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January 31, 2008

SPELLING ERRORS RESULT IN TEACHER'S DISMISSAL FOR INCOMPETENCE


In an appeal by the school district unhappy with the penalty imposed by the hearing panel following a Section 3020-a disciplinary action,* the Commissioner of Education sustained the appeal contesting the imposition of a one month suspension of a teacher without pay after she had been found guilty of two specifications of charges of inefficiency. 

Charges of inefficiency, insubordination, conduct unbecoming a teacher and incompetency enumerated in 28 specifications had been brought against the teacher. All but 2 specifications of charges of inefficiency were dismissed by the disciplinary panel. 

After confirming the panels determination regarding its findings of inefficiency, the Commissioner ruled that the panel's findings concerning charges of incompetency must be set aside as contrary to the weight of the evidence. He found that the teacher's written statement offered by the District were so deficient in spelling and grammar as to compel the conclusion that the charges of incompetency should have been sustained. 

The record indicates that the District's efforts to assist the teacher to improve in this area were unsuccessful. "The severity of the problem compels the conclusion that her ability to teach is seriously compromised by her inability to spell" according to the Commissioner. 

He then elected to substitute his judgment for that of the hearing panel and concluded that the appropriate penalty was dismissal and authorized the District to dismiss the teacher for incompetency.

* Decisions of the Commissioner of Education, Decision 10,936

SPELLING ERRORS RESULT IN TEACHER'S DISMISSAL FOR INCOMPETENCE


In an appeal by the school district unhappy with the penalty imposed by the hearing panel following a Section 3020-a disciplinary action,* the Commissioner of Education sustained the appeal contesting the imposition of a one month suspension of a teacher without pay after she had been found guilty of two specifications of charges of inefficiency. 

Charges of inefficiency, insubordination, conduct unbecoming a teacher and incompetency enumerated in 28 specifications had been brought against the teacher. All but 2 specifications of charges of inefficiency were dismissed by the disciplinary panel. 

After confirming the panels determination regarding its findings of inefficiency, the Commissioner ruled that the panel's findings concerning charges of incompetency must be set aside as contrary to the weight of the evidence. He found that the teacher's written statement offered by the District were so deficient in spelling and grammar as to compel the conclusion that the charges of incompetency should have been sustained. 

The record indicates that the District's efforts to assist the teacher to improve in this area were unsuccessful. "The severity of the problem compels the conclusion that her ability to teach is seriously compromised by her inability to spell" according to the Commissioner. 

He then elected to substitute his judgment for that of the hearing panel and concluded that the appropriate penalty was dismissal and authorized the District to dismiss the teacher for incompetency.

* Decisions of the Commissioner of Education, Decision 10,936

A UNION OFFICIAL'S ADVICE TO EMPLOYEE PROTECTED ACT WITHIN THE MEANING OF THE TAYLOR LAW


The union's representative advised a co-worker not to answer questions concerning alleged violations of provisions of the "faculty handbook". 

The representative then received a letter from the employer, a copy of which was placed into his personnel file, indicating that the "instruction to the employee not to answer (the) question" was considered "insubordination ... and any recurrence ... would result in (a) recommendation ... that disciplinary action be taken." 

PERB ruled that in providing advice to a member of the collective bargaining unit the representative was engaged in a protected activity under the Taylor Law and directed the letter to be withdrawn from the representative's personnel file and not considered for any purpose.*

N.B. Although a union's representative's right to give advice is protected, if the advice provided by a union representative is incorrect, the employee who follows such advice may  be expose to the risk of being served with charges alleging misconduct or insubordination.

* Eastchester Union Free School District, PERB U-5775.

A UNION OFFICIAL'S ADVICE TO EMPLOYEE PROTECTED ACT WITHIN THE MEANING OF THE TAYLOR LAW


The union's representative advised a co-worker not to answer questions concerning alleged violations of provisions of the "faculty handbook". 

The representative then received a letter from the employer, a copy of which was placed into his personnel file, indicating that the "instruction to the employee not to answer (the) question" was considered "insubordination ... and any recurrence ... would result in (a) recommendation ... that disciplinary action be taken." 

PERB ruled that in providing advice to a member of the collective bargaining unit the representative was engaged in a protected activity under the Taylor Law and directed the letter to be withdrawn from the representative's personnel file and not considered for any purpose.*

N.B. Although a union's representative's right to give advice is protected, if the advice provided by a union representative is incorrect, the employee who follows such advice may  be expose to the risk of being served with charges alleging misconduct or insubordination.

* Eastchester Union Free School District, PERB U-5775.

ESSENTIAL ADMINISTRATIVE RESPONSIBILITIES CAN'T BE NEGOTIATED AWAY


The contract between the School District and the Union permitted the District to transfer teachers subject to the teacher involved being advised of the reason(s) for the transfer and being given an opportunity to select from among  "current openings" for which the teacher was qualified. The wishes of the teacher were to be taken into consideration to the extent possible. 

A music teacher grieved his "involuntary transfer out" as concert band director. The arbitrator directed the District to review the appropriate positions available with him and to permit him to select from among them. The arbitrator further directed the District to permit the teacher to return to the concert band director position if he wished and the District was to "develop a program, with outside assistance, 'to assure a smooth functioning' of the concert band" were he to choose to return. 

The school district appealed pursuant to CPLR Article 75 and the Appellate Division ruled that Section 1711 of the Education Law gave the Board a non-delegable responsibility to maintain adequate standards in the classroom and the authority to assign and reassign teachers was essential to that responsibility.* 

In the words of the court, "Public policy prevents a school district from bargaining away this responsibility". 

Consistent with the view, the court held that the arbitrator did not to have the power to direct the District to retain the teacher in the position from which he had been transferred. 

The court then held that the contract between the District and the Union could (and did) establish procedural rules regulating the District's right to reassign teachers. 

That portion of the arbitrator's award directing the District to comply with the procedural rules to which it had agreed was sustained by the Appellate Division.

* Sweet Home Central School District vs Sweet Home Education Association, Appellate Division, 1982


ESSENTIAL ADMINISTRATIVE RESPONSIBILITIES CAN'T BE NEGOTIATED AWAY


The contract between the School District and the Union permitted the District to transfer teachers subject to the teacher involved being advised of the reason(s) for the transfer and being given an opportunity to select from among  "current openings" for which the teacher was qualified. The wishes of the teacher were to be taken into consideration to the extent possible. 

A music teacher grieved his "involuntary transfer out" as concert band director. The arbitrator directed the District to review the appropriate positions available with him and to permit him to select from among them. The arbitrator further directed the District to permit the teacher to return to the concert band director position if he wished and the District was to "develop a program, with outside assistance, 'to assure a smooth functioning' of the concert band" were he to choose to return. 

The school district appealed pursuant to CPLR Article 75 and the Appellate Division ruled that Section 1711 of the Education Law gave the Board a non-delegable responsibility to maintain adequate standards in the classroom and the authority to assign and reassign teachers was essential to that responsibility.* 

In the words of the court, "Public policy prevents a school district from bargaining away this responsibility". 

Consistent with the view, the court held that the arbitrator did not to have the power to direct the District to retain the teacher in the position from which he had been transferred. 

The court then held that the contract between the District and the Union could (and did) establish procedural rules regulating the District's right to reassign teachers. 

That portion of the arbitrator's award directing the District to comply with the procedural rules to which it had agreed was sustained by the Appellate Division.

* Sweet Home Central School District vs Sweet Home Education Association, Appellate Division, 1982


ONLY EMPLOYEES ARE ELIGIBLE TO JOIN AND CLAIM MEMBER SERVICE CREDIT IN A RETIREMENT SYSTEM

In Sitrin vs Regan, 1982, the Appellate Division, holding that Sitrin was an independent contractor and not an employee, sustained the New York State Employees' Retirement System's [ERS] decision denying her [retroactive] member service credit to which Sitrin claimed entitlement.

Citing a number of cases including Senopole vs Field  and Erwin vs Regan, the Appellate Division rejected Sitrin's arguments, noting that during the period for which she claimed membership she was paid by "voucher", had no payroll deductions for retirement or social security, did not accrue vacation or sick leave credits and had conceded that the decisions she made were not subject to review. 

This is another example of the strict standards applied by ERS when considering claims for membership in ERS, which standards have survived court tests.

ONLY EMPLOYEES ARE ELIGIBLE TO JOIN AND CLAIM MEMBER SERVICE CREDIT IN A RETIREMENT SYSTEM

In Sitrin vs Regan, 1982, the Appellate Division, holding that Sitrin was an independent contractor and not an employee, sustained the New York State Employees' Retirement System's [ERS] decision denying her [retroactive] member service credit to which Sitrin claimed entitlement.

Citing a number of cases including Senopole vs Field  and Erwin vs Regan, the Appellate Division rejected Sitrin's arguments, noting that during the period for which she claimed membership she was paid by "voucher", had no payroll deductions for retirement or social security, did not accrue vacation or sick leave credits and had conceded that the decisions she made were not subject to review. 

This is another example of the strict standards applied by ERS when considering claims for membership in ERS, which standards have survived court tests.

SETTLEMENT OF GRIEVANCE BINDS ALL UNIT EMPLOYEES


Former Section 3102 (6) of the Education Law (repealed in 1971) permitted School Boards to place newly employed teachers on the salary schedule reflecting prior teaching service. 

In 1978 the Nanuet Teachers Association brought a grievance claiming the District had violated a contract provision by failing to properly calculate the length of service of teachers earlier granted "transfer credit". 

The grievance was "settled" in the course of arbitration. As a result 39 "otherwise eligible" teachers did not have their transfer credit counted in computing their eligibility for longevity increments. These 39 teachers appealed to the Commissioner of Education* contending the "settlement" was not binding upon them and, further, the Union did not fairly represent them. 

The Commissioner rejected the appeal, explaining that the 39 teachers, not having "opted out" were bound by the agreement. The Union had brought the grievance on their behalf (among others) and that part of the agreement (which provided the District would not reduce the number of teachers employed by the District) was to their benefit. 

As to the teachers' argument that the agreement violated "unambiguous case law" regarding the recognition of transfer credit, the Commissioner ruled that teachers may waive their legal rights under situations such as this, and if done so on their behalf by the Union, it is binding upon them. 

The expiration of the three year term contemplated by the agreement did not alter the understanding reached as to transfer credit and the teachers could not now claim such credits as though the settlement had never been agreed to by the parties. 

Typically when an employee organization acts on behalf of its members within its authority to do so, all the persons it represents are bound by the results unless individuals not wishing to be bound by the settlement agreement "opt out" prior to the execution of the settlement.

* Decisions of the Commissioner of Education Number 10728.

SETTLEMENT OF GRIEVANCE BINDS ALL UNIT EMPLOYEES


Former Section 3102 (6) of the Education Law (repealed in 1971) permitted School Boards to place newly employed teachers on the salary schedule reflecting prior teaching service. 

In 1978 the Nanuet Teachers Association brought a grievance claiming the District had violated a contract provision by failing to properly calculate the length of service of teachers earlier granted "transfer credit". 

The grievance was "settled" in the course of arbitration. As a result 39 "otherwise eligible" teachers did not have their transfer credit counted in computing their eligibility for longevity increments. These 39 teachers appealed to the Commissioner of Education* contending the "settlement" was not binding upon them and, further, the Union did not fairly represent them. 

The Commissioner rejected the appeal, explaining that the 39 teachers, not having "opted out" were bound by the agreement. The Union had brought the grievance on their behalf (among others) and that part of the agreement (which provided the District would not reduce the number of teachers employed by the District) was to their benefit. 

As to the teachers' argument that the agreement violated "unambiguous case law" regarding the recognition of transfer credit, the Commissioner ruled that teachers may waive their legal rights under situations such as this, and if done so on their behalf by the Union, it is binding upon them. 

The expiration of the three year term contemplated by the agreement did not alter the understanding reached as to transfer credit and the teachers could not now claim such credits as though the settlement had never been agreed to by the parties. 

Typically when an employee organization acts on behalf of its members within its authority to do so, all the persons it represents are bound by the results unless individuals not wishing to be bound by the settlement agreement "opt out" prior to the execution of the settlement.

* Decisions of the Commissioner of Education Number 10728.

"FORGETTING" TO REPORT FOR MEDICAL EXAM MISCONDUCT


A firefighter, on sick leave, was ordered to appear for medical examinations after about three months of absence. He "forgot" to report for the second examination, which resulted in disciplinary action and the imposition of a three week suspension without pay. 

The firefighter appealed (See Section 76, Civil Service Law) The penalty was reduced to a one week suspension without pay. The City appealed and the Appellate Division reinstated the three week suspension penalty (Driscoll vs Syracuse Department of Fire)

The Appellate Division noted that Driscoll had been found guilty of failing to obey a superior officer twice in little more than a year. Explaining that refusal to obey a superior's order is a serious matter, the Appellate Division opined that the penalty was not disproportionate to the offense.

"FORGETTING" TO REPORT FOR MEDICAL EXAM MISCONDUCT


A firefighter, on sick leave, was ordered to appear for medical examinations after about three months of absence. He "forgot" to report for the second examination, which resulted in disciplinary action and the imposition of a three week suspension without pay. 

The firefighter appealed (See Section 76, Civil Service Law) The penalty was reduced to a one week suspension without pay. The City appealed and the Appellate Division reinstated the three week suspension penalty (Driscoll vs Syracuse Department of Fire)

The Appellate Division noted that Driscoll had been found guilty of failing to obey a superior officer twice in little more than a year. Explaining that refusal to obey a superior's order is a serious matter, the Appellate Division opined that the penalty was not disproportionate to the offense.

TAPING OF A NEGOTIATING SESSION PROHIBITED BY PERB


PERB, in affirming a Hearing Officer's decision, Matter of County of Niagara, PERB Case U-5735, held even the presence of a tape recorder at a negotiating session is improper if a party objects. 

Earlier decisions had indicated that it was improper for a party to insist on the recording (by mechanical means) of negotiations. 

This decision extends the prohibition to the mere presence of a tape recorder if a party finds it objectionable. 

Of course the parties remain free to take contemporaneous written notes of the "history of negotiations", but presumably a party objecting to making a verbatim transcription of the negotiations in the course of collective bargaining might have to considered by PERB.

TAPING OF A NEGOTIATING SESSION PROHIBITED BY PERB


PERB, in affirming a Hearing Officer's decision, Matter of County of Niagara, PERB Case U-5735, held even the presence of a tape recorder at a negotiating session is improper if a party objects. 

Earlier decisions had indicated that it was improper for a party to insist on the recording (by mechanical means) of negotiations. 

This decision extends the prohibition to the mere presence of a tape recorder if a party finds it objectionable. 

Of course the parties remain free to take contemporaneous written notes of the "history of negotiations", but presumably a party objecting to making a verbatim transcription of the negotiations in the course of collective bargaining might have to considered by PERB.

Jurisdictional classification of town highway department employees


The local Civil Service Commission or Personnel Officer is responsible for determining the civil service classification of town Highway Department employees. (See Informal Opinions of the Attorney General, 82-62.)

Jurisdictional classification of town highway department employees


The local Civil Service Commission or Personnel Officer is responsible for determining the civil service classification of town Highway Department employees. (See Informal Opinions of the Attorney General, 82-62.)

The federal "Hatch Act" prohibits certain political activities

Officers and employees of the State or a political subdivision of the State whose employment is in connection with an activity financed in whole or in part by federal funds may not be a candidate for partisan elective office states the Attorney General in his Informal Opinion 82-64.*

The so-called "Hatch Act," 5 USC 1501, provides an exception for employees of educational and research institutions supported in whole or in part by State or local governments.

* Election to be a member of a school board is not considered the fruits of a partisan election.

The federal "Hatch Act" prohibits certain political activities

Officers and employees of the State or a political subdivision of the State whose employment is in connection with an activity financed in whole or in part by federal funds may not be a candidate for partisan elective office states the Attorney General in his Informal Opinion 82-64.*

The so-called "Hatch Act," 5 USC 1501, provides an exception for employees of educational and research institutions supported in whole or in part by State or local governments.

* Election to be a member of a school board is not considered the fruits of a partisan election.

Constitutional limitation on certain employment


The Attorney General concluded that a Sheriff may not also serve as a City Police Chief, as the State Constitution provides that "Sheriffs shall hold no other office".

See Informal Opinions of the Attorney General 82-58.

Constitutional limitation on certain employment


The Attorney General concluded that a Sheriff may not also serve as a City Police Chief, as the State Constitution provides that "Sheriffs shall hold no other office".

See Informal Opinions of the Attorney General 82-58.

Dismissal of a town highway department employee


Informal Opinion of the Attorney General 82-38 indicates that a Town Superintendent of Highways, without the approval of the Town Board, may dismiss an employee of the Town's Highway Department.

Dismissal of a town highway department employee


Informal Opinion of the Attorney General 82-38 indicates that a Town Superintendent of Highways, without the approval of the Town Board, may dismiss an employee of the Town's Highway Department.

A local law may set residence requirements for certain police officers


If a city's police force consists of less than 200 full-time members, a local law may require that certain police offices reside within ten miles of the city, or within the city proper. (See Informal Opinions of the Attorney General, 82-36).

A local law may set residence requirements for certain police officers


If a city's police force consists of less than 200 full-time members, a local law may require that certain police offices reside within ten miles of the city, or within the city proper. (See Informal Opinions of the Attorney General, 82-36).

APPEAL RESULTS IN A "PERMANENT" REPRIMAND


The teacher was found guilty of insubordination (refusal to act as a chaperone at a school event) and the disciplinary panel imposed the "penalty of a reprimand, to be expunged from ... (the) records if for the next two years there are no further disciplinary problems of a similar nature". 

The District appealed to the Commissioner of Education (Hyde Park Central School District, Case 10933), claiming the penalty was not authorized by Section 3020-a of the Education Law. The Commissioner agreed, finding that a penalty of a reprimand was authorize, the penalty to be imposed could be expunged upon certain events, which constituted a penalty not enumerated in the law. 

He then held that the disciplinary board lacked the authority to direct the Board of Education to later expunge the reprimand from the teacher's file for "good behavior". [See Opinions of the Attorney General 81-28]. 

The Commissioner then exercised his authority to impose a penalty, and ruled that a reprimand would be appropriate under the circumstances. 

APPEAL RESULTS IN A "PERMANENT" REPRIMAND


The teacher was found guilty of insubordination (refusal to act as a chaperone at a school event) and the disciplinary panel imposed the "penalty of a reprimand, to be expunged from ... (the) records if for the next two years there are no further disciplinary problems of a similar nature". 

The District appealed to the Commissioner of Education (Hyde Park Central School District, Case 10933), claiming the penalty was not authorized by Section 3020-a of the Education Law. The Commissioner agreed, finding that a penalty of a reprimand was authorize, the penalty to be imposed could be expunged upon certain events, which constituted a penalty not enumerated in the law. 

He then held that the disciplinary board lacked the authority to direct the Board of Education to later expunge the reprimand from the teacher's file for "good behavior". [See Opinions of the Attorney General 81-28]. 

The Commissioner then exercised his authority to impose a penalty, and ruled that a reprimand would be appropriate under the circumstances. 

ANNUITY PAYMENTS MAY NOT DISCRIMINATE ON THE BASIS OF GENDER


In a decision which is expected to have a significant impact upon the retirement benefits paid by the public retirement systems of the State, the 2nd Circuit Court of Appeals (New York) ordered the Teachers' Insurance and Annuity Association to pay participants who retired after May 1, 1980, retirement benefits must be determined without regard to gender. In effect, the Circuit Court held that mortality tables must be "unisex" in nature. In effect, the court struck down as discriminatory an annuity plan which made payments based on actuarial tables reflecting the fact that women live longer than men.

TIAA is the insurer for the Optional Retirement Programs available to certain employees of the Education Department, the State University, the City University and the Community Colleges. 

ANNUITY PAYMENTS MAY NOT DISCRIMINATE ON THE BASIS OF GENDER


In a decision which is expected to have a significant impact upon the retirement benefits paid by the public retirement systems of the State, the 2nd Circuit Court of Appeals (New York) ordered the Teachers' Insurance and Annuity Association to pay participants who retired after May 1, 1980, retirement benefits must be determined without regard to gender. In effect, the Circuit Court held that mortality tables must be "unisex" in nature. In effect, the court struck down as discriminatory an annuity plan which made payments based on actuarial tables reflecting the fact that women live longer than men.

TIAA is the insurer for the Optional Retirement Programs available to certain employees of the Education Department, the State University, the City University and the Community Colleges. 

RESTORATION TO ELIGIBLE LIST A MATTER OF DISCRETION


Does a person who is discharged for failure to satisfactorily complete the required probationary period have a right to be restored to the eligible list? 

In Lee v Director of Personnel, __ Misc 2d _, a Supreme Court judge said that according to the Rules of the City of New York, restoration to the eligible list was a discretionary determination by the Director of Personnel. 

The decision indicated that the discharged employee would have to show that the decision not to restore his name to the eligible list was done in bad faith or that the refusal was arbitrary or capricious. 

In any event, a probationary employee, after completing the minimum period of probation, may be dismissed prior to the end of the probationary term without notice and hearing.

In York v McGuire, 63 NY2d 760, the Court of Appeals set out the basic rule concerning the dismissal of probationary employees as follows: “After completing his or her minimum period of probation and prior to completing his or her maximum period of probation, a probationary employee can be dismissed without a hearing and without a statement of reasons, as long as there is no proof that the dismissal was done for a constitutionally impermissible purpose, or in violation of statutory or decisional law, or the decision was made in bad faith.”

RESTORATION TO ELIGIBLE LIST A MATTER OF DISCRETION


Does a person who is discharged for failure to satisfactorily complete the required probationary period have a right to be restored to the eligible list? 

In Lee v Director of Personnel, __ Misc 2d _, a Supreme Court judge said that according to the Rules of the City of New York, restoration to the eligible list was a discretionary determination by the Director of Personnel. 

The decision indicated that the discharged employee would have to show that the decision not to restore his name to the eligible list was done in bad faith or that the refusal was arbitrary or capricious. 

In any event, a probationary employee, after completing the minimum period of probation, may be dismissed prior to the end of the probationary term without notice and hearing.

In York v McGuire, 63 NY2d 760, the Court of Appeals set out the basic rule concerning the dismissal of probationary employees as follows: “After completing his or her minimum period of probation and prior to completing his or her maximum period of probation, a probationary employee can be dismissed without a hearing and without a statement of reasons, as long as there is no proof that the dismissal was done for a constitutionally impermissible purpose, or in violation of statutory or decisional law, or the decision was made in bad faith.”

Giving preference of residents in selection from an eligible list


In Informal Opinion of the Attorney General 81-106, the Village was advised that it may not give preference in appointment to village residents in promotion examinations, but might do so in connection with open-competitive examinations. 

The Opinion refers to the provisions of Section 23.4-c of the Civil Service Law which deals with the question of residence preference in the certification of eligible lists.

Giving preference of residents in selection from an eligible list


In Informal Opinion of the Attorney General 81-106, the Village was advised that it may not give preference in appointment to village residents in promotion examinations, but might do so in connection with open-competitive examinations. 

The Opinion refers to the provisions of Section 23.4-c of the Civil Service Law which deals with the question of residence preference in the certification of eligible lists.

Removal of a document from a personnel file


May a reprimand placed in an employee's file as a result of a negotiated settlement of a disciplinary action be later removed from the employee's personnel file? 

In Informal Opinion 81-28, the Attorney General indicated that it was permissible "to clear the record of an employee who in the past misbehaved, but who since has performed well". 

In this case the Village Board of Trustees wished to remove the reprimand, which the Attorney General viewed as a "legislative act". 

Presumably, an appointing officer has similar authority to remove the record of discipline from the personnel file as an exercise of "executive action".

Removal of a document from a personnel file


May a reprimand placed in an employee's file as a result of a negotiated settlement of a disciplinary action be later removed from the employee's personnel file? 

In Informal Opinion 81-28, the Attorney General indicated that it was permissible "to clear the record of an employee who in the past misbehaved, but who since has performed well". 

In this case the Village Board of Trustees wished to remove the reprimand, which the Attorney General viewed as a "legislative act". 

Presumably, an appointing officer has similar authority to remove the record of discipline from the personnel file as an exercise of "executive action".

EVIDENCE SHOWING AN ADVERSE IMPACT ON THE EMPLOYEE'S JOB PERFORMANCE RESULTING FROM A CONVICTION OF CRIME REQUIRED


The Commissioner of Education, in Appeal 10479, held that the School District had to do more than merely present evidence of the conviction of a tenured teacher on a conspiracy charge in connection with discipline for "conduct unbecoming a teacher". 

In order to present a prima facie case, the District would be required to present evidence of the negative effect of the crime with respect to the teacher's performance or effectiveness as a teacher. 

The decision indicates that conviction created a rebuttable presumption that the teacher had engaged in conduct unbecoming a teacher but it was still the burden of the employer to demonstrate an adverse impact of the crime on the employee's performance as a teacher at the hearing.

EVIDENCE SHOWING AN ADVERSE IMPACT ON THE EMPLOYEE'S JOB PERFORMANCE RESULTING FROM A CONVICTION OF CRIME REQUIRED


The Commissioner of Education, in Appeal 10479, held that the School District had to do more than merely present evidence of the conviction of a tenured teacher on a conspiracy charge in connection with discipline for "conduct unbecoming a teacher". 

In order to present a prima facie case, the District would be required to present evidence of the negative effect of the crime with respect to the teacher's performance or effectiveness as a teacher. 

The decision indicates that conviction created a rebuttable presumption that the teacher had engaged in conduct unbecoming a teacher but it was still the burden of the employer to demonstrate an adverse impact of the crime on the employee's performance as a teacher at the hearing.

EMPLOYEE MAY NOT DEMAND ARBITRATION AS A RIGHT.


Although it is generally held that only the Union or the Employer have the power to go to arbitration in connection with a contract grievance procedure, employees unhappy with their unions decision not to go to arbitration are now frequently turning to the Courts for an order to permit their proceeding against the employer directly. 

In Matter of Hoffman; Board of Education of the City of New York, __ AD2d __, the Appellate Division ruled that the Union (United Federation of Teachers) was not required to seek arbitration after having processed the employee's grievance through the initial stages of the grievance procedure and received unfavorable results. 

The Court also said that if an employee wished to proceed directly against an employer when the Union refused to arbitrate, the employee would first have to show that the Union breached its duty of fair representation (i.e.: bad faith, arbitrariness or discriminatory conduct). 

In this case, the employee had sought a benefit from an earlier arbitration award which gave relief for an "interrupted" sabbatical leave. The employer, however, refused to apply the arbitration award decision claiming that the employee's application for the benefit was untimely. The Union had then refused to arbitrate the question of timeliness after losing at all previous steps of the grievance procedure.

EMPLOYEE MAY NOT DEMAND ARBITRATION AS A RIGHT.


Although it is generally held that only the Union or the Employer have the power to go to arbitration in connection with a contract grievance procedure, employees unhappy with their unions decision not to go to arbitration are now frequently turning to the Courts for an order to permit their proceeding against the employer directly. 

In Matter of Hoffman; Board of Education of the City of New York, __ AD2d __, the Appellate Division ruled that the Union (United Federation of Teachers) was not required to seek arbitration after having processed the employee's grievance through the initial stages of the grievance procedure and received unfavorable results. 

The Court also said that if an employee wished to proceed directly against an employer when the Union refused to arbitrate, the employee would first have to show that the Union breached its duty of fair representation (i.e.: bad faith, arbitrariness or discriminatory conduct). 

In this case, the employee had sought a benefit from an earlier arbitration award which gave relief for an "interrupted" sabbatical leave. The employer, however, refused to apply the arbitration award decision claiming that the employee's application for the benefit was untimely. The Union had then refused to arbitrate the question of timeliness after losing at all previous steps of the grievance procedure.

UNION'S DUTY TO REPRESENT WORKER


A situation periodically confronting public employee unions, and ultimately the employer, is how far the union must go to satisfy its duty of providing those it represents for the purposes of collective bargaining with "fair representation". 

In Albino vs the City of New York, 1981), the Appellate Division provided a number of guidelines concerning this issue. 

The case arose when Albino was reassigned to a different work location after discussions with the Union. The reassignment was part of a reorganization of the Agency. The Union filed a grievance of behalf of the employee and after the arbitrator ruled against the employee, the employee wanted the Union to appeal the award in accordance with CPLR Article 75. 

The Union declined to do so, explaining "that it appears that the arbitrator, in rendering a decision with which we do not agree, did not exceed his powers to interpret the terms of the agreement". 

The employee, on his own behalf, then attempted to sue the employer. The Court dismissed the his complaint indicating that there was no evidence that there was any lack of fair representation by the Union.

UNION'S DUTY TO REPRESENT WORKER


A situation periodically confronting public employee unions, and ultimately the employer, is how far the union must go to satisfy its duty of providing those it represents for the purposes of collective bargaining with "fair representation". 

In Albino vs the City of New York, 1981), the Appellate Division provided a number of guidelines concerning this issue. 

The case arose when Albino was reassigned to a different work location after discussions with the Union. The reassignment was part of a reorganization of the Agency. The Union filed a grievance of behalf of the employee and after the arbitrator ruled against the employee, the employee wanted the Union to appeal the award in accordance with CPLR Article 75. 

The Union declined to do so, explaining "that it appears that the arbitrator, in rendering a decision with which we do not agree, did not exceed his powers to interpret the terms of the agreement". 

The employee, on his own behalf, then attempted to sue the employer. The Court dismissed the his complaint indicating that there was no evidence that there was any lack of fair representation by the Union.

ALCOHOLISM NOT A DEFENSE FOR MISCONDUCT


The employee, operating a forklift truck (which he was not authorized to operate) was observed to ram cartons ready for shipment, cartons of supplies and other items "while he and his two co-workers were consumed with laughter". He was subsequently discharged.

When he was granted unemployment insurance benefits, claiming he was intoxicated on the night of the incident, the employer appealed (Matter of Gaiser and General Mills, 1981). 

The Unemployment Insurance Appeals Board sustained the payment of the benefit because "Gaiser was an alcoholic", explaining that alcoholism is a disease and, accordingly, "the claimant's behavior on his last night of work did not constitute misconduct' and that his termination was, therefore, under non-disqualifying circumstances". 

The Appellate Division rejected the argument which it viewed as concluding "that one afflicted with alcoholism is incapable of misconduct". The court then opined that even if there was evidence that the employee was an alcoholic, benefits would not be available as "the only reasonable conclusion to be drawn from (the Board's) decision is that the Board found the (Gaiser) was not capable of work". 

Section 591.2 of the Labor Law requires that the claimant be capable of work in order to be eligible for unemployment benefits.

ALCOHOLISM NOT A DEFENSE FOR MISCONDUCT


The employee, operating a forklift truck (which he was not authorized to operate) was observed to ram cartons ready for shipment, cartons of supplies and other items "while he and his two co-workers were consumed with laughter". He was subsequently discharged.

When he was granted unemployment insurance benefits, claiming he was intoxicated on the night of the incident, the employer appealed (Matter of Gaiser and General Mills, 1981). 

The Unemployment Insurance Appeals Board sustained the payment of the benefit because "Gaiser was an alcoholic", explaining that alcoholism is a disease and, accordingly, "the claimant's behavior on his last night of work did not constitute misconduct' and that his termination was, therefore, under non-disqualifying circumstances". 

The Appellate Division rejected the argument which it viewed as concluding "that one afflicted with alcoholism is incapable of misconduct". The court then opined that even if there was evidence that the employee was an alcoholic, benefits would not be available as "the only reasonable conclusion to be drawn from (the Board's) decision is that the Board found the (Gaiser) was not capable of work". 

Section 591.2 of the Labor Law requires that the claimant be capable of work in order to be eligible for unemployment benefits.

CETA PERSONNEL NOT CIVIL SERVICE EMPLOYEES


In Nassau County Chapter, CSEA vs Nassau County, 1981, the Court of Appeals has ruled that incumbents of CETA* funded position* have not been appointed to the positions Civil Service within the meaning of Article V, Section 6, or the New York State Constitution. 

However, CETA personnel may be a collective bargaining and covered by the terms and conditions of employment set out in a collective bargaining agreement negotiated pursuant Article 14 of the Civil Service Law, the so-called "Taylor Law."

* The Comprehensive Employment and Training Act, Pub.L. 93–203.

CETA PERSONNEL NOT CIVIL SERVICE EMPLOYEES


In Nassau County Chapter, CSEA vs Nassau County, 1981, the Court of Appeals has ruled that incumbents of CETA* funded position* have not been appointed to the positions Civil Service within the meaning of Article V, Section 6, or the New York State Constitution. 

However, CETA personnel may be a collective bargaining and covered by the terms and conditions of employment set out in a collective bargaining agreement negotiated pursuant Article 14 of the Civil Service Law, the so-called "Taylor Law."

* The Comprehensive Employment and Training Act, Pub.L. 93–203.

CETA PERSONNEL NOT CIVIL SERVICE EMPLOYEES


The Court of Appeals has ruled that incumbents of CETA* funded position have not been appointed to the positions in the Civil Service within the meaning of Article V Section 6 of the New York State Constitution. However, such persons may be covered by a collective bargaining agreement negotiated under the Taylor Law (Nassau County Chapter, CSEA vs Nassau County, 1981).

* The Comprehensive Employment and Training Act, Pub.L. 93–203)

CETA PERSONNEL NOT CIVIL SERVICE EMPLOYEES


The Court of Appeals has ruled that incumbents of CETA* funded position have not been appointed to the positions in the Civil Service within the meaning of Article V Section 6 of the New York State Constitution. However, such persons may be covered by a collective bargaining agreement negotiated under the Taylor Law (Nassau County Chapter, CSEA vs Nassau County, 1981).

* The Comprehensive Employment and Training Act, Pub.L. 93–203)

ARBITRATION NOT THE ONLY MEANS FOR SEEKING REDRESS OF A GRIEVANCE


The School District obtained a stay of arbitration of a grievance in connection with a disciplinary action against a teacher. 

The teacher had filed a grievance claiming a violation of the Taylor Law contract. After losing the grievance at Step 3, the teacher sought arbitration. On appeal the stay issued by Supreme Court was lifted by the Appellate Division (Cattaraugus Central Schools vs Cattaraugus Teacher's Association, 1981). 

The Appellate Division held that there was no bar to simultaneously pursuing remedies under both the agreement and under the Education Law, even if there might be different decisions as a result. 

According to the ruling, the only two questions to be considered by a court in connection with an attempt to stay arbitration are:

[1] whether arbitration of the subject matter of the dispute is permissible under the Taylor Law ... and allowable as a matter of public policy (i.e., denial of tenure is not subject to arbitration alleged procedural violations in connection with consideration for tenure is subject to arbitration is provided for in the agreement); and

[2] whether the parties agreed by the terms of their arbitration clause to submit the dispute to arbitration.

ARBITRATION NOT THE ONLY MEANS FOR SEEKING REDRESS OF A GRIEVANCE


The School District obtained a stay of arbitration of a grievance in connection with a disciplinary action against a teacher. 

The teacher had filed a grievance claiming a violation of the Taylor Law contract. After losing the grievance at Step 3, the teacher sought arbitration. On appeal the stay issued by Supreme Court was lifted by the Appellate Division (Cattaraugus Central Schools vs Cattaraugus Teacher's Association, 1981). 

The Appellate Division held that there was no bar to simultaneously pursuing remedies under both the agreement and under the Education Law, even if there might be different decisions as a result. 

According to the ruling, the only two questions to be considered by a court in connection with an attempt to stay arbitration are:

[1] whether arbitration of the subject matter of the dispute is permissible under the Taylor Law ... and allowable as a matter of public policy (i.e., denial of tenure is not subject to arbitration alleged procedural violations in connection with consideration for tenure is subject to arbitration is provided for in the agreement); and

[2] whether the parties agreed by the terms of their arbitration clause to submit the dispute to arbitration.

RESIDENCE REQUIREMENTS FOR EMPLOYMENT


Section 3 of the Public Officers Law generally provides that in order to hold public office, the incumbent must be a resident of the political subdivision or municipal corporation where the official functions are to be performed. 

In an opinion issued by the Commissioner of Education (Op. Comm. Ed. 10472), the Commissioner said that a BOCES Board member who changed his residence temporarily and was not, therefore, then a resident of Oswego, could continue to lawfully serve on the Board as he had retained his domicile in Oswego County. 

There are legal differences between domicile and residence and this decision reflects the view that a person's domicile is the key factor in connection holding public office.

Essentially, an individual may have but one domicile -- his permanent place of abode --  at a time although he  may simultaneously have many residences where he may, from time to time, reside another location where he is domiciled in the same state, a different state or a different nation.

Many Civil Service Commissions, however, view a candidates residence, rather than the domicile, as controlling in connection with an applicant's eligibility for examination or certification where residence is a requirement for examination or appointment.

RESIDENCE REQUIREMENTS FOR EMPLOYMENT


Section 3 of the Public Officers Law generally provides that in order to hold public office, the incumbent must be a resident of the political subdivision or municipal corporation where the official functions are to be performed. 

In an opinion issued by the Commissioner of Education (Op. Comm. Ed. 10472), the Commissioner said that a BOCES Board member who changed his residence temporarily and was not, therefore, then a resident of Oswego, could continue to lawfully serve on the Board as he had retained his domicile in Oswego County. 

There are legal differences between domicile and residence and this decision reflects the view that a person's domicile is the key factor in connection holding public office.

Essentially, an individual may have but one domicile -- his permanent place of abode --  at a time although he  may simultaneously have many residences where he may, from time to time, reside another location where he is domiciled in the same state, a different state or a different nation.

Many Civil Service Commissions, however, view a candidates residence, rather than the domicile, as controlling in connection with an applicant's eligibility for examination or certification where residence is a requirement for examination or appointment.

UI BENEFITS MAY BE AVAILABLE TO DISMISSED WORKER


The arbitrator found the employee guilty of misconduct, gross insubordination and failure to properly perform his duties. The penalty of dismissal was imposed. Later the former employee claim for unemployment benefits was denied on the basis of the arbitrator's disciplinary determination. 

In Ranni vs Ross, 1981, the Appellate Division explained that "an employer may be completely justified in discharging an employee, yet the grounds for the firing may not constitute misconduct within the meaning of Section 593.3 of the Labor Law". 

As the Unemployment Insurance Appeals Board relied exclusively on the arbitrator's findings regarding the employee's dismissal, the court said that "there is no substantial evidence in the record (before the Board) to support the Board's denial of the claim" and remanded the matter to the Board for its further consideration. 

Section 593.3 does not define "misconduct" but merely refers to it in connection with the calculation of periods of time in connection with disqualification for benefits. 

One of the members of the Appellate Division panel deciding this case dissented, opining that the employee should not be given the opportunity to re-litigate the disciplinary action within the context of an unemployment insurance claim.



UI BENEFITS MAY BE AVAILABLE TO DISMISSED WORKER


The arbitrator found the employee guilty of misconduct, gross insubordination and failure to properly perform his duties. The penalty of dismissal was imposed. Later the former employee claim for unemployment benefits was denied on the basis of the arbitrator's disciplinary determination. 

In Ranni vs Ross, 1981, the Appellate Division explained that "an employer may be completely justified in discharging an employee, yet the grounds for the firing may not constitute misconduct within the meaning of Section 593.3 of the Labor Law". 

As the Unemployment Insurance Appeals Board relied exclusively on the arbitrator's findings regarding the employee's dismissal, the court said that "there is no substantial evidence in the record (before the Board) to support the Board's denial of the claim" and remanded the matter to the Board for its further consideration. 

Section 593.3 does not define "misconduct" but merely refers to it in connection with the calculation of periods of time in connection with disqualification for benefits. 

One of the members of the Appellate Division panel deciding this case dissented, opining that the employee should not be given the opportunity to re-litigate the disciplinary action within the context of an unemployment insurance claim.



ADDITIONAL ELEMENTS TO CONSIDER IN THE COURSE OF COLLECTIVE BARGAINING


A decision by the Appellate Division (BOCES vs PERB, 82 AD2d 691) may cause some labor contract negotiators to change some of their basic concepts and require the development of new "boiler plate" contract language. 

The case arose when a medical examination policy adopted in 1973 by a BOCES, but never implemented, was "suspended" six years later when the BOCES "adopted a revised policy with accompanying regulations". 

The Union complained to PERB, which ordered the employer to reinstate the 1973 policy. 

On appeal the Court upheld PERB's determination that BOCES' policy of employee reimbursement for medical examinations constituted a mandatory subject of negotiations; found that neither the management rights clause nor the "zipper" clause waived the right to negotiate the issue; and that PERB's determination was within its authorized power. 

Of major concern seems to be the Court's statement that "the duty to negotiate in good faith includes an obligation to continue past practices that involve mandatory subjects of negotiations even in the absence of a provision to that effect in the contract". The decision also indicates that "the breath of the language to which the parties agreed... drains both the 'management rights' and 'zipper' clauses of the degree of specificity needed to infer a waiver on the part of the unions". 

Although these clauses specified that "all terms and conditions of employment have been discussed during negotiations" the Appellate Division indicated that "such waivers must be expressed in such clear and unmistakable terms that it clearly appears from an evaluation of negotiations that the particular matter in issue was fully discussed and consciously explored". 

This decision sets up a potential effect of leaving "up in the air" any issue not specifically considered during negotiations and suggests that "positive language" (i.e.,...the parties have fully negotiated with respect to the terms and conditions of employment") will not satisfy the Court and "issue itemization exclusionary language" may be required.


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