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Friday, November 21, 2014

Tenured teachers and school administrators facing disciplinary action typically have the right to elect the Education Law §3020-a.disciplinary procedure in lieu of a contract disciplinary procedure

Tenured teachers and school administrators facing disciplinary action typically have the right to elect the Education Law §3020-a.disciplinary procedure in lieu of a contract disciplinary procedure
Kilduff v Rochester City Sch. Dist., 2014 NY Slip Op 08056, Court of Appeals

The Rochester City School District notified Roseann Kilduff, a tenured school social worker,that she was to be suspended for 30 days without pay for certain alleged misconduct. In response to Kilduff’s written request for a hearing pursuant to Education Law §3020-a., the School District advised her that she was not entitled to have this disciplinary action processed pursuant to §3020-a  but could challenge the School District’s disciplinary determination by availing herself of the disciplinary grievance procedures set out in the collective bargaining agreement (CBA) between the School District and the Rochester Teachers Association.

The CBA provided, in relevant part, that "Except as provided elsewhere in this Section, any disciplinary action imposed upon any eligible teacher may be processed as a grievance and arbitration procedure.”*

The Court of Appeals, affirming a ruling by the Appellate Division, said that §3020(1)** of the Education Law, as amended, requires that all CBAs becoming effective on or after September 1, 1994, permit eligible employees facing discipline the right to elect the disciplinary review process provided by Education Law §3020-a.notwithstanding a provision in the CBA to the contrary. 

The Appellate Division had explained that inasmuch as the controlling CBA took effect in 2006, Kilduff, “in the court's view,” had the right pursuant to Education Law §3020(1) to choose the §3020-a disciplinary procedure in lieu any alternative grievance procedure contained in the CBA. Accordingly, said the Appellate Division, Rochester's failure to honor Kilduff’s request, it was required by law to respect, mandated the annulment of the disciplinary action taken against her.

In the words of the Court of Appeals, “the statute unambiguously provides that when a CBA is altered by renegotiation or takes effect on or after September 1, 1994, it must permit tenured employees to elect §3020-a's discipline review procedures, notwithstanding the availability of alternative, CBA-prescribed procedures.”

The court said that while the statute would trump a CBA provision effective on or after September 1, 1994 that relegated a tenured employee exclusively to a non-statutory discipline procedure, “we perceive no reason to conclude that the present CBA in fact does that. It provides merely that a disciplinary action ‘may,’ not that it ‘must,’ be processed in accordance with the agreement's grievance and arbitration provisions which were retained unaltered in the parties' subsequent CBAs.”

Further, in a footnote the majority observed that while the CBA required the §3020-a process where the discharge of a tenured employee was sought, this does not mean, as the School District contended, that it precludes a tenured employee from electing such process where less serious discipline was at issue, in this instance a 30-day suspension without pay.

Accordingly, the court in this 4 to 3 ruling, Judge Smith dissenting in an opinion in which Judges Read and Pigott concur, held that the order of the Appellate Division should be affirmed, with costs.

It should be noted that with respect to eligible employees in the classified service, §76.4 of the Civil Service Law, in pertinent part, provides that §§75 and 76 of the Civil Service Law “… may be supplemented, modified or replaced by agreements negotiated between the state and an employee organization pursuant to article fourteen of this chapter [emphasis supplied]. Where such sections are so supplemented, modified or replaced, any employee against whom charges have been preferred prior to the effective date of such supplementation, modification or replacement shall continue to be subject to the provisions of such sections as in effect on the date such charges were preferred”.

* The Court of Appeals noted that a subsequent subsection of the CBA provided that “no eligible teacher may be discharged without the process prescribed in Education Law §§3020 and 3020-a..”

** The portion of Education Law §3020(1) relevant to the issues raised in this action states: "No person enjoying the benefits of tenure shall be disciplined or removed during a term of employment except for just cause and in accordance with the procedures specified in section three thousand twenty-a of this article or in accordance with alternate disciplinary procedures contained in a collective bargaining agreement covering his or her terms and conditions of employment that was effective on or before September first, nineteen hundred ninety-four and has been unaltered by renegotiation, or in accordance with alternative disciplinary procedures contained in a collective bargaining agreement covering his or her terms and conditions of employment that becomes effective on or after September first, nineteen hundred ninety-four; provided, however, that any such alternate disciplinary procedures contained in a collective bargaining agreement that becomes effective on or after September first, nineteen hundred ninety-four, must provide for the written election by the employee of either the procedures specified in such section three thousand twenty-a or the alternative disciplinary procedures contained in the collective bargaining agreement" (emphasis by the Court).

The decision is posted on the Internet at:


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