School district may reassign an educator to a different location in the district and assign new duties consistent with his or her tenure area

School district may reassign an educator to a different location in the district and assign new duties consistent with his or her tenure area
Roberta-Michele Jodre v Board of Education of the Locust Valley Central School District, Decisions of the Commissioner of Education, Decision #16,162

Roberta-Michele Jodre, a tenured director of guidance services for grades kindergarten through 12. In October 2009, her primary office was relocated from Locust Valley’s high school to its middle school and her duties were modified so that she focused more of her time on the middle school.

Characterizing the change as “discipline* without due process,” the attorney for Jodre’s collective bargaining unit asked that Jodre be returned to her office in the high school and that she continute to perform her former duties. Locust Valley’s attorney responded, indicating that no disciplinary action had been taken against Jodre, her reassignment was within the authority of the school board and that “the superintendent’s discretion to have [Jodre] focus her efforts on the middle school.” Jodre appealed.

Initially the Commissioner addressed a procedural issue: was Jodre’s appeal timely.

Noting that “An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16)” the Commissioner found that Jodre’s appeal was untimely.

The Commissioner explained that Jodre’s work site and assignments had been changed in October 2009 but that she had not commenced her appeal until December 16, 2009, more than 30 days later. As to the letter dated November 4, 2009 sent by the collective bargaining agent’s attorney questioning the legality of school district’s actions, the Commissioner said that the letter “constituted a request for reconsideration” and a reconsideration request does not extend the time within which an appeal to the Commissioner must be filed.

In any event, the Commissioner indicated that even if the appeal had been timely filed he would have dismissed it on the merits as a “board of education has broad discretion in assigning members of its professional staff, so long as the employees tenure rights are not infringed.”

In this instance, said the Commissioner, although Jodre was unhappy with the change, she had been continued in her tenured position and had been assigned to duties consistent with that tenured position. Significantly, the Commissioner indicated that there is no general requirement that a school district assign a teacher to a particular classroom and changes in assignments are permissible provided the new assignments are within the same tenure area.

As to Jodre’s claim that the changes were “disciplinary in nature and required an Education Law §3020-a hearing,” the Commissioner explained that “a school board’s decision to reassign a tenured employee based on the district’s educational needs does not constitute discipline for which procedural due process must be provided under Education Law §3020-a as long as the employee’s rights are not infringed,” citing Matter of Mishkoff v Nyquist, 57 AD2d 649.

* In his decision, the Commissioner noted that Jodre failed to submit any evidence as to the conduct for which she was allegedly being disciplined.

The Commissioner’s decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume50/d16162.htm
NYPPL

Disciplinary charges filed against employee alleging refusing a post assignment

Disciplinary charges filed against employee alleging refusing a post assignment
NYC Department of Corrections v Callabrass, OATH Index #1981/10

The New York City Department of Corrections filed disciplinary charges against NYC Corrections Officer Regina Callabrass alleging that she had disobeyed an order to take a post assignment, abandoned her post while on duty and made a false logbook entry.

OATH Administrative Law Judge Tynia Richard dismissed the charge that Callabrass had abandoned her post, finding that the post was not left unsecured as another officer remained there “during the seven minutes respondent was away to use the bathroom.”

ALJ Richard also recommended dismissal of the charge that Callabrass had disobeyed an order to take an assignment. Although Callabrass had objected to it, the supervisor did not insist that she accept the assignment but instead began looking for someone else to take it.

However ALJ Richard found Callabrass guilty of a charge that she had threatened to call in sick when she received the unwanted assignment. This, said the ALJ, constituted conduct unbecoming an office but in consideration of her “long service record with no prior discipline,” recommended a 5-day suspension without pay as the penalty.

The decision is posted on the Internet at:
http://archive.citylaw.org/oath/10_Cases/10-1981.pdf
NYPPL

Excessive absenteeism could result in dismissal from service

Excessive absenteeism could result in dismissal from service
Fischer v Smithtown CSD, 262 AD2d 560

A Section 3020-a arbitrator found Joan Fischer guilty of charges filed against her by the Smithtown Central School District alleging neglect of duty and incompetence based on her “excessive absenteeism.” The penalty imposed: termination.

Fischer failed in her attempt to have the award vacated, demonstrating the limited authority given the courts for overturning an arbitration award.

Fisher, however, was initially successful in her appeal, winning an order by a State Supreme Court judge vacating the arbitration award and directing the matter be remitted to the district “for a new hearing.” When the Appellate Division got the case, it reversed the lower court’s ruling and confirmed the arbitration award.

The Appellate Division said that the hearing officer’s determination had a rational basis and was supported by the record.

Significantly, it commented that the evidence at the hearing supported the hearing officer’s determination that Fisher’s “absences disrupted the educational process and adversely affected her students.” The court noted that Fisher “did not demonstrate any basis for vacating the determination pursuant to CPLR 7511,” referring to the appeal procedure set out in Section 3020-a[5] of the Education Law.
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Exhausting the administrative remedy

Exhausting the administrative remedy
Ciccone v Jacobson, App. Div., First Dept., 262 AD2d 78

Before a public employee may sue his or her employer, he or she generally must have exhausted all forms of “administrative remedy” at the individual’s disposal. Administrative remedy refers simply to appeals procedures outside the courts. One of the most common forms of administrative remedy is a Taylor Law contract grievance procedure.

If the individual claims his or her statutory rights were violated, he or she may be able to proceed directly to the courts. But if the collective bargaining agreement incorporates the law that was allegedly broken, the Ciccone decision holds that individual cannot go directly to the courts but must first seek satisfaction through the grievance procedure.

What constitutes incorporation of a specific law in a Taylor Law agreement? A law may be incorporated “by reference.” That is, if the contract refers to the law, and all matters of dispute involving the contract are to be handled in a grievance procedure, then the individual must use that grievance procedure before he or she has access to the courts.

As Ciccone illustrates, it is necessary to evaluate the availability of “an administrative remedy” such as filing a contract grievance before initiating litigation.

New York City correction officer Joe Ciccone sued his employer, the New York City Department of Corrections, contending it had violated Section 9-117.1(a) of New York City’s administrative code when it refused his claim for sick pay.

The city, however, succeeded in having a court dismiss his Article 78 action on the grounds that Ciccone had failed to exhaust his administrative remedies.

The Appellate Division pointed out that Article XXI, Section 1 of the collective bargaining agreement between Ciccone’s union and the department defined the term “grievance” to include “a claimed violation, misinterpretation or inequitable application of the provisions of [this] Agreement”.

Another contract provision, Article X, Section 2(1), incorporated “by both reference and repetition” Administrative Code Section 9-117.1(a), under which correction officers are entitled to “leave with pay for the full period of any incapacity caused by a service-connected injury.”

The court said that reading these two provisions together requires a finding that Ciccone’s claim for sick pay is a grievance within the meaning of the collective bargaining agreement and, therefore, is subject to the exclusive grievance/arbitration remedies contained in the contract. In other words, the Taylor Law agreement’s contract grievance procedure barred Ciccone from commencing a lawsuit concerning the issue.

Ciccone had argued that he could bring an action in court because the contract also provided that the union’s right to seek arbitration was contingent upon [the union’s] and the represented employee’s “written waiver of the right, if any, ... to submit the underlying dispute to any other administrative or judicial tribunal except for the purpose of enforcing the arbitrator’s award.” The Appellate Division rejected this theory. It said the employee’s refusal to sign a waiver of his presumed right to go to court does not give him the right to sue.

In contrast to the Ciccone decision, a Hauppauge schools employee won the right to sue the school district concerning a salary dispute notwithstanding the contract arbitration provision then in force [Marino v Hauppauge UFSD, decided by the Appellate Division, Second Department [262 AD2d 321]. Frank Marino alleged that the district had violated his rights under Education Law Section 3013. The court said that Marino “had every right to seek redress for the alleged violation of his statutory rights in this proceeding, even after having begun a grievance procedure which related exclusively to an alleged violation of his contract.”

The rationale underlying the Second Department’s decision: “The issues presented and the remedies sought in each forum were separate and distinct.”
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Free Speech protections for public employees

Free Speech protections for public employeesFry v McCall, USDC SDNY, 945 F. Supp. 655

In the Fry case, a federal district court judge was asked to determine if a public official’s statements concerning matters alleged to be of “public concern” served as a shield against his or her removal from the position.

Patricia C. Fry sued State Comptroller Carl McCall complaining that she had been dismissed from her position as Director of the Bureau of Budget Analysis with the Office of the State Deputy Comptroller because she spoke out on a matter of public concern and that her discharge deprived her of her First Amendment right to free speech in violation of 42 USC. Section 1983.

Fry alleged that she had been terminated because she had questioned reports concerning a New York City “budget crisis” in 1993 and 1994 and that the Comptroller discharged her because she expressed skepticism about the accuracy or integrity of those reports.

The Comptroller, on the other hand, contended that Fry “had become insubordinate to her supervisor, disruptive at staff meetings, unwilling to cooperate in the preparation of the OSDC reports, and abusive toward a colleague.” In addition, the Comptroller argued that even if he had discharged Fry because of her statements, this “did not violate her First Amendment rights because the State’s interest in the effective and efficient operations of the [agency] outweighed any free speech rights [Fry] may have had.”

The court said that to win her Section 1983 claim for wrongful termination based on a First Amendment violation, Fry was required to prove by a preponderance of the evidence (a) that the speech at issue was constitutionally protected, and (b) that it was a “substantial” or “motivating” factor in the decision to terminate her employment. Judge Koeltl concluded that “Fry has failed to prove by a preponderance of the evidence that her expressions of concern [regarding the reports] were a ‘substantial’ or ‘motivating’ factor in the decision to dismiss her.”

The decision notes that there are a number of relevant factors to be considered in such cases, including [a] the time, manner, and place of the speech; [b] the extent of the disruption caused by the employee’s conduct; [c] the responsibilities of the employee and [d] whether the employee held a policymaking position....” Significantly, the court observed that “[a] high-ranking policy-making employee does not have, and never has had, a First Amendment right to refuse [her] employer’s directive to promote agency policy.”

In Vezzetti v. Pellearini, 22 F.3d 483, the Second Circuit Court of Appeals, which has jurisdiction over New York State, set out a number of guidelines for determining “policymaker status.” To resolve the issue, the courts should determine whether the individual:

(1) Is exempt from civil service protection,

(2) Has some technical competence or expertise,

(3) Controls others,

(4) Is authorized to speak in the name of the policymakers,

(5) Is perceived as a policymaker by the public,

(6) Influences government programs,

(7) Has contact with elected officials, and

(8) Is responsive to partisan politics and political leaders.

The court said that Fry satisfied all of these eight criteria with respect to the issue of her “policymaker” status. Under the Pickering balancing test [see Pickering v Board of Education, 391 U.S. 563], said the court, the Comptroller “justifiably terminated Ms. Fry, a policymaking employee whose behavior not only threatened to become disruptive, but had already become disruptive, in order to preserve the efficiency and effectiveness of the OSDC.”

Having found that Fry “failed to demonstrate that Comptroller McCall, or indeed any state employee, acting under color of state law, deprived her of her right to free speech in violation of the First Amendment”, dismissed her action on the merits and closed the case.

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