The school board rather than an arbitrator makes ultimate decision regarding tenure

The school board rather than an arbitrator makes ultimate decision regarding tenure

Liverpool Faculty Association v. Liverpool Central School District, 52 N.Y.2d 1038

The New York State Court of Appeals has ruled that although the arbitrator had interpreted a collective bargaining agreement to limit the district superintendent’s power concerning tenure recommendations, the authority of the School Board to make the ultimate decision to grant or withhold tenure was not in any way impaired.

The decision of the arbitrator was not violative of public policy as set forth in Sections 2509, 2573, 3012 and 6212 of the Education Law according to the Court.

The award did not interfere with the decision-making powers of the School Board although it did require the District to retain the probationary teacher for an additional year so that her performance could be evaluated as provided in the contract.

The court noted that a different conclusion might result if the case involved a city having a population of 400,000 or more as the recommendations of a district superintendent regarding tenure in such a situation are binding on the School Board (Section 2573, Education Law).

A question of standing

A question of standing

Burke v. Bahou, 91 A.D.2d 705

When an employee brought suit contending that the determination of the State Civil Service Commission regarding a reclassification was arbitrary, the Appellate Division dismissed the action on the grounds that the Burke did not have standing to bring the suit because he was not the incumbent of the reclassified position.

The court indicated that only the employee occupying the reclassified position or the appointing authority concerned could challenge the determination, citing Section 120 of the Civil Service Law.

Provisional employee loses bid for permanent appointment

Provisional employee loses bid for permanent appointment

Haynes v. Chautauqua County, 55 NY2d 814

In Haynes the court held that reachable for appointment from the eligible list does not serve to give a provisional employee any right to selection for the permanent appointment.

Haynes had been removed from the position about a month following the certification of the list and had sued for reinstatement.

The decision indicated that Section 65.3 of the Civil Service Law permitted termination of a provisional within two months and contrasted the situation with that in Roulett v. Hempstead, 40 AD2d 611, where a provisional employee, eligible for permanent appointment, was retained in the absence of a three name eligible list in excess of the probationary period for the position.

The Court also noted that Haynes did not become a “probationary employee” by operation of law and could be removed without notice and hearing.

In contrast, the Court of Appeals reversed a lower court and held that a provisional employee does have a right to a permanent appointment. In LaSota v. Green, 53 NY2d 491 ruling that unlike Haynes, LaSota, a provisional for more than nine months and first on the eligible list, obtained a permanent appointment by operation of law when he was retained as a provisional after the establishment of the list. 

The distinction here was that in LaSota there was no mandatory list while in Haynes the list consisted of more than three candidates interested in the position. 

Accordingly, in LaSota the provisions of Civil Service Law Section 65.4 rather than 65.3, applied. 

Thus the LaSota determination, although extending Roulett [see 40 AD2d 611], is consistent the determination in Haynes. The Court took special note of the nine-month limitation on provisional appointments contained in Section 65.2 of the Civil Service Law.