The Plaintiffs in this action, tenured public school teachers employed by the Board of Education of the City School District of the City of New York [BOE], challenged their placement on leave without pay status after they failed to submit proof of COVID-19 vaccination in accordance with the vaccination requirement imposed on BOE employees by the Commissioner of the New York City Department of Health and Mental Hygiene [Commissioner].
Ultimately the United Federation of Teachers [UFT], the union representing a majority of teachers in NYC public schools, began negotiations with the BOE over implementation of this requirement and the impact on its members. When those negotiations failed, the parties filed a declaration of impasse in accordance with Civil Service Law §209, typically referred to as the Taylor Law, and entered into mediation. Unable to resolve the matter through mediation, the issue was submitted to arbitration.
The arbitrator issued an Impact Award setting out the mechanisms for satisfying the COVID-19 vaccine requirement's implementation which provided as follows:
1. Any unvaccinated employee who had not requested an exemption or who had requested an exemption which has been denied, "may be placed by the BOE on leave without pay" and "[p]lacement on leave without pay for these reasons shall not be considered a disciplinary action for any purpose."
2. While on such leave without pay, the employee would remain eligible for health insurance; and
3. Employees on such leave without pay "who become vaccinated while on such leave without pay and provide appropriate documentation to the BOE prior to
The Plaintiffs then filed CPLR Article 75 and 78 petitions challenging their placement on leave without pay status after they failed to submit proof of vaccination in accordance with the vaccination requirement imposed on BOE employees by the arbitration award. Holding that the Appellate Division "properly affirmed dismissal of these petitions", the Court of Appeals affirmed the Appellate Division's dismissal of the petitions filed by the Plaintiffs.
In the words of the Court of Appeals:
"In terms of process, the UFT negotiated with the BOE over every aspect of the imposition of the mandate, which in the first instance was imposed by the Health Commissioner. As set out in Civil Service Law § 209, the UFT and the BOE negotiated, then engaged in mediation, and finally entered into arbitration over the implementation of the mandate and its impact on UFT's members. Indeed, one of the points of contention between the parties leading to the filing of an impasse declaration concerned the placement of teachers who failed to submit proof of vaccination on leave without pay. The UFT subsequently agreed to be bound by the Impact Award established by the arbitrator, and once the arbitrator issued the award, teachers received ample notice of the Impact Award's provisions. Under these circumstances, petitioners were not entitled to hearings in accordance with Education Law §§ 3020 and 3020-a (see Beck-Nichols v Bianco, 20 NY3d at 558-559), nor were their due process rights violated (see id. at 559, citing Matter of Prue v Hunt, 78 NY2d 364, 368 [1991]). Accordingly, their requests for article 78 relief were properly denied."
The
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Matter of O'Reilly v Board of Educ. of the City Sch. Dist. of the City of N.Y. |
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2024 NY Slip Op 05130 |
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Decided on |
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Court of Appeals |
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Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
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This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on
No. 77
In the Matter of Christine O'Reilly,
Appellant,
v
Board of Education of the
No. 78
In the Matter of Athena Clarke, Appellant,
v
Board of Education of the
Case Nos. 77 & 78:
Jimmy F. Wagner, for appellant.
Jesse A. Townsend, for respondents.
MEMORANDUM.:
On each appeal, the Appellate Division order should be affirmed,
with costs, and the certified question not answered as unnecessary.
Petitioners, tenured public school teachers employed by the Board
of Education of the City School District of the City of New York (BOE), brought
CPLR article 75 and 78 petitions challenging their placement on leave without
pay status after they failed to submit proof of vaccination in accordance with
the vaccination requirement imposed on BOE employees by the Commissioner of the
New York City Department of Health and Mental Hygiene (the Health
Commissioner). Because the Appellate Division properly affirmed dismissal of
these petitions, we affirm.
In August 2021, during the public health emergency caused by
COVID-19, the Health Commissioner determined "that it is necessary for the
health and safety of the City and its residents" to require vaccination,
and so issued a mandate requiring all BOE staff to provide proof of vaccination
by a date certain. The Health Commissioner explained that "the CDC has
recommended that school teachers and staff be vaccinated as soon as possible
because vaccination is the most critical strategy to help schools safely resume
full operations," noting that DOE "serves approximately 1 million
students across the City, including students in the communities that have been
disproportionately affected by the COVID-19 pandemic and students who are too
young to be eligible to be vaccinated." This mandate was later expanded to
include employees of other city agencies, as well as individuals entering certain
indoor dining, entertainment, and commercial venues. The United Federation of
Teachers (UFT), the union representing a majority of teachers in NYC public
schools, began negotiations with the BOE over implementation of the requirement
and the impact on its members. When those negotiations failed, the parties
filed a declaration of impasse in accordance with Civil Service Law § 209, and
entered into mediation, followed by arbitration.
In September 2021, the arbitrator issued the Impact Award, which
established mechanisms for the vaccine requirement's implementation. The award
provided that "[a]ny unvaccinated employee who has not requested an
exemption . . . , or who has requested an exemption which has been denied, may
be placed by the BOE on leave without pay" and "[p]lacement on leave
without pay for these reasons shall not be considered a disciplinary action for
any purpose." While on leave without pay, employees would remain eligible
for health insurance, and "[e]mployees who become vaccinated while on such
leave without pay and provide appropriate documentation to the BOE prior to
Petitioners were placed on leave without pay after failing to
submit proof of vaccination by the deadline. They each filed nearly identical
petitions under article 75, seeking to vacate the Impact Award, and under
article 78, seeking to annul their placement on leave without pay and alleging
that the BOE violated Education Law §§ 3020 and 3020-a by doing so without
providing hearings under those provisions. Four separate Supreme Court judges
denied the petitions, generally holding that the article 78 petition was
meritless because petitioners were not entitled to Education Law §§ 3020 and
3020-a hearings and that petitioners lacked standing to bring article 75
petitions and failed to join UFT as a necessary party. On appeal, the Appellate
Division affirmed the determinations and dismissed the petitions in two
separate decisions (213 AD3d 560 [1st
Petitioners were not entitled to the hearing procedures outlined
in Education Law §§ 3020 and 3020-a before being placed on leave without pay.
These statutory provisions establish a detailed and comprehensive system for
conducting disciplinary hearings for tenured teachers. While tenured teachers
have a right to these statutory hearings when faced with disciplinary
proceedings, these provisions are not applicable to petitioners, who were
placed on leave without pay for failure to comply with the vaccine mandate, a
condition of employment.
This Court has long distinguished between disciplinary proceedings
and employment conditions for employees entitled to statutory civil service
protections, and has held that statutory hearings are not warranted when
employment eligibility conditions are enforced (see Matter of Felix v New York City Dept. of Citywide Admin.
Servs., 3 NY3d 498, 505 [2004]; see also Matter of New York State Off. of Children &
Family Servs. v Lanterman, 14 NY3d 275, 282-283 [2010]). We have
explicitly applied this distinction in the context of tenured teachers, holding
that a teacher terminated for failure to comply with a requirement that
"defines eligibility for employment" is not entitled to Education Law
§§ 3020 and 3020-a hearings (Beck-Nichols, 20 NY3d at 558). Petitioners,
who do not challenge imposition of the vaccine mandate here, did not face
disciplinary proceedings, but instead failed to comply with "a condition
of employment" that was "unrelated to job performance, misconduct or
competency" (Felix, 3 NY3d at 501, 505).
In terms of process, the UFT negotiated with the BOE over every
aspect of the imposition of the mandate, which in the first instance was
imposed by the Health Commissioner. As set out in Civil Service Law § 209, the
UFT and the BOE negotiated, then engaged in mediation, and finally entered into
arbitration over the implementation of the mandate and its impact on UFT's
members. Indeed, one of the points of contention between the parties leading to
the filing of an impasse declaration concerned the placement of teachers who
failed to submit proof of vaccination on leave without pay. The UFT
subsequently agreed to be bound by the Impact Award established by the
arbitrator, and once the arbitrator issued the award, teachers received ample
notice of the Impact Award's provisions. Under these circumstances, petitioners
were not entitled to hearings in accordance with Education Law §§ 3020 and
3020-a (see Beck-Nichols v Bianco, 20 NY3d at 558-559), nor were their
due process rights violated (see id. at 559, citing Matter
of Prue v Hunt, 78 NY2d 364, 368 [1991]). Accordingly, their requests for
article 78 relief were properly denied.
Finally, we agree with the Appellate Division that the requests
for article 75 relief were properly rejected because petitioners lacked
standing and failed to join UFT as a necessary party, as required for
petitioners to allege that UFT violated its duty of fair representation.
In each case:
Order affirmed, with costs, and certified question not answered as
unnecessary, in a memorandum. Chief Judge Wilson and Judges Garcia, Singas,
Cannataro, Troutman, Halligan and Taylor concur. Judge Rivera took no part.
Decided