A multi-year employment contract between an educator and a school board necessarily binds successor school boards

A multi-year employment contract between an educator and a school board necessarily binds successor school boards
Decisions of the Commissioner of Education, 13958, 13960

School superintendents and their deputies are usually employed pursuant to a written contract that sets out the terms and conditions of their employment. Each time a school board enters into a multi-year contract “it necessarily binds successor boards,” the Commissioner of Education ruled in two cases involving the Mount Vernon City School District in Westchester County.

On June 12, 1997 Mount Vernon City School District’s Board of Education approved resolutions extending its written employment contract with both its superintendent, William C. Prattella and its deputy superintendent, Edward J. Reilly, through June 30, 2000. On July 1, 1997, a newly elected Board adopted a resolution rescinding the former board’s resolutions of June 12.

Both Prattella and Reilly challenged the newly elected board’s action and asked the Commissioner of Education to intervene.

The district asserted that the previous board’s actions were improper and it had the right to rescind the contract extensions because it read Section 2507 of the Education Law as barring a “small city school district” from entering into a written contract with a superintendent or a deputy superintendent.

The Commissioner disagreed with the district’s interpretation of Section 2507. He cited language in Section 2507(1), which applies to superintendents and associate superintendents of small city school districts and Section 2509(3), which covers assistant school superintendents. These provisions authorize the board of a small city school district to contract with such employees for a period of one to five years, he said.

The newly elected board also argued that the action by the previous board was contrary to public policy since “New York courts have held that municipal and governmental boards are not able to bind their successors to long-term contractual provisions.

The Commissioner agreed that “there is venerable authority for the proposition that municipal and government boards should not be able to bind their successors to long-term contractual provisions.” However, he noted, courts have recognized an exception to this general proposition “where a specific statutory provision authorizes a long-term contractual arrangement,” citing Murphy v Erie County, 28 NY2d 80.

Holding that Sections 2507(1) and 2507(3) constituted such statutory provisions, the Commissioner ruled that each time a school board enters into a multi-year “it necessarily binds successor boards.” The Commissioner sustained both appeals.

The Commissioner concluded his opinions in both appeals by commenting that although he was “constrained to recognize the legality of the eleventh hour extension” of the contracts voted by the former Board, he did not endorse the wisdom of its action, “which does not inspire voter confidence in school officials.” This is an example of dicta, a statement of opinion made by a judicial or quasi-judicial official that is not required to resolve the controversy or make a determination.

Incorporating the terms of a collective bargaining agreement in an employment contract by reference sets the contract’s controlling provisions

Incorporating the terms of a collective bargaining agreement in an employment contract by reference sets the contract’s controlling provisions
Drucker v Hofstra Univ., App. Div., Second Dept, 279 A.D.2d 472

The Drucker case demonstrates the fact that if the terms of a collective bargaining agreement have been incorporated by reference into an employment contract between the individual and his or her employer, the courts will hold the parties to the controlling provisions set out in the collective bargaining agreement.

Hoftra University said that it was terminating Susan J. Drucker from her position as Chair of the Department of Speech Communication and Rhetorical Studies "for good cause" .

The reason given by Hofstra for Drucker's dismissal: she had failed to maintain "an effective communication climate" with her faculty in violation of Hofstra University's Faculty Policy.

Drucker appealed, contending that her termination was unlawful because she had been employed "unconditionally."

The Appellate Division affirmed a lower court's dismissal of her petition, commenting that the University's action was not arbitrary, capricious, or irrational.

Instead of being hired "unconditionally," the court said that the collective bargaining agreement was "incorporated by reference into [Drucker's] contract of employment...."

The collective bargaining agreement provided that Drucker could be removed for "good cause" upon the filing of a petition signed by two-thirds of the membership of her department, followed by a meeting between the dean and the department membership.

Finding that the record demonstrated that the University had followed the procedures set out in the collective bargaining agreement and that Drucker "had ample opportunity to present her side of the case," the Appellate Division concluded that there was no basis for nullifying the University's action.

Claiming entitlement to payment for unused vacation and sick leave credit upon resignation

Claiming entitlement to payment for unused vacation and sick leave credit upon resignation
Sherwood v Town of Lancaster, 2010 NY Slip Op 06057, Decided on July 9, 2010, Appellate Division, Fourth Department

Richard J. Sherwood “abruptly resigned” from his position of Town Attorney, Town of Lancaster, “in order to avoid his imminent termination.”*

Sherwood subsequently filed a petition pursuant to CPLR Article 78 seeking credit for unused vacation and sick leave accrued as of the date of his retirement from his position as Town Attorney. Supreme Court ruled that Sherwood was ineligible to receive a credit for unused vacation and sick leave that he had accrued and he appealed.

The Appellate Division noted that the controlling provision set out in a collective bargaining agreement** addressing the liquidation of accrued but unused vacation days in Sherwood’s situation provided that "[i]f an employee is separated from Town service for any reason except termination for cause or resignation on less than ten working days' notice, he/she shall be paid in full for any unused vacation to which he/she is entitled."

It was undisputed that Sherwood gave less than 10 working days' notice of his resignation. The Appellate Division said that Sherwood would have been entitled to a credit for unused vacation days that he accrued had he not resigned and simply awaited the Town Board's decision not to reappoint him. “As he instead chose to resign effective immediately, he is not entitled to that credit.”

However, said the court, Sherwood also contended that he was entitled to “a credit for accrued but unused sick leave pursuant to Article 5 of the [collective bargaining agreement].” Section 5.4.1 provides of the CBA provides that "[p]rior to the retirement, the employee may apply to the Town Board for a lump sum payment of sixty (60%) percent of the cash value of his or her accumulated sick leave as of the date of retirement."

The Appellate Division said that Supreme Court erred in determining that "[s]ection 5.4 of the [CBA] renders eligible only those employees who have actually applied for retirement through the NYS Employee's Retirement System to receive a lump sum payment for accrued sick time." Under the facts regarding Sherwood’s leaving town service, the Appellate Division concluded that the CBA provisions concerning retirement unambiguously apply him” and thus he was a credit for unused sick leave that he accrued.

The court modified the lower court’s decision by reinstating Sherwood's claim for unused sick leave credit under the CBA as well as Retirement and Social Security Law §41(j)*** for the period running from the date of his appointment as Town Attorney effective January 1, 1996, through the date of his retirement, and remitted the matter to Supreme Court to determine “the number of accumulated sick days or hours, if any,” for which Sherwood is entitled to credit.

* Sherwood’s resignation on January 7, 2008 was precipitated by his learning that the Town Board, meeting later that same day, would not reappoint him to the position of Town Attorney.

** The Town Board had earlier adopted a resolution making the provisions of the collective bargaining agreement between the Town and Civil Service Employees Association for the Town's employees in the "White Collar Unit" applicable to unrepresented employees such as Sherwood.

*** Retirement and Social Security Law §41(j) provides for an “Allowance for unused sick leave for members in the employ of the state.” §2.8 of the Retirement and Social Security Law defines the term “employer” as “The state, a participating employer, and any other unit of government or organization obligated or agreeing, under this article, to make contributions to the retirement system on behalf of its employees.”

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06057.htm

A name clearing hearing available if adverse allegations are shared with another agency or administrator without the assurance of confidentiality

A name clearing hearing available if adverse allegations are shared with another agency or administrator without the assurance of confidentiality
Vandine v Greece Cent. School Dist., 2010 NY Slip Op 06059, Decided on July 9, 2010, Appellate Division, Fourth Department

Douglas W. Vandine commenced filed a petition pursuant to CPLR Article 78 seeking a court order directing the Greece CSD to hold a name-clearing hearing with respect to allegations associated with his termination from his probationary position with the district.

Supreme Court dismissed Vandine’s petition but the Appellate Division ruled that this was incorrect.

The Appellate Division noted that in the event "a government employee is dismissed for stigmatizing reasons that seriously imperil [his or her] opportunity to acquire future employment, the individual is entitled to an opportunity to refute the charge” if he or she demonstrates that there "has been a public disclosure by the employer of stigmatizing reasons for the discharge."

Typically, said the court, “the submission of a complaint to the New York State Department of Education (SED) based upon the allegations underlying [Vandine's] termination does not constitute such a public disclosure.”

Here, however, the court decided that although a confidential communication with an authorized governmental administrator or agency does not constitute public disclosure, here SED may determine that, based on allegations in the complaint, there exists a substantial question concerning Vandine's moral character that ultimately could result in the revocation of his teaching certificate. Accordingly the Appellate Division concluded that as 8 NYCRR 83.1 et seq,. the applicable regulations, do not specifically provide for confidentiality, there is a potential for public disclosure sufficient to establish Vandine's entitlement to a name-clearing hearing.

Reversing the lower court’s decision, the Appellate Division explained that a name clearing hearing was justified because under the controlling regulations Vandine would be given a hearing on the complaint submitted to SED by the school district only if a determination is made that the allegations raise a substantial question concerning his moral character.

Accordingly, the Appellate Division ruled that as Vandine is not guaranteed a hearing on the complaint, he may be foreclosed from any opportunity to refute the allegations absent a name-clearing hearing held by the school district.

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06059.htm

The three-year statute of limitations for disqualifying an employee pursuant to Civil Service Law §50(4) does not apply in cases involving fraud

The three-year statute of limitations for disqualifying an employee pursuant to Civil Service Law §50(4) does not apply in cases involving fraud
Urciuoli v Department of Citywide Admin. Servs., 2010 NY Slip Op 05876, Decided on July 1, 2010, Appellate Division, First Department

The New York City Department of Citywide Administrative Services advised Gerard Urciuoli that it was retroactively rescinding its approval his application for employment as a New York City police officer and decertifying that he was qualified for such an appointment, thereby effectively terminating his employment. Urciuoli was also advised that he could appeal the Department of Citywide Administration’s determination to the New York City Civil Service Commission.

Instead of appealing to the Commission, Urciuoli opted to file his appeal with Supreme Court. Supreme Court dismissed his petition and the Appellate Division affirmed the lower court’s ruling, explaining that Urciuoli had failed to exhaust his administrative remedies, thus foreclosing judicial review of the matter.

As to Urciuoli claim that “under Civil Service Law §50(4), respondents were required to rescind his application within three years of the triggering event,” the court said that it “declined to review that claim in the interest of justice….” However, said the Appellate Division, as “an alternative holding,” it found that the also lacks merit.

§50(4), said the court, permits the disqualification of an employee beyond three years in the event of an applicant's fraudulent misstatement or omission of material facts. Here documentary evidence amply established that Urciuoli “deliberately concealed his arrest in Jamaica in connection with charges that he possessed, was dealing in, and tried to export a significant quantity of marijuana.”

The Appellate Division said that this “deliberate concealment and omissions of relevant information” were designed to fraudulently ensure that he obtained, and then retained, his employment as a police officer, and justified his termination.

§50(4), in pertinent part, provides that “Notwithstanding the provisions of this subdivision or any other law, the state civil service department or appropriate municipal commission may investigate the qualifications and background of an eligible after he has been appointed from the list, and upon finding facts which if known prior to appointment, would have warranted his disqualification, or upon a finding of illegality, irregularity or fraud of a substantial nature in his application, examination or appointment, may revoke such eligible's certification and appointment and direct that his employment be terminated, provided, however, that no such certification shall be revoked or appointment terminated more than three years after it is made, except in the case of fraud [emphasis supplied].

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_05876.htm