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Tuesday, August 20, 2013

Free speech related to job action by teachers trumps initiating disciplinary action where there is no threat to a school's effective operation


Free speech related to job action by teachers trumps initiating disciplinary action where there is no threat to a school's effective operation
2013 NY Slip Op 05633, Appellate Division, Second Department

A teacher [Petitioner] was served with disciplinary charges alleging misconduct flowing from her participation in a “job action” near school grounds in the course of collective bargaining. Found guilty of misconduct and fined $1,000 by the Education Law §3020-a arbitrator, Petitioner challenged the determination by filing a petition pursuant to CPLR Article 75 in an effort to vacate the arbitration award.

According to the decision, the School District and the District's teachers' union were engaged in negotiations on a new collective bargaining agreement. As negotiations continued without an agreement, teachers engaged in concerted actions, including weekly picketing in front of a school. The district filed disciplinary charges against a number of teachers, including Petitioner, alleging that the job action "intentionally created a health and safety risk … by purposely situating [their] vehicle[s] … in order to preclude children from being dropped off at curbside” in front of the school building.

The Appellate Division initially noted that where arbitration is statutorily required, as is the case in an Education Law §3020-a disciplinary action, "judicial review under CPLR Article 75 is broad, requiring that the award be in accord with due process and supported by adequate evidence in the record." Further, said the court, "The award must also be rational and satisfy the arbitrary and capricious standards of CPLR Article 78" and "Due process of law requires . . . that the [arbitrator's determination] under the power conferred by statute have a basis not only in his good faith, but in law and the record before him [or her]."

The Appellate Division then noted that in two earlier appeals involving teachers disciplined for their involvement the same job actions, it was found that  “the evidence at the hearing provided a rational basis for the arbitrator's determination that the teachers contributed to the creation of a health and safety hazard, and that the awards were not arbitrary and capricious.”* This, said the court, was true in Petitioner’s case as well.

That said, the Appellate Division vacated the arbitration awards handed down in the two earlier cases and then did the same in Petitioner’s case.

In the two earlier cases the appellate court determined that the School District failed to meet its burden of demonstrating the teachers charged with misconduct, who were then engaged in the exercise of their First Amendment rights, so threatened the school's effective operation as to justify the imposition of discipline.

Accordingly, the Appellate Division granted Petitioner’s appeal “for the same reasons, i.e., her job-related activity regarding collective bargaining issues” indisputably addressed matters of public concern and the School District failed to meet its burden of demonstrating that Petitioner's exercise of her First Amendment rights so threatened the school's effective operation as to justify the imposition of discipline.


The decision is posted on the Internet at:
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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/

A Reasonable Penalty Under The Circumstances 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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