A school board’s “essential responsibilities” can’t be negotiated away

A school board’s “essential responsibilities” can’t be negotiated away

Sweet Home Central School District v. Sweet Home Education Association, 90 AD2d 683, affd, 58 NY2d 912 

The collective bargaining agreement [CBA] between the Sweet Home Central School District [District] and the Union permitted the District to "transfer" teachers subject to the teacher involved being advised of the reason(s) for the transfer and being given an opportunity to select from among  “current openings” for which the teacher was qualified. The contract also provided that wishes of the teacher were to be taken into consideration to the extent possible.

A music teacher grieved his “involuntary transfer out” as concert band director. The arbitrator directed the District to review the appropriate positions available with him and to permit him to select from among them. He further directed the District to permit the teacher to return to the concert band director position if he wished and the District was to “develop a program, with outside assistance, ‘to assure a smooth functioning’ of the concert band” were he to choose to return.

On appeal the arbitrator’s award was modified by the Appellate Division. The court explained that §1711 of the Education Law gave the Board a non-delegable responsibility to maintain adequate standards in the classroom and the District’s authority to assign and reassign teachers was essential to that responsibility.

“Public policy prevents a school district from bargaining away this responsibility,” said the court. In keeping with this view, the arbitrator was held not to have the power to direct the District to retain the teacher in the position from which he had been reassigned.

The Court then held that the CBA between the District and the Union could (and did) establish procedural rules regulating the District’s right to reassign teachers. That portion of the arbitrator’s award directing the District to comply with the procedural rules to which it had agreed was upheld.

Dismissal of disciplinary charges recommended because superior condoned the employee's alleged failure to follow department policy

Dismissal of disciplinary charges recommended because superior condoned the employee's alleged failure to follow department policy

OATH Index No. 866/13

A New York City juvenile counselor was charged with failing to conduct three inspections during a tour or duty as required. 

At the disciplinary hearing, however, the counselor proved that the ”three inspections” requirement had not been enforced by management for many years. 

OATH Administrative Law Judge Alessandra F. Zorgniotti recommended dismissal of charges.

The counselor admitted that she did not make three tours of inspection and testified that the failure to do so was a regular practice caused by an excessive work load.

Judge Zorgniotti found that the counselor had proved her affirmative defense of condonation and waiver by showing that her not making three inspections each tour of duty was condoned by supervisors. Further, said the ALJ, the employer did not show that it placed the counselor on notice that the “three inspection” during a tour of duty policy would be enforced

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/13_Cases/13-866.pdf

An alternative to a principal for each school

An alternative to a principal for each school

Matter of Mennella, Decisions of the Commissioner of Education Number 10851

Although the Regulations of the Commissioner of Education provide that each school in a District shall have assigned to it a qualified principal, waivers from that requirement may be obtained under appropriate circumstances.*

An example of this is found in the Commissioner’s decision in Matter of Mennella.

One issue involved Mennella's seeking an order to restore funds for an abolished position of principal. The District had decided to administer its two smallest elementary schools by assigning one principal and two assistant principals to them.

The Commissioner rejected Mennella's claim that the District could not do so, noting that earlier the District had been granted the required exemption each school have a principal. The Commissioner also noted that the assistant principals involved held valid elementary principal certificates and were qualified to perform the duties assigned to them.

* 8 NYCRR 100.2(a), addressing the administration of elementary and secondary schools, provides, in pertinent part, as follows: “The board of education of each school district shall employ and assign to each school under its supervision a full-time principal holding the appropriate certification as required pursuant to section 80.4(b) of this Title. Upon the submission of evidence that there are circumstances which do not justify the assignment of a principal to a particular school, or that another mode of building administration would be more effective, the commissioner may approve an alternative mode of building administration.”