The 2013 edition of The Discipline Book, incorporating summaries of relevant decisions issued through December 31, 2012, is now available

The 2013 edition of The Discipline Book, incorporating summaries of relevant decisions issued through December 31, 2012, is now available

The Discipline Book is a 2100+ page electronic handbook for administrators, union officials and attorneys involved in disciplinary actions taken against public officers and employees employed by New York State and its political subdivisions under the State's Civil Service Law, the Education Law and disciplinary grievance procedures negotiated pursuant to the Taylor Law.

Reviewing The Discipline Book, Mitchell H. Rubinstein, Adjunct Professor, St. John's University, said:

"... I have reviewed previous editions of this work and it is now bigger and better than ever.  It now spans 2127 pages and it covers just about everything; and I mean everything. 

"What is particularly valuable about this book is that it concentrates on recent case law. Hundreds of recent cases as well as hundreds of the leading cases are discussed. The book provides practical advice and information in an easy to understand format. Quite simply, there is no other book which you could purchase involving New York law which provides timely, practical and exhaustive analysis of discipline, constitutional issues involving discipline such as the First Amendment, evidentiary issues, procedural issues, collective bargaining issues, and union issues. 

"Any administrator, employer, union, or attorney who is involved in public sector labor management relations in New York will want to purchase at least one copy. As in earlier editions, the book is published as an e-book which makes searching via MS Word easy and fast."

To order your copy of the 2013 edition of The Discipline Book, please go to: http://booklocker.com/books/5215.html

New Jersey appellate court upholds district’s removal of teacher who posted derogatory remarks about her students on Facebook

New Jersey appellate court upholds district’s removal of teacher who posted derogatory remarks about her students on Facebook

Source:NSBA Legal Clips; Free subscriptions available at www.nsba.org/legalclips. Reproduced with permission. Copyright © 2013, National School Boards Association. All rights reserved.

In re Tenure Hearing of Jennifer O’Brien,  No. A-2452-11T4 (N.J. Super. Ct., App. Div. Jan. 11, 2013)

Abstract: A two-judge panel of the Appellate Division of the New Jersey Superior Court has ruled that school district officials were justified in terminating an elementary school teacher for posting derogatory remarks on Facebook about her students, including referring to them as “future criminals.” Agreeing with the administrative law judge (ALJ) and the Acting Commissioner of Education, the panel concluded the teacher’s remarks were not protected by the U.S. Constitution’s First Amendment Free Speech Clause because the remarks were not made on a matter of public concern.

The panel also found evidence supporting the ALJ’s and Commissioner’s determination that the teacher had engaged in conduct unbecoming a tenured teacher. Finally, the panel agreed with the ALJ and Commissioner that her termination was the appropriate penalty.

Facts/Issues: At the time of her termination, Jennifer O’Brien was employed by the School District of the City of Paterson (PCSD) as a first grade teacher. In March 2011, she posted two statements on Facebook that had cast her students in a derogatory light, including referring to them as “future criminals.” The remarks gained widespread public attention, with a number of parents complaining about O’Brien’s comments.

After PCSD’s Deputy Superintendent filed charges against O’Brien for conduct unbecoming a teacher, PCSD’s Superintendent found probable cause to support the charges and O’Brien’s termination. The charges were then filed with the Acting Commissioner of Education, who referred the matter to the Office of Administrative Law for a hearing before an ALJ.

The ALJ rejected O’Brien’s argument that her remarks were entitled to First Amendment protection on grounds that she had addressed a matter of public concern, i.e., student misconduct. Instead, the ALJ found the remarks were “a personal expression” of dissatisfaction with her job. The ALJ also concluded that even if O’Brien’s speech was on a matter of public concern, her right to express her views was outweighed by PCSD’s need to operate its schools efficiently. The ALJ stated that “in a public school setting thoughtless words can destroy the partnership between home and school that is essential to the mission of the schools.”

The ALJ also found the evidence supported the charges of conduct unbecoming a teacher because it showed O’Brien failed to maintain a safe, caring, nurturing, educational environment. Additionally, the ALJ determined that O’Brien breached her duty as a professional teacher. Lastly, the ALJ found O’Brien’s conduct justified her removal because O’Brien’s relationship with the Paterson school community had been irreparably damaged. The Acting Commissioner adopted the ALJ’s ruling.

O’Brien appealed that decision, raising three arguments: (1) the ALJ and the Commissioner erred by rejecting her constitutional claim; (2) the tenure charges were not supported by the evidence and should have been dismissed; (3) her removal was not the appropriate penalty.

Ruling/Rationale:  The Appellate Division panel rejected all of O’Brien’s arguments, finding them without merit, and affirmed the ALJ’s and Commissioner’s decisions. The panel concluded that O’Brien’s remarks did not constitute protected speech because they were personal statements motivated by her dissatisfaction with her job and the behavior of some her students. The panel also agreed that even if the remarks were on a matter of public concern, PCSD’s interest in the efficient operation of its schools outweighed her right to free speech.

The panel also found that the evidence supported the ALJ’s determination that O’Brien had engaged in conduct unbecoming a tenured teacher. It pointed out that both the ALJ and the Commissioner found that by posting the comments, O’Brien had demonstrated a lack of control “inimical to her role as a professional educator.”

Finally, the panel rejected the argument that O’Brien’s termination was not an appropriate penalty. It stated: “We are satisfied that, in determining the appropriate penalty, the ALJ and Acting Commissioner considered all relevant factors and reasonably concluded that the seriousness of O’Brien’s conduct warranted her removal from her tenured position in the district.”

In re Tenure Hearing of Jennifer O’Brien,  No. A-2452-11T4 (N.J. Super. Ct., App. Div. Jan. 11, 2013)

[NSBA’s Editor's Note: In November 2011, Legal Clips summarized an article in The Record, which reported on ALJ Ellen Bass' ruling. "O'Brien has demonstrated a complete lack of sensitivity to the world in which her students live,” Bass said. “The sentiment that a 6-year-old will not rise above the criminal element that surrounds him cuts right to the bone.” Bass also noted that O’Brien had failed to express genuine remorse during her August 2011 hearing. “I came away with the impression that O’Brien remained somewhat befuddled by the commotion she had created,” the judge wrote.]

Administrative agency’s failure to follow its own precedents in adjudicating the issue results in court remanding the matter to it for its further consideration

Administrative agency’s failure to follow its own precedents in adjudicating the issue results in court remanding the matter to it for its further consideration
City of New Rochelle v New York State Pub. Empl. Relations Bd., 2012 NY Slip Op 08860, Appellate Division, Third Department

The City of New Rochelle and the Police Association of New Rochelle[PBA] entered into a stipulation of settlement to resolve the improper practice charge that the PBA had filed with PERB concerning “special duty details.” The stipulation set out the terms and conditions resolving the improper practice charge and included a provision that such "[a]greement and its subject matter [would] not be subject to the grievance and/or arbitration procedures contained in [the] collective bargaining agreement between [the City] and the [PBA], it would] be enforceable in a court of competent jurisdiction."

When the City entered into a written agreement with the New Rochelle Superior Officers' Association [SOA] allowing sergeants and lieutenants to work special duty details, the PBA, claiming that special duty details had previously been performed exclusively by its members, filed another improper practice charge with PERB.

The City, contending that the improper practice charge had its genesis in a contractual dispute earlier resolved with the stipulation between the City and the PBA, argued that PERB lacked subject matter jurisdiction.

A PERB Administrative Law Judge found that PERB did have jurisdiction over the underlying charge and, further, that the City had engaged in an improper practice when it unilaterally transferred exclusive bargaining unit work to nonunit employees. PERB affirmed the ALJ's decision and the City file initiated a CPLR Article 78 action challenging PERB’s determination.

The Appellate Division, noting that the City, as a public employer, is required to negotiate in good faith with the PBA regarding the terms and conditions of its members' employment said that Civil Service Law §205(5)(d) “makes clear that PERB ‘shall not have authority to enforce an agreement between an employer and an employee organization and shall not exercise jurisdiction over an alleged violation of such an agreement that would not otherwise constitute an improper employer or employee organization practice,’ and an ‘agreement,’ for purposes of the statute, includes collective bargaining agreements.”

Further, said the court, “PERB "has consistently interpreted [Civil Service Law §205 (5)(d)] to deprive it of jurisdiction over failure-to-negotiate improper practice charges when the underlying disputes are essentially contractual, in favor of resolving the dispute through the parties' grievance-arbitration machinery, or resort to the courts."

PERB, however, had rejected the City’s jurisdictional defense based on its earlier stipulation of settlement with the PBA, holding that while the stipulation addressed the issue of eligibility for special duty details did not expressly speak to the issue of the exclusivity of such assignments being vested in PBA unit members.

The Appellate Division disagreed, holding that PERB's own prior decisions make it clear that "[a] jurisdictional issue can be raised . . . even if the agreement [at issue] does not address specifically the particular allegations of the improper practice charge if the agreement is a source of right to the charging party with respect to the subject matter of the charge."

Accordingly, said the court, it was satisfied that the stipulation of settlement provides "a reasonably arguable source of right with respect to the subject matter of the [underlying improper practice] charge" -- even in the absence of an express reference to the issue of exclusivity and thus "PERB erred in summarily dismissing the City's jurisdictional defense and reaching the merits of the dispute."

The Appellate Division annulled PERB’s determination and remitted the matter to it for its consideration of whether the improper practice charged should be summarily dismissed at this juncture or, alternatively, conditionally dismissed pending judicial resolution of the underlying contractual dispute.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_08860.htm

Recent NYC Office of Administrative Trials and Hearings [OATH] decisions

Recent NYC Office of Administrative Trials and Hearings [OATH] decisions 

OATH Index No. 1780/12

After a bridge and tunnel officer (“BTO”) took offense upon discovering his leave request status form posted on an employee bulletin board, he posted a profane note next to the form, directed at “who ever put” his personal information on the board. The only personal information contained on the leave form, however, was the officer’s last name.

OATH Administrative Law Judge Kara J. Miller found that writing and posting the obscene missive was misconduct.

The ALJ rejected the officer’s argument that the posting was permissible “shop talk”, noting that while it might not be uncommon for BTOs to use profanity on the job, this was not a verbal outburst made in the heat of the moment, but a deliberate statement, publicly posted and directed at a supervisor.

The recommended penalty was a 30-day suspension.

Judge Miller’s ruling is posted on the Internet at: Triborough Bridge & Tunnel Auth. v. McAllister (in PDF),

OATH Index No. 2059/12 

Evidence was introduced in a disciplinary hearing held before OATH Administrative Law Judge Alessandra Zorgniotti showing that a community associate was absent on 223 occasions and late on 35 occasions during a 13-month period.

Such evidence, the ALJ concluded, proved the excessive absence and the lateness charges and specifications filed against the individual.

ALJ Zorgniotti found that although "excessive absenc" was not specifically defined by the agency's rules, the sheer number of absences proven were excessive per se and recommended that the community associate be terminated. The Appointing Authority adopted the ALJ's recommendation and dismissed the individual.

Judge Zorgniotti’s decision is posted on the Internet at:  Dep’t of Buildings v. Rodriguez (in PDF).

Employer must show that employee's legal speech threatened the effective operation of the employer to prevail in disciplinary action taken against the employee

Employer must show that employee's legal speech threatened the effective operation of the employer to prevail in disciplinary action taken against the employee

Santer v Board of Educ. of E. Meadow Union Free Sch. Dist., 2012 NY Slip Op 08750, Appellate Division, Second Department

The genesis of the disciplinary action taken against a union official was a series concerted actions by teachers during collective bargaining negotiations that included weekly picketing in front of a school when students were being dropped off. On a day when it was raining, some of the teachers parked their cars along nearby street and display their signs in their car windows. The street was one of several locations where parents would drop off their children.

The charges filed against the union president included the allegation that his activities “resulted in children being dropped off in the middle of the street which resulted in an otherwise avoidable and unnecessary health and safety hazard." According to the school principal, the parking activity caused traffic to become extremely congested, and some children were dropped off in the street and had to cross traffic lanes to reach the sidewalk. No school official asked the teachers to move their cars during the protest, and no child was injured.

In the course of the disciplinary arbitration hearing, the union president contended that he had a constitutionally protected right to peacefully picket in a public area before the beginning of the school day. The arbitrator rejected this argument, found the president guilty of the charge of creating a health and safety hazard and directed that he pay a $500 fine.

The Appellate Division, noting that an arbitration award must be rational and not arbitrary and capricious, said that the evidence that children were dropped off in the middle of the street due to the arrangement of the cars provided a rational basis for the arbitrator's determination that the president contributed to the creation of a health and safety hazard, and the award was not arbitrary and capricious.

However, the Appellate Division also considered the president’s claim that that the disciplinary proceeding commenced against him, and the discipline ultimately imposed, violated his right to free speech under the First Amendment to the United States Constitution, explaining that courts “must balance free-speech principles against the threat to effective government operation presented by that speech.” Further, said the court, the government employer bears the burden of showing that the disciplinary action taken against the employee was justified.

The union president’s "speech" regarding collective bargaining issues indisputably addressed matters of public concern and “despite the evidence establishing that the manner in which the protest was carried out interfered with the safe and effective drop-off of students," the Appellate Division found that the School District failed to meet its burden of demonstrating that the union president’s exercise of his First Amendment rights so threatened the school's effective operation as to justify the imposition of discipline.

The president, said the court, “fully complied with the applicable parking regulation” and were the municipality of the view that it was unsafe for cars to park along the street in question during the time when parents dropped off their children at the school, “it could have prohibited parking during the relevant time periods, but it did not do so."

Further, said the Appellate Division, “no school official asked the teachers to move their cars during the protest, and no student was injured as a result of the protest.”

As the record establishes that the danger presented by the legally parking teachers could not have been substantial, the Appellate Division concluded that under these circumstances the District failed to demonstrate that union president's legal speech so threatened the effective operation of the school that discipline of him was justified.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_08750.htm

Education Law §310 may not be used to appeal an administrative decision made by an employee of the State Department of Education

Education Law §310 may not be used to appeal an administrative decision made by an employee of the State Department of Education

Advanced Therapy, OT, PT, SLP, ET AL PLLC, - An appeal from a decision by the New York State Education Department, Decisions of the Commissioner of Education, Decision 16,446

Advanced Therapy, a provider of preschool education services, challenged a decision denying a program modification request that it alleged was made by a State Education Department employee.

The Commissioner dismissed Advanced Therapy’s appeal, explaining that “It is well settled that Education Law §310 does not authorize an appeal to the Commissioner from actions taken by members of the staff of the State Education Department “

Such decisions, said the Commissioner, may be challenged in a proceeding brought in a court of competent jurisdiction pursuant to Article 78 of the Civil Practice Law and Rules.

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume52/d16446.html

In order to be considered by an administrative tribunal, the evidence must be made available to the tribunal prior to its making a final determination

In order to be considered by an administrative tribunal, the evidence must be made available to the tribunal prior to its making a final determination
Cabonargi v City Univ. of N.Y., 2013 NY Slip Op 00129, Appellate Division, First Department

A doctoral program student dismissed from the City University of New York challenged the University’s decision. After considering “an email from student's academic advisor," Supreme Court granted the student’s petition and directed the University “to reconsider” its decision.

The Appellate Division unanimously reversed, on the law, explaining that Supreme Court improperly considered an email from the student's academic advisor as it was never presented at the administrative level.

Indeed, said the court, the e-mail considered by Supreme Court was issued after the University's “final determination.”

The Appellate Division noted that with respect to the evidence considered at the administrative level, the University's determination concerning the graduate student’s academic qualifications was rational, and was made in good faith and in accordance with its own rules.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_00129.htm

A Reasonable Disciplinary Penalty Under the Circumstances

A Reasonable Disciplinary Penalty Under the Circumstances 

A Reasonable Disciplinary Penalty Under the Circumstances by Harvey Randall, Esq., is a 600+ page electronic handbook [e-book] for administrators, union officials, attorneys and others involved in disciplinary actions involving public officers and employees employed by New York State as the employer and its political subdivisions pursuant to the State's Civil Service Law, the Education Law, contract disciplinary grievance procedures negotiated pursuant to Article 14 of the Civil Service Law [the Taylor Law] and other statutes, rules or regulations.

In his review of this e-book, St. John's Law School Adjunct Professor Mitchell H. Rubinstein states:

 ... another excellent book that all, and I mean all, lawyers, management representatives and union advocates who practice New York public sector labor and employment law will want to purchase ... Because the book is an e-book, like Mr. Randall's previous books, it can be be downloaded to your computer and then searched as a MS Word document. Labor management officials and attorneys will want this book because it is well researched and organized and simply a time saver. Quite frankly, there is no other book like this which discussed New York law in a complete and comprehensive fashion.

For additional information about this e-book, click on http://nypplarchives.blogspot.com

NYS Department of Civil Service has issued a revised “Agency Reduction Transfer Lists” procedure applicable to officers and employees of the State as the employer

NYS Department of Civil Service has issued a revised “Agency Reduction Transfer Lists” procedure applicable to officers and employees of the State as the employer

Source: New York State Department of Civil Service Policy Bulletin #13-01

N.B. Policy Bulletin #13-01 supersedes Policy Bulletin #04-01

The Department of Civil Service’s Policy Bulletin #13-01 states that §78 of the Civil Service Law permits the transfer of employees, without examination, "from one department or agency to another department or agency of the State where necessitated by reasons of economy, efficiency, consolidation or abolition of functions, curtailment of activities or otherwise." The Policy Bulletin also notes that the Agency Reduction Transfer Program is a “discretionary tool” to be used to realign the workforce to meet programmatic and/or fiscal needs. Participation is voluntary on the part of eligible employees.

Those eligible for the ARTL program include:

1. Permanent and contingent permanent competitive class employees and eligible permanent non-competitive class and labor class employees whose positions may be impacted as a result of an action taken by reason of economy, efficiency, consolidation, or abolition of functions, curtailment of activities or otherwise.

2. Permanent and contingent permanent competitive class employees and eligible permanent non-competitive and labor class employees whose positions are relocated to a different county, and decline reassignment.

Policy Bulletin #13-01 notes that an agency may, at its discretion, extend ARTL eligibility to other employees in the titles. However, whatever method an agency chooses to determine eligibility must be objective and consistent across titles, and based upon operational needs. The Civil Service Department may extend eligibility to permanent, non-tenured, non-competitive and labor class employees.

Among those ineligible for the ARTL Program are:

1. Exempt class employees

2. Non-competitive class employees serving in policy-influencing or confidential positions

3. Provisional employees

4. Temporary employees

5. Employees who decline reassignment within the same county

6. Employees impacted by the return of incumbent in accordance with §§4.11 and 4.12 of the Classified Service. (4 NYCRR section 4.11 and 4.12)

The Civil Service Department has posted the text of Policy Bulletin #13-01 on the Internet at:

http://www.cs.ny.gov/ssd/pdf/pb13-01.pdf

Failing to comply with the notice requirements for filing a demand for arbitration set out in the collective bargaining agreement is a fatal procedural defect

Failing to comply with the notice requirements for filing a demand for arbitration set out in the collective bargaining agreement is a fatal procedural defect
In the Matter of the Arbitration between Livingston County and the Livingston County Civil Serv. Employees Assn., Inc., Local 1000, 2012 NY Slip Op 08985, Appellate Division, Fourth Department

The County and Local 1000 of the Civil Service Employees Association, Inc. were involved in a grievance that was at the various steps set out in the CBA’s contract grievance procedure article. Ultimately the County denied the grievance by a written decision dated October 4, 2011. CSEA then advised the County by a letter dated October 27, 2011 that it intended to submit the grievance to arbitration. The County received CSEA’s letter on October 28, 2011.

The critical provision in the CBA central to this litigation required "[c]ompliance with the time limits for submitting a notice of intent to arbitrate [and such compliance] shall be a condition precedent to arbitration". The CBA also included a provision stating that "Failure to submit a notice of intent to submit a grievance to arbitration . . . shall thus bar the grievance from proceeding to arbitration."

The time limits set out in the CBA required that the party demanding arbitration must notify the other party of its intention to submit the matter to arbitration “no later than 15 working days after a written decision was issued at the second step of the grievance process.”

Livingston County asked Supreme Court to stay arbitration, contending that CSEA’s demand to submit the grievance to arbitration was untimely as it had not been notified of CSEA’s intent to do so within 15 working days of date of its denial of the grievance.

Supreme Court denied the County’s petition; the Appellate Division unanimously reversed the lower court ruling “on the law.”

The Appellate Division explained that although the CBA between the parties sets out a “broad arbitration agreement,” it also contains an express provision establishing a condition precedent to submitting the matter to arbitration and CSEA had not complied with this condition precedent..

The court also noted that where such a condition precedent is expressly made part of the CBA, the issue of compliance with the condition is for the court to decide in the first instance.

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2012/2012_08985.htm

A pattern of harassing, demeaning, and continuous bullying of less senior colleagues warrants employee’s termination

A pattern of harassing, demeaning, and continuous bullying of less senior colleagues warrants employee’s termination

Denhoff v Mamaroneck Union Free Sch. Dist., 2012 NY Slip Op 08729, Appellate Division, Second Department

A §3020-a arbitrator sustained disciplinary charges filed against a guidance counselor and held that the school district had just cause to terminate her from her position. Supreme Court dismissed the guidance counselor’s petition and the Appellate Division affirmed the lower court’s ruling.

The arbitrator had found the guidance counselor guilty of 27 specifications of misconduct set out in 14 charges related to the guidance counselor’s conduct over the course of three years that involved a pattern of "harassing, demeaning, and continuous bullying of her less senior colleagues, as well as efforts to sabotage the ability of certain colleagues to gain tenure."

The Appellate Division, noting that Education Law §3020-a(5) limits judicial review of an arbitrator's determination, said that where, as here, parties are subject to compulsory arbitration, the award must not only satisfy the provisions set out CPLR §7511[b][1][i], [iii], [iv,] the award must satisfy yet an additional layer of judicial scrutiny, namely having evidentiary support and neither being arbitrary nor capricious. Further, the court said that "When reviewing compulsory arbitrations in education proceedings such as this, the court should accept the arbitrators' credibility determinations, even where there is conflicting evidence and room for choice exists," citing Matter of Saunders v Rockland Bd. of Coop. Educ. Servs., 62 AD3d 1012.

On appeal the guidance counselor challenged the arbitrator's finding her guilty of several of the charges sustained against her that the court said were raised for the first time on appeal. Accordingly, an appeal of those elements of the award were not properly before the court. 

As to those charges and specifications properly before the Appellate Division, the court found that the award was not arbitrary and capricious nor irrational, and that there was evidentiary support for the arbitrator's finding of guilt as to each of the charges.

In particular, the Appellate Division commented that the arbitrator “engaged in a thorough analysis of the circumstances, evaluated the witnesses' credibility, and arrived at a reasoned conclusion that termination of the [guidance counselor's] employment was an appropriate penalty.” In other words, the Appellate Division found that “[I]t was rational for the arbitrator to find that the guidance counselor’s actions warranted termination under the circumstances of this case.”

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_08729.htm

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A Reasonable Disciplinary Penalty Under the Circumstances - A guide to penalties imposed on public employees in New York State found guilty of selected acts of misconduct. Click on http://nypplarchives.blogspot.comfor additional information about this 600+ page electronic [e-book] publication.

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Supreme Court tells the NYC Department of Education exactly was it must do to avoid being held in contempt of court

Supreme Court tells the NYC Department of Education exactly was it must do to avoid being held in contempt of court

Storman v New York City Dept. of Educ., 2013 NY Slip Op 50007(U), Supreme Court, New York County

A teacher employed by the NYC Department of Education for approximately 30 years challenged his receiving an unsatisfactory rating as a result of allegations of sexual misconduct and corporal punishment made by a student. The teacher contended that the student's allegations were made in retaliation for his "verbally reprimanding a student."

Ultimately Supreme Court granted the teacher’s petition to annul the unsatisfactory rating, explaining "it was irrational for the DOE to conclude that the alleged conduct amounted to corporal punishment" and "the penalty imposed was excessive and shocking to the conscience." This Court ordered that the unsatisfactory rating be annulled and that "this matter [be] remitted to [DOE] for further proceedings not inconsistent with the court's decision."

The purpose of remitting the case to DOE was for DOE and teacher's union, the United Federation of Teachers (UFT), to take the appropriate steps to remedy the consequences of the underlying false allegations so that teacher would be properly compensated and his employment status restored.

The unsatisfactory rating was annulled by DOE but DOE did not take any steps to compensate the teacher or to remedy his employment situation. The teacher then asked the court to hold DOE in contempt. Supreme Court did hold DOE in contempt for its “willful and contumacious failure to comply with the Judgment,” but this determination was vacated by the Appellate Division, which found that the Contempt Order was based on an earlier Judgment that did not contain a "clear and unequivocal mandate."

In response to the Appellate Division’s granting the teacher leave to have Supreme Court clarify its Judgment by issuing was it termed "a clear and unequivocal mandate" to DOE. Supreme Court said that “In order to finally put an end to this unfortunate saga,” which began in 2004, this Court will be perfectly clear and unequivocal about what DOE must do and by when it must be done. 

By April 5, 2013, said the court, DOE shall do the following:

1. remove all references to the underlying false accusations from the teacher’s personnel file; and

2. restore back pay, with interest, that the teacher did not receive on account of the underlying false accusations, including any seniority salary adjustments and lost pension benefits.

The court also directed that in the event a dispute arises between the parties before April 13, 2013, “the parties are to promptly contact the Court, and if the parties cannot agree on the proper amount of back pay owed to the teacher, the teacher is granted leave to move to have such calculation referred to a Special Referee to hear and report.”

Finally, said the court, if DOE fails to comply with this Order in good faith, which, at a minimum, shall include an in-person meet and confer with the teacher about back pay, the teacher has leave to move for contempt, as DOE “can no longer maintain that its mandate is not clear and unequivocal.”

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_50007.htm

Collective bargaining agreements relied upon did not obligate the employer to maintain a retiree’s health insurance coverage at the level in place at the time of his or her retirement

Collective bargaining agreements relied upon did not obligate the employer to maintain a retiree’s health insurance coverage at the level in place at the time of his or her retirement

Kolbe v Tibbetts, 2012 NY Slip Op 08899, Appellate Division, Fourth Department

Certain retirees of the Newfane Central School District sued the District alleging that it had breached the terms of various collective bargaining agreements [CBA] with respect to their health insurance benefits in retirement. The retirees contended that their health insurance benefits were governed by each collective bargaining agreement (CBA) that was in effect at the time each plaintiff retired and that those benefits could not be changed or modified.

Each CBA in effect at the time of the retirees' respective retirements set forth a nominal co-pay for prescriptions in accordance with the health care plan that was in effect at that time. In December 2009, each retiree was notified that, pursuant to the CBA effective January 1, 2010, the co-pay for prescriptions would be significantly increased. Plaintiff-retirees alleged that they were not obligated to pay the higher co-pay but, rather, were obligated to pay only the co-pay rate that was in effect at the time of their respective retirements.

Supreme Court granted the retirees’ motion seeking summary judgment. The Appellate Division decided otherwise, Justices Lindley and Whalen dissenting, and ruled that Newfane was not obligated to maintain health insurance coverage equivalent to that in effect at the time each plaintiff retiree retired with respect to each such individual.

The Appellate Division said that the language at issue was set out in each relevant CBA and provided, in pertinent part, "[t]he coverage provided shall be the coverage which is in effect for the unit at such time as it is provided to the employee." In subsequent CBAs, said the court, the language at issue stated that "[t]he coverage provided shall be the coverage which is in effect for the unit at such time as the employee retires."

The CBAs further provided that retired employees shall be eligible to "continue group health insurance" upon the payment of a monthly premium to the District.”

The Appellate Division said that Supreme Court erred in holding that the language of the respective CBAs provided that the prescription co-pay amount could not be altered in view of the several CBAs providing that unused sick leave could be used to pay for health care coverage.

The court pointed out that “The unambiguous language … provides that, at the time of his or her retirement, the retiree is entitled to the same coverage that is provided to the bargaining unit.” The language, said the court, does not specify that an equivalent level of coverage will continue during retirement. In other words, said the court, “the respective CBAs do not provide that the level of health coverage will not be reduced or that the annual cost will not increase.”

Finding that the benefits for represented employees were “likewise reduced,” the Appellate Division concluded that the School District complied with the statutory requirement that they not reduce the retirees’ coverage below the level of coverage provided to active employees.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_08899.htm

Reinstated administrator entitled to back salary and benefits from the date of his termination until the date of his reassignment by the employer

Reinstated administrator entitled to back salary and benefits from the date of his termination until the date of his reassignment by the employer

Appeal of Ford from actions of the Board of Education of the City School District of the City of Troy, et. al., Decisions of the Commissioner of Education, Decision #16,443

The Commissioner sustained Tracy Ford’s challenge to his termination by the City School District of the City of Troy [Board] in part.

Ford, a certified School Administrator and Supervisor and School District Leader, was appointed to a position in the K-12 administrative tenure area as an Elementary School Principal effective September 17, 2007. This appointment was subject to Ford’s satisfactory completion of a probationary period and he was subsequently advised that he had been granted tenure in the title effective September 1, 2010.

On May 20, 2011, the Board notified Ford that his position was abolished and as he was the least senior employee in his tenure area he would be terminated effective June 30, 2011. Ford appealed, contending that he was improperly tenured in the elementary principal tenure area instead of the K-12 administrator tenure area.  Accordingly, Ford argued, he was improperly terminated because he was not the least senior administrator in the K-12 administrative tenure area or, alternatively, that he was entitled to fill a vacant position in the K-12 administrative tenure area when his position was abolished. 

The Board then adopted a resolution rescinding its action terminating Ford and “clarified” his tenure area as Administrator K-12. It then reassigned Ford to School 16, effective August 26, 2011.

In rebuttal to Ford’s seeking to have the Board’s actions excessing him declared null and void and reinstatement to an administrative position within the district, with full seniority rights, benefits and pay retroactive to June 30, 2011, the district argued that Ford failed to meet his burden of demonstrating a clear legal right to the relief he requested and that the petition must be dismissed as moot and untimely.

In support of its argument, the District pointed to its September 7, 2011 board resolution rescinded its action terminating Ford and his reinstatement to a principal position in the K-12 administrative tenure area.

Noting that an appeal will only decide “matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest,” the Commissioner said that to the extent that Ford challenged his termination in June 2011 or requests reinstatement to a position in the K-12 administrative tenure area, these claims are moot.”

However, said the Commissioner, Ford’s request for relief also included seniority credit, benefits and pay retroactive to June 30, 2011, contending that he had not been paid and/or received benefits and/or accrued seniority credit from June 30, 2011 through August 26, 2011. This aspect of Ford’s appeal was not rendered moot by the Board’s action.

The Commissioner said that the Board resolution clearly rescinded its action to terminate Ford in June 2011. However, said the Commissioner, as the Board continued Ford’s employment as an elementary principal in the district from June 30, 2011 until he was reassigned to School 16 on August 26, 2011, he is therefore entitled to receive salary, benefits and any seniority credits accrued during this time period.

Under the circumstances the Commissioner declined to dismiss this aspect of Ford’s claim as untimely and ordered the Board to reinstate him with back pay, benefits and seniority credit retroactive to June 30, 2011.

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume52/d16443.html

Resolving the layoff rights of a teacher granted tenure in an unauthorized tenure area

Resolving the layoff rights of a teacher granted tenure in an unauthorized tenure area
Thorenz v Board of Educ. of The Monticello Cent. Sch. Dist., 2012 NY Slip Op 09135, Appellate Division, Third Department

A teacher was granted tenure by the School Board in the special subject tenure area "In-School Suspension" and continued serving in that capacity until 2010 when she was notified that “the Board determined that it was ‘necessary to eliminate a teaching position in the In-School Suspension tenure area’ and that she was being terminated based upon her seniority status within that tenure area”

However, "In-School Suspension" was not an authorized special subject tenure area.

The teacher sued the school district contending that her separation was unlawful and that she should be reinstated to a position teaching in the physical education and recreation tenure area, an area in which she held a teaching certificate. 

Supreme Court granted the School Board's motion for summary judgment in part, dismissing the petition but as the teacher had been appointed by the Board to a nonexistent tenure area, Supreme Court then remitted the matter to the Board and directed it to reclassify the teacher "into an existing tenure area position.”

Both the teacher and the School Board appealed the decision.

Affirming the Supreme Court’s ruling, the Appellate Division said that the parties conceded that the teacher did not "devote a substantial portion of [her] time to instruction in . . . physical education" and therefore she cannot be deemed to have served in that special subject tenure area unless she falls within the exception created by 8 NYCRR 30-1.2 (b) (2).

8 NYCRR 30-1.2 (b) (2) provides that a professional educator who was appointed to an unauthorized tenure area prior to May 1, 2009 will be deemed to have been appointed to the tenure area for which the teacher holds a certification if the teacher was appointed for the performance of duties in instructional support services. However, the teacher’s duties, as self-described and as described in her teacher evaluations and by her principal, centered exclusively upon supervising students assigned to in-school suspension and working with other staff members concerning those students.

Thus, concluded the Appellate Division, the Board was correct in holding that the duties performed by the educator did not qualify as "instructional support services" within the meaning of the regulation and she was not legally entitled to an appointment to a position in the physical education and recreation tenure area.

However, said the court, it agreed with Supreme Court that, under the circumstances of this case, remittal is required so that the Board can reclassify the teacher into an accepted tenure area and thereafter determine seniority pursuant to Education Law §2510(2).

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_09135.htm

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