A breach of contract complaint fails as a matter of law in the absence of any showing that a specific provision of the contract was breached

A breach of contract complaint fails as a matter of law in the absence of any showing that a specific provision of the contract was breached

Westchester County Corr. Officers Benevolent Assn., Inc. v County of Westchester, 2012 NY Slip Op 07106 {See, also, 2012 NY Slip Op 07107 decided herewith], Appellate Division, Second Department

The Westchester County Correction Officers Benevolent Association, Inc., and individually named retired correction officers, commenced this action to recover damages for an alleged breach of contract based on Westchester County’s' failure to pay the individual plaintiffs benefits equivalent to those provided by the Worker's Compensation Law for loss of earning capacity due to permanent partial disability.

The Association argued that any correction officer who has been receiving disability benefits pursuant to General Municipal Law §207-c and who then receives a disability retirement pension upon the County of Westchester's application* for such retirement on the behalf of the individual is entitled, upon retirement, to benefits equivalent to those provided by the Workers' Compensation Law for loss of earning capacity due to permanent partial disability.

Westchester, on the other hand, contended that the parties' intention at the time that the collective bargaining agreement (the CBA) was negotiated was to assure that the correction officers were afforded all of their rights under the Workers' Compensation Law.

The Associating had admitted that the CBA "is silent as to awards for permanent partial disability." Accordingly, argued the County, as the CBA is silent as to such awards, the correction officers were not entitled, upon retirement, to Workers' Compensation awards for permanent partial disability.

The Appellate Division pointed out that "A breach of contract cause of action fails as a matter of law in the absence of any showing that a specific provision of the contract was breached."

Here, the Association failed to identify a specific provision in the CBA that requires the County to pay benefits equivalent to those paid pursuant to the Workers' Compensation Law for loss of earning capacity due to permanent partial disability. Accordingly, ruled the court, the Association failed to establish its prima facie entitlement to judgment as a matter of law.

The Appellate Division explained that "[W]hen the terms of a written contract are clear and unambiguous, the intent of the parties must be found within the four corners of the contract, giving practical interpretation to the language employed and the parties' reasonable expectations. Thus, a written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms."

Further, said the court, "[i]nterpretation of an unambiguous contract provision is a function for the court, and matters extrinsic to the agreement may not be considered when the intent of the parties can be gleaned from the face of the instrument. A court should not imply a term which the parties themselves failed to include."

Finding that the specific provisions of the CBA did not provide for the retirement benefits sought by the Association, the Appellate Division held that the Association’s “reliance upon generalized language in the CBA is unavailing.”

* §207-c.2 of the General Municipal Law, in pertinent part, provides that the “Payment of the full amount of regular salary or wages, as provided by subdivision one of this section, shall be discontinued with respect to any policeman who is permanently disabled as a result of an injury or sickness incurred or resulting from the performance of his [or her] duties if such policeman is granted an accidental disability retirement allowance …If application for such retirement allowance or pension is not made by such policeman, application therefor may be made by the head of the police force or as otherwise provided by the chief executive officer or local legislative body of the municipality by which such policeman is employed. [Emphasis supplied.]

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_07106.htm

Police officers involved shootings may be required to submit to breathalyzer testing

Police officers involved shootings may be required to submit to breathalyzer testing

Palladino v. City of New York, USDC, SDNY, #07 CV 9246, 2012 U.S. Dist. Lexis 90291

Unions representing various ranks of police officers serving with the New York City Police Department objected to a departmental order requiring that any police officer involved in a shooting, on or off duty, that resulted in an injury or death submit to a breathalyzer test.

The unions contended that requiring police personnel to submit to such testing “without probable cause” constituted an unreasonable search in violation of the Fourth Amendment. Federal District Court Judge George B. Daniels rejected this argument and granted the City’s motion for summary judgment.

Judge Daniels ruled that requiring police officers to submit to the breathalyzer tests under such circumstances was justified under the “special needs doctrine.” This doctrine has been relied upon to justify warrantless drug and alcohol testing of individuals employed in the public sector.*

According to the decision, the primary purpose of the searches was not crime control, but personnel management--to deter officers from becoming intoxicated and discharging their weapons. These special needs outweigh any privacy interest that officers might have in not submitting to the tests.

* See National Treasury Employees Union v. Von Raab, 489 U.S. 656 (1989), upholding drug and alcohol testing of public employees.

The decision is posted on the Internet at;

http://www.nysd.uscourts.gov/cases/show.php?db=special&id=190

Powers set out in Election Law 3-300 trump relevant provisions in a contract negotiated pursuant to the Taylor Law

Powers set out in Election Law 3-300 trump relevant provisions in a contract negotiated pursuant to the Taylor Law
County of Erie v Civil Serv. Empls. Assn., Local 815, 2012 NY Slip Op 07144, Court of Appeals

In Town of Wallkill v Civil Serv. Empls. Assn., Inc. (Local 1000, AFSCME, AFL-CIO, Town of Wallkill Police Dept. Unit, Orange County Local 836), 2012 NY Slip Op 07146,  the Court of Appeals ruled that §155 of the Town Law prohibited Taylor Law negotiations providing for an alternative disciplinary procedure [see http://publicpersonnellaw.blogspot.com/2012/10/negotiating-disciplinary-procedures.html].

In County of Erie v Civil Service Employees Association, Local 815, the high court held that Eric County [the County] could not agree to contract provisions in the course of collective bargaining pursuant to the Taylor Law that would limit the powers vested in the County's Board of Elections by §3-300 of the Election Law.

Affirming an order of the Appellate Division, the Court of Appeals, Justice Ciparick dissenting, ruled that  the County could not negate or restrict the Erie County Board of Elections’ (the Board) statutory power to remove employees’ nor restrict the Board’s scheduling of its employees' work shifts on election day so as to provide adequate coverage in the course of collective bargaining in view of the authority vested in the Board by §3-300 of the Election Law.*

The Civil Service Employees Association, Local 815 (CSEA), had filed a grievance on behalf of certain employees of the Board alleging that the collective bargaining agreement (CBA) between the County and CSEA was violated when the Board modified the work hours of its employees assigned to school district elections in a way that deprived these employees of overtime compensation.

After the Board denied the grievance, CSEA notified the County of its intent to arbitrate the dispute. The County objected and Supreme Court to granted the County’s motion stay arbitration, which ruling was affirmed by the Appellate Division (see 82 AD3d 1633).

Relying on the provisions set out in §3-300 of the Election Law, the Appellate Division concluded that the County could not negotiate away the Board’s statutory authority with respect to [1] the appointment and removal of its employees or its prescribing their duties, nor [2] diminish or impair any other authority vested in the Board by the statute in the course of collective bargaining under the Taylor Law. The Court of Appeals agreed.

EDITOR'S COMMENT: This ruling is consistent with case law holding that a statutory right enjoyed by an employee may not be negotiated away through collective bargaining. For example, a collective bargaining agreement provided that in determining seniority in the event of demotions in connection with a layoff of employees in the competitive class, the "date hired" was to be used to determine the employee's seniority.. §80 of the Civil Service Law provides that the initial date of "permanent appointment" controls in determining seniority for the purpose of layoff. After an employee having the earlier “date hired” was retained in the position and a person having the earlier date of “permanent appointment” was laid off instead, the Appellate Division ruled that the seniority provisions of the Civil Service Law controlled notwithstanding the “layoff provisions” addressing "seniority" for the purposes of layoff set out in the contract between the parties negotiated pursuant to the Taylor Law [see City of Plattsburgh v Local 788, 108 AD2d 104]

* Section 3-300 of the Election Law vests every board of elections with exclusive power to "appoint, and at its pleasure remove, clerks, voting machine technicians, custodians and other employees, fix their number, prescribe their duties, fix their titles and rank and establish their salaries within the amounts appropriated therefor by the local legislative body and shall secure in the appointment of employees of the board of elections equal representation of the major political parties."

The Eric County decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_07144.htm

Negotiating disciplinary procedures applicable to the police officers of a town with the town held a prohibited subject of collective bargaining

Town of Wallkill v Civil Serv. Empls. Assn., Inc. (Local 1000, AFSCME, AFL-CIO, Town of Wallkill Police Dept. Unit, Orange County Local 836), 2012 NY Slip Op 07146, Court of Appeals

Although for more than a decade collective bargaining agreements (CBA) between the Town of Wallkill (the Town) and the Town of Wallkill Police Officers' Benevolent Association, Inc. (PBA) provided that police officers subject to discipline by the Town had the right to a hearing before a neutral arbitrator, in 2007 the Town adopted Local Law No. 2, which sets forth disciplinary procedures for police officers different than those set out in the CBA.

Essentially the new disciplinary procedure did not provide for arbitration but instead provided that a disciplinary hearing would be conducted by “a Town Board member or a designee of the Town Board” rather than submitted to arbitration. The Board member or the designee was to issue a decision “with recommended findings of fact and a suggested disciplinary penalty.” The Town Board would then review the hearing officer's findings and recommendation, render a final determination of the charges and if the police officer was found guilty of one or more of the disciplinary charges and specifications, impose a penalty "consistent with the provisions of the New York State Town Law."* Any appeal from such determination was subject to review pursuant to a CPLR Article 78** proceeding in Supreme Court.

Following its enacting Local Law No. 2, the Town initiated disciplinary action against two police officers and the PBA filed demands for arbitration on behalf of the police officers. The Town’s Article 75 application for a permanent stay of arbitration was denied by Supreme Court, which granted the PBA’s cross-petition to compel arbitration.

Citing Matter of Patrolmen's Benevolent Assn. of City of N.Y., Inc. v New York State Pub. Empl. Relations Bd. (6 NY3d 563 [2006]), the Appellate Division reversed the lower court’s ruling (see 84 AD3d 968 [2d Dept 2011]).

The Court of Appeals sustained the Appellate Division’s ruling, explaining that notwithstanding “the strong and sweeping policy of the State to support collective bargaining under the Taylor Law," police discipline may not be a subject of collective bargaining under the Taylor Law “when the Legislature has expressly committed disciplinary authority over a police department to local officials."

Although Civil Service Law §§75 and 76 generally provide for "the procedures for disciplining public employees, including police officers," and where applicable, "police discipline may be the subject of collective bargaining," the Court of Appeals noted that Civil Service Law §76(4) also states that "[n]othing contained in section seventy-five or seventy-six of this chapter shall be construed to repeal or modify any general, special or local" preexisting laws.”***

In this instance the Court of Appeals concluded that “that the Town properly exercised its authority to adopt Local Law No. 2 pursuant to Town Law §155." Accordingly, the Court held that “police discipline resides with the Town Board and is a prohibited subject of collective bargaining between the Town and the PBA.”****

* Town Law §155,. In the words of the Court of Appeals, Town Law §155 is “a general law enacted prior to Civil Service Law §§75 and 76, commits to the Town the power and authority to adopt and make rules and regulations for the examination, hearing, investigation and determination of charges, made or preferred against any member or members of such police department."

** Town Law §155 sets out a 30-day statute of limitations for filing such a petition.

*** Civil Service Law §76(4) continues the provision set out in §22.3 of the Civil Service of 1909, as amended, to this end. 

**** Significantly, the Court ruled that negotiating such disciplinary procedures is a "prohibited subject of collective bargaining" with respect to a town and an employee organization representing the police officers of the town, rather than holding that such negotiation is a "non-mandatory" subject of collective bargaining within the meaning of the Taylor Law [Civil Service Law Article 14].

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2012/2012_07146.htm

Negotiating disciplinary procedures applicable to the police officers of a town with the town held a prohibited subject of collective bargaining

Negotiating disciplinary procedures applicable to the police officers of a town with the town held a prohibited subject of collective bargaining

Town of Wallkill v Civil Serv. Empls. Assn., Inc. (Local 1000, AFSCME, AFL-CIO, Town of Wallkill Police Dept. Unit, Orange County Local 836), 2012 NY Slip Op 07146, Court of Appeals

Although for more than a decade collective bargaining agreements (CBA) between the Town of Wallkill (the Town) and the Town of Wallkill Police Officers' Benevolent Association, Inc. (PBA) provided that police officers subject to discipline by the Town had the right to a hearing before a neutral arbitrator, in 2007 the Town adopted Local Law No. 2, which sets forth disciplinary procedures for police officers different than those set out in the CBA.

Essentially the new disciplinary procedure did not provide for arbitration but instead provided that a disciplinary hearing would be conducted by “a Town Board member or a designee of the Town Board” rather than submitted to arbitration. The Board member or the designee was to issue a decision “with recommended findings of fact and a suggested disciplinary penalty.” The Town Board would then review the hearing officer's findings and recommendation, render a final determination of the charges and if the police officer was found guilty of one or more of the disciplinary charges and specifications, impose a penalty "consistent with the provisions of the New York State Town Law."* Any appeal from such determination was subject to review pursuant to a CPLR Article 78** proceeding in Supreme Court.

Following its enacting Local Law No. 2, the Town initiated disciplinary action against two police officers and the PBA filed demands for arbitration on behalf of the police officers. The Town’s Article 75 application for a permanent stay of arbitration was denied by Supreme Court, which granted the PBA’s cross-petition to compel arbitration.

Citing Matter of Patrolmen's Benevolent Assn. of City of N.Y., Inc. v New York State Pub. Empl. Relations Bd. (6 NY3d 563 [2006]), the Appellate Division reversed the lower court’s ruling (see 84 AD3d 968 [2d Dept 2011]).

The Court of Appeals sustained the Appellate Division’s ruling, explaining that notwithstanding “the strong and sweeping policy of the State to support collective bargaining under the Taylor Law," police discipline may not be a subject of collective bargaining under the Taylor Law “when the Legislature has expressly committed disciplinary authority over a police department to local officials."

Although Civil Service Law §§75 and 76 generally provide for "the procedures for disciplining public employees, including police officers," and where applicable, "police discipline may be the subject of collective bargaining," the Court of Appeals noted that Civil Service Law §76(4) also states that "[n]othing contained in section seventy-five or seventy-six of this chapter shall be construed to repeal or modify any general, special or local" preexisting laws.”***

In this instance the Court of Appeals concluded that “that the Town properly exercised its authority to adopt Local Law No. 2 pursuant to Town Law §155." Accordingly, the Court held that “police discipline resides with the Town Board and is a prohibited subject of collective bargaining between the Town and the PBA.”****

* Town Law §155,. In the words of the Court of Appeals, Town Law §155 is “a general law enacted prior to Civil Service Law §§75 and 76, commits to the Town the power and authority to adopt and make rules and regulations for the examination, hearing, investigation and determination of charges, made or preferred against any member or members of such police department."

** Town Law §155 sets out a 30-day statute of limitations for filing such a petition.

*** Civil Service Law §76(4) continues the provision set out in §22.3 of the Civil Service of 1909, as amended, to this end. 

**** Significantly, the Court ruled that negotiating such disciplinary procedures is a "prohibited subject of collective bargaining" with respect to a town and an employee organization representing the police officers of the town, rather than holding that such negotiation is a "non-mandatory" subject of collective bargaining within the meaning of the Taylor Law [Civil Service Law Article 14].

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2012/2012_07146.htm

The retirement option of the divorced spouse should reflect the equitable distribution formula set forth in Majauskas

The retirement option of the divorced spouse should reflect the equitable distribution formula set forth in Majauskas 

McVeigh v Curry, 2012 NY Slip Op 07091, Appellate Division, Second Department

In a matrimonial action, Supreme Court directed the plaintiff to furnish her former spouse with a copy of her birth certificate essentially for the purposes of his electing the 100% joint and survivor option of his pension fund or his obtaining life insurance and directed the defendant to elect either the 100% joint and survivor option of his pension fund or obtain life insurance to cover her 50% share of the marital portion of her former spouse's pension.

The Appellate Division modified the order issued by Supreme Court, explaining the Supreme Court erred in directing the plaintiff to furnish her former spouse with a copy of her birth certificate only for the purposes of his electing the 100% joint and survivor option of his pension fund or his obtaining appropriate life insurance, as that option could potentially result in an award to the plaintiff that is more than she is entitled to under the equitable distribution formula enunciated in Majauskas v Majauskas (61 NY2d 481).

The court observed that the 100% joint and survivor option would, upon the plaintiff's former husband’s death, provide her with the full monthly retirement allowance of her former husband's pension for the rest of her life.

In contrast, Option 3 of the defendant's pension fund, the 50% joint and survivor option, would, upon the defendant's death, provide the plaintiff with 50% of the original monthly retirement allowance for the rest of her life.*

Noting that the 50% joint and survivor option is closer to the equitable distribution formula set forth in Majauskas, the Appellate Division ruled that the Supreme Court’s order must be modified as indicated.

* Not mentioned in the opinion is the difference in the amount of the monthly retirement allowance that would be paid to the plaintiff’s former husband under the 100% joint and survivor option in contrast to the amount that would be paid to him under “Option 3.”

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_07091.htm

Resigning from a teaching position in one tenure area to accept a tenured appointment in a different tenure area could affect seniority rights for the purposes of layoff

Resigning from a teaching position in one tenure area to accept a tenured appointment in a different tenure area could affect seniority rights for the purposes of layoff

Appeal of Erika L. Kwasnik, Decisions of the Commissioner of Education, Decision #16,419

This decision by the Commissioner of Education succinctly sets out the controlling consideration in determining the rights of an educator resigning from his or her tenured position in one tenure area to accept a tenured appointment in a different tenure area in the event of the abolishment of his or her position.

Essentially there was no dispute that following her appointment to a library media specialist position, Erika L. Kwasnik submitted a letter of resignation from her English teacher position. When the library media position was abolished and Kwasnik was advises that she would be excessed and her name place on a reinstatement list, she contended that because she was continuously employed within the district, she maintained her tenure, and therefore her seniority rights, in the English teacher position.

The Commissioner indicated that in a layoff situation, the relevant rules of the Board of Regents provided as follows:

1. 8 NYCRR §30-1.10, a professional educator who acquires tenure in a new tenure area generally retains tenure in his or her original tenure area while he or she remains continuously employed as a full-time member of the professional staff of the district.

2. 8 NYCRR §30-1.13(c) provides that upon abolition of his or her position, a professional educator who has tenure status in additional tenure areas must be transferred to such other tenure area in which he or she has greatest seniority.

The Commissioner noted that both regulations apply “only to professional educators who have tenure and seniority rights in another tenure area at the time tenure was acquired in a new tenure area or the position was abolished, as applicable.”

In this instance, however, the school district claimed that Kwasnik had resigned from her tenured English teacher position and thus the issue before the Commissioner in this appeal is whether she had knowingly and freely waived her tenure and seniority rights in the English tenure area by resigning from her position as an English teacher. 

Citing Matter of Middleton (16 Ed Dept Rep 50, Decision No. 9,296, reopening denied 16 id. 366, Decision No. 9,433), the Commissioner noted that where a teacher had resigned from a full-time position but was simultaneously appointed to a non-probationary, part-time position in the district it was held that the resignation served to terminate the employment relationship and any reinstatement rights. 

Similarly, said the Commissioner, although Kwasnik continued to work in the district and her benefits accrued without interruption, “I must conclude that her resignation from her position as a tenured English teacher constituted a relinquishment of her tenure and seniority rights with respect to an English teacher position.”

The Commissioner then observed that to be enforceable, such a waiver of tenure rights must be knowingly and freely given and not the product of coercion. Further, “[a]bsent a showing of fraud, duress, coercion, or other affirmative misconduct on the part of school officials which renders a resignation involuntary, a resignation cannot be withdrawn once it has been accepted* by school authorities.”

Kwasnik asserted that that she expressed reservations to the district’s previous superintendent about resigning but was told that “it was the only way she would be able to take on the duties of a Library Media Specialist.”  She then claimed that she “reluctantly” agreed to provide a letter of resignation. 

  

The Commissioner, however, said that “The record indicates that petitioner knowingly and freely resigned from her position of English teacher once she was assured that she would be receiving the position of a library media specialist.” The Commissioner continued: “While [Kwasnik] may have expressed reservations about providing a letter of resignation, she did not seek the assistance of counsel or her union before submitting the letter, nor did she indicate in her letter that she wished to maintain her tenure and seniority rights to the English teacher position.”

Finding that Kwasnik “has not demonstrated that she was coerced into submitting a letter of resignation” or that the district engaged in any other affirmative conduct that rendered her resignation involuntary, the Commissioner ruled that the school district acted reasonably when it viewed Kwasnik’s resignation “as a voluntary end to her employment as an English teacher, thereby terminating her seniority and tenure rights to that position.”

* COMMENT: Except as otherwise provided by law, rule or regulation, or by the terms of a collective bargaining agreement, a resignation need only be received by the appointing authority, or its designee, prior to receipt of a notice that the individual has rescinded or withdrawn it to be effected – acceptance of the resignation is not required for it to be operative [Hazelton v Connelly, 25 NYS2d 74]. An example of a situation where acceptance of a resignation mandated by statute: Section 2111 of the Education Law provides that an officer of a school district may "resign at a district meeting" or, in the alternative, the officer "shall also be deemed to have resigned if he filed a written resignation with the district superintendent of his district and such superintendent endorses thereon his approval and files the same with the district clerk" [emphasis supplied].

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume52/d16419.html

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Naming all necessary parties is critical to Commissioner of Education's considering the merits of an appeal

Naming all necessary parties is critical to Commissioner of Education's considering the merits of an appeal

Appeal of the Islip Teachers Association, Decisions of the Commissioner of Education, Decision #16,418

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The Islip Teachers Association, the collective bargaining organization representing teachers employed by the Islip Union Free School District, filed an appeal with the Commissioner of Education alleging that the Islip UFSD violated the shared decisionmaking requirements in §100.11 of the Commissioner’s regulations [8 NYCRR 100.11] by refusing to invoke the conflict resolution procedures in its “shared decisionmaking plan” [the Plan] to resolve issues involving the interview and selection process for the high school assistant principal, high school English Department Chairperson, and English teacher leave replacement positions.

The school district asked the Commissioner to dismiss the appeal as untimely, pointing out that an appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, “unless any delay is excused by the Commissioner for good cause shown.”

On this point the Commissioner ruled that the Association’s appeal was filed and served within 30 days of Islip’s final determination regarding the Association’s request to invoke the Plan’s conflict resolution process and declined to dismiss the appeal as untimely.

The Commissioner, however, dismissed the appeal “for failure to join necessary parties,” i.e., a party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner.

The Commissioner explained that with respect to the Association’s complaints related to the interview and selection process for the high school assistant principal, high school English Teacher leave replacement and English Department chairperson positions, a determination in favor of the Association would make the process by which these individuals were appointed, hired or selected unlawful.

Noting that although the Association did not expressly seek to nullify the appointment, hiring or selection of these individuals, “that step is a necessary component of the relief requested.” The Association's failure to name such necessary parties proved to be a fatal omission as a determination in the Association’s favor would adversely affect the incumbents of those positions.

Accordingly, the Commissioner ruled that the “failure to join these individuals as parties requires dismissal of the appeal.”

In addition, the Commissioner noted that the Association sought a declaratory ruling, including an order directing the district to adhere to the conflict resolution procedures in the Plan in the future. In this regard the Commissioner ruled that “the appeal must be dismissed for failure to state a claim upon which relief may be granted,” commenting that “[i]t is well established that the Commissioner does not issue advisory opinions or declaratory rulings in an appeal pursuant to Education Law §310.”

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume52/d16418.html

Failure to establish due diligence in ascertaining the limitations period for commencing the action fatal to complainant’s untimely petition

Failure to establish due diligence in ascertaining the limitations period for commencing the action fatal to complainant’s untimely petition

Pichardo v New York City Dept. of Educ., 2012 NY Slip Op 07071, Appellate Division, First Department

Supreme Court, New York County, granted the New York City Department of Education’s motion to dismiss the complaint filed by Karien Pichardo’s against them as time-barred.

The court was not persuaded by Pichardo’s claim that the Department had “contributed to her delay in commencing the action” and that therefore should be estopped from asserting a statute of limitations defense with respect to her claims of gender and disability discrimination, sexual harassment, retaliation, and breach of contract.

The Appellate Division agreed, noting that Pichardo had failed to establish due diligence on her part in ascertaining the limitations period for commencing the action.

The court explained that Pichardo’s “non-tort claims” accrued on the date of her termination as a probationary teacher while her allegations of “negligent supervision and hiring and negligent infliction of emotional distress claims accrued on the date of the last alleged underlying act.” Further, the Appellate Division ruled that her “tort claims” were barred as well.

Once aspect of Pichardo’s argument alleged a “continuing” action that might preserve certain claims in her petition. The Appellate Division’s ruling, however, noted that “in opposition to [the Department’s] motion [to dismiss her petition], [Pichardo] failed to avail herself of the opportunity to submit an affidavit or other evidence to amplify the allegations in her complaint and establish the timeliness of her claims.”

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_07071.htm

Being at work is an essential job function

Being at work is an essential job function
Dickinson v New York State Unified Ct. Sys, 2012 NY Slip Op 06895, Appellate Division, First Department

The Appellate Division unanimously confirmed the termination of an employee found guilty of “certain disciplinary charges” that alleged both misconduct and incompetency due to excessive absenteeism and lateness.

Although the court agreed with the former employee that misconduct "requir[es] a showing of willfulness or intentional misconduct," it explained that "a finding of incompetence ... only requires evidence of some dereliction or neglect of duty."

There was, said the court, substantial evidence supporting the employer's determination and the employer was not required to warn the individual that his absences and tardiness could lead to dismissal notwithstanding the individual’s argument to the contrary.

The Appellate Division also ruled that the employer had not violated due process by relying on evidence of absences and tardiness outside the time period delineated in the specification of charges as such evidence was only considered in determining the appropriate sanction to be imposed and not to determine individual's guilt.

As to the penalty imposed, termination, the court said that it did not shock its sense of fairness as “[b]eing present at work is an essential job function” and an employee’s "disability ... may not be used to shield him from the adverse consequences of inadequate job performance."

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_06895.htm

New York State Center for Recruitment and Public Service (RPS) replaces the Governor’s Appointments Office

New York State Center for Recruitment and Public Service (RPS) replaces the Governor’s Appointments Office

Source: Office of the Governor

On October 22, 2012 Governor Andrew M. Cuomo announced the creation of the New York State Center for Recruitment and Public Service (RPS). RPS, to be housed within the Office of General Services (OGS), replaces the Governor’s Appointments Office. 

According to the Office of the Governor, “RPS will reorganize the state government’s existing archaic appointment process” and oversee hiring and placement for approximately 5,000 unpaid positions and 2,000 staff positions.

Characterizing the “old appointments process” as “disjointed and politicized” and lacking in access to the tools used by today’s recruitment professionals, OGS will release a Request For Proposal (RFP) seeking the services of an executive search firm that will be tasked with attracting qualified candidates to state government and help the state “build its own recruiting operation so that New York state government can compete with the private sector and become an employer of choice.”

Other objectives include:

1. Better matching skills with available positions and candidates

2. Reforming the background check process for candidates

3. Establishing and tracking benchmarks for success

4. Strengthening the state’s competitive position in the “talent marketplace” by maximizing social media opportunities

5. Building a “New York State Recruitment Portal” – an online, interactive website for interested candidates to explore and apply to positions.

Employee’s psychiatric problems rather than misconduct leads to a recommendation that the employee be placed on Section 72 leave for disability

Employee’s psychiatric problems rather than misconduct leads to a recommendation that the employee be placed on Section 72 leave for disability

New York City  Human Resources Admin. v. Anonymous, OATH Index No. 1781/12 

An employee diagnosed with multiple psychiatric problems was found unfit to perform the duties of the position due to being frequently unable to interact with co-workers and supervisors without engaging in disruptive, angry, and sometimes “frightening behavior.”

OATH Administrative Law Judge Faye Lewis found that the employer had made efforts to modify the duties of the position but the individual’s behavior “was persistently disruptive.”

After considering the disciplinary charges filed against the individual, Judge Lewis recommended that the employee be placed on an involuntary leave of absence pursuant to §72 of the Civil Service Law. [Presumably the ALJ was referring to placing the employee on such leave pursuant to §72.5 of the Civil Service Law.*]

As the ALJ determined that the employee’s acts that caused disciplinary charges to be served were the result of a disability, she found that the charges of misconduct filed against the individual were not sustained.

* An individual placed on such leave subsequently terminated from the position pursuant to §73 of the Civil Service Law may apply for reinstatement within one year of his or her being found physically and mentally fit to resume performing the duties of  his or her position.

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/12_Cases/12-1781.pdf

Court rules that it lacks jurisdiction to consider a motion to vacate an arbitrator’s action absent a “final award”

Court rules that it lacks jurisdiction to consider a motion to vacate an arbitrator’s action absent a “final award”

Jordan-Elbridge Central School District v Anonymous, RJI #33-12-2305, Index #2012-35852, Supreme Court Onondaga County, Justice Donald A. Greenwood

An Education Department-appointed Section 3020-a arbitrator directed the Jordan-Elbridge Central School District to produce e-mails exchanged between and among ten individuals over a three-year period demanded by Anonymous, upon whom disciplinary charges had been served, in the course of discovery.*

The school district, claiming that the arbitrator had exceed his authority in directing it to provide copies of these e-mails to Anonymous, asked Judge Greenwood to vacate the arbitrator’s order.

Anonymous, in rebuttal, asked the court to dismiss Jordan-Elbridge’s petition on the grounds that the court did not have jurisdiction to consider the matter. The court agreed, commenting that “The law is well settled that in order for [it] to intervene or even entertain a suit seeking court intervention there must be an [arbitration] award within the meaning of [CPLR 7511],“ citing Mobile Oil Indonesia v Asamora Oil, 43 NY2d 276.

Further, said Justice Greenwood, the Appellate Division, Fourth Department, addressed this issue in Geneva City School District v Anonymous, 77 AD3d 1365, and held that the hearing officer’s granting summary judgment dismissing eleven of sixteen then pending disciplinary charges constituted an “interim award” rather than a final determination and thus the court did not have jurisdiction to consider the district's objections to such dismissals at that time.

Accordingly, the court granted Anonymous’ motion to dismiss the school district’s petition for lack of jurisdiction.

* Although “discovery” is not generally available in administrative disciplinary proceedings, Education Law §3020-a.3 c.(iii)(C) , which controls in the discipline of educators, however, specifically provides for “discovery.”

The court’s ruling is included in a newspaper report of the decision by reporter Catie O’Toole appearing in the Syracuse Post-Standard, October 19, 2012 and posted on the Internet at:

http://www.syracuse.com/news/index.ssf/2012/10/jordan-elbridge_school_distric_13.html

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli

Issued during the week of October 15 - 21, 2012 [Click on the caption to access the full report]

Fiscal Stress Monitoring System for Local Governments

NY communities are facing hard times. Many are struggling to do more with less. Most have been substantially impacted by revenue shortfalls since the onset of the Great Recession. There are no quick fixes. It's time for an honest conversation about the numbers. Comptroller DiNapoli's early warning system will help the public and local officials do just that. Click here to see a video on the fiscal stress monitoring system.

DiNapoli: Treasurer Stole $200,000 From Woodstock Fire Company

The former treasurer of Woodstock Fire Company No. 3 embezzled more than $200,000 over a five year period, according to an audit released last Friday by State Comptroller Thomas P. DiNapoli. As a result, Dale D. Hughes, Jr., 64, was arrested and charged by Ulster County District Attorney D. Holley Carnright with grand larceny in the second degree. Hughes was arraigned before Woodstock Town Court Justice Richard Husted and remanded to the Ulster County Jail in lieu of bail.

Comptroller DiNapoli Releases Municipal Audits

New York State Comptroller Thomas P. DiNapoli Friday announced his office completed the following audits:

the Town of Cairo;

the Town of Erwin;

the Town of Lancaster;

the Owasco Fire District; and,

the Woodstock Fire District.

Comptroller DiNapoli Releases School Audit

New York State Comptroller Thomas P. DiNapoli Friday announced his office completed an audit of the Fort Plain Central School District.

A letter placed in an employee file indicating “serious misconduct” that could negatively impact his or her eligibility for future promotion goes beyond “constructive criticism”

A letter placed in an employee file indicating “serious misconduct” that could negatively impact his or her eligibility for future promotion goes beyond “constructive criticism”

D'Angelo v Scoppetta, 2012 NY Slip Op 06989, Court of Appeals

May a letter from the Assistant Commissioner of the Fire Department of the City of New York (Department) to a firefighter advising him that he violated the Department's Code of Conduct and Equal Employment Opportunity (EEO) Policy could adversely affect his eligibility for promotion in the future be made part of firefighter's permanent “EEO file” without first providing him an opportunity for a hearing pursuant to §15-113 of the Administrative Code of the City of New York?

Supreme Court had concluded that "the letter [was] a disciplinary reprimand and not a critical evaluation" and, therefore, the firefighter had the right to a formal hearing and other due process safeguards. * The Appellate Division agreed with the lower court’s ruling.

The Court of Appeal affirmed the lower courts’ rulings, holding that the firefighter was entitled to a due process hearing before the Department may place such a letter in his permanent file.

The Department conceded that the Administrative Code §15-113 required a hearing before its employees could be subject to punishment by reprimand but contended that a hearing was not necessary in this instance because the letter it placed in firefighter's permanent EEO file was not a formal reprimand but merely a critical evaluation not subject to the same due process protections. The Court of Appeals, as did the lower courts, disagreed.

Citing Holt v Board of Educ. of Webutuck Cent. School Dist. (52 NY2d 625, the Court of Appeals contrasted the Department’s action with school administrators placing letters in the permanent files of teachers critical of their performance without conducting §3020-a disciplinary hearings.

In one instance, the teacher was admonished for failing to maintain an orderly classroom after he had been directed to do so and for interrupting the class of another teacher. The letters characterized the teacher as incompetent and insubordinate. A second teacher had been sent a letter warning him that his regular absences from his assigned duties violated school policy. The court said it had concluded these letters did not trigger the due process protections of Education Law §3020-a because they were simply "critical evaluations" and not "formal reprimand[s]."

Although the letters sent to the teachers were "sharply critical," the Court of Appeals said that the fundamental purpose of the communications was not to punish but to identify "a relatively minor breach of school policy and to encourage compliance with that policy in the future."

The facts in the firefighter’s case, said the court, “are readily distinguishable from the facts in Holt.” 

While the teachers had received a letter from an immediate supervisor criticizing their performance, the firefighter was the subject of a formal investigation conducted by the Department's EEO office over a two-year period in response to the complaint alleging that he had used “racially offensive language” that had involved the interviewing of several “eyewitnesses” as well as the firefighter.

Significantly, the court noted that ultimately the EEO office determined that the evidence it had collected substantiated the complaint and it supplied a detailed report to the Assistant Commissioner. The Assistant Commissioner then reviewed the EEO office's findings and then “conferred with the Commissioner himself who ultimately approved the EEO office's determination.” This said the court “stands in contrast to the letters in Holt, which only reflect the views of a particular supervisor.”

Further, said the court, the letter to the firefighter noted that the document "serve[d] as a formal Notice of Disposition of the filed Complaint" and “in no uncertain terms,” informed the firefighter that “a thorough investigation revealed that he ‘exercised unprofessional conduct’ and ‘made an offensive racial statement’ [and] as a consequence of his misconduct, he was required to review and sign an EEO Advisory Memorandum and participate in further EEO training.”

The Court of Appeals said that it agreed with the firefighter that “the requirement to participate in additional EEO training is a form of discipline and not, as the Department contends, mere encouragement to comply with EEO policy.”

In addition, the decision notes that the Department conceded at oral argument that the EEO's finding that [the firefighter] was in breach of its racial discrimination policy is serious misconduct that could negatively impact his eligibility for future promotion.

Concluding that the letter sent to the firefighter constituted a “formal reprimand under Administrative Code §15-11,” the court ruled that the Department had denied the firefighter his right to administrative due process by placing the letter in his file without first conducting a hearing. Affirming the Appellate Division’s ruling, Justice Smith dissenting, the majority of the court ruled that the letter to which the firefighter had objected was properly expunged from his permanent EEO file.

* Supreme Court noted that it could not order a hearing because, as the parties conceded, the applicable statute of limitations for conducting such a hearing had expired.

COMMENT: As the Court of Appeals indicated in Holt, a “counseling memorandum” that is given to an employee and placed in his or her personnel file concerning unacceptable performance and the actions that should be taken by the individual to improve his or her work constitutes a lawful means of instructing the employee. 

In Matter of Fusco, Comm. of Ed. Decision 14,396 and Matter of Irving, Comm. of Ed. Decision 14,373, the Commissioner of Education found that the alleged "critical comment" exceeded the parameters circumscribing "lawful instruction" concerning unacceptable performance. 

In Fusco’s case, the Commissioner said that “contents of the [counseling] memorandum” did not fall within the parameters of a “permissible evaluation” despite the school board’s claim that the memorandum was "intended to encourage positive change" in Fusco’s performance. The Commissioner noted that the memorandum "'contains no constructive criticism or a single suggestion for improvement." Rather, said the Commissioner, the memorandum focused on "castigating [Fusco] for prior alleged misconduct."

In Irving’s case, a school principal was given a letter critical of her performance and the next day reassigned to another school where she was to serve as an assistant principal. The Commissioner ruled that these two actions, when considered as a single event, constituted disciplinary action within the meaning of Section 3020-a of the Education Law." .

The D'Angelo decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_06989.htm

Prima facie showing that bad faith underlies the basis for termination sufficient to defeat the employer’s motion to dismiss the action

Prima facie showing that bad faith underlies the basis for termination sufficient to defeat the employer’s motion to dismiss the action

Supreme Court vacated the board of education’s determination terminating a school teacher and remanded the matter for a “new investigation and hearing under the auspices of a different investigator nunc pro tunc* and sub silentio".**Supreme Court also denied the board’s motion to dismiss its former employee’s petition.

The Appellate Division vacated the lower court ruling in part, directing the employer to serve an answer within 20 days of service it being served with a copy of its ruling.

The Appellate Division explained that the former employee “has sufficiently alleged that the investigator from the board’s Office of Special Investigations acted in bad faith in making the determination that formed the basis for [the board's] terminating [the former employee]” and the board’s motion to dismiss its former employee's petition was properly denied. 

However, said the court, “the motion court erred in determining the merits of the proceeding without affording [the school board] an opportunity to serve an answer upon the denial of its motion to dismiss,” citing Samuel v Ortiz, 105 AD2d 624.

* Latin for “to make a new decision which, presumably, would be applied “retroactive.”

** Latin for “without notice (of the earllier record) being taken.”

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_06882.htm

Employees terminated following their "double billing" for car expense

Employees terminated following their "double billing" for car expense 

OATH Index Nos. 1125/12 & 1126/12

The New York City Department of Finance brought charges against a tax assessor and a supervisor. The Department alleged that the two workers, who were sisters, fraudulently double-billed the Department for travel expenses at times when they traveled together in the same car.

The two employees contended that their conduct was permitted by Department rules and that they were both entitled to receive reimbursements because they jointly owned two vehicles.

However, evidence showed they had repeatedly submitted false odometer readings and although the Department did not have a specific rule against sharing cars and double-billing, the sisters had been told they could not both submit an expense report when traveling together for “a car allowance.”

OATH Administrative Law Judge Kevin A. Casey found that fraud could be the basis of discipline without a specific rule, and the charges were sustained. ALJ Casey recommended termination of their employment. The appointing authority adopted the ALJ’s recommendation.

The decision is posted on the Internet at

http://archive.citylaw.org/oath/12_Cases/12-1125.pdf

Procedural errors and omissions require the remanding the decision terminating plaintiff employees for further consideration

Procedural errors and omissions require the remanding the decision terminating plaintiff employees for further consideration

Four former employees of the City challenged the City’s terminating their employment.

Supreme Court referred the issues of the employees' "employment status at the time of their termination and . ... whether any of them were required to exhaust any administrative remedies under the Civil Service Law prior to commencing this Article 78 proceeding" to a Judicial Hearing Officer (JHO).

The JHO issued a determination holding that “none of the employees had a right to a post-termination [sic] hearing under the Civil Service Law.” Accordingly, said the JHO, none of the employees had any duty to exhaust administrative remedies. The JHO also found that none of the employees was a policymaking employee and, thus, that they could not be fired merely for political reasons and further ruled that all four had been dismissed from their positions with the City for political reasons.

The City filed "objections" to the JHO's determination. 

Specifically, the City objected to the JHO's determination that none of the employees was a policymaking employee. Additionally, the City asserted that the JHO went beyond the scope of the order of reference by determining that the employees were fired for political reasons.

The Appellate Division remitted the employees' petition to Supreme Court, explaining:

1. The challenged determinations, relating to the termination of the employees' employment, were not "made as a result of a hearing."

2. The administrative record was not sufficient for it to decide the entire proceeding on the merits in the interest of judicial economy.

3. Any motion for reconsideration of the substantive issues decided by the JHO must be directed to the JHO for resolution.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_06953.htm

Reimbursing a school board member's legal expenses incurred in litigation

Reimbursing a school board member's legal expenses incurred in litigation  

Decisions of the Commissioner of Education, Decision No. 16,422

The Commissioner of Education, after denying the application of the school board seeking to remove one of its members for allegedly “disclosing confidential information to a third party,” considered one additional administrative matter. The board member that the board sought to have removed from the board asked the Commissioner to grant her a certificate of good faith pursuant to Education Law §3811(1). Such a certificate  would required the school district to reimburse her the “reasonable legal expenses” she incurred in the proceeding.

§3811(1), in pertinent part, provides for the reimbursement of reasonable legal expenses incurred by a board member when “the trustees or board of education of any school district … have been or shall be instructed by a resolution adopted at a district meeting to defend any action brought against them, or to bring or defend an action or proceeding touching any district property or claim of the district … as well as all costs and damages adjudged against them…."

The Commissioner rejected the board member’s request, explaining that Education Law §3811(1) does not provide for the reimbursement of legal expenses incurred by a board member in defending “a criminal prosecution or an action or proceeding” brought against a board member by a school district, including proceedings before the Commissioner of Education.

Accordingly, said the Commissioner, the board member was not entitled to a certificate of good faith because the application seeking the removal of the board member was brought by the school district of which the board member was an officer 

The Commissioner’s decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume52/d16422.html

Found guilty of charges of AWOL, incompetent performance and being disrespectful to the superior, employee terminated

Found guilty of charges of AWOL, incompetent performance and being disrespectful to the superior, employee terminated

The Department of Environmental Protection charged that a sewage treatment worker was incompetent due to excessive absence and AWOL.  The employee was also charged with being disrespectful to a supervisor. 

Supervising Administrative Law Judge Joan R. Salzman found that the uncontested proof that employee was absent on 287 of 391 work days during an 18-month period, an absence rate of 73%, established the incompetence charge.  Judge Salzman also found that agency proved the AWOL and disrespect charges.  

Noting respondent’s “abysmal attendance record (exacerbated by his use of profanity to his supervisor),” Judge Salzman found the AWOLs and the incompetence due to excessive absence to be independent bases for termination, and recommended termination of the individual’s employment. Her recommendation was adopted by the appointing authority.

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/12_Cases/12-1420.pdf

In hybrid Article 78/42 USC 1983, a timely 42 USC 1983 action will survive notwithstanding the fact that the Article 78 action was untimely

In hybrid Article 78/42 USC 1983, a timely 42 USC 1983 action will survive notwithstanding the fact that the Article 78 action was untimely

The Appellate Division reversed the Supreme Court’s denial of a petition filed by a tenured educator alleging that the New York City Department of Education (DOE) improperly terminated her in violation of her rights to procedural due process under both the State and Federal Constitutions.

The teacher had filed an Article 78 petition, which must be filed within four [4] months of the act or omission complained of to be timely and, in addition, raised essentially the same claims in her complaint under 42 USC §1983, which has a three-year statute of limitations. Supreme Court had ruled that the teacher’s Article 78 petition was untimely and dismissed the action notwithstanding the fact that her 42 USC §1983 had been timely filed within her Article 78 petition.

The Appellate Division disagreed with Supreme Court’s action, noting that the teacher had filed a “hybrid article 78 proceeding/42 USC §1983 action.” The Appellate Division explained that as federal and state courts possess concurrent jurisdiction over 42 USC §1983 actions, to hold that the teacher could not bring her 42 USC §1983 claims solely because she asserted them in the same action in which she seeks Article 78 relief due to the latter's much shorter statute of limitations would impermissibly conflict with 42 USC §1983's broad remedial purpose and result in different outcomes based solely on whether the federal claims are brought in state or federal court.

The court concluded that the teacher’s petition properly raised claims under 42 USC §1983 and thus her petition could be maintained as a hybrid action, citing Bistrisky v NYS Department of Correctional Services, 23 AD3d 866

Holding that the teacher’s action should be reinstated, the matter was remanded to Supreme Court.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_06851.htm

Arbitration award sustained as it was rational and did not violate public policy

Arbitration award sustained as it was rational and did not violate public policy

Addressing the employer’s challenge to an arbitration award, the Appellate Division determined that the arbitrator “properly found” there was no "emergency" within the meaning of the collective bargaining agreement [CBA] that justified bypassing the contract's terms regarding assignment of personnel. 

Further, said the court, the award merely enforced the terms of the parties' CBA, which already addressed the public policy issues that the employer raised in this appeal.

The award in this case, said the court, was not "totally" irrational, nor did it violate public policy. 

The Appellate Division explained that the arbitrator did not exceed her powers in making the award as the contract language relied upon by the employer “does not address the situation at issue in this matter.”

In addition, the court noted that the employer “itself requested relief that was not specified in the relevant contract language, and therefore cannot now be heard to say that the award exceeded the scope of the arbitrator's authority.”

Accordingly, the Appellate Division denied the employer's petition to vacate the arbitration award.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_06764.htm

Membership in the employee organization subjects the individual to the terms and conditions set out in the relevant collective bargaining agreement

Membership in the employee organization subjects the individual to the terms and conditions set out in the relevant collective bargaining agreement

The Appellate Division, 4th Department, in a succinct decision, said that “by accepting employment as a school instructor and entering into a collective bargaining agreement as a result of his membership in the union representing him, the [school instructor] waived any right to be credited for seniority in the tenure area of teacher.”*

The court cited Dietz v Board of Educ. of Rochester City School Dist., ___ AD3d ___ [Sept. 28, 2012] and Wiener v Board of Educ. of E. Ramapo Cent. School Dist., 90 AD2d 832, appeal dismissed 58 NY2d 1115), in support of its ruling.

In Dietz the court noted that “… the collective bargaining agreement (CBA) between the District and the union representing petitioner provided that layoffs of ‘school instructors’ would be affected within the four separate categories of school instructors identified in the CBA rather than within tenure areas; that separate seniority lists for purposes of layoffs are maintained for school instructors; and that, ‘[i]n the event that positions are abolished, school instructors shall not have rights to displace teachers in regular school programs having less seniority, nor shall teachers have rights to displace school instructors having less seniority.’"

* See Szumigala v Hicksville Union Free School District, 148 AD2d 621. In Szumigala  the Appellate Division, citing Cheektowaga v Nyquest, 38 NY2d 137, ruled that a seniority clause in a Taylor Law agreement violated §2510 of the Education Law when it permitted seniority in different tenure areas to be combined for the purposes of determining seniority with the District for the purposes of layoff. Further, in City of Plattsburgh v Local 788, 108 AD2d 1045, a decision involving the layoff of employees in the competitive class of the Classified Service, the court held that seniority for the purposes of layoff cannot be diminished or impaired by the terms of collective bargaining agreement, explaining  §80 of the Civil Service Law [and, presumably, §80-a of such law] "reflects a legislative imperative" that the City was powerless to bargain away.


The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_06726.htm

Filing an appeal to the Commissioner of Education as a class action.

Filing an appeal to the Commissioner of Education as a class action.
Decisions of the Commissioner of Education, Decision No. 16,417

Some 90 paraprofessional employee of the school district filed an appeal to the Commissioner of Education challenging a decision of the board of education classifying them as “teacher aides” rather than “teaching assistants,” which appeal was characterized as a “class action.”

Addressing the school district’s object to the filing of the appeal as a “class action,” the Commissioner observed that “An appeal may only be maintained on behalf of a class where the class is so numerous that joinder of all members is impracticable and where all questions of fact and law are common to all members of the class, citing 8 NYCRR §275.2.” In so doing, said the Commissioner, the petitioner is required to [1] set out the number of individuals he or she seeks to represent and [2] must show that all questions of law and fact would be common to all members of the purported class.

The petitioners had filed the appeal “on behalf of themselves and approximately 90 paraprofessionals” designated by the school district as serving in teacher aide* positions, but who allegedly were performing the duties of a teaching assistant.** 

The Commissioner, however, ruled that while the petitioners had identified each of these individuals in the exhibits to their petition, “they fail to demonstrate that all the potential class members have the same interests or claims.” Considering “the surveys submitted on behalf of these individuals,” the Commissioner said that the surveys indicated that the individuals had “differing job duties, and allege varying amounts of instructional duties.” The Commissioner also noted that the surveys also showed that not all of these individuals held a teaching assistant certificate.

The Commissioner decided that the petitioners: had not clearly demonstrated that all questions of law and fact would be common to all members of the class.Further, the Commissioner noted that the petitioners subsequently identified additional individuals as purported class members and requested, in the alternative, that they be added as petitioners, which request, he said, precluded a finding that the class members are too numerous.

The Commissioner denied the petitioners’ request for “class certification” but granted its motion that the individuals so subsequently identified be included in the appeal as “added petitioners” pursuant to 8 NYCRR §275.1.

After discussing a number of significant personnel issues that could affect the status of the petitioners in their respective positions and issues related to the collective bargaining agreement between the parties, the Commissioner remanded the matter to the school district to make its determination as to whether each of the petitioners was appropriately designated as a teacher aide or should be designated as a teaching assistant. The school district's determination was to be based on an assessment of the nature and extent of the duties performed by each petitioner, consistent with the criteria set out in the Commissioner’s decision.

In effect the district is to perform a “desk audit” of the duties of each individual to determine if he or she was performing the duties of a teacher aide or a teaching assistant.

For those individuals serving in a teacher aide position performing the duties of that title and those individuals serving in a teaching assistant position performing the duties of that title, and assuming that they are qualified to serve in that capacity, no further action would be required.

As to those individuals that the school district determines are serving in a teacher aide position but are  performing the duties of a teaching assistant, assuming, but not deciding, that each such individual is qualified for appointment to that title, the Commissioner directed that “any petitioner ... who spends a substantial portion of time engaged in carrying out such duties, [is to] be appointed to a teaching assistant position and provided with all seniority, tenure and retirement rights.”

The decision is silent with respect to those individuals the school district determines are serving in a teaching assistant position but are actually performing the duties of a teacher aide. Presumably such persons are to be appointed to the title of teacher aide, subject to the approval of the civil service commission having jurisdiction.

* Teacher aide positions are in the classified service in the civil service of the State and the incumbents of such positions are subject to the State’s Civil Service Law and the rules and regulations promulgated thereunder. Such positions are typically positions placed in the noncompetitive class of the classified service.

** Teaching assistant positions are among those certified by the Commissioner of Education to the New York State Civil Service Commission pursuant to Civil Service Law §35(g) as being in the teaching and supervisory staff of a school district and such positions are in the unclassified service of the civil service of the State.

The decisions is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume52/d16417.html