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Also, §22 of the New York State's General Construction Law, in pertinent part, provides that “Whenever words of the masculine or feminine gender appear in any law, rule or regulation, unless the sense of the sentence indicates otherwise, they shall be deemed to refer to both male or female persons.” NYPPL typically follows this protocol.

November 19, 1997

Reopening a PERB proceeding


Reopening a PERB proceeding
Matter of Chenango Forks CSD, 29 PERB 3057

If a party agrees to have a proceeding "administratively closed," it cannot later argue that it was an error to reopen the proceeding. This was one of several issues included in exceptions of a PERB administrative law judge's resolution of charges filed against the Chenango Forks Central School District by the Chenango Forks Transportation Association.

The Association charged the District with violating §§209-a.1(a),(c) and (d) when it unilaterally directed both the Association's president and its secretary from discussing union business on school property.

Although the charge had been "administratively closed," the District consented to its being reopened by PERB's administrative law judge. Ultimately the administrative law judge ruled that the District had violated the Taylor Law when it unilaterally barred employees from discussing employment issues while on school property.

The District's exception to this determination contended that "the administrative law judge erred by allowing the Association to reopen the charge because the Association had not filed a second notice of claim pursuant to Education Law §3813 when the case was reopened.

PERB rejected the District's argument, succinctly commenting that "the District agreed to reopen the case and it cannot now argue that the reopening was error." According to PERB, by agreeing to the reopening, "the District waived any claim the reopening should have been denied."


Retroactive membership in the NYSTRS


Retroactive membership in the NYSTRS
Candrea v Yonkers CSD, Appellate Division
Clark v Kingston CSD, Appellate Division
Kaufman v Jericho UFSD, Appellate Division
White v Freyman, NYS Supreme Court

§803 of the Retirement and Social Security Law authorizes retroactive membership in a State public retirement system if an individual otherwise eligible to join the system, when first eligible to join the system:

(i) did not expressly decline membership in a form filed with the employer;

(ii) did not participate in a procedure explaining the option to join the system in which a  form, booklet or other written material is read from, explained or distributed ...; or

(iii) did not participate in a procedure that a reasonable person would recognize as an explanation or request requiring a formal decision by him or her to join a public retirement system.

 This provision has generated a number of law suits challenging school district decisions denying teacher applications for retroactive membership in the New York State Teachers Retirement System [TRS]. As a general rule, approval of such applications would typically place the teacher in a different "retirement tier," usually with greater benefits and require the school district to pay the entire employer contribution associated with such retroactive membership.

During the relevant time periods in most §803 cases, where membership in a retirement system was not mandatory, if the employee did not join a system, the employer would not have had to pay either the employer contribution for retirement or the employer contribution towards social security on behalf of the employee.

Summarized below are several recent court rulings involving §803 claims.

        The Candrea Case

The Candrea decision turned on whether a school district had "a standard practice" of advising newly hired teachers of their right to join TRS.

Yonkers decided that Eric Candrea had been advised of his option to become a member of TRS when he was initially hired as a part-time teacher in 1975. It maintained that he was ineligible for retroactive membership in TRS because "when he was hired he had participated in a procedure that a reasonable person would recognize as an explanation or request requiring a formal decision ... to join the retirement system." Accordingly, it denied his §803 application for retroactive membership in TRS.

Providing this information, Yonkersexplained, was its standard practice in such situations.

The Appellate Division rejected Yonkers' contention. It noted that "despite the existence of this allegedly standard practice," Yonkershad previously found other teachers hired during the same time period to be eligible for retroactive membership "because they had not been afforded an opportunity to join the Retirement System."

Under the circumstances, said the Court, Yonkers' rejection of Candrea's application was arbitrary and capricious as there was no rational basis for distinguishing between Candrea's eligibility for retroactive membership from that of the other teachers who were found to be eligible.

         The ClarkCase

In this case the significant issue concerned the nature of the burden of proof that a teacher had to meet to satisfy the requirements of §803 for the purposes of retroactive membership in TRS.

Barbara Clark and three other teachers claimed that they were entitled to retroactive membership in TRS based on their part-time service with the Kingston City School District during various periods in 1970.

They completed the forms prepared by TRS which asked:

1. Did your first public employer fail to advise you of your right to join a public retirement system? and

2. Did you render continuous employment ... from the date of you first public employment to your current date of membership?

Although the four teachers answered both questions "yes" and filed the form "precisely according to instructions," Kingstonclaimed that the four, in order to prevail, also had to provide affirmative evidence that:

a. they did not expressly decline membership in a form filed with the employer;

b. they did not participate in a procedure explaining the option to join the system in the course of which written material was supplied; or

c. they did not participate in a procedure that a "reasonable person" would recognize as requiring a formal decision to join a retirement system.

Not so, said the Court. It held that the teachers had satisfied their initial burden of proof by completing and filing a timely form with TRS. This meant that the District was required to come forward with evidence in support of its claim that the teachers did not qualify for retroactive membership in TRS.

Another argument raised by Kingstonwas that "once an individual belongs to a retirement system, she surely must be aware of her right to rejoin the system" after a period of inactivity and withdrawal. This would occur upon reemployment as a part-time or substitute teacher.

Again the Appellate Division disagreed. It said that "neither an individual's prior membership in the Retirement System as a full-time teacher nor her subsequent indication that she is no longer a member of the system evidences her knowledge that she is entitled to rejoin the system by virtue of her employment as a substitute teacher or that she does not desire to join the system."

The Court sustained the Supreme Court ruling that under the circumstances Kingston's determinations "lacked a rational basis" and dismissed its appeal.

        The Kaufman Case

The Appellate Division affirmed a lower court ruling that the Jericho Union Free School District's rejection of Harriet Kaufman's application for retroactive membership in TRS was "arbitrary and capricious and with any rational basis."

The Court rejected the District's efforts to provide "further justification" for its decision in its answer to Kaufman's petition on the grounds that "judicial review of an administrative determination is limited to the grounds invoked by the administrative body" in making its determination. In other words, the District was not permitted to bolster its justification by presenting reasons that it did not cite in its final determination rejecting Kaufman's application.

         The White Case

The White case addressed a technical issue: the necessity of filing a "notice of claim" as a prerequisite to challenging a school board's rejection of an application for retroactive membership in a retirement system.

Frances White was employed as a substitute teacher with the Ossining Union Free School District ("Ossining") in September 1974. She first joined the New York State Teachers' Retirement System [TRS] in September 1976 as a Tier 3 member.

In 1994 White applied for retroactive membership in TRS effective September 1974. Approval of her application would give her Tier 2 members status. Ossining, which would have to make the employer contribution if White were qualified for retroactive membership, determined that she did not meet the §803 requirement and disapproved her application.

White sued, challenging Ossining's determination. Ossining asked the Court to dismiss her complaint on the grounds that White had neglected to file a notice of claim with the District which Ossining contended was required by §3813(1)2 of the Education Law.

Holding that White was attempting to assert a private right rather than a "public interest," the Court ruled that White's efforts to excuse her failure to file the notice of claim did not fall within any of the exceptions that would otherwise excuse this omission. Ruling that the failure to file a §3813(1)2 notice was a "fatal defect," the Court granted Ossining's motion and dismissed her appeal.

The full opinion in White follows:


         WHITE v. FREYMAN

Petitioner's motion to strike two affirmative defenses raised in response to this CPLR Article 78 proceeding commenced to challenge an unfavorable March 15, 1996 Retirement and Social Security Law 803 determination is denied.

Background and Facts

Petitioner Frances White was employed as a substitute teacher with the Ossining Union Free School District("Ossining") in September 1974. While there, she did not join the then effective and voluntary New York State Teachers Retirement system (the "retirement system"), Tier II. Thereafter, she worked for various school districts. In September 1976, White joined the then effective and mandatory Tier III retirement system which provides for, among other things, a less generous benefit package than that offered through Tier II.

In November 1994, White applied to Ossiningfor retroactive membership in Tier II of the New York State Retirement System pursuant to §803 of the Retirement and Social Security Law. Very briefly, §803 allows for retroactive membership in an earlier retirement system where an employee did not, when first eligible to join the retirement system1:

(i) expressly decline membership in a form filed with the employer; (ii) participate in a procedure explaining the option to join the system in which a Forn, booklet or other written material is read from, explained or distributed ...; or (iii) participate in a procedure that a reasonable person would recognize as an explanation or request requiring a formal decision by him or her to join a public retirement system.

After having been turned down for retroactive membership by the Ossining Assistant Superintendent and then the Ossining Superintendent, a full evidentiary hearing was held on November 17, 1995. Upon consideration of the hearing testimony and subsequently submitted briefs, the Ossining Board of Education affirmed the previous denials by written determination dated March 15, 1996. This CPLR Article 78 proceeding was commenced on July 12, 1996to upset that determination.

By verified answer and an affirmation dated August 9, 1996, respondent raises two affirmative defenses: (1) petitioner failed to file an Education Law 3813(1)2 notice of claim with the school district within three months after the accrual of her claim; and, (2) failed to allege that in her petition. This motion to strike the affirmative defenses followed.

Conclusions of Law

With narrow exception (see, infra), service of an Education Law 3813 notice of claim is a condition precedent to obtaining personal jurisdiction over a school district, even in a CPLR Article 78 proceeding (see, Education Law 3813; Matter of Harder v. Board of Education, 188 AD2d 783, 784 [3d Dept, 1992]; Matter of Jackson v. Board of Education, Colton-Pierrepont Central School District, 194 AD2d 901 [3d Dept, 1993], lv den 82 NY2d 657). The notice of claim must be served within three months of the accrual of claim, here, admittedly, March 15, 1996.3 Absent a judicially recognized exception, or permissible leave to file a late notice of claim (see, Education Law 3813[2-a]), failure to comply with the notice of claim requirement is a fatal defect which mandates the dismissal of the proceeding (Parochial Bus Systems v. Board of Education, 60 NY2d 539, 548).

Petitioner moves to strike the affirmative defenses on the ground that the public interest exception, one of two judicially recognized exceptions to the 3813 notice of claim requirement (see, Matter of Board of Education of the Union-Endicott Central School District v. NYS Public Employment Relations Board, 197 AD2d 276 [3d Dept, 1994], lv den 84 NY2d 803), applies to her case. The scope of the public interest exception to the notice of claim requirement extends to "actions that are brought to protect an important right, which seek relief for a similarly situated class of the public, and whose resolution would directly affect the rights of that class or group" (Mills v. County of Monroe, 59 NY2d 307, 311, cert den 464 US 1018).

In Union Free School District No. 6 v. NYS Human Rights Appeal Board (35 NY2d 371, mot rearg den 36 NY2d 807), the Court deemed exempt under the public interest exception a case dealing with personnel policies and practices which discriminated on the basis of sex. The court found that the relief granted would "redound to the benefit of that teacher as well as to the benefit of other teachers similarly situated" (id. at p. 380). Also emphasized was the "public's interest in the elimination of discrimination based on sex -- a public interest duly declared by legislative enactment" (id.). Nonetheless, where a favorable disposition would not directly affect or vindicate the rights of others, an action based on unlawful discriminatory practices constitutes the vindication of a private right (see, Mills v. County of Monroe, 59 NY2d 307, 311 [action to redress employment discrimination on the basis of race]).

"The 'tenure rights' of teachers are also considered a matter in the public interest and therefore §3813 is not applicable to cases seeking to enforce such rights [citations omitted]"  (Sephton v. Board of Education of the City School District of the City of New York, 99 AD2d 509, 510 [2d Dept, 1984], lv den 62 NY2d 605; Matter of Piaggone v. Board of Education, Floral Park-Belrose Union Free School District, 92 AD2d 106 [2d Dept, 1983]; Feinberg v. Board of Education of the East Ramapo Central School District, 78 AD2d 889 [2d Dept, 1980]).

In Sephton (99 AD2d 509), the Court held that an action for the recovery of back pay based upon an alleged improper salary restructuring was not exempt from the §3813 notice requirement because the "vindication of private rights and duties" was being sought (id. at 510). Here, too, petitioner is "not attempting to pursue the kind of public interest that would remove the necessity of filing a notice of claim" (Matter of Jackson v. Board of Educ. Colton-Pierrepont Cent. School Dist., 194 AD2d 901, 903, supra). Fundamentally private relief, retroactive membership in an earlier tier of a retirement system with all of the benefits that it brings, is being sought on the grounds that the Retirement and Social Security Law 803 determination is null and void for reasons included in CPLR 7803(3) and (4). This proceeding lacks public policy implications inasmuch as the disposition of petitioner's claim was not intended to nor could it directly affect or vindicate the rights of others (see, Mills v. County of Monroe, 59 NY2d 307, 311)

Matter of Walton v. Board of Education of the Valley Central School District(Supreme Ct, Orange County, January 17, 1996, Owen, J. [Index No. 5777/95]) is distinguishable. There, relying on Piaggone, supra, the court ruled that a §3813 notice of claim was not required in that CPLR Article 78 proceeding because petitioner asserted that the respondent did not fulfill "a requirement imposed by law," i.e., respondent allegedly failed to provide an RSSL 803(b)(3) affidavit.4 Here, the contention is that an incorrect RSSL 803 determination was reached. Petitioner has no legal right to a determination in her favor.

Matter of Mogg v. Brentwood Union Free School District (Supreme Ct, Suffolk County, March 1, 1996, Cowan, J.) is not controlling, and is unpersuasive. Without discussion or comment, Mogg, supra, relies upon Piaggone, supra, for its holding that a §3813 notice of claim is not required in an Article 78 proceeding for retroactive membership in an earlier retirement system. As previously noted, however, Piaggone is a tenure case and, as such, is significantly distinguishable. This is especially so in light of more recent cases that have applied the §3813 notice requirement to CPLR Article 78 proceedings (see, e.g., Matter of Harder v. Board of Education, 188 AD2d 783, 784 [3d Dept, 1992] supra [Education Law 3813 notice requirement applicable to CPLR Article 78 proceeding commenced to challenge school district's determination, after a Civil Service Law 75 hearing, to terminate an employee for, among other things, incompetency]).

A claim for monetary damages in addition to that which is a "natural concomitant" of the ultimate relief sought may very well disqualify a proceeding or action that is otherwise exempt from §3813 (see, Feinberg v. Board of Education of the East Ramapo Central School District, 78 A.D.2d 889 supra.; see also, Hermele v. Union Free School District No. 23, 167 AD2d 512 [2d Dept, 1990], lv den 77 NY2d 804 [action to recover for wrongful discharge and for reinstatement of employment constitutes a private dispute]). However, the mere absence of a claim for monetary damages in an otherwise nonexempt case does not qualify it for exemption.

The Court must reject petitioner's argument that her November 1994 RSSL 803(3) affidavit satisfies the 3813 notice of claim requirement. It is not knowledge of the wrong or underlying facts that counts, it is knowledge of the actual claim (Parochial Bus System v. Board of Education 60 N.Y.2d 539, 548 [1983]; Chesney v. Board of Education, 5 N.Y.2d 1007 [1959]; Munroe v. Booth, 305 N.Y. 426 [1953]; Thomann v City of Rochester, 256 NY 165, 172 [1931]). The affidavit precedes the earliest date on which the claim could have accrued, March 15, 1996.

The alternative relief sought, an application for leave to file a late notice of claim, must be denied. An extension of time during which to serve a notice of claim "shall not exceed the time limited for the commencement of an action by the claimant against any district or any such school" (Education Law 3813[2-a]; Matter of Board of Education of Schenevus Central School District v. Merritt Meridan Construction Corporation, 210 AD2d 854 [3d Dept, 1994]). Petitioner's September 25, 1996 application for leave to file a late notice of claim was made well over four months (see, CPLR 217) after the date the cause of action accrued, March 15, 1996.

While a pleading may constitute substantial compliance with a notice of claim requirement, that is only where, unlike here, it has been served within the requisite period of limitations (Matter of Deposit Central School District v. Public Employment Relations Board, 214 AD2d 288 [3d Dept, 1995] lv den 88 NY2d 866; Feinberg v. Board of Education of the East Ramapo Central School District, 78 AD2d 889 supra).

One may question the wisdom of requiring the filing of a notice of claim within three months after the accrual of a claim cognizable under CPLR Article 78, and where there exists a mere four month statute of limitations (see, Education Law 3813; CPLR 217). However, that is a matter more properly placed before the Legislature. As the Court stated in Parochial Bus Systems v. Board of Education, supra, (60 NY2d 539 at 548):
said that a particular form of notice, conveyed with particular details to particular public officers, shall be a prerequisite to the right to sue [,] [t]he courts are without power to substitute something else." (Thomann v. City of Rochester, 256 NY 165, 172 ...) Moreover, "[w]hat satisfies [a statute such as §3813 of the Education Law] is not knowledge of the wrong. What the statute exacts is knowledge of the 'claim.' " (Id.).

Nor may a claimant be relieved of "a positive statutory mandate" simply because no prejudice has resulted, "even to avoid a harsh result." (P.J. Panzeca, Inc. v. Board of Educ., 29 NY2d 508, 510 ...)

Petitioner's failure to present a notice of claim to the school district as is required by Education Law 3813 constitutes a fatal defect resulting in the dismissal of this proceeding.

Accordingly, the petition is dismissed.

The foregoing constitutes the Opinion, Decision and Order of the Court.

 Notes

(1) §803 was effective for three years, and has since expired.

(2) Education Law 3813 provides: "No action or special proceeding, for any cause whatever, except as hereinafter provided, relating to district property or property of schools or claim against the district or any such school, or involving the rights or interests of any district or any such school shall be prosecuted or maintained against any school district unless it shall appear by and as an allegation in the complaint that a written verified claim upon which such action or special proceeding is founded was presented within three months after the accrual of such claim *."

(3) See, p. 11 of petitioner's motion to strike, p. 12 of respondents' memorandum of law accompanying verified answer.

(4) The court expressly declined to rule on whether a notice of claim was necessary for the judicial review of an administrative determination on the grounds of arbitrariness and capriciousness.

* The courts have identified an exception that could excuse literal adherence to the §3813 filing requirement: "substantial compliance" with the mandates of §3813. In Deposit CSD v PERB, the Appellate Division held that  although compliance with §3813 "is a condition precedent to PERB's exercise of jurisdiction over an improper practice charge," the fact that the District had received a copy of the charges filed with PERB by the employee organization "within 90 days after the claim arose, and had filed its answer" to the allegations meant that  there was substantial compliance with the notice of claim requirements set out in §3813. According to the ruling in Deposit, "substantial compliance with Education Law §3813 is all that is required in situations where the school district has been sufficiently informed of the claim." In White's situation it could be argued that the District had substantial notice of her claim as it had made the final administrative determination denying her application for retroactive membership in TRS.

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