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Wednesday, June 18, 2014

Alternative disciplinary procedures


Alternative disciplinary procedures
2014 NY Slip Op 04293, Appellate Division, Fourth Department, Motion for leave to appeal granted, Motion No: 2013-804, 2013 NY Slip Op 88892. 

A tenured teacher [Teacher] filed a petition in Supreme Court pursuant to CPLR Article 78 seeking a court order annulling two disciplinary actions taken against her by the school district that resulted in her being suspended without pay for two days with respect to one disciplinary action and suspended for five days without pay for the other.

The Appellate Division held that Supreme Court erred in denying Teacher’s petition to annul the school district's actions, explaining that Teacher “was entitled to choose whether to be disciplined under the procedures set forth in the [collective bargaining agreement] or those set forth in [Education Law §] 3020-a," as the school district incorrectly denied Teacher's written request for a §3020-a hearing," citing it’s earlier ruling in Kilduff v Rochester City School District, 107 AD3d 1536.

This will not be the first time that the Court of Appeals will be asked to address the issue of an employee choosing between alternatives disciplinary procedures. In Antinore v State, 40 NY2d 6, the Court sustained a ruling by the Appellate Division* holding that a union could bargain away the employee’s statutory disciplinary rights in favor of an alternative disciplinary procedure as long as the alternate disciplinary procedure provided administrative due process protections at least equivalent to those provided by the statutory procedure.

The initial collective bargaining agreements negotiated by the State as an employer and the Civil Service Employees Association with respect to employees in negotiating units represented by CSEA, provided that an individual in the negotiating unit served with administrative disciplinary charges could elect either the “contract disciplinary procedure,” whereby the charges would be heard by an arbitrator, or, in the alternative, elect to have the matter considered pursuant to the relevant statutory disciplinary procedure, in this instance Civil Service Law §75.

The issue in Antinore: Antinore initially elected the contract disciplinary procedure and when he was found guilty by the arbitrator, claimed that he was now entitled to administrative due process which required that he now be given another disciplinary hearing pursuant to Civil Service Law §75. The Appellate Division rejected Antinore’s theory, which decision was sustained by the Court of Appeals, holding that if the negotiated alternative to the §75 disciplinary procedure afforded the accused individual the at least equivalent administrative due process, his or her Constitutional right to due process was satisfied.

* Donald Antinore v. State New York et al, 49 A.D.2d 6.

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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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