of dues is nothing more than an internal union matter, the Appellate Division remanded the case to Supreme Court to determine if the Council’s motion for summary judgment should be granted.
.
American Federation of School Administrators v Council of Administrators and Supervisors, 266 AD2d 417
The American Federation of School Administrators, AFL-CIO, sued its local affiliate in Nassau and Suffolk counties, the Council of Administrators and Supervisors, claiming it had not paid all of its dues.
Noting that federal law Federal District Courts jurisdiction over suits between labor organizations, a State Supreme Court justice dismissed the Federation’s complaint on the ground that the matter must be adjudicated in a Federal court. The Appellate Division, Second Department, disagreed and reversed the lower court’s ruling.
The Appellate Division said that the federal law did not deprive State courts of their existing jurisdiction. Further, said the Appellate Division “State remedies are not preempted where the activity is of ‘merely peripheral concern’ to the Labor Management Relations Act.”
Deciding that the dispute over the nonpayment of dues is nothing more than an internal union matter, the Appellate Division remanded the case to Supreme Court to determine if the Council’s motion for summary judgment should be granted.
.
Modifying a disciplinary penalty
Modifying a disciplinary penalty
CSEA Albany County Local 801 v Albany Housing Authority, 266 AD2d 676
This decision sets out the basic elements to be considered by courts when asked to confirm or vacate a disciplinary arbitrator’s award.
The facts in this case are relatively simple. Frank Turner, an Albany Housing Authority custodian, was found smoking marijuana in a vacant authority apartment in violation of authority rules. Turner was dismissed and Local 801 demanded arbitration in accordance with the collective bargaining agreement between the parties. Local 801 and the authority agreed to submit the following issues to the arbitrator:
1. Was Turner was guilty of violating the authority’s policy and procedures prohibiting entry into vacant apartments and the unlawful possession or use of marijuana; and
2. Was the penalty imposed - termination - for this violation unreasonable or made in bad faith.
The local and the authority, however, could not agree as to whether the arbitrator had the power to fashion a new or different penalty in the event Turner was found guilty of the charges. Accordingly, this issue in the disciplinary arbitration was not certified to the arbitrator.
Ultimately the arbitrator found Turner guilty of the charges. But, said the arbitrator, imposing the penalty of termination was unreasonable. The arbitrator, concluding that “he had the power to modify the penalty,” imposed a different penalty on Turner: a four-week suspension and reinstatement with back pay.
Local 801 brought an Article 75 action to confirm the award; the authority countered with a petition to reinstate the penalty of dismissal on the grounds that the arbitrator had exceeded his authority.
A State Supreme Court justice confirmed the arbitrator’s award insofar as it determined Turner was guilty of the charges filed against him. The court, however, ruled that the arbitrator had exceeded his authority by imposing a new and different penalty and vacated that portion of the award. Local 801 appealed.
The relevant contract provision -- Article 15.3 -- provided that “[t]he arbitrator shall only determine if guilt or misconduct or incompetence has been proven by a preponderance of the evidence and if the penalty was imposed in bad faith or was unreasonable. On the issue of the penalty, the employee’s entire record of employment may be considered.”
In resolving the appeal, the Appellate Division set out the following basic points:
1. Judicial review of an arbitration award is severely limited and will be upheld unless “it is violative of a strong public policy, is totally irrational or clearly exceeds a specifically enumerated limitation on the arbitrator’s power.”
2. Any limitation upon the remedial power of the arbitrator must be clearly contained, either explicitly or incorporated by reference, in the arbitration clause itself.
3. To infer a limitation from an ambiguous and general clause in the substantive provisions of the agreement would, in effect, require judicial interpretation of the contract and judicial interference with an arbitration award which should be avoided unless that award be violative of strong public policy, totally irrational or in excess of a specifically enumerated limitation upon arbitral authority.
The Appellate Division concluded that Article 15.3 contains a specific limitation of the arbitrator’s authority and restricts the arbitrator to making two decisions: (1) was the employee’s guilt proven by a preponderance of the evidence and, if so, (2) was the penalty imposed in bad faith or unreasonable.
Further, said the court, Section 15.3 of the agreement does not permit the arbitrator to impose a new or different penalty and that the arbitrator acted “in excess of a specifically enumerated limitation upon arbitral authority” when he modified the penalty imposed on Turner.
Finding that “... the arbitrator’s interpretation results in a new and different contract for the parties,” the Appellate Division sustained the lower court’s vacating that portion of the arbitrator’s award that imposed a different penalty.
In other words, although the arbitrator could determine if the penalty imposed was unreasonable, neither Article 15.3 nor the questions submitted to the arbitrator by the parties permitted the arbitrator to determine an alternative penalty.
If the arbitrator determines that the penalty imposed was unreasonable or made in bad faith, presumably Article 15.3 requires the arbitrator to return the matter to the authority for it to set a different penalty.
.
CSEA Albany County Local 801 v Albany Housing Authority, 266 AD2d 676
This decision sets out the basic elements to be considered by courts when asked to confirm or vacate a disciplinary arbitrator’s award.
The facts in this case are relatively simple. Frank Turner, an Albany Housing Authority custodian, was found smoking marijuana in a vacant authority apartment in violation of authority rules. Turner was dismissed and Local 801 demanded arbitration in accordance with the collective bargaining agreement between the parties. Local 801 and the authority agreed to submit the following issues to the arbitrator:
1. Was Turner was guilty of violating the authority’s policy and procedures prohibiting entry into vacant apartments and the unlawful possession or use of marijuana; and
2. Was the penalty imposed - termination - for this violation unreasonable or made in bad faith.
The local and the authority, however, could not agree as to whether the arbitrator had the power to fashion a new or different penalty in the event Turner was found guilty of the charges. Accordingly, this issue in the disciplinary arbitration was not certified to the arbitrator.
Ultimately the arbitrator found Turner guilty of the charges. But, said the arbitrator, imposing the penalty of termination was unreasonable. The arbitrator, concluding that “he had the power to modify the penalty,” imposed a different penalty on Turner: a four-week suspension and reinstatement with back pay.
Local 801 brought an Article 75 action to confirm the award; the authority countered with a petition to reinstate the penalty of dismissal on the grounds that the arbitrator had exceeded his authority.
A State Supreme Court justice confirmed the arbitrator’s award insofar as it determined Turner was guilty of the charges filed against him. The court, however, ruled that the arbitrator had exceeded his authority by imposing a new and different penalty and vacated that portion of the award. Local 801 appealed.
The relevant contract provision -- Article 15.3 -- provided that “[t]he arbitrator shall only determine if guilt or misconduct or incompetence has been proven by a preponderance of the evidence and if the penalty was imposed in bad faith or was unreasonable. On the issue of the penalty, the employee’s entire record of employment may be considered.”
In resolving the appeal, the Appellate Division set out the following basic points:
1. Judicial review of an arbitration award is severely limited and will be upheld unless “it is violative of a strong public policy, is totally irrational or clearly exceeds a specifically enumerated limitation on the arbitrator’s power.”
2. Any limitation upon the remedial power of the arbitrator must be clearly contained, either explicitly or incorporated by reference, in the arbitration clause itself.
3. To infer a limitation from an ambiguous and general clause in the substantive provisions of the agreement would, in effect, require judicial interpretation of the contract and judicial interference with an arbitration award which should be avoided unless that award be violative of strong public policy, totally irrational or in excess of a specifically enumerated limitation upon arbitral authority.
The Appellate Division concluded that Article 15.3 contains a specific limitation of the arbitrator’s authority and restricts the arbitrator to making two decisions: (1) was the employee’s guilt proven by a preponderance of the evidence and, if so, (2) was the penalty imposed in bad faith or unreasonable.
Further, said the court, Section 15.3 of the agreement does not permit the arbitrator to impose a new or different penalty and that the arbitrator acted “in excess of a specifically enumerated limitation upon arbitral authority” when he modified the penalty imposed on Turner.
Finding that “... the arbitrator’s interpretation results in a new and different contract for the parties,” the Appellate Division sustained the lower court’s vacating that portion of the arbitrator’s award that imposed a different penalty.
In other words, although the arbitrator could determine if the penalty imposed was unreasonable, neither Article 15.3 nor the questions submitted to the arbitrator by the parties permitted the arbitrator to determine an alternative penalty.
If the arbitrator determines that the penalty imposed was unreasonable or made in bad faith, presumably Article 15.3 requires the arbitrator to return the matter to the authority for it to set a different penalty.
.
September 23, 2010
HR 5136 proposed to provide “annual leave for family members” in the event a defined relative is called to active duty with the armed forces
HR 5136 proposed to provide “annual leave for family members” in the event a defined relative is called to active duty with the armed forces
Source: The FMLA Blog - http://federalfmla.typepad.com/fmla_blog/
Copyright © 2010. All rights reserved by Carl C. Bosland, Esq. Reproduced with permission. Mr. Bosland is the author of A Federal Sector Guide to the Family and Medical Leave Act & Related Litigation.
Chapter 44 of House Bill (H.R. 5136) of the National Defense Authorization Act of 2011modifies the Uniformed Services Employment and Reemployment Rights Act, 38 USC 4303, et. seq., to require all employers (of any size, including local, state, and the federal government) to permit a spouse, son or daughter, or parent of a member of a uniformed service to take up to two workweeks of leave during any 12-month period where a family member has received notification of an impending call or order to active duty in support of a contingency operation.
The leave may be taken intermittent or a reduced leave schedule at the discretion of the employee. Paid leave is available at the discretion of the employer. Otherwise, the leave is unpaid. The employee must provide notice of the need for such leave "as is reasonable and practicable." An employer may require that leave be supported by a certification of entitlement to such leave. A copy of the notice, call, or order is considered sufficient certification. An employee has the right to be restored to the position the employee held prior to taking the leave, or to an equivalent position with equivalent rights and benefits.
It is unlawful for an employer to interfere with, restrain, or deny the exercise or attempt to exercise rights under the law. It is also illegal to discriminate against someone for opposing unlawful practices. The law would be enforced consistent with USERRA's current structure.
Mr. Bosland Comments: The Senate version of the 2011 National Defense Authorization Act (S. 3454) does not contain a similar provision. As such, whether the provision survives the House and Senate Conference Committee is anyone's guess. Stay tuned!
.
Source: The FMLA Blog - http://federalfmla.typepad.com/fmla_blog/
Copyright © 2010. All rights reserved by Carl C. Bosland, Esq. Reproduced with permission. Mr. Bosland is the author of A Federal Sector Guide to the Family and Medical Leave Act & Related Litigation.
Chapter 44 of House Bill (H.R. 5136) of the National Defense Authorization Act of 2011modifies the Uniformed Services Employment and Reemployment Rights Act, 38 USC 4303, et. seq., to require all employers (of any size, including local, state, and the federal government) to permit a spouse, son or daughter, or parent of a member of a uniformed service to take up to two workweeks of leave during any 12-month period where a family member has received notification of an impending call or order to active duty in support of a contingency operation.
The leave may be taken intermittent or a reduced leave schedule at the discretion of the employee. Paid leave is available at the discretion of the employer. Otherwise, the leave is unpaid. The employee must provide notice of the need for such leave "as is reasonable and practicable." An employer may require that leave be supported by a certification of entitlement to such leave. A copy of the notice, call, or order is considered sufficient certification. An employee has the right to be restored to the position the employee held prior to taking the leave, or to an equivalent position with equivalent rights and benefits.
It is unlawful for an employer to interfere with, restrain, or deny the exercise or attempt to exercise rights under the law. It is also illegal to discriminate against someone for opposing unlawful practices. The law would be enforced consistent with USERRA's current structure.
Mr. Bosland Comments: The Senate version of the 2011 National Defense Authorization Act (S. 3454) does not contain a similar provision. As such, whether the provision survives the House and Senate Conference Committee is anyone's guess. Stay tuned!
.
Michigan teachers may sue if school board fails to comply with statutory duty to expel students guilty of assault
Michigan teachers may sue if school board fails to comply with statutory duty to expel students guilty of assault
Source: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/
Reproduced with permission. Copyright © 2010, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved.
Teachers have standing under Michigan Constitution to sue school board for failure to comply with statutory duty to expel students who have assaulted a teacher
Lansing Sch. Educ. Ass’n v. Lansing Bd. of Educ., No. 138401 (Mich. Jul. 31, 2010), is an interesting case. The Michigan Supreme Court ruled 4-3 that teachers who were allegedly physically assaulted by students have standing to bring suit against the school board for failure to comply with its statutory duty to expel those students. The court overruled its previous precedent in Lee v Macomb Co Bd of Comm’rs , 464 Mich 726; 629 NW2d 900 (2001).
The court determined that the plaintiff teachers in this case had standing to sue the school board because they have a significant interest distinct from that of the general public in the enforcement of the statute, as the statute’s purpose is to protect their safety and their ability to effectively teach.
Mitchell H. Rubinstein
.
Source: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/
Reproduced with permission. Copyright © 2010, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved.
Teachers have standing under Michigan Constitution to sue school board for failure to comply with statutory duty to expel students who have assaulted a teacher
Lansing Sch. Educ. Ass’n v. Lansing Bd. of Educ., No. 138401 (Mich. Jul. 31, 2010), is an interesting case. The Michigan Supreme Court ruled 4-3 that teachers who were allegedly physically assaulted by students have standing to bring suit against the school board for failure to comply with its statutory duty to expel those students. The court overruled its previous precedent in Lee v Macomb Co Bd of Comm’rs , 464 Mich 726; 629 NW2d 900 (2001).
The court determined that the plaintiff teachers in this case had standing to sue the school board because they have a significant interest distinct from that of the general public in the enforcement of the statute, as the statute’s purpose is to protect their safety and their ability to effectively teach.
Mitchell H. Rubinstein
.
Filing an employer application for disability retirement pursuant GML 207-c
Filing an employer application for disability retirement pursuant GML 207-c
City of Schenectady v McCall, AD 3rd Dept., 245 A.D.2d 708
The City of Schenectady filed an application for accidental disability benefits for one of its police officers, Kevin J. Coker, with the New York State and Local Policemens' and Firemens' Retirement System [PFRS]. It claimed that Coker had sustained at least four neck and back injuries while on duty. Although Coker had returned to duty after each episode, in 1992 he ceased working claiming that the back pain resulting from these accidents permanently incapacitated him.
Section 207-c.2 of the General Municipal Law authorizes the filing of an application for accidental disability retirement on behalf of a disabled police officer if the officer does not elect to do so.
PFRS' medical expert, Neurologist Neil Lava, testified that Coker was not "permanently incapacitated" and that there was no medical explanation for Coker's complaints of pain and a limited range of motion. The City's medical expert, Police Surgeon Dominic Belmonte, an occupational physician, testified that Coker was disabled from an orthopedic point of view and permanently disabled from resuming employment as a police officer. The application was rejected by PFRS and the City appealed.
The Appellate Division, with Judge Mikoll dissenting, sustained the System's disapproval of the City's application to have Coker retired for work-related disability. The Court said that the System's determination "is supported by substantial evidence, even though there is other evidence that would support a contrary result."
However, the PFRS' determination may have triggered another provision of the General Municipal Law, Section 207-c.3. Section 207-c.3 provides that if a police officer is not eligible for or not granted an accidental disability retirement allowance, he or she may be required to perform "light duty ... consistent with his [or her] status as a policeman" if found medically qualified to perform such duties. If the police officer refuses to perform such light or modified duty, Section 207-c payments "shall be discontinued." As PFRS has found Coker is not "permanently disabled," the City could have Coker evaluated by its medical experts to determine whether he is able to perform "light police duties."
Another alternative: the City could, if Coker agrees, transfer him to a position with another City agency or department [see Section 207-c.4, General Municipal Law] if he meets the civil service qualifications for the position to which the transfer is to be made.
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If you are interested in learning more about General Municipal Law §207-a or §207-c disability benefits and procedures please click here:http://section207.blogspot.com/2010/03/v-behaviorurldefaultvml-o.html
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City of Schenectady v McCall, AD 3rd Dept., 245 A.D.2d 708
The City of Schenectady filed an application for accidental disability benefits for one of its police officers, Kevin J. Coker, with the New York State and Local Policemens' and Firemens' Retirement System [PFRS]. It claimed that Coker had sustained at least four neck and back injuries while on duty. Although Coker had returned to duty after each episode, in 1992 he ceased working claiming that the back pain resulting from these accidents permanently incapacitated him.
Section 207-c.2 of the General Municipal Law authorizes the filing of an application for accidental disability retirement on behalf of a disabled police officer if the officer does not elect to do so.
PFRS' medical expert, Neurologist Neil Lava, testified that Coker was not "permanently incapacitated" and that there was no medical explanation for Coker's complaints of pain and a limited range of motion. The City's medical expert, Police Surgeon Dominic Belmonte, an occupational physician, testified that Coker was disabled from an orthopedic point of view and permanently disabled from resuming employment as a police officer. The application was rejected by PFRS and the City appealed.
The Appellate Division, with Judge Mikoll dissenting, sustained the System's disapproval of the City's application to have Coker retired for work-related disability. The Court said that the System's determination "is supported by substantial evidence, even though there is other evidence that would support a contrary result."
However, the PFRS' determination may have triggered another provision of the General Municipal Law, Section 207-c.3. Section 207-c.3 provides that if a police officer is not eligible for or not granted an accidental disability retirement allowance, he or she may be required to perform "light duty ... consistent with his [or her] status as a policeman" if found medically qualified to perform such duties. If the police officer refuses to perform such light or modified duty, Section 207-c payments "shall be discontinued." As PFRS has found Coker is not "permanently disabled," the City could have Coker evaluated by its medical experts to determine whether he is able to perform "light police duties."
Another alternative: the City could, if Coker agrees, transfer him to a position with another City agency or department [see Section 207-c.4, General Municipal Law] if he meets the civil service qualifications for the position to which the transfer is to be made.
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If you are interested in learning more about General Municipal Law §207-a or §207-c disability benefits and procedures please click here:http://section207.blogspot.com/2010/03/v-behaviorurldefaultvml-o.html
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Determining seniority for tenure purposes
Determining seniority for tenure purposes
Kaufman v Fallsburg CSD, Court of Appeals, 91 NY2d 57
Seniority is probably the most critical factor in determining who may be lawfully retained in a layoff situation. In the Kaufman case, the New York Court of Appeals addressed the competing seniority claims of two elementary grade teachers seeking to avoid being excessed by the Fallsburg Central School District.
Two teachers, Forman and Kaufman, were both appointed to the elementary tenure area on September 1, 1992. Forman had been given a probationary appointment in the special education tenure area in November 1990 but in the 1991-92 academic year she was assigned to teach sixth grade subjects to mixed classes consisting of regular education students and six learning-disabled special needs students. On September 1, 1992, the District additionally appointed Foreman to the elementary tenure area, and assigned her to teach fourth grade.
Kaufman, who had prior service in the District as a substitute teacher, also received a probationary appointment in the elementary tenure area on September 1, 1992. Kaufman then took over the instruction of Foreman's sixth grade class.
Effective June 30, 1994, the District abolished four elementary education positions. Kaufman was excessed when the District determined that she had the least seniority in the elementary tenure area. Kaufman sued, contending that she was entitled to additional credit in the elementary tenure area for the two months she taught as a regular substitute elementary teacher during the 1991-1992 school year and thus had greater seniority in the elementary tenure area than did Foreman.
While the District conceded that Kaufman was entitled to the two months of additional credit as she claimed, it said it had also recalculated Foreman's seniority and concluded that she was entitled to additional credit in the elementary tenure area for the entire 1991-1992 school year during which she taught the mixed sixth grade class of regular education and special needs students. This, the District argued, meant that Foreman still remained senior to Kaufman in the elementary tenure area.
Kaufman challenged this, contending that: (1) The facts in the record did not establish that Foreman served in the elementary tenure area during the 1991-1992 school year; and (2) the District did not have any authority to grant Foreman seniority credit in the elementary tenure area as of September 1991 because the District (a) failed to expressly notify Foreman that her assignment for the 1991-1992 school year was outside her initial special education appointment, and (b) it had not obtained Foreman's prior written consent to that out-of-tenure area assignment.
These omissions, Kaufman contended, barred the District from retroactively crediting Foreman with elementary tenure area seniority for her service during the 1991-1992 school year. A New York State Supreme Court justice disagreed, reasoning that accepting Kaufman's theory would penalize teachers for school district mistakes by depriving them of credit to which they would have been entitled but for the school district's error. The Appellate Division concurred with the Supreme Court's analysis and affirmed the lower court's ruling (234 AD2d 698).
The Court of Appeals agreed, dismissing Kaufman's appeal. It said that the lower courts "correctly concluded that there was a sound factual basis for the District's determination that Foreman devoted a substantial portion of her time during the 1991-1992 school year to teaching in the elementary tenure area." The Court said that the record contains "ample evidence to support the District's finding that Foreman devoted over 40% of her time to teaching the "common branch subjects" of reading, science, arithmetic and language arts to her sixth grade students."*
The Court also held that the fact that some of her sixth-graders were learning-disabled special needs students "does not, under these circumstances, compel a different conclusion and thus Foreman was entitled to seniority credit in the elementary tenure area for her service during the 1991-1992 school year."
What about the District's failure to comply with the notice provisions set out in 8 NYCRR 30.9(b)? Shouldn't this prevent the District from giving Foreman retroactive elementary area seniority credit for the 1991-1992 sixth-grade assignment?
The Court of Appeals said that "concededly, Foreman was not formally notified that her assignment to teach sixth grade in 1991-1992 was out of her original tenure area, and her consent was not obtained." More important, said the Court, 8 NYCRR 30.9(b) was promulgated pursuant to a legislative tenure scheme designed "to protect competent teachers from the abuses they might be subjected to if they could be dismissed at the whim of their supervisors," citing Ricca v Board of Education., 47 NY2d 385, 391.
Finding that the underlying purpose of 8 NYCRR 30.9(b) is not fulfilled by applying that provision to block a teacher from receiving seniority credit which, absent school district error, would have been received by reason of actual service in an out-of-tenure area, the Court said that the regulation has a two-fold protective purpose: (1) it protects teachers from being required to accept assignments outside of their designated tenure areas involuntarily; and (2) it protects teachers from being deprived of credit in a previously appointed tenure area if they unwittingly accept, and serve in, out-of-area assignments.
The Court of Appeals concluded that 8 NYCRR 30.9(b) was intended, and has been consistently construed administratively, as a safeguard for teachers who are assigned (either involuntarily or without their knowledge) outside of their designated tenure areas. Accordingly, the provision should not be interpreted to prevent a teacher from knowingly and voluntarily waiving that section's consent requirement when strict application of the regulation would itself impose adverse consequences upon the teacher.
* 8 NYCRR 30.1[g] provides that a "substantial portion" of the teacher's time "means 40 percent or more of the total time spent by a professional educator in the performance of his [or her] duties, exclusive of time spent in preparation, monitoring or in co-curricular activities."
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If you are interested in learning more about layoff procedures involving employees in the public service in New York State please click here: http://nylayoff.blogspot.com/
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Kaufman v Fallsburg CSD, Court of Appeals, 91 NY2d 57
Seniority is probably the most critical factor in determining who may be lawfully retained in a layoff situation. In the Kaufman case, the New York Court of Appeals addressed the competing seniority claims of two elementary grade teachers seeking to avoid being excessed by the Fallsburg Central School District.
Two teachers, Forman and Kaufman, were both appointed to the elementary tenure area on September 1, 1992. Forman had been given a probationary appointment in the special education tenure area in November 1990 but in the 1991-92 academic year she was assigned to teach sixth grade subjects to mixed classes consisting of regular education students and six learning-disabled special needs students. On September 1, 1992, the District additionally appointed Foreman to the elementary tenure area, and assigned her to teach fourth grade.
Kaufman, who had prior service in the District as a substitute teacher, also received a probationary appointment in the elementary tenure area on September 1, 1992. Kaufman then took over the instruction of Foreman's sixth grade class.
Effective June 30, 1994, the District abolished four elementary education positions. Kaufman was excessed when the District determined that she had the least seniority in the elementary tenure area. Kaufman sued, contending that she was entitled to additional credit in the elementary tenure area for the two months she taught as a regular substitute elementary teacher during the 1991-1992 school year and thus had greater seniority in the elementary tenure area than did Foreman.
While the District conceded that Kaufman was entitled to the two months of additional credit as she claimed, it said it had also recalculated Foreman's seniority and concluded that she was entitled to additional credit in the elementary tenure area for the entire 1991-1992 school year during which she taught the mixed sixth grade class of regular education and special needs students. This, the District argued, meant that Foreman still remained senior to Kaufman in the elementary tenure area.
Kaufman challenged this, contending that: (1) The facts in the record did not establish that Foreman served in the elementary tenure area during the 1991-1992 school year; and (2) the District did not have any authority to grant Foreman seniority credit in the elementary tenure area as of September 1991 because the District (a) failed to expressly notify Foreman that her assignment for the 1991-1992 school year was outside her initial special education appointment, and (b) it had not obtained Foreman's prior written consent to that out-of-tenure area assignment.
These omissions, Kaufman contended, barred the District from retroactively crediting Foreman with elementary tenure area seniority for her service during the 1991-1992 school year. A New York State Supreme Court justice disagreed, reasoning that accepting Kaufman's theory would penalize teachers for school district mistakes by depriving them of credit to which they would have been entitled but for the school district's error. The Appellate Division concurred with the Supreme Court's analysis and affirmed the lower court's ruling (234 AD2d 698).
The Court of Appeals agreed, dismissing Kaufman's appeal. It said that the lower courts "correctly concluded that there was a sound factual basis for the District's determination that Foreman devoted a substantial portion of her time during the 1991-1992 school year to teaching in the elementary tenure area." The Court said that the record contains "ample evidence to support the District's finding that Foreman devoted over 40% of her time to teaching the "common branch subjects" of reading, science, arithmetic and language arts to her sixth grade students."*
The Court also held that the fact that some of her sixth-graders were learning-disabled special needs students "does not, under these circumstances, compel a different conclusion and thus Foreman was entitled to seniority credit in the elementary tenure area for her service during the 1991-1992 school year."
What about the District's failure to comply with the notice provisions set out in 8 NYCRR 30.9(b)? Shouldn't this prevent the District from giving Foreman retroactive elementary area seniority credit for the 1991-1992 sixth-grade assignment?
The Court of Appeals said that "concededly, Foreman was not formally notified that her assignment to teach sixth grade in 1991-1992 was out of her original tenure area, and her consent was not obtained." More important, said the Court, 8 NYCRR 30.9(b) was promulgated pursuant to a legislative tenure scheme designed "to protect competent teachers from the abuses they might be subjected to if they could be dismissed at the whim of their supervisors," citing Ricca v Board of Education., 47 NY2d 385, 391.
Finding that the underlying purpose of 8 NYCRR 30.9(b) is not fulfilled by applying that provision to block a teacher from receiving seniority credit which, absent school district error, would have been received by reason of actual service in an out-of-tenure area, the Court said that the regulation has a two-fold protective purpose: (1) it protects teachers from being required to accept assignments outside of their designated tenure areas involuntarily; and (2) it protects teachers from being deprived of credit in a previously appointed tenure area if they unwittingly accept, and serve in, out-of-area assignments.
The Court of Appeals concluded that 8 NYCRR 30.9(b) was intended, and has been consistently construed administratively, as a safeguard for teachers who are assigned (either involuntarily or without their knowledge) outside of their designated tenure areas. Accordingly, the provision should not be interpreted to prevent a teacher from knowingly and voluntarily waiving that section's consent requirement when strict application of the regulation would itself impose adverse consequences upon the teacher.
* 8 NYCRR 30.1[g] provides that a "substantial portion" of the teacher's time "means 40 percent or more of the total time spent by a professional educator in the performance of his [or her] duties, exclusive of time spent in preparation, monitoring or in co-curricular activities."
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If you are interested in learning more about layoff procedures involving employees in the public service in New York State please click here: http://nylayoff.blogspot.com/
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Terminating an interim appointee
Terminating an interim appointee
Amnawah v NYC Bd. of Education, 266 AD2d 455
Linda Amnawah, an interim-acting “Special Education Review Specialist,” was terminated from her position by the New York City Board of Education.. She sued, seeking reinstatement to her former position. A State Supreme Court justice dismissed her petition.
In affirming the lower court’s determination, the Appellate Division quickly disposed of Amnawah appeal, commenting that because she was a “non-tenured, interim-acting employee,” the board of education could terminate her employment without any statement of reasons, provided that the termination was not made in bad faith or for impermissible reasons.
The court said that while Amnawah had the burden of proving that her termination was made in bad faith or was for an impermissible reason she only offered “conclusory, unsupported, and irrelevant arguments” to this end. Thus, said the court, Amnawah failed to sustain her evidentiary burden and dismissed her appeal.
.
Amnawah v NYC Bd. of Education, 266 AD2d 455
Linda Amnawah, an interim-acting “Special Education Review Specialist,” was terminated from her position by the New York City Board of Education.. She sued, seeking reinstatement to her former position. A State Supreme Court justice dismissed her petition.
In affirming the lower court’s determination, the Appellate Division quickly disposed of Amnawah appeal, commenting that because she was a “non-tenured, interim-acting employee,” the board of education could terminate her employment without any statement of reasons, provided that the termination was not made in bad faith or for impermissible reasons.
The court said that while Amnawah had the burden of proving that her termination was made in bad faith or was for an impermissible reason she only offered “conclusory, unsupported, and irrelevant arguments” to this end. Thus, said the court, Amnawah failed to sustain her evidentiary burden and dismissed her appeal.
.
Rescinding a letter of retirement
Rescinding a letter of retirementElmira CSD v Newcomb, 266 AD2d 622, Motion for leave to appeal dismissed, 94 NY2d 899
Among the basic general rules applicable to resignation from public service are the following:
1. An individual may rescind his or her letter resignation prior to its delivery to the appropriate authority.
2. The letter of resignation is effective upon delivery to the appointing authority unless an “approval” or “acceptance” of the resignation is mandated by law or a provision in a collective bargaining agreement.
3. Once delivered, the individual cannot withdraw or rescind his or her resignation without the approval of the appointing authority.
4. An appointing authority may elect to ignore a resignation and proceed with disciplinary action against the individual.
Do the same rules apply in cases involving an individual’s submission of a letter indicating his or her intent to retire? In the Newcomb case, the Appellate Division considered the effort of an individual to rescind his notice of his intention to retire.
James E. Newcomb, a tenured guidance counselor employed by the Elmira City School District, told the district that he could not return to his position due to “medical problems.” He was absent for practically all of the Fall 1997 semester.
Eventually Newcomb and the district entered into a “settlement agreement” in lieu of district’s pursuing disciplinary action against Newcomb. Under the terms of the settlement Newcomb agreed to submit his “written notice of retirement,” to take effect February 1, 1998. The district agreed to keep Newcomb on the payroll from December 11, 1997 until January 31, 1998. Newcomb submitted his “retirement letter” in December 1997. For its part, the district continued Newcomb on the payroll.
However, in January 1998 Newcomb sent the district a second letter rescinding his December 1997 letter of retirement. This second letter was delivered to the district before Board of Education had taken formal action on Newcomb’s December retirement letter. The board voted to disregard Newcomb’s attempt to rescind his letter of retirement unless he (1) returned “the previously paid leave funds” and (2) “presented medical documentation certifying his ability to work.” Newcomb failed to comply with either of these conditions and ultimately was deemed “retired” and terminated from the payroll.
When Newcomb sued to void the board action and to reclaim his position, the district countered with a petition asking the court to rule that Newcomb “had no right to unilaterally rescind his retirement letter and that his retirement was effective February 1, 1998.” The district argued that it had acted in reliance of the settlement agreed to by the parties in lieu of its bringing disciplinary action against Newcomb, pursuant to which Newcomb agreed to retire, when it continued him on the payroll as agreed and had hired his replacement. The Supreme Court justice denied Newcomb’s motion for summary judgment and he appealed.
Newcomb’s basic argument:
This is a simple rescission before acceptance case, i.e., I rescinded my retirement letter prior to its acceptance by the Board and thus the district had no authority to terminate my employment.
The district position:
Newcomb’s letter of retirement was not a unilateral act on his part but rather reflected a settlement agreement between the parties and therefore it was not obligated to honor the letter Newcomb submitted in a unilateral effort to rescind his retirement letter.
The Appellate Division commenced its analysis be noting that “authority exists to support the general proposition that a retirement letter may be withdrawn prior to a legally binding acceptance by a board of education,” citing a number of court decision and rulings by the Commissioner of Education. This, according to the ruling, means that although submitting a notice of an intention to retire simultaneously implies a “resignation” from one’s position, delivery of the “retirement letter” is not the operative factor; the appointing authority must take some action to “finalize it.”
The Appellate Division, however, concluded that there were questions of fact that barred the application of this general principle -- a retirement letter must be formally acted upon to be effective -- at this stage of the litigation. Among the issues of fact to be resolved:
1. Was Newcomb’s retirement letter, submitted in compliance with a settlement of a disciplinary action, essentially a term or condition of the settlement and thus he could not unilaterally rescind it notwithstanding the fact that the board had not formally acted on his retirement letter; and, if not,
2. Was the absence of a formal acceptance by the Board fatal in view of the fact that it had indicated its acceptance of the settlement by continuing Newcomb on the payroll and recruiting his replacement?
The Appellate Division, ruling that the Supreme Court was correct in denying Newcomb’s motion for summary judgment, returned the matter to Supreme Court for its consideration of these issues.
.
Among the basic general rules applicable to resignation from public service are the following:
1. An individual may rescind his or her letter resignation prior to its delivery to the appropriate authority.
2. The letter of resignation is effective upon delivery to the appointing authority unless an “approval” or “acceptance” of the resignation is mandated by law or a provision in a collective bargaining agreement.
3. Once delivered, the individual cannot withdraw or rescind his or her resignation without the approval of the appointing authority.
4. An appointing authority may elect to ignore a resignation and proceed with disciplinary action against the individual.
Do the same rules apply in cases involving an individual’s submission of a letter indicating his or her intent to retire? In the Newcomb case, the Appellate Division considered the effort of an individual to rescind his notice of his intention to retire.
James E. Newcomb, a tenured guidance counselor employed by the Elmira City School District, told the district that he could not return to his position due to “medical problems.” He was absent for practically all of the Fall 1997 semester.
Eventually Newcomb and the district entered into a “settlement agreement” in lieu of district’s pursuing disciplinary action against Newcomb. Under the terms of the settlement Newcomb agreed to submit his “written notice of retirement,” to take effect February 1, 1998. The district agreed to keep Newcomb on the payroll from December 11, 1997 until January 31, 1998. Newcomb submitted his “retirement letter” in December 1997. For its part, the district continued Newcomb on the payroll.
However, in January 1998 Newcomb sent the district a second letter rescinding his December 1997 letter of retirement. This second letter was delivered to the district before Board of Education had taken formal action on Newcomb’s December retirement letter. The board voted to disregard Newcomb’s attempt to rescind his letter of retirement unless he (1) returned “the previously paid leave funds” and (2) “presented medical documentation certifying his ability to work.” Newcomb failed to comply with either of these conditions and ultimately was deemed “retired” and terminated from the payroll.
When Newcomb sued to void the board action and to reclaim his position, the district countered with a petition asking the court to rule that Newcomb “had no right to unilaterally rescind his retirement letter and that his retirement was effective February 1, 1998.” The district argued that it had acted in reliance of the settlement agreed to by the parties in lieu of its bringing disciplinary action against Newcomb, pursuant to which Newcomb agreed to retire, when it continued him on the payroll as agreed and had hired his replacement. The Supreme Court justice denied Newcomb’s motion for summary judgment and he appealed.
Newcomb’s basic argument:
This is a simple rescission before acceptance case, i.e., I rescinded my retirement letter prior to its acceptance by the Board and thus the district had no authority to terminate my employment.
The district position:
Newcomb’s letter of retirement was not a unilateral act on his part but rather reflected a settlement agreement between the parties and therefore it was not obligated to honor the letter Newcomb submitted in a unilateral effort to rescind his retirement letter.
The Appellate Division commenced its analysis be noting that “authority exists to support the general proposition that a retirement letter may be withdrawn prior to a legally binding acceptance by a board of education,” citing a number of court decision and rulings by the Commissioner of Education. This, according to the ruling, means that although submitting a notice of an intention to retire simultaneously implies a “resignation” from one’s position, delivery of the “retirement letter” is not the operative factor; the appointing authority must take some action to “finalize it.”
The Appellate Division, however, concluded that there were questions of fact that barred the application of this general principle -- a retirement letter must be formally acted upon to be effective -- at this stage of the litigation. Among the issues of fact to be resolved:
1. Was Newcomb’s retirement letter, submitted in compliance with a settlement of a disciplinary action, essentially a term or condition of the settlement and thus he could not unilaterally rescind it notwithstanding the fact that the board had not formally acted on his retirement letter; and, if not,
2. Was the absence of a formal acceptance by the Board fatal in view of the fact that it had indicated its acceptance of the settlement by continuing Newcomb on the payroll and recruiting his replacement?
The Appellate Division, ruling that the Supreme Court was correct in denying Newcomb’s motion for summary judgment, returned the matter to Supreme Court for its consideration of these issues.
.
Provisional appointee covered by the State’s “Whistle Blower Law”
Provisional appointee covered by the State’s “Whistle Blower Law”
Sisson v Lech, App. Div., 4th Dept., 266 AD2d 858
The fact that an individual is a provisional employee does not necessarily mean that the individual cannot challenge his or her dismissal in court. For example, the individual may allege that he or she was discharged for “whistle blowing.” In such a case, the individual has a statutory right to sue his or her former employer. The Sisson decision illustrates this.
Dismissed from his provisional appointment with the Niagara County Department of Mental Health, Joseph A. Sisson sued. Although a State Supreme Court justice summarily dismissed his petition, the Appellate Division reversed and said that the matter should go to trial.
Sisson alleged that “he was terminated from his public employment in violation of Civil Service Law Section 75-b, commonly referred to as the ‘whistleblower’s law’, and that he was terminated in bad faith.”
It is well settled that a provisional employee may be “discharged at will” after completing the minimum period of probation and before the end of his or her maximum period of probation unless there was evidence that his or her termination “was for a constitutionally impermissible purpose or in violation of statutory or decisional law.” The Appellate Division concluded that Sisson, although a provisional appointee, was covered by Section 75-b and thus he had a statutory right to challenge his dismissal for any alleged “whistle blowing.”
Section 75-b defines the term “public employee” as any person holding a position by appointment or employment in the service of a public employer except judges and members of the legislature. It also provides that where the employee is not entitled to due process pursuant to Section 75 or a similar provision of law, or a disciplinary procedure negotiated pursuant to the Taylor Law, the individual may sue under the same terms and conditions as set out in Article 20-C of the Labor Law. Thus, Section 75-b covers all public employees, not just those “tenured.”
According to the Appellate Division, Sisson presented evidence that his termination was related to the fact that “he reported to the Community Service Board that his superior, Antoinette Lech, acted in an improper manner with respect to him and two other employees” to the lower court. Viewing this evidence in the light most favorable to Sisson, the court concluded that there was a “rational basis whereby [a] jury might find for [Sisson] as against [Lech]” and thus neither Lech nor the department were entitled to summary judgment.
.
Sisson v Lech, App. Div., 4th Dept., 266 AD2d 858
The fact that an individual is a provisional employee does not necessarily mean that the individual cannot challenge his or her dismissal in court. For example, the individual may allege that he or she was discharged for “whistle blowing.” In such a case, the individual has a statutory right to sue his or her former employer. The Sisson decision illustrates this.
Dismissed from his provisional appointment with the Niagara County Department of Mental Health, Joseph A. Sisson sued. Although a State Supreme Court justice summarily dismissed his petition, the Appellate Division reversed and said that the matter should go to trial.
Sisson alleged that “he was terminated from his public employment in violation of Civil Service Law Section 75-b, commonly referred to as the ‘whistleblower’s law’, and that he was terminated in bad faith.”
It is well settled that a provisional employee may be “discharged at will” after completing the minimum period of probation and before the end of his or her maximum period of probation unless there was evidence that his or her termination “was for a constitutionally impermissible purpose or in violation of statutory or decisional law.” The Appellate Division concluded that Sisson, although a provisional appointee, was covered by Section 75-b and thus he had a statutory right to challenge his dismissal for any alleged “whistle blowing.”
Section 75-b defines the term “public employee” as any person holding a position by appointment or employment in the service of a public employer except judges and members of the legislature. It also provides that where the employee is not entitled to due process pursuant to Section 75 or a similar provision of law, or a disciplinary procedure negotiated pursuant to the Taylor Law, the individual may sue under the same terms and conditions as set out in Article 20-C of the Labor Law. Thus, Section 75-b covers all public employees, not just those “tenured.”
According to the Appellate Division, Sisson presented evidence that his termination was related to the fact that “he reported to the Community Service Board that his superior, Antoinette Lech, acted in an improper manner with respect to him and two other employees” to the lower court. Viewing this evidence in the light most favorable to Sisson, the court concluded that there was a “rational basis whereby [a] jury might find for [Sisson] as against [Lech]” and thus neither Lech nor the department were entitled to summary judgment.
.
September 22, 2010
An entertaining example of enforcing administrative law
An entertaining example of enforcing administrative law
Source: Administrative Law Professor Blog. Reproduced with permission. Copyright © 2010, All rights reserved http://lawprofessors.typepad.com/adminlaw/
"Drop that Head of Cabbage, Mister, and Step Back from Your Cultivator with Your Hands in the Air September 20, 2010", posted on the International Municipal Lawyers Association - Local Government Blog by Dwight Merriam (Robinson & Cole, LLP, Hartford, CT):
DeKalb County, Georgia, can teach us all something about zoning enforcement.
The zoning enforcement authorities cited Steve Miller for growing too many vegetables on his 2-acre lot in a residential zone. Actually, it’s not that he was growing the vegetables; it was that he was selling them at an off-site farmers’ market, you see, because that makes it a commercial activity.
Isn’t there some federal law about transporting zucchini over county lines for the purpose of illegal sale? ...
EMM
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Source: Administrative Law Professor Blog. Reproduced with permission. Copyright © 2010, All rights reserved http://lawprofessors.typepad.com/adminlaw/
"Drop that Head of Cabbage, Mister, and Step Back from Your Cultivator with Your Hands in the Air September 20, 2010", posted on the International Municipal Lawyers Association - Local Government Blog by Dwight Merriam (Robinson & Cole, LLP, Hartford, CT):
DeKalb County, Georgia, can teach us all something about zoning enforcement.
The zoning enforcement authorities cited Steve Miller for growing too many vegetables on his 2-acre lot in a residential zone. Actually, it’s not that he was growing the vegetables; it was that he was selling them at an off-site farmers’ market, you see, because that makes it a commercial activity.
Isn’t there some federal law about transporting zucchini over county lines for the purpose of illegal sale? ...
EMM
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Criticism and reprimand distinguished in the context of entitlement to a disciplinary hearing
Criticism and reprimand distinguished in the context of entitlement to a disciplinary hearing
Ozol v Center Moriches UFSD, NYS Supreme Court, [Not selected for publication in the Official Reports]
Is a letter to an individual concerning his or her work performance constructive criticism or pejorative reprimand? Characterizing the letter as a "reprimand" constitutes discipline, entitling the individual to an Education Law Section 3020-a hearing or a contract disciplinary procedure. In contrast, if the letter simply contains "criticism of a teacher's performance," it may not rise to the level of formal disciplinary action and thus no disciplinary hearing would be required. How to distinguish between the two was the central issue in the Ozol case.
Center Moriches Union Free School District elementary school teacher Jean Ozol was handed a letter by the Superintendent informing her that she was being placed on a paid leave of absence until further notice and that:
1. The school district's attorney has been asked to review the information regarding an incident involving students "during which you displayed, [in the opinion of the Superintendent], conduct unbecoming a teacher" and that the "filing of Section 3020-a charges is a serious consideration at this time;" and
2. During the period of the leave of absence (a) Ozol was not to be on school grounds; and (b) Ozol was to refrain from any contact with students at the elementary school.
A copy of the letter was placed in Ozol's personnel file.
According to New York State Supreme Court Justice Oshrin's opinion, this letter and subsequent actions by the District directed towards Ozol constituted discipline. Why did the Superintendent take this action? It was in response to an incident that occurred while Ozol was teaching a fifth grade physical education class during which a student reported to class fifteen minutes late.
The Superintendent subsequently advised Ozol that "the letter should be considered a formal letter of reprimand." The Superintendent also commented that "it is my conclusion as Superintendent of Schools that your actions were inappropriate in that instance." Ozol was directed "... to refrain from any similar actions in the future."
In addition, the letter "strongly urged ... [Ozol to] enroll in one or more enumerated courses, the participation in which will provide [you] with the opportunity to improve [your] classroom management skills and instructional techniques." This letter was also placed in Ozol's personnel file. Ultimately Ozol sued, contending that the letters written by the Superintendent and other actions taken against her by the District, including a temporary reassignment, violated her rights under Section 3020-a of the Education Law.
The District objected, claiming that any judicial action was premature because Ozol had not exhausted the administrative remedies available to her under the controlling Taylor Law agreement. Why? Because, the District argued, Ozol had not filed a contract grievance. In addition, the District characterized its actions as part of an "evaluation procedure" and thus not discipline within the meaning of Section 3020-a.
The Court was not persuaded by the District's claims, however. The ruling notes that (1) the Taylor Law agreement did not contain "an exclusive remedy clause that would expressly require the exhaustion of administrative remedies prior to seeking judicial review," and (2) the term grievance as used in the contract referred to the resolution of "a dispute between the parties as to the meaning, interpretation or application of the provisions of this Agreement."
The decision also notes that another relevant provision set out in the agreement. The Court said that Article 5, Paragraph 4, of the contract states that "[t]his procedure shall not be used as a method of .... circumventing provisions of State Statutes relating to tenure, retirement, compensation, or disciplinary proceedings."
The Court decided that the letters placed in Ozol's personnel file, her suspension, and her teaching reassignment constituted disciplinary action within the meaning of Section 3020-a and thus not covered by the contract's grievance procedure.
Significantly, the decision indicates that in determining whether a letter in a personnel file constitutes a reprimand, and thus requiring a hearing under Section 3020-a of the Education Law, a Court must recognize the distinction between admonitions to a teacher which are critical of performance and are in the nature of evaluations or administrative efforts to achieve improvement of performance which do not require any formal hearing, and a formal reprimand and actions of a punitive nature, denoting disciplinary action requiring a due process hearing.
Insofar as "admonitions" are concerned, Justice Oshrin said that courts have ruled that the supervisory personnel of a school district have the right, and the duty, to make administrative evaluations as an adjunct to their responsibility to supervise the faculty of the schools, citing Holt v. Board of Education, Webutuck Central School District, 52 NY2d 625.
In contrast, factors to be considered in determining whether a particular letter should be characterized as a formal reprimand rather than an admonition include whether the letter (1) is from the teacher's immediate supervisor or from the Board of Education; or (2) is directed towards an improvement of [future] performance or is a formal reprimand for prior alleged misconduct; or (3) in the nature of a performance evaluation or a castigation for misconduct.
Also of some relevance is whether the letter uses the term "reprimand" and whether the letter uses the accusatory language of formal charges in describing the teacher's conduct. In this instance, said the Court, the Superintendent advised Ozol that she was being placed on a paid leave of absence; that she has displayed conduct unbecoming a teacher; that Section 3020-a charges may be filed; and that she may not go on school grounds or contact students at the elementary school during the period of her leave.
Finally, on February 14, 1997, the Superintendent wrote a letter described as "a formal letter of reprimand," in which Ozol was chastised for her actions and was directed to refrain from similar acts in the future.
Under the circumstances, the Court said it could only conclude that the Superintendent's actions were intended to be disciplinary and punitive in nature, thus triggering the need to file formal disciplinary charges against Ozol pursuant to Section 3020-a and requiring a disciplinary hearing to be held. The Court also observed that although the other contract provisions cited by the District provide for reviewing and challenging materials placed in an individual's personnel file, there was no provision for the removal of formal letters of reprimand from such files.
Concluding that the dispute between the parties was not covered by the Taylor Law agreement, the Court ruled that Ozol was not required to exhaust the remedies provided in the agreement prior to seeking judicial relief and rejected the District's motion to dismiss Ozol's action.
.
Ozol v Center Moriches UFSD, NYS Supreme Court, [Not selected for publication in the Official Reports]
Is a letter to an individual concerning his or her work performance constructive criticism or pejorative reprimand? Characterizing the letter as a "reprimand" constitutes discipline, entitling the individual to an Education Law Section 3020-a hearing or a contract disciplinary procedure. In contrast, if the letter simply contains "criticism of a teacher's performance," it may not rise to the level of formal disciplinary action and thus no disciplinary hearing would be required. How to distinguish between the two was the central issue in the Ozol case.
Center Moriches Union Free School District elementary school teacher Jean Ozol was handed a letter by the Superintendent informing her that she was being placed on a paid leave of absence until further notice and that:
1. The school district's attorney has been asked to review the information regarding an incident involving students "during which you displayed, [in the opinion of the Superintendent], conduct unbecoming a teacher" and that the "filing of Section 3020-a charges is a serious consideration at this time;" and
2. During the period of the leave of absence (a) Ozol was not to be on school grounds; and (b) Ozol was to refrain from any contact with students at the elementary school.
A copy of the letter was placed in Ozol's personnel file.
According to New York State Supreme Court Justice Oshrin's opinion, this letter and subsequent actions by the District directed towards Ozol constituted discipline. Why did the Superintendent take this action? It was in response to an incident that occurred while Ozol was teaching a fifth grade physical education class during which a student reported to class fifteen minutes late.
The Superintendent subsequently advised Ozol that "the letter should be considered a formal letter of reprimand." The Superintendent also commented that "it is my conclusion as Superintendent of Schools that your actions were inappropriate in that instance." Ozol was directed "... to refrain from any similar actions in the future."
In addition, the letter "strongly urged ... [Ozol to] enroll in one or more enumerated courses, the participation in which will provide [you] with the opportunity to improve [your] classroom management skills and instructional techniques." This letter was also placed in Ozol's personnel file. Ultimately Ozol sued, contending that the letters written by the Superintendent and other actions taken against her by the District, including a temporary reassignment, violated her rights under Section 3020-a of the Education Law.
The District objected, claiming that any judicial action was premature because Ozol had not exhausted the administrative remedies available to her under the controlling Taylor Law agreement. Why? Because, the District argued, Ozol had not filed a contract grievance. In addition, the District characterized its actions as part of an "evaluation procedure" and thus not discipline within the meaning of Section 3020-a.
The Court was not persuaded by the District's claims, however. The ruling notes that (1) the Taylor Law agreement did not contain "an exclusive remedy clause that would expressly require the exhaustion of administrative remedies prior to seeking judicial review," and (2) the term grievance as used in the contract referred to the resolution of "a dispute between the parties as to the meaning, interpretation or application of the provisions of this Agreement."
The decision also notes that another relevant provision set out in the agreement. The Court said that Article 5, Paragraph 4, of the contract states that "[t]his procedure shall not be used as a method of .... circumventing provisions of State Statutes relating to tenure, retirement, compensation, or disciplinary proceedings."
The Court decided that the letters placed in Ozol's personnel file, her suspension, and her teaching reassignment constituted disciplinary action within the meaning of Section 3020-a and thus not covered by the contract's grievance procedure.
Significantly, the decision indicates that in determining whether a letter in a personnel file constitutes a reprimand, and thus requiring a hearing under Section 3020-a of the Education Law, a Court must recognize the distinction between admonitions to a teacher which are critical of performance and are in the nature of evaluations or administrative efforts to achieve improvement of performance which do not require any formal hearing, and a formal reprimand and actions of a punitive nature, denoting disciplinary action requiring a due process hearing.
Insofar as "admonitions" are concerned, Justice Oshrin said that courts have ruled that the supervisory personnel of a school district have the right, and the duty, to make administrative evaluations as an adjunct to their responsibility to supervise the faculty of the schools, citing Holt v. Board of Education, Webutuck Central School District, 52 NY2d 625.
In contrast, factors to be considered in determining whether a particular letter should be characterized as a formal reprimand rather than an admonition include whether the letter (1) is from the teacher's immediate supervisor or from the Board of Education; or (2) is directed towards an improvement of [future] performance or is a formal reprimand for prior alleged misconduct; or (3) in the nature of a performance evaluation or a castigation for misconduct.
Also of some relevance is whether the letter uses the term "reprimand" and whether the letter uses the accusatory language of formal charges in describing the teacher's conduct. In this instance, said the Court, the Superintendent advised Ozol that she was being placed on a paid leave of absence; that she has displayed conduct unbecoming a teacher; that Section 3020-a charges may be filed; and that she may not go on school grounds or contact students at the elementary school during the period of her leave.
Finally, on February 14, 1997, the Superintendent wrote a letter described as "a formal letter of reprimand," in which Ozol was chastised for her actions and was directed to refrain from similar acts in the future.
Under the circumstances, the Court said it could only conclude that the Superintendent's actions were intended to be disciplinary and punitive in nature, thus triggering the need to file formal disciplinary charges against Ozol pursuant to Section 3020-a and requiring a disciplinary hearing to be held. The Court also observed that although the other contract provisions cited by the District provide for reviewing and challenging materials placed in an individual's personnel file, there was no provision for the removal of formal letters of reprimand from such files.
Concluding that the dispute between the parties was not covered by the Taylor Law agreement, the Court ruled that Ozol was not required to exhaust the remedies provided in the agreement prior to seeking judicial relief and rejected the District's motion to dismiss Ozol's action.
.
Arbitrator holds that a long delay in requesting a new hearing date results in the "death of the grievance"
Arbitrator holds that a long delay in requesting a new hearing date results in the "death of the grievance"
Local 3973 v Albany County, AD 3rd Dept., 245 AD2d 770, Motion for leave to appeal denied, 91 NY2d 813
Can an arbitrator decide that a request to reschedule a postponed arbitration was made too late and dismiss the underlying grievance? This was the central issue resolved in an appeal filed by Local 3973 after an arbitrator dismissed a grievance filed by Albany County deputy sheriff Chris Curry.
Curry was involved in an automobile accident on September 15, 1993 while on duty. As a result, he was sent a letter of discipline and lost two vacation days. Curry filed a disciplinary grievance. Eventually Local 3973 demanded arbitration on Curry's behalf in accordance with the collective bargaining agreement then in place.
The arbitration was scheduled for June 7, 1994. The union asked for a postponement. The arbitrator granted the request but did not set a new date for the arbitration. Two years had passed before the union asked for a new arbitration date. The arbitration hearing was held on September 17, 1996.
The arbitrator issued an award dismissing the grievance because "the two-year lapse between the original hearing date and the time when [the union] requested a new date 'was beyond any reasonable norm' and constituted the 'death of the grievance.'"
The union objected to the dismissal of Curry's grievance and filed a petition pursuant to Article 75 of the Civil Practice Law and Rules in an effort to vacate the award. Essentially, Local 3973 contended that the arbitrator did not have any authority to dismiss the grievance.
The Appellate Division, Third Department, affirmed a lower court's ruling rejecting the union's claim. The decision notes that to vacate an award on the grounds that the arbitrator exceeded his or her authority, a showing must be made that a specific limitation on that power enumerated in the arbitration clause itself has been violated. In this instance, said the Court, the agreement did not specifically place any limitation on the arbitrator's authority with regard to determining the timeliness of any post filing procedures such as the rescheduling of arbitration dates.
Because of the agreements "broad scope" and lack of any specific prohibition against the arbitrator's making determinations involving "postfiling procedures," the Appellate Division concluded that the question of the timeliness of postfiling procedures fell within the authority of the arbitrator to determine.
...
Local 3973 v Albany County, AD 3rd Dept., 245 AD2d 770, Motion for leave to appeal denied, 91 NY2d 813
Can an arbitrator decide that a request to reschedule a postponed arbitration was made too late and dismiss the underlying grievance? This was the central issue resolved in an appeal filed by Local 3973 after an arbitrator dismissed a grievance filed by Albany County deputy sheriff Chris Curry.
Curry was involved in an automobile accident on September 15, 1993 while on duty. As a result, he was sent a letter of discipline and lost two vacation days. Curry filed a disciplinary grievance. Eventually Local 3973 demanded arbitration on Curry's behalf in accordance with the collective bargaining agreement then in place.
The arbitration was scheduled for June 7, 1994. The union asked for a postponement. The arbitrator granted the request but did not set a new date for the arbitration. Two years had passed before the union asked for a new arbitration date. The arbitration hearing was held on September 17, 1996.
The arbitrator issued an award dismissing the grievance because "the two-year lapse between the original hearing date and the time when [the union] requested a new date 'was beyond any reasonable norm' and constituted the 'death of the grievance.'"
The union objected to the dismissal of Curry's grievance and filed a petition pursuant to Article 75 of the Civil Practice Law and Rules in an effort to vacate the award. Essentially, Local 3973 contended that the arbitrator did not have any authority to dismiss the grievance.
The Appellate Division, Third Department, affirmed a lower court's ruling rejecting the union's claim. The decision notes that to vacate an award on the grounds that the arbitrator exceeded his or her authority, a showing must be made that a specific limitation on that power enumerated in the arbitration clause itself has been violated. In this instance, said the Court, the agreement did not specifically place any limitation on the arbitrator's authority with regard to determining the timeliness of any post filing procedures such as the rescheduling of arbitration dates.
Because of the agreements "broad scope" and lack of any specific prohibition against the arbitrator's making determinations involving "postfiling procedures," the Appellate Division concluded that the question of the timeliness of postfiling procedures fell within the authority of the arbitrator to determine.
...
An employer’s changing its reasons for its actions not necessarily fatal in defending against an improper practice charge before PERB
An employer’s changing its reasons for its actions not necessarily fatal in defending against an improper practice charge before PERB
Public Employees Federation and New York, 30 PERB 3045
Suppose an employer gives one reason to explain an action and later offers a different explanation for its decision. The "real motive" for an action was among the issues raised by the Public Employee Federation [PEF] in its appeal of a PERB administrative law judge's [ALJ] ruling.
New York State Labor Department employee Ronald Goldstein was not permanently appointed to an associate economist's position after serving in the position as a provisional appointee. The PEF filed charges alleging that Labor violated Section 209-a.1(a) and (c) of the Public Employees' Fair Employment Act, contending that Goldstein was not made permanent because of his activities as a PEF officer.
PERB sustained its ALJ's dismissal of the complaint based on Department testimony that "deficiencies in Goldstein's job performance" was the reason why Goldstein was not appointed permanently to the title, rather than his union activities.
However, PEF argued that the Department initially gave a different reason for Goldstein's removal: that "the Department of Civil Service required his removal ... because a new eligibility list had been established." PEF argued the Department should not have been allowed to introduce "performance testimony" in its defense.
PERB upheld the ALJ's decision to allow the job-performance testimony, indicating that "a demonstrated discrepancy in the reasons for an action is clearly relevant to an assessment of a respondent's motive for an action, but not dispositive of that motive as a matter of law."
The citing of a particular reason, even if pretextual, by a party does not mean that there were not and cannot be other, lawful reasons for its actions, PERB said.
PERB held that the fact that an employer gave one reason but not another, or no reason whatsoever, does not prohibit it from submitting evidence of a reason, or additional reasons, at a later date, including at a hearing before an ALJ.
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Public Employees Federation and New York, 30 PERB 3045
Suppose an employer gives one reason to explain an action and later offers a different explanation for its decision. The "real motive" for an action was among the issues raised by the Public Employee Federation [PEF] in its appeal of a PERB administrative law judge's [ALJ] ruling.
New York State Labor Department employee Ronald Goldstein was not permanently appointed to an associate economist's position after serving in the position as a provisional appointee. The PEF filed charges alleging that Labor violated Section 209-a.1(a) and (c) of the Public Employees' Fair Employment Act, contending that Goldstein was not made permanent because of his activities as a PEF officer.
PERB sustained its ALJ's dismissal of the complaint based on Department testimony that "deficiencies in Goldstein's job performance" was the reason why Goldstein was not appointed permanently to the title, rather than his union activities.
However, PEF argued that the Department initially gave a different reason for Goldstein's removal: that "the Department of Civil Service required his removal ... because a new eligibility list had been established." PEF argued the Department should not have been allowed to introduce "performance testimony" in its defense.
PERB upheld the ALJ's decision to allow the job-performance testimony, indicating that "a demonstrated discrepancy in the reasons for an action is clearly relevant to an assessment of a respondent's motive for an action, but not dispositive of that motive as a matter of law."
The citing of a particular reason, even if pretextual, by a party does not mean that there were not and cannot be other, lawful reasons for its actions, PERB said.
PERB held that the fact that an employer gave one reason but not another, or no reason whatsoever, does not prohibit it from submitting evidence of a reason, or additional reasons, at a later date, including at a hearing before an ALJ.
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Termination from a position funded by a federal grant
Termination from a position funded by a federal grant
Mucci v Binghamton, Appellate Division, 245 AD2d 678, Appeal dismissed, 91 NY2d 921, Motion for leave to appeal denied, 92 NY2d 802
In the Mucci case, the Appellate Division was asked to determine if the City of Binghamton abolished a position as a subterfuge to avoid having to file disciplinary charges against the permanent incumbent of the position.
City Community Development Attorney Lawrence A. Mucci's position was funded by federal Community Development Block Grant [CDBG] monies. The City's 1996 budget did not include Mucci's position among the positions to be funded from the Block Grant. As a result, Mucci's position was abolished and he was terminated.
Mucci sued, contending that Binghamton acted in bad faith in eliminating his position because "his termination was not for economic or efficiency reasons but was related to job performance entitling him to a hearing pursuant to Section 75 of the Civil Service Law." The City's action, Mucci complained, was a subterfuge for disciplinary action, thereby denying him his statutory due process right to notice and hearing as required by Section 75.
The Appellate Division concluded that Mucci did not prove that his position was eliminated in an effort to avoid having to file disciplinary charges against him in order to remove him from his position. The Court said that Mucci had the burden of proof of demonstrating that the City acted in bad faith, which, under the circumstances, meant that he had to show that:
1. There were no bona fide reasons for the elimination of the position; or
2. That there were no savings resulting from the abolishment of the position; or
3. Someone was appointed to perform Mucci's former duties.
While observing that the City could have used other funds to continue Mucci's position or could have modified CDBG's budget to continue the position, the fact that it did not do so was not persuasive. The Appellate Division ruled that Mucci failed to meet his burden of proof.
The Court noted that Binghamton was faced with a "financial crisis" due to declining revenues. Although Mucci's former duties were performed by the City's Corporation Counsel or by "outside private counsel on an as needed basis," critical to the Court's holding was the fact that no one was hired in Mucci's place nor was another position created to perform his former duties.
According to the ruling, indications of the City's "good faith" in abolishing Mucci's position included: (1) an evaluation "by an outside source" that Mucci's position was not required and (2) some 20 positions, including Mucci's, were abolished in the 1996 budget, allowing the City to reduce its tax burden and to make more efficient use of limited Federal monies.
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Mucci v Binghamton, Appellate Division, 245 AD2d 678, Appeal dismissed, 91 NY2d 921, Motion for leave to appeal denied, 92 NY2d 802
In the Mucci case, the Appellate Division was asked to determine if the City of Binghamton abolished a position as a subterfuge to avoid having to file disciplinary charges against the permanent incumbent of the position.
City Community Development Attorney Lawrence A. Mucci's position was funded by federal Community Development Block Grant [CDBG] monies. The City's 1996 budget did not include Mucci's position among the positions to be funded from the Block Grant. As a result, Mucci's position was abolished and he was terminated.
Mucci sued, contending that Binghamton acted in bad faith in eliminating his position because "his termination was not for economic or efficiency reasons but was related to job performance entitling him to a hearing pursuant to Section 75 of the Civil Service Law." The City's action, Mucci complained, was a subterfuge for disciplinary action, thereby denying him his statutory due process right to notice and hearing as required by Section 75.
The Appellate Division concluded that Mucci did not prove that his position was eliminated in an effort to avoid having to file disciplinary charges against him in order to remove him from his position. The Court said that Mucci had the burden of proof of demonstrating that the City acted in bad faith, which, under the circumstances, meant that he had to show that:
1. There were no bona fide reasons for the elimination of the position; or
2. That there were no savings resulting from the abolishment of the position; or
3. Someone was appointed to perform Mucci's former duties.
While observing that the City could have used other funds to continue Mucci's position or could have modified CDBG's budget to continue the position, the fact that it did not do so was not persuasive. The Appellate Division ruled that Mucci failed to meet his burden of proof.
The Court noted that Binghamton was faced with a "financial crisis" due to declining revenues. Although Mucci's former duties were performed by the City's Corporation Counsel or by "outside private counsel on an as needed basis," critical to the Court's holding was the fact that no one was hired in Mucci's place nor was another position created to perform his former duties.
According to the ruling, indications of the City's "good faith" in abolishing Mucci's position included: (1) an evaluation "by an outside source" that Mucci's position was not required and (2) some 20 positions, including Mucci's, were abolished in the 1996 budget, allowing the City to reduce its tax burden and to make more efficient use of limited Federal monies.
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