Failure to serve the proper party a fatal procedural error

Failure to serve the proper party a fatal procedural error
Appeal of Stephanie Baker from action of the Board of Education of the City School District of the City of Elmira, Decisions of the Commissioner of Education #15,696

Stephanie Baker, a probationary teacher, appealed the termination of her probationary appointment and denial of tenure by the Board of Education of the City School District of the City of Elmira.

The Commissioner dismissed her appeal without addressing its merits, noting that there was a “lack of proper service on the board.”

Section 275.8(a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent. If a school district is named as a respondent, service upon the school district must made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service (8 NYCRR §275.8[a]).

Baker’s affidavit of service stated only that the notice of petition and petition were served on “Valerie–Secretary of Dr. Bryant.” The Commissioner said that the “Valerie” mentioned is Valerie Costiglia, Executive Secretary to the superintendent.

As Ms. Costiglia is not the district clerk, a member of the board, or the superintendent of schools, nor has she or her position as Executive Secretary been designated by the board as authorized to accept service of process within the meaning of 8 NYCRR §275.8, the Commissioner ruled that “When there is no proof that an individual is authorized to accept service on behalf of the school board or the superintendent, service on that individual is improper and the appeal must be dismissed.”

The full text of the decision is posted at:
http://nypublicpersonnellawarchives.blogspot.com/2008/01/failure-to-serve-board-of-education.html

Litigating the Taylor Law in federal court

Litigating the Taylor Law in federal court
Schermerhorn v Metropolitan Trans. Auth. CA2, 156 F.3d 351

The Schermerhorn case demonstrates that complaints that a union has breached its duty of fair representation to the members of the negotiating unit it represents must be filed within the controlling statute of limitations because the court will never reach the merits of the complaint if it is untimely filed.

Another important issue in this case: which was the controlling law -- federal or state -- for the purposes of determining the applicable limitations period.*

Schermerhorn, a member of Local 100 of the Transport Workers Union of America (Union) sued the Union and the Metropolitan Transportation Authority and the New York City Transit Authority (Employers). He complained that the Union breached its duty of fair representation in violation of the Taylor Law.

According to the Schermerhorn, the Union, without the knowledge of its members, had made a somewhat complex “open offer” to the Employers which, if accepted, would require members of the negotiating unit to pay “additional medical costs” upon their receiving an anticipated salary increase that was tied to a proposed change in pension legislation then pending before the New York State legislature.

This would constitute a significant change in the benefit package provided to the employees in the unit. At the time the Union made its “open offer,” the Employers were paying all costs of medical benefits for unit members through contributions to a welfare benefit trust. Further, the “open offer” also included a provision requiring its terms to be incorporated into the next collective bargaining agreement negotiated by the parties.

The pension legislation was adopted and on July 26, 1994, the Employers accepted the “open offer.”

The Union and the Employers subsequently entered into new collective bargaining agreements, which were later ratified by the Union’s membership. This new Taylor Law contract included the provisions contained in the “open offer.” Contending that the members had not been informed of the terms of the “open offer,” which was described as an “undisclosed agreement,” Schermerhorn argued that the contract was a nullity because it “was never properly ratified by the membership.”

A federal district court dismissed Schermerhorn’s petition, holding that the National Labor Relations Act applied to Schermerhorn’s action. The district court then held that Schemerhorn’s petition was “time-barred” under the six-month statute of limitations applicable under Section 301 of the federal Labor-Management Relations Act.

Although Schermerhorn settled his complaint against the Union officials after his petition was dismissed, he elected to appeal the district court’s ruling insofar as it related his allegations of collusion by the Employers.

In this appeal to the U.S. Circuit Court of Appeals, however, the parties stipulated, and the Circuit Court agreed, that the claim against the Employers was governed by the Taylor Law provision relating to claims by public employees against their employer premised on their union’s breach of its duty of fair representation [Civil Service Law Section 209-a] rather than by federal law.

Applying New York State Law, the Circuit Court held that the four-month statute of limitations set out in Section 217(2)(b) of New York’s Civil Practice Law and Rules [CPLR] controlled.

According to the Circuit Court’s ruling, this four-month limitations period begins to run when (i) the plaintiff knew or should have known of the union’s breach of its duty of fair representation; or (ii) the plaintiff suffered harm from that breach, whichever is later.

The Circuit Court said that “there can be no question that plaintiffs became aware of the existence of the agreement at the very latest in early September 1995” when they learned that the Employers would begin to deduct 0.75% of their wages to offset increased medical costs resulting from the modification of the pension plan.”

Accordingly, said the Court, “more than four months prior to the commencement of their suit, [Schemer horn] knew or should have known of the Union’s alleged breach, and had suffered harm from that breach.”

Schemer horn also contended that the four-month limitations period should be tolled because an internal Union grievance was filed by one of the plaintiffs on December 29, 1995. In that grievance the member attempted to have the Union officials responsible for the “undisclosed agreement” disciplined.

The Circuit Court said that it would look to New York’s “tolling rules” to determine whether the statute of limitations was tolled by the filing of a grievance. It concluded that “[t]here is no New York statutory provision tolling the statute of limitations while an employee pursues an internal union grievance for claims against a public employer arising from a union’s breach of its duty of fair representation....”

According to the Circuit Court, New York law does not allow administrative or union grievances to toll the statute of limitations on claims against public entities in article 78 proceedings. It noted the decision in Vasbinder v. Hartnett, 129 A.D.2d 894, 895, 514 N.Y.S.2d 530, commenting that in that ruling the State’s Appellate Division noted that “invocation of a grievance procedure will not serve to toll the statutory time limit prescribed by CPLR [Section] 217” for the purposes of Article 78 proceedings.

The points of the ruling to be remembered:

1. If a party brings an action involving New York’s Taylor Law on the theory that the National Labor Relations Act is, in some way, implicated, the federal court will decide those aspects of the litigation involving the Taylor Law on the basis of New York’s law, not the federal law; and

2. The fact that a grievance concerning the underlying complaint has been filed by one of the parties will not stop the statute of limitations from continuing to run with respect to that party for the purposes of initiating litigation.

* Although the decisions here concluded that Schermerhorn’s suit was “untimely” regardless of whether federal and State law controlled, the critical aspect of the ruling was that the parties, and the U.S. Circuit Court of Appeals, ultimately agreed that New York State Law rather than the National Labor Relations Act, controlled.

Employee disciplined for driving department vehicle “with a passenger, after hours and off-route"

Employee disciplined for driving department vehicle “with a passenger, after hours and off-route"
New York City Department of Environmental Protection v Johnson, OATH Index #1330/10

OATH Administrative Law Judge Kevin Casey found that a “311 complaint” telephoned by a citizen, Mike Cristino, corroborated by the Department’s chief inspector's investigation, was sufficiently reliable to prove that a Department water use inspector drove a department truck, with a passenger, after hours and off-route.

Mr. Cristino had telephoned 311* and reported that while crossing a street in Brooklyn after 5 p.m., he was almost hit by a truck driven by a DEP worker. The complainant provided the license plate number and noted that the passenger in the vehicle had “given him the finger.”

The license plate number provided by Mr. Cristino matched the one on the truck assigned to Nicholas Johnson, an Environmental Protection water use inspector.

The record indicated that Johnson’s route was in the Bronx, and his shift ended at 4:30 p.m.

The Department’s inspector testified Johnson had logged 56 miles that day although his route was 18 miles. Johnson attempted to explain the discrepancy by suggesting he drove extra miles to keep his truck cabin cool, to avoid extra idling and check fire hydrants or that he made an erroneous log entry.

ALJ Casey rejected Johnson’s explanations as unlikely and recommended be suspended without pay for 12 days.

* Individuals in New York City only need dial 311 - the 311 Citizens Service Center - for all non-emergency related Government services calls. For additional information about NYC's 311 service go to: http://www.nyc.com/government/311_citizens_service_center.76037/editorial_review.aspx

The decision is posted on the Internet at:
http://archive.citylaw.org/oath/10_Cases/10-1330.pdf

Tenure by estoppel

Tenure by estoppel
Wamsley v East Ramapo Central School District, 281 A.D.2d 633

If a school board neglects to take timely action to discontinue the services of a probationary teacher or administrator, the individual will attain what is termed "tenure by estoppel." The Court of Appeals addressed the issue of an individual obtaining "tenure by estoppel" in the Sewanhaka case [Gould v Sewanhaka Central High School District, 81 NY2d 446].

However, "tenure by estoppel" is not limited to individuals in the unclassified service such as teachers and school administrators -- employees in the classified service also may attain tenure by estoppel as the Wamsley decision demonstrates.

On October 5, 1998, East Ramapo appointed George Wamsley to the position of school bus driver, a classified service position in the noncompetitive class. Wamsley's appointment was subject to his satisfactorily completing a 26-week probationary period.*

On August 18, 1999 the school district's personnel officer wrote to Wamsley advising him that he was to be dismissed because his service during his probationary period had been deemed unsatisfactory by his supervisors. Wamsley was terminated from his position effective August 25, 1999.

Wamsley sued, contending that his probationary term had expired before he was discharged and thus he held a tenured appointment. He also claimed that he was entitled to a "pretermination hearing" because he was an "exempt volunteer firefighter."

The Appellate Division agreed with Wamsley's argument that he was no longer a probationary employee at the time he was discharged.

In the words of the court, Wamsley's "probationary term began on October 5, 1998, and ended 26 weeks later ... as permissibly extended by his days of absence."**

Accordingly, Wamsley's 26-week period, not having otherwise been extended as permitted by the rules of the Rockland Civil Service Commission, "expired long before his employment was terminated."

However, there were other elements to consider concerning Wamsley's claim of a right to a pretermination hearing.

The due process procedures set out in Section 75 of the Civil Service Law are not available to a noncompetitive class employee who has less than five years of continuous service*** unless the individual is a veteran who served in time of war or is an "exempt volunteer firefighter."

According to the Appellate Division, Wamsley claimed, but never established, that he was entitled to the protections of Section 75**** because he was an exempt volunteer firefighter.

The Appellate Division concluded that although clearly Wamsley was not a probationer at the time of is dismissal, he raised a triable issue of fact with respect to his claim of Section 75 rights based on his status as an exempt volunteer firefighter.

According, a hearing on this aspect of this complaint was required and the matter was returned to State Supreme Court "for resolution of that factual issue."

Two technical elements concerning exempt volunteer firefighter status should be noted:

1. The individual claiming exempt volunteer firefighter status has the burden of demonstrating that he or she enjoys such status [People v Hayes, 135 AD 19]; and

2. Notice of the fact that the individual is an exempt volunteer firefighter must be given to the employer prior to the individual's effective date of termination [Badman v Falk, 4 AD2d 149].

* Although decision states that Wamsley "became permanent" after the expiration of his 26-week probationary term, "probationary employees" in fact hold permanent appointments and may enjoy limited tenure rights. For example, courts have ruled that probationers are entitled to notice and hearing if the appointing authority decides to dismiss the individual during his or her minimum period of probation. In contrast, a probationer may be dismissed without notice and hearing after completing his or her minimum period of probation and prior to the expiration of his or her maximum period of probation.

** The Appellate Division said that as Wamsley "was absent, at most, 5 1/2 days during the 26-week period," his maximum period of probationary had ended expired long before his employment was terminated.

*** Section 75(c), in pertinent part, provides that an employee holding a position in the non-competitive class ... who since his last entry into service has completed at least five years of continuous service in the non-competitive class ....

**** Section 75(b), in pertinent part, extends the Section 75 rights available to tenured employees in the competitive class to a permanent employee in the classified service who is an exempt volunteer firefighter as defined in the general municipal law, except when a person described in this paragraph holds the position of private secretary, cashier or deputy of any official or department.

Termination of a probationer

Termination of a probationer
Johnson v City of New York, 281 A.D.2d 322

Elaine Johnson, a probationary employee, challenged her termination from her position as a Caseworker with the New York City Administration for Children's Services [ACS].

According to the decision, Johnson suffered a job-related injury while she was serving as a provisional Caseworker.

ACS permanently appointed Johnson to the position of Caseworker while she was on leave. Her permanent appointment was subject to her satisfactory completion of a one-year probationary period. Still on leave, Johnson was terminated from her position before completing her probationary period.

The Appellate Division upheld Johnson's termination, rejecting her allegation that she was terminated in retaliation for a complaint she had made while a provisional employee concerning her supervisors' communication skills.

The court said that there was "ample evidence of [Johnson's] unacceptable work performance as a provisional that her supervisors began to document before she made her complaint about them."

However, there are some troublesome aspects to this case.

According to the ruling, Johnson never actually performed any services as a Caseworker while a probationer -- she was absent on an authorized leave prior to and following her permanent appointment. ACS, said the court, relied on her "performance as a provisional in making its decision to terminate her permanent appointment.

Typically, a probationary period is extended if the individual is absent during his or her probationary period.

As to actually being evaluated on his or her performance while a probationer in contrast to his or her performance while serving in some other capacity -- i.e., as a temporary or provisional employee -- in Matter of DeCecca, 25 Misc2d 425, the court ruled that a probationary employee may not be dismissed until he or she has been given an opportunity to demonstrate his or her capacity to satisfactorily perform the duties of the position.

Finally, in York v McGuire, 63 NY2d 760, the Court of Appeals set out the basic rule concerning the dismissal of probationary employees as follows:

After completing his or her minimum period of probation and prior to completing his or her maximum period of probation, a probationary employee can be dismissed without a hearing and without a statement of reasons, as long as there is no proof that the dismissal was done for a constitutionally impermissible purpose, or in violation of statutory or decisional law, or made in bad faith.

The York decision is viewed as authority for requiring that a probationary employee be given administrative due process in the form of providing the employee with "notice and hearing" if the appointing authority decides to terminate the individual during his or her minimum period of probation.