Appellate Division holds that Commissioner of Education has primary jurisdiction to decide tenure area matters

Appellate Division holds that Commissioner of Education has initial jurisdiction to decide tenure area matters

Matter of Moraitis v Board of Educ. Deer Park Union Free School Dist., 2011 NY Slip Op 04254, Appellate Division, Second Department

Deep Park granted Regina Moraitis tenure in the position of "computer teacher," effective August 31, 2003. On January 16, 2009, her position as "computer teacher" was abolished.  

Moraitis filed a proceeding pursuant to CPLR Article 78 seeking a court order compelling Deer Park to reinstate her as a full-time teacher in an accepted tenure area. Supreme Court granted Moraitis’ petition directing Deer Park to “reclassify” Moraitis into an accepted tenure area without loss of tenure time, directed her reinstatement as a full-time teacher, and directed the reinstatement of her benefits from the date of dismissal, with damages in the nature of lost salary and insurance payments.

Deer Park appealed and the Appellate Division vacated the lower court’s ruling.*

The Appellate Division, agreeing with Deer Park’s contention that the proceeding should have been dismissed on the ground that the Commissioner of Education had primary jurisdiction** over the dispute, explained: “It is within the unique knowledge and expertise of the Commissioner of Education to determine the factual issues of whether the [Moraitis] has tenure in an accepted tenure area, and whether her former position, and any new position which she may seek, are similar in nature.


* The Appellate Division, in considering a procedural defense, noted that “Under the facts of this case, a notice of claim pursuant to Education Law §3813(1) was not required.”

** "The doctrine of primary jurisdiction,” -- where the courts and an administrative agency have concurrent jurisdiction and the dispute involves issues beyond the conventional experience of judges . . . "the court will stay its hand until the agency has applied its expertise to the salient questions" [see Flacke v Onondaga Landfill Sys., 69 NY2d 355].

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_04254.htm

The Five-Step Program for Effective Discipline

The Five-Step Program for Effective Discipline

Reprinted with permission from HR Matters E-Tips, copyright Personnel Policy Service, Inc., Louisville, KY, all rights reserved, the HR Policy and Employment Law Compliance Experts for over 35 years, 1-800-437-3735.  Personnel Policy Service markets group legal service benefits and publishes HR information products, including the free weekly electronic newsletter, HR Matters E-Tips (http://www.ppspublishers.com/hrmetips.htm).  This article is not intended as legal advice.  Readers are encouraged to seek appropriate legal or other professional advice.

No one likes to discipline employees, and as a result supervisors may ignore problem behavior just to avoid confrontation. But, an effective disciplinary procedure is a necessary component of solid employment policies. Below are four pointers to help you determine what type of discipline is appropriate and a five-step progressive disciplinary system you can implement. 

Yet, inaction can be equally dangerous if employee behavior problems are consistently ignored. When your managers do not actively address poor performance and misconduct, morale and productivity will suffer. You can relieve some of this unavoidable stress by establishing clear expectations for employee behavior and by training supervisors to take a proactive approach using a five-step combination of corrective counseling and progressive discipline. This approach should require supervisors to confront employee performance and misconduct problems and to document the proceedings. Further, it should give employees specific feedback, plus action plans and timelines for improvement. * Four Considerations to Determine the Appropriate Discipline * The type of corrective action you should take in a given situation generally depends on four issues: (1) the nature and seriousness of the infraction, (2) whether it is a first time or repeat offense, (3) past handling of similar disciplinary problems, and (4) whether there are special circumstances impacting the level of needed response. (Download free Disciplinary Procedure model policy including HR best practices and legal background.) * Step One: Informal Counseling * Unless an employee has engaged in a serious or repeated offense, the most appropriate initial response normally is to have an informal, yet specific, solutions-oriented coaching session with the employee. During this discussion you should: 1. Remind the employee of pertinent policies and work rules; 2. Provide concrete examples of how the employee’s behavior or performance has fallen short of expectations; 3. Explain the impact of the employee’s deficiencies on the organization and coworkers; and 4. Describe actions the employee needs to take to correct the problem. In many instances, having one or two candid discussions is all you need to help a wayward employee get back on track. * Steps Two Through Five: Progressive Discipline * When the informal coaching attempts fail, or when there is more serious misconduct, formal disciplinary action is necessary. Most organizations follow a “progressive discipline” policy where employees incur increasingly severe consequences for repeated infractions or for the continued failure to remedy deficiencies. Typically, the normal progression in this type of a system is a formal verbal warning, one or two written warnings, suspension, and, finally, termination. 1. Oral warning and counseling. Here, you identify the problem, state your expectations, and explain the adverse consequences if uncorrected. This first disciplinary step is similar to the informal coaching session since it is intended to counsel the employee on improvement. However, the employee should understand that he is now at risk for additional disciplinary action if he does not improve. You should keep a confidential record of the session and put a copy in the employee’s personnel file.

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2. Written warning. If the employee’s behavior does not improve, a written warning should follow. As with oral notice, you again inform the employee of the performance expectations and required changes, but also give the employee formal written notice conveying the increased seriousness. A copy of the warning also should be placed in the employee’s personnel file. 3. Suspension. The next step is a suspension, often referred to as a “decision-making leave.” Its purpose is to place the employee on final notice and force a commitment to improve, or face termination. 4. Termination. If all efforts fail and the employee’s performance does not improve or misconduct continues, the final step is termination. (Of course, in certain circumstances involving particularly bad behavior, termination may be appropriate as the only disciplinary step.) To ensure that discharge is the proper response, all decisions should be reviewed by at least one level of management above the immediate supervisor, and by the HR manager. This review provides a system of checks and balances and should catch questionable decisions that warrant further legal review. * Four More Tips to Effective Discipline * Once you have decided to implement a progressive disciplinary system, you also have to support it with your policies and procedures. To this end, you should: 1. Develop sound written policies. It is safest to have a written discipline policy that provides clear guidelines and, at the same time, reserves your right to exercise discretion in the actual handling of unacceptable behavior or performance. Some employers resist developing a written discipline policy on the grounds that they want to maintain desired flexibility. This approach can easily lead to arbitrary, inconsistent, and even discriminatory treatment of employees. (Download free Disciplinary Procedure model policy including HR best practices and legal background.) 2. Implement disciplinary procedures fairly and carefully. Make it clear to your workforce that the goal of your discipline system is correction of problem behaviors and not punishment for the sake of punishment. Employees are more likely to accept discipline when counseling and disciplinary procedures emphasize employee improvement and when warnings are given before more severe discipline is imposed. At every phase of corrective action, the employee should be given the opportunity to respond and give feedback. 3. Train supervisors in their roles and responsibilities. Supervisors are management’s frontline contact and play a pivotal role in dealing with conduct and performance issues. You should support this role by providing proper training to spot and handle problem behaviors and by lending expertise, guidance, and support when formal disciplinary action is necessary. In addition, supervisors should be carefully trained about the vital relationship between proper discipline and employment law compliance. 4. Require and maintain accurate documentation. Proper documentation of employee problems and related corrective actions is essential to support and validate your disciplinary process. First, it provides an accurate accounting of the steps taken to help the employee improve and can be used to evaluate the employee. Second, it provides a critical line of defense if you have to justify your actions or defend a lawsuit.

Governor Cuomo’s letter to the Chancellor of the Board of Regents regarding performance evaluations for teachers

Governor Cuomo’s letter to the Chancellor of the Board of Regents regarding performance evaluations for teachers

Source: Office of the Governor

On May 13, 2011 Governor Andrew M. Cuomo sent the following letter to the Chancellor of the Board of Regents Merryl Tisch regarding changes needed to improve and accelerate performance evaluations for teachers.

The Governor's full letter is as follows:

Dear Chancellor Tisch:

Performance is the key to education. It's not about how much we spend, but the results that matter. As data show our education spending hasn't resulted in performance. New York schools spend 71 percent more than the national average, yet rank only 40^th in graduation rates and 34^th in the nation in the percentage of adults who have a high school diploma or the equivalent.

We must focus on measures and accountability. That is why the State Education Department's ("SED") current process to develop a teacher and principal evaluation system is critically important. We not only need a strong evaluation system that will improve the performance of our children, but also to support our educators so they can continually develop and improve. Our goal should be to have the best system of evaluation in the nation, yet our proposed system falls short of other states, such as Colorado and Tennessee.

What SED establishes today will have a lasting effect for decades to come so it is imperative it's done correctly. The current Draft Regulations for Teacher and Principal Evaluation ("Draft Regulations") that were recently issued, however, need revision if we are to implement a system that will be the building blocks to greater performance in our education system.

Although there are a number of details in need of improvement, we recommend SED make the following comprehensive changes:

· Increase the percentage of statewide objective data, like measuring student growth on statewide test scores, used to evaluate teacher performance; · Impose rigorous classroom observation and other subjective measures standards on school districts when evaluating teacher performance; · Require a positive teacher evaluation rating be given only when the teacher receives a combined positive rating on both subjective and objective measures, such as student growth on statewide tests; and, · Accelerate the implementation of the evaluation system.

These are discussed in more detail below and, if implemented, will greatly strengthen the evaluation process.

· First, remove the explicit language prohibiting the same measure of student growth on state assessments from being used for locally-selected assessment measures and state measures simultaneously

The Draft Regulations explicitly bar a school district from using the same measure of student growth on the same assessment for both the state assessment subcomponent and the locally-selected measures subcomponent. We believe such a prohibition is unnecessarily restrictive because it precludes a school district from using the objective state-developed growth measure for the locally-selected measures.

The Draft Regulations should be amended to permit the same student growth measure be used for the state assessment and locally-selected measures. By removing this prohibition in the Draft Regulations, up to 40 percent of the total score could be based on objective student growth measures on state tests—a percentage that is closer to many other states.

This change would ensure that greater balance is struck between using objective teacher evaluation measures, such as statewide testing, and subjective teacher evaluation measures, such as classroom observation. Given that the subjective measures have far greater weight under the evaluation process system, it is imperative that the Draft Regulations adopted do not explicitly reduce the types of objective assessments, such as growth on state tests, available to be used.

· Second, impose additional standards on school districts to improve the 60 percent of locally-developed rubric requirements, such as the observation process, to make evaluations more rigorous

The Draft Regulations must be strengthened and better defined to make the 60 percent subjective criteria to evaluate teachers more valuable. Already, New York is an outlier as compared to other states in that it requires more weight be given to subjective measures when rating teachers. Therefore, it is critical that the Draft Regulations include greater precision and impose clear standards.

For example, under the Draft Regulations, half of the 60 percent of the locally-developed rubric must be based on classroom observation. Studies have shown that a rigorous evaluation program based on classroom observation is a significant component in promoting student achievement growth. As such, the classroom observation requirement should be increased from half to at least 40 percent of the 60 percent total of the locally-developed rubric.

Moreover, the Draft Regulations should establish baseline standards to make classroom observation a more meaningful measure. At a minimum it is vital that the Draft Regulations require multiple annual observations and include criteria for using third party observers.

· Third, require a positive teacher evaluation rating be given only when the teacher receives a combined positive rating on both subjective and objective measures, such as student growth on statewide tests

As was discussed above, under the Draft Regulations, objective measurements (e.g. state assessments) have lower weight than subjective measurements to evaluate teachers. In addition, there is no guarantee that objective measures have much meaning in the currently proposed scoring bands. In essence, a teacher could receive a positive rating, such as "developing", based only on subjective teacher evaluation measures.

Other states, such as Delaware and Rhode Island, require "effective" ratings in both the subjective and objective testing measures in order for a teacher or principal to receive an overall "effective" rating. No such requirement exists under the Draft Regulations and therefore diminishes the weight given to objective measurements in the evaluation process. Therefore, at a minimum, the scoring bands should be adjusted to give greater weight to the objective measures by not allowing a positive rating based on subjective measures alone. As an alternative, it is recommended that a teacher or principal be rated "effective" in both objective and subjective categories in order to receive an overall "effective" or "highly effective" rating.

· Fourth, accelerate the timetable of implementing the evaluation system

I appreciate your assistance in accelerating the process so the evaluation system could be implemented for all teachers prior to the full implementation deadline of the 2012-13 school year. However, we must make sure that school districts begin the process in an expeditious manner. Endless implementation delays will hamper our ability to ensure our children are getting the best education, because a system not implemented is of no use.

Since SED has articulated the criteria for implementing the entire teacher and principal evaluation system, schools districts should fully implement the teacher and principal evaluation system for the 2011-12 school year and therefore the Draft Regulations should authorize school districts to do so.

Finally, my Administration will aggressively seek to incentivize schools districts to implement the evaluation system expeditiously. Therefore, only those districts that actually perform, and implement the teacher and principal evaluation system, would be eligible for the Executive's School Performance Incentive Program—a $500 million program—that I included in the Executive Budget. School districts would potentially lose millions of dollars on state awards for failure to implement the system quickly.

We must not squander the opportunity to set the right course and make New York a leader in evaluating performance in our education system. If done correctly we will revive our education system to ensure students perform better and succeed in their future careers. The recommendations above will help set the course. Now is our chance to make New York a leader in education performance.

Sincerely,
Andrew M. Cuomo
Governor

The doctrine of primary jurisdiction and the doctrine of the exhaustion of administrative remedies considered in determining the jurisdiction of the court

The doctrine of primary jurisdiction and the doctrine of the exhaustion of administrative remedies considered in determining the jurisdiction of the court
Matter of Neumann v Wyandanch Union Free School Dist., 2011 NY Slip Op 03859, Appellate Division, Second Department 

Sally Neumann sued the Wyandanch Union Free School District for its alleged breach of her employment contract. Supreme Court’s dismissal of Neumann’s breach of contract action. Neumann also claimed that she had attained tenure by estoppel as “Director of Technology” with the school district

Neumann, was employed by Wyandanch as its "Director of Technology" in November 2004. She was later transferred to the position of "Assistant Superintendent for Curriculum and Technology." In September 2008 the District assigned her to the position of "Assistant Director for Curriculum and Technology."

The collective bargaining agreement between the District and the Wyandanch Administrators Association provided that "Director" positions were eligible for tenure and represented by the Association, but the "Assistant Superintendent" position was nontenured and excluded from Association membership.

In July 2008, Neumann had entered into an employment contract with the District for her third year of employment as Assistant Superintendent. The contract provided that the "terms and conditions of employment" not otherwise addressed in the contract were incorporated from the collective bargaining agreement. Under the collective bargaining agreement, claims relating to its terms were subject to a mandatory grievance process.

In September 2008, following her assignment to the "Assistant Director for Curriculum and Technology" position, the District reduced Neumann's salary to $135,706. In November 2008, the District abolished Neumann's position, and no longer paid her a salary after that date.

Neumann commenced a hybrid CPLR article 78 proceeding and plenary action seeking a judgment declaring that she had acquired tenure by estoppel as a Director based in part on her service in the Assistant Superintendent position. She also sought damages based on the District's alleged breach of contract when it reduced and finally ceased to pay her the salary provided for in the July 2008 employment agreement.

The Supreme Court, relying on the doctrine of primary jurisdiction, dismissed Neumann’s action claiming she had acquired tenure by estoppel and directed her to raise her tenure claim before the Commissioner of Education. The court also dismissed her claim alleging breach of contract.

Addressing "The doctrine of primary jurisdiction,” the court explained that the doctrine provides that where the courts and an administrative agency have concurrent jurisdiction over a dispute involving issues beyond the conventional experience of judges . . . the court will stay its hand until the agency has applied its expertise to the salient questions," citing Flacke v Onondaga Landfill Sys., 69 NY2d 355. Further, said the court, "The doctrine . . . applies where a claim is originally cognizable in the courts, and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body. In such situations “the judicial process is suspended pending referral of such issues to the administrative body for its views.'"

In contrast, where the determination does not require the special competence of an administrative agency, the doctrine does not apply.

In this instance the Appellate Division ruled that the interpretation and enforcement of Neumann's employment agreement was not within the Commissioner of Education's specialized knowledge and experience. Rather its interpretation and enforcement depends on common-law contract rules that lie within the purview of the judiciary. Accordingly, said the court, Supreme Court’s dismissal of Neumann’s cause of action alleging breach of contract under color of the doctrine of primary jurisdiction was improper and the Supreme Court should have retained jurisdiction to decide that cause of action.

As to the School District’s argument that Neumann’s dismissal was nevertheless proper because she was required to exhaust her administrative remedies by submitting the matter to the grievance procedure mandated under the collective bargaining agreement, the Appellate Division said that “the clear terms of [Neumann’s employment agreement and relevant provisions of the collective bargaining agreement” indicate that Association’s grievance remedies were not available to Neumann with respect to her cause of action alleging breach of contract.

Consequently, Neumann was entitled to seek judicial review directly, and thus her cause of action breach of contract should not have been dismissed.

The decision is posted on the Internet at: 

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_03859.htm

Employee’s dismissal for “excessive absenteeism” failed to survive judicial scrutiny where such absences were authorized by the employer and properly documented

Employee’s dismissal for “excessive absenteeism” failed to survive judicial scrutiny where such absences were authorized by the employer and properly documented 

Matter of Iarocci v Incorporated Vil. of W. Haverstraw, 2011 NY Slip Op 50794(U), Supreme Court, Rockland County, Judge Alfred J. Weiner [Not selected for publication in the Official Reports.] 

Michael Iarocci was served with disciplinary charges pursuant to §75 Civil Service. He was found guilty a pattern of excessive absences over an 18-month period.* 

Iarocci contended that his absences were all for valid reasons and that his termination was contrary to law and was arbitrary and capricious. The Village, on the other hand, argued that Iarocci’s “excessive absences” made him unreliable and, therefore, incompetent to perform his duties. 

The §75 Hearing Officer found there was "...substantial evidence to support the charge of incompetence based upon [Iarocci’s] excessive absences but that [his] absences did not affect the morale of the department to the extent that it was ... asserted in conclusory fashion by the witnesses who testified."  The Hearing Officer recommended that Iarocci be suspended for a period of 90 days without pay and that upon his return placed on disciplinary probationary for an appropriate period of time.

West Haverstraw accepted the findings of the Hearing Officer but imposed the penalty of dismissal.

Iarocci appealed that Judge Weiner said that the issue before him was whether the penalty of termination was "so disproportionate as to shock one's sense of fairness?" 

Citing Matter of Featherstone v. Franco, 95 NY2d 550, Judge Weiner said that “Judicial review of an administrative penalty is limited to whether the measure or mode of penalty of discipline imposed constitutes an abuse of discretion as a matter of law.” Further, the court observed, in Pell v Board of Education, 34 NY2d 222, the Court of Appeals set out the standard for determining the appropriate penalty is whether the punishment imposed is "...so disproportionate to the offense, in light of all the circumstances, as to be shocking to one's sense of fairness." 

Judge Weiner then set out a number of decision in which courts have upheld the termination of a public employee found guilty of “excessive absence” including McKinnon v. Board of Educ. of North Bellmore Union Free School Dist. 273 AD2d 240, Alston v. Morgan 245 AD2d 287, and Romano v. Town Bd. of Town of Colonie, 200 AD2d 934.

Here, however, the record indicated that Iarocci had received authorization from his employer for his absences, followed the appropriate call-in procedures and obtained appropriate medical documentation when necessary. Further, the court found that he was never warned about his excessive absences or charged with insubordination or other misconduct. 

Other mitigating circumstances considered by Judge Weiner included Iarocci employment for ten years and no prior disciplinary problems; his frequent absences commenced only began after he had gallbladder surgery and later suffered an employment related back injury; and his promotion from Motor Equipment Operator I to Motor Equipment Operator II by West Haverstraw. 

Distinguishing Iarocci’s situation from the facts underlying the several cases in which termination has been imposed for excessive absenteeism, Judge Weiner noted that “When absenteeism has been authorized by an employer and properly documented according to procedure, termination for excessive absenteeism has not been imposed upon an employee unless it was coupled with more aggravating factors, including insubordination, [following] progressive discipline and other incidents of poor performance at work.”

Rulling that penalty of termination imposed upon Iarocci by West Haverstraw was  “disproportionate to the offense charged …” Judge Weiner said that the Town “should have given due weight to mitigating factors when deciding the appropriate penalty to impose.”

Annulling the penalty of dismissal, Judge Weiner remanded the matter to the Village Board “for the imposition of a penalty other than termination.”

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_50794.htm