School board's discontinuing probationary employee's services based on the school superintendent's recommendation appealed

In Frasier v Board of Educ. of City School Dist. of City of N.Y., 71 NY2d 763, the Court of Appeals ruled that the services of a probationary teacher may be discontinued at any time during the probationary period unless the teacher shows that a board terminated service "for a constitutionally impermissible purpose, in violation of a statutory proscription, or in bad faith."

In this appeal to Commissioner of Education, Commissioner Betty A. Rosa considered the application of Education Law §3031 with respect to the school superintendent's response to a probationary teacher’s [Probationer] request that the superintendent provide written reasons for her or his recommendation to the School Board that her services be discontinued.  In the words of Dr. Rosa, §3031 is “a procedural device to force the superintendent to lay bare the reasons for his [or her] recommendation so that [a] probationer [can] ascertain whether any were constitutionally or statutorily impermissible.”

Citing Rathbone v Board of Educ. of HamiltonCent. School Dist., 47 AD2d 172, [3d Dept 1975], affd 41 NY2d 825, Commissioner Rosa noted that "[t]he superintendent’s reasons must be sufficiently specific so that the teacher can submit “a reasonable and logical reply” thereto. In this instance, said Dr. Rosa, the superintendent recommended Probationer’s termination based on her (1) use of “controversial materials”; (2) “[f]ailure to utilize [the] approved curriculum”; and (3) “promot[ing] misinformation” but failed to provide any dates or specific details. This, opined Commissioner Rosa, deprived the Probationer of her ability to argue that her conduct was protected by the United States or New York Constitutions, explaining "[i]t is well settled that a board of education may not dismiss or refuse to grant tenure to an employee in retaliation for the exercise of constitutionally guaranteed freedoms or statute."*

The Commissioner remanded the matter to the superintendent for further proceedings, noting the procedure for doing so was described by the Appellate Division in Rathbone, [supra] at page 178, where the court instructed Rathbone's superintendent to "resubmit [the] statement of reasons for [the] recommendation of dismissal." Further, said the Rathbone court, "[i]f these reasons are subsequently demonstrated to be unlawful, or if they are not accepted by the Board of Education, [Rathbone] will then be entitled to her benefits from the date of the unlawful dismissal" but if adequate reasons are given "which in the superintendent’s view would have justified [Rathbone's] dismissal ... and the board, after [Rathbone] has had the opportunity to respond, chooses to accept the recommendation, [Rathbone] should not receive back pay or benefits …."

*The Commissioner declined to consider the more specific reasons for Probationer’s discontinuance that the superintendent articulated for the first time after Probationer's appeal to the Commissioner, explaining that time to provide the Probationer with these reasons "was at the local level and permitting the superintendent to proceed in this matter would effectively abrogate the protections of Education Law §3031."

Click HERE to access the Commissioner's decision posted on the Internet.

Parol evidence may not be used in challenging a written agreement that is complete, clear and unambiguous on its face

When parties set forth their agreement in a clear, complete document, the writing should be "enforced according to its terms," and "[e]vidence outside the four corners of the document as to what was really intended but unstated or misstated is generally inadmissible to add to or vary the writing" said the Court of Appeals in W.W.W. Assoc. v Giancontieri, 77 NY2d 157.

The relevant collective bargaining agreement [CBA] between Plaintiff's union [CSEA] and the County provided "[a]ny employee who retires on or after 1/1/08 and who is eligible for retiree health insurance benefits, and who opts out of such retiree health insurance due to other coverage, shall receive a cash payout equivalent to fifty (50%) percent of the value of Individual Coverage for the plan with the most active employee enrollees."

Prior to his retirement the Plaintiff in this CPLR Article 78 action had opted out of the County's health insurance benefits as he had other coverage and upon his retirement applied for the appropriate "cash payout equivalent".

The County denied Plaintiff's request for the payout equivalent contending that the Plaintiff was not eligible for retiree health insurance benefits because the NYSHIP Manual for Participating Agencies [NYSHIP] "provided that only an employee enrolled in the NYSHIP program or another employer-sponsored health plan at the time of retirement was eligible to continue coverage in retirement." The County argued that because the Plaintiff had opted out of the County's health insurance benefits prior to his retirement, he was not entitled to the payout for opting out of retiree health insurance benefits pursuant to the CBA.

Supreme Court granted Plaintiff's motion for summary judgment and County appealed.

The Appellate Division sustained the Supreme Court's ruling explaining that "[t]he fundamental, neutral precept of contract interpretation is that agreements are construed in accord with the parties' intent and the best evidence of what parties to a written agreement intend is what they say in their writing". Further, said the court, a written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms", citing Kolbe v Tibbetts, 22 NY3d 344 and other decisions.

Plaintiff, said the Appellate Division, had "established his prima facie entitlement to judgment as a matter of law by submitting, among other things, a copy of the relevant pages of the CBA" and the County failed to raise a triable issue of fact by submitting a copy of materials set out in the NYSHIP manual.

Click HEREto access Appellate Division decision posted on the Internet.

Attendance Rules for employees of the State as the employer designated management or confidential

Attendance rules officers and employees of the State of New York as the employer designated management or confidential within the meaning of Article 14 of the Civil Service Law, the so-called Taylor Law, were amended effective August 3, 2022 to increase the accumulation of sick leave credits from 15 to 25 days in one year. 

The Organization of Management Confidential Employees (OMCE) supported the amendment to the rule and noted that "it will extend family sick leave benefits to employees in managerial/confidential positions consistent with benefits provided to employees in represented positions."

The text of rule and required statements and analyses may be obtained from: Jennifer Paul, NYS Department of Civil Service, Empire State Plaza, Agency Building 1, Albany, NY 12239, (518) 473-6598, email: commops@cs.ny.gov.