Responsibility for granting tenure may not be surrendered

Responsibility for granting tenure may not be surrendered
Croman v City University of New York, App. Div., First Dept., 277 AD2d 185

It is well settled that as a matter of public policy an appointing authority such as a board of education may not surrender its ultimate responsibility for making tenure decisions or restrict its exclusive right to terminate a probationary employee's appointment and thus such the denial of tenure is not subject to grievance arbitration.

The Court of Appeals, by way of illustration, observed that “... a board of education may not surrender its ultimate responsibility for making tenure decisions or restricting its exclusive right to terminate probationary teacher appointments” and thus such the denial of tenure is not subject to grievance arbitration.

In contrast, in Cohoes City School District v Cohoes Teachers Association, 40 NY2d 774, the Court of Appeals ruled that contractual provisions between an employee association and an appointing authority may set out procedural safeguards concerning the tenure decision that are subject to grievance arbitration procedures without offending public policy.

In other words, while a board's decision involving the “denial of tenure” is not arbitrable, alleged violations of the procedures to be followed in determining whether to grant or deny tenure are arbitrable.

Does public policy prohibit the arbitration of the disciplinary termination of tenured faculty?

This was the issue raised by Linda H. Young, a tenured faculty member, when she challenged her suspension without pay for six months from her position with the City University of New York by an arbitrator following a disciplinary hearing held in accordance with the provisions of a Taylor Law agreement.

Young's argument As Section 6212(9) of the Education Law “vests the power to remove tenured faculty solely in [University's] Board of Trustees,” public policy is violated by a collective bargaining agreement delegating the authority to discipline to an arbitrator at the employee's option

The Appellate Division, First Department, disagreed. The court said that “[a]bsent clear language in Education Law Section 6212(9) '[i]t is well settled that a contract provision in a collective bargaining agreement may modify, supplement or replace the more traditional forms of protection afforded public employees ...'”, citing Dye v New York City Transit Authority, 88 AD2d 899.

According to the ruling, the collective bargaining agreement allowed Young to either accept the disciplinary penalty recommended by appointing authority's designee or take the matter to arbitration. Young elected arbitration.

The Appellate Division dismissed Young's appeal, commenting that “[p]ublic policy does not nullify the choice she made.”

The leading cases addressing the issue of an individual’s electing a “negotiated disciplinary procedures” rather than an available statutory disciplinary procedure such as that provided by §75 of the Civil Service Law: Antinore v State of New York, 40 NY2d 6 and Abramovich v Board of Education, 46 NY2d 450.