Denial of tenure – election of an alternate procedure challenging the board's decision

Denial of tenure – election of an alternate procedure challenging the board's decision
Spadone and Lackawanna CSD, Decision of the Comm. of Education, 14,337

The Commissioner of Education dismissed the appeal filed by Anne G. Spadone challenging the Lackawanna City School Board’s action denying her tenure. Spadone had also filed a contract grievance and an Article 78 protesting the board’s failure to grant her tenure.


Spadone had been appointed as a business teacher subject to a two-year probationary period.* The superintendent recommended that the school board grant Spadone tenure at the end of her probationary period.

The resolution to grant Spadone tenure was considered by the school board. The vote: three votes for tenure, two votes against tenure, one abstention. One board member was absent from the meeting. Accordingly, a majority of the board had not approved the resolution.**

The superintendent wrote a letter to Spadone advising her of the board’s action but noted that vote was advisory within the meaning of Section 3031(b) of the Education Law and that the board would take final action at its July 22 meeting. Spadone, however, fared no better at the July meeting: three board members voted to grant her tenure; three voted to deny her tenure; one board member abstained.

Spadone contended that the votes of at least four board members are necessary to take any action and that [the board] could not ‘override’ the superintendent’s recommendation with fewer than four votes. The board, on the other hand, claimed that an affirmative vote of the majority of the board was necessary to grant tenure.

Spadone also argued that (1) she had attained tenure by estoppel and (2) board failed to meet the deadlines set out in Section 3031 of the Education Law. The board contended Spadone had not been continued in service beyond her probationary period and thus did not attain tenure by estoppel. As to it satisfying the time requirements of Section 3031, the board claimed any such failure on its part was harmless error.

The Commissioner first addressed the technical issue of his jurisdiction to consider Spadone’s appeal. He concluded that he did not have jurisdiction because Spadone had commenced a grievance challenging her being denied tenure. Spadone, said the Commissioner, had elected her remedy and it would be contrary to the orderly administration of justice to have multiple tribunals making determinations concerning the same controversy.

Having said this, the Commissioner commented that even if Spadone’s appeal were not dismissed on jurisdictional grounds, it would have been dismissed on the merits. Why? Because, the Commissioner explained, a board of education has broad discretion in granting or denying tenure and need not accept the recommendation of the superintendent to grant tenure.

Section 2509(2)’s clear language states that a majority vote of a school board for tenure is required to grant a probationary teacher tenure. The Commissioner said that Spadone had not advanced any compelling argument that supported her theory that a majority voting against tenure was required to deny her tenure in the district.

The Commissioner agreed with the board that considering the relevant facts in this case, its failure to fully comply with the 30-day notice requirements set out in Section 3031 was harmless error and, in any event, reinstatement is not the proper remedy for a violation of Section 3031.

* As Spadone had held tenure as a teacher prior to her appointment by Lackawanna, she was given two-year rather than a three-year probationary period in accordance with Section 2509(1) of the Education Law.

** As New York State School Board General Counsel, Jay Worona, observed, “Under New York State law, a quorum is a simple majority of [more than half] the total number of board members, not merely those present. Mr. Worona provides the following example: “If a board has five members and three are present at a meeting, all three would have to vote in favor of a resolution for it to pass, a 2 to 1 vote would not be sufficient.”
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Compelling reason for absence does not excuse misconduct

Compelling reason for absence does not excuse misconduct
Source: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/
Reproduced with permission. Copyright © 2011, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved.

Matter of Rivers v. Commissioner of Labor, ___A.D3d___(3d Dept. Oct. 7, 2010), is a tough unemployment decision. The law is settled that an employee who is terminated for misconduct is not eligible for unemployment. The law is also settled that being absent without leave is misconduct. What if it was for one day to visit your son who just returned from Iraq? That is still misconduct. As the court stated:

An unauthorized absence from work has been held to constitute misconduct, which can disqualify a claimant from receiving unemployment insurance benefits (see Matter of Roe [Commissioner of Labor], 62 AD3d 1105, 1106 [2009]; Matter of Britter [Commissioner of [*2]Labor], 54 AD3d 461 [2008]). Inasmuch as claimant admitted that he had requested leave and been denied, however compelling his reason for the request, we are constrained to find that the Board's decision is supported by substantial evidence (see Matter of Roe [Commissioner of Labor], 62 AD3d at 1106).

Mitchell H. Rubinstein
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Videotape made by witnesses that observed the alleged misconduct of the employee admissible as evidence in his or her disciplinary hearing

Videotape made by witnesses that observed the alleged misconduct of the employee admissible as evidence in his or her disciplinary hearing
Matter of Heisler v Scappaticci, 2011 NY Slip Op 01472, Appellate Division, Second Department

Steven Heisler filed CPLR Article 78 petition challenging the decision of the Town Board of the Town of Harrison, acting in its capacity as the Town’s Board of Police Commissioners, terminating his employment with the Town of Harrison Police.

Abandoning his claim that there was no substantial evidence to support the Board’ determination, Heisler focused on alleged procedural errors in the disciplinary hearing that was held prior to his dismissal.

Heisler contended that the use of “hearing videotaped statements” made by individuals who witnessed the subject incident even though they did not testify at the hearing was improper.

The Appellate Division disagreed, holding that the Board properly admitted the videotapes into evidence as "[h]earsay is admissible in an administrative hearing and, if sufficiently relevant and probative, hearsay alone may constitute substantial evidence"

Citing A.J. & Taylor Rest. v New York State Liq. Auth., 214 AD2d 727, the court said that “… under appropriate circumstances, statements from witnesses absent from the hearing may form the sole basis for an agency's ultimate determination."

Also rejected was Heisler’s argument that the charges set out in the notice of discipline sent to him did not provide him with sufficient notice of the conduct with which he was charged. The Appellate Division said that “the disciplinary charges were ‘reasonably specific, in light of all the relevant circumstances, so as to apprise the party who is the subject of the hearing and to allow such party to prepare an adequate defense,’" citing Matter of Mangini v Christopher, 290 AD2d 740.

The court also sustained the penalty imposed, dismissal, holding that it was not so disproportionate to the offense as to be shocking to one's sense of fairness, the so-called test, Pell v Board of Education, 34 NY2d 222.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_01472.htm
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Managerial and Confidential Employees – an advisory memorandum

Managerial and Confidential Employees – an advisory memorandum
Source: Lamb & Barnosky, LLP, http://www.lambbarnosky.com/about/ Reproduced with permission. Copyright © 2011

The law firm of Lamb & Barnosky has offered the following hints and observations concerning designating employees as managerial or confidential within the meaning of the Taylor Law [Civil Service Law Article 14]:

"With the New Year upon us, it is a good time to review the composition of your bargaining units to ascertain whether there are any employees who should not be in a union due to their "managerial" and/or "confidential" status.

"As a general proposition, a "managerial" employee sets, or effectively recommends, employer-wide policy; e.g., a Superintendent or an Assistant Superintendent of Schools, a Director of Labor Relations or Operations, and some department heads. In deciding whether to remove the employee from the bargaining unit, the Public Employment Relations Board ("PERB") will look to both the person's actual duties as of the date on which the application is filed, as well as those that are reasonably expected to be performed in the near future.

"Clerical and other personnel who regularly work in a confidential capacity with managerial employees, on confidential matters involving labor relations, will be designated by PERB as "confidential." In the case of a confidential employee, PERB looks to the actual duties that are being performed at the time of the application to see whether they meet the test.

"The procedure for removing an employee from a bargaining unit due to the employee's managerial and/or confidential status is for us to file an application with PERB that provides the affected employee's name and title, whether a contract covers the persons within the job titles which the employer claims are managerial and/or confidential, summarizes his or her relevant duties and a factual statement in support of the application. A copy is sent to the union, which has the right to dispute the application all the way through a formal hearing at PERB. If the employer prevails, the employee may leave the unit during the 7th month before the contract expires or 120 days following the contract's expiration. Removal from the unit has no impact on an employee's underlying civil service status.

"An employer can file only one managerial/confidential application that is processed all the way to completion (i.e., a decision following a hearing) per contract term. As a result, it is usually a good idea to file one omnibus application covering all potentially affected employees rather than several separate ones."

If you have any questions regarding managerial and/or confidential employee status or changes, feel free to contact Lamb & Barnosky, LLP.

Lamb & Barnosky cautions that:

“THIS MEMORANDUM IS MEANT TO ASSIST IN GENERAL UNDERSTANDING OF THE CURRENT LAW. IT IS NOT TO BE REGARDED AS LEGAL ADVICE. THOSE WITH PARTICULAR QUESTIONS SHOULD SEEK THE ADVICE OF COUNSEL.”
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Negotiating administrative procedures to administer General Municipal Law Sections 207-a and 207-c

Negotiating administrative procedures to administer General Municipal Law Sections 207-a and 207-c
Riverhead v Foote, State Sup. Ct., [Not selected for publication in the Official Reports]

Exposure to the possibility of suffering a line of duty disability is a significant occupational hazard for law enforcement and fire personnel. Sections 207-a and 207-c of the General Municipal Law were adopted to give law enforcement and fire personnel some economic protection should they be disabled in the course of their performance of their official duties.

However, these provisions of law set few guidelines with respect to their administration. Accordingly, contracts negotiated under the Taylor Law are including provisions concerning the implementation and administration of Sections 207-a and 207-c with increasing frequency. Current negotiated provisions typically deal with processing disability claims and the procedure for evaluating disabilities for the purpose of receiving, or continuing to receive, Section 207-a benefits payable to disabled firefighters or 207-c benefits payable to disabled law enforcement personnel.

Courts are now setting out the basic principles to be applied in negotiating such provisions and in resolving disputes arising under such provisions.

The Riverhead case involved the determination of an arbitrator concerning assigning a disabled police officer to light duty. In Riverhead, the basic issue submitted to arbitration concerned a determination as to whether or not Riverhead police lieutenant Frederick Foote, then receiving Section 207-c benefits, could perform light duty.

Section 207-c.3, as does Section 207-a.3, provides for the discontinuation of benefits in the event a disabled individual refuses to accept an appropriate light duty assignment for which he or she is determined to be medically qualified to perform.*

In Foote’s case, the negotiated agreement provided that if Riverhead proposed to terminate the Section 207-c benefits being paid to a police officer and the police officer objected, he or she could submit the issue to arbitration. The agreement authorized the arbitrator to make a de novo determination, but provided that the arbitrator could not amend, modify, nullify, ignore, add to, or subtract from the provisions of the contract procedure.

The question Riverhead and Foote presented to the arbitrator:

Did Riverhead, by a preponderance of the evidence, show that Foote was capable of performing light duty work and [i]f so, or if not, what shall his employment status be?

After considering the evidence presented, the arbitrator concluded that Riverhead failed to provide sufficient evidence to demonstrate that Foote was capable of performing light duty work. But the arbitrator went further, finding that Foote was capable of performing very light duty work with severe restrictions and said the question should be submitted to a third impartial physician, to determine the nature of such very light duty work.

Riverhead filed a petition pursuant to Article 75 of the Civil Practice Law and Rules seeking to vacate the award; Foote asked the court to confirm the award.

The arbitrator’s referral of the matter to a third impartial physician for the purpose of determining an appropriate light duty assignment for Foote proved fatal to his award. State Supreme Court Judge Lester E. Gerard decided that:

1. The award was inherently contradictory; and

2. The arbitrator failed to make any determination as to Foote’s ability to perform light duty work as required by the agreement.

Judge Gerard vacated the award, holding that the arbitrator, under the terms of the collective bargaining agreement, was required to make a de novo determination concerning placing Foote in a light duty assignment and that he failed to satisfy this obligation.

While Riverhead deals with the resolution of an appeal from an administrative decision, sometimes a negotiated agreement will go beyond matters concerning the consideration and processing of Section 207-a and Section 207-c claims.

The Plattsburgh case [Plattsburgh v Plattsburgh Police Officers Union, 250 AD2d 327, leave to appeal denied: 93 NY2d 807], illustrates this. In Plattsburgh the issue before the court, and later the arbitrator, involved the nature of the benefit to be provided itself.

The Taylor Law agreement between Plattsburgh and the police officer’s union included language that provided that police officers who retired as a result of a job-related disability were to receive Section 207-a benefits if the disability was incurred in the line of duty.

Section 207-a provides a significantly greater disability payment benefit than that available under Section 207-c. Section 207-a requires the appointing authority to supplement the retired disabled firefighter’s disability retirement benefit so as to provide the individual with the equivalent of full salary until his or her mandatory age of retirement. Further, this Section 207-a supplement is to be periodically adjusted to reflect negotiated salary increases. Section 207-c does not provide any parallel supplementary benefit.

Three disabled police officers retired after suffering service-connected disabilities. They asked Plattsburgh to pay them the difference between their respective disability retirement allowances and their respective full-salary.

Their argument was simple: under the terms of the collective bargaining agreement they were entitled to receive benefits in accordance with Section 207-a rather than Section 207-c.

Plattsburgh refused and the union filed contract violation grievances. When the union demanded that the grievances be submitted to arbitration, Plattsburgh resisted. In an effort to obtain a stay of the arbitration, Plattsburgh argued that the disputed provision:

1. Had been included in the contract by mistake and

2. The benefits to be provided disabled police officers are limited to those set out in Section 207-c.

The Appellate Division held that the mistake issue, as well as the meaning and impact of the provision modifying the statutory Section 207-c benefits as set out in the agreement, was for the arbitrator to resolve and denied Plattsburgh’s application to stay arbitration.

Of greater potential significance, the Appellate Division said that agreements providing for benefits different that those provided by Section 207-c were not statutorily prohibited since they do not affect the benefit the individual would receive from the retirement system.

In other words, in the opinion of the Appellate Division, Third Department, this is not a prohibited subject of collective bargaining, a position that is important when considering Taylor Law preparing and responding to negotiation demands related to Section 207-a and Section 207-c.

As to the validity of the contract provisions in the Plattsburgh agreement, ultimately an arbitrator ruled that the provision was the result of good faith bargaining, rejecting Plattsburgh’s representations that it was included by mistake.

Accordingly, it appears that Plattsburgh police officers retiring for work-connected disabilities during the life of the agreement are entitle to Section 207-a type benefits.

* General Municipal Law Section 207-a applies exclusively to firefighters; Section 207-c exclusively covers law enforcement personnel.

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General Municipal Law§§ 207-a and 207-c - a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder is available from the Public Employment Law Press. Click on http://section207.blogspot.com/ for additional information about this electronic reference manual.

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