Wednesday, September 19, 2012

Suspension without pay during a pending disciplinary action


Suspension without pay during a pending disciplinary action
Elmore v Mills, 299 A.D.2d 545, Motion for leave to appeal denied, 9 N.Y.2d 509


Among the several issues considered by the Appellate Division, Third Department in Elmore case was the suspension of a tenured teacher without pay in the course of a disci­plinary action.

Plainview-Old Bethpage Central School District filed disciplinary charges against the educator pursuant to Section 3020-a of the Education Law. Section 3020-a.2(b) provides that in the event a teacher is suspended during pendency of the hearing, such suspension shall be with pay unless the teacher pleaded guilty to, or was convicted of, one of several enumerated crimes.

However, in this instance the Taylor Law contract between the district and the teacher union, in pertinent part, provided that “A teacher who has been suspended from school pursuant to Section 3020-a of the Educa­tion Law shall receive his/her regular full pay to which he/she would otherwise be enti­tled pursuant to … the Collective Bargaining Agreement [CBA] and all fringe benefits for a period of a maximum of fifteen (15) school months (11/2 years salary).... Thereafter, any suspension may be without pay.”

In December 1998, the District, relying on this provision in the CBA, suspended the teacher without pay, effective January 6, 1999, pending the outcome of the disciplinary hearing. The educator, however, had neither pleaded guilty to, nor was convicted of, any of the several crimes enumerated in Section 3020-a. Was the teacher's suspension without pay by the Dis­trict pursuant to the CBA lawful in view of the provisions of Education Law Section 3020-a.2(b)?

Although the Appellate Division declined to rule on this question, holding that because a final determination in the disciplinary action had been made and thus the issue was "moot," the court did elect to discuss a number of elements concerning the question of suspension without pay in a Section 3020-a proceeding. It said that:


A CBA may allow a school district to suspend its teachers without pay as long as the agreement's terms clearly manifest the parties' intent to do so, citing Board of Education of the City of Rochester v Nyquist, 48 NY2d 97.

The CBA relied upon by the District in this case clearly circumscribes a teacher's right to full pay during a protracted suspension.

The CBA provides for restoration of wages and benefits for any such period of leave without pay if the teacher ultimately is not terminated from employment but here the penalty imposed on Elmore was termination.

Thus, said the court, if the issue of the educator's suspension without pay was properly before it, it would find that this provision in the CBA was valid and that under the circumstances the District was authorized to suspend the teacher without pay as provided by the CBA.

 

Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

Challenging Adverse Personnel Decisions at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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