Determining the compensation to be paid a teacher absent from work when “school is in recess”

Determining the compensation to be paid a teacher absent from work when “school is in recess”

Appeal of Denise Zaccaro from actions of the Board of Education of the Garden City Union Free School District, Decisions of the Commissioner of Education, Decision #16,336

This appeal addresses the calculating the compensation to be paid a teacher absent from work during a period of time when there is an intervening “recess period.”*

Education Law §3101(3) sets out the methodology for determining a teacher’s salary in the event he or she does not fulfill his or her "professional service obligation" and provides that such compensation is to be prorated as follows: In the event the teacher does not render service during the full 10 months that public schools are required to be in session “[f]or purposes of prorating the salary of a teacher not rendering all the service required of teachers during such period, the monthly rate for services rendered shall be at least one tenth of the salary and the daily rate at least one two-hundredth of the salary.” 

Citing Matter of Swaim, et al. (9 Ed Dept Rep 23, Decision No. 8031), the Commissioner said that there is an ambiguity in Education Law §3101(3) “... resulting from the statutory rate of one two-hundredths and the factual situation that some months have fewer or more than 20 working days.” The Commissioner then stated that this ambiguity can most reasonably be resolved by the following interpretation of the statute:

If the teacher provides services for half or less of the working days in the month, he or she should be reimbursed at the rate of one two-hundredths of his annual salary for each day he or she works.  Similarly, if a teacher works more than half of the required working days in a given month but is absent without authority for the remainder of such working days, a deduction of one two-hundredths of his annual salary should be made for each of the days of unauthorized absence.

Using the Swaim method entails counting all of the “working days” during a given month (excluding days in which school is not in session) and dividing that number in half, then comparing that number with the amount of days the teacher worked.

If, said the Commissioner, the number of days worked exceeds one-half of the “working days” in that month, the teacher would be entitled to one-tenth of his or her annual salary, minus one two-hundredths for each “working day” he or she did not work. 

On the other hand, the Commissioner indicated that in the event “the number of days the teacher actually worked is equal to or less than half of the ‘working days’ in that month, the teacher would be entitled to payment only for each of the individual days worked (or one two-hundredths of his or her salary for each day).”

In Denise Zaccaro case there were 15 total working days in the month of April, 2009.  There were six working days prior to spring recess: April 1-8; and nine working days following spring recess: April 20-30.  Accordingly, all teachers were required to render service to the district on each of those 15 working days during the month of April. Zaccaro, however, was on paid leave through April 8, 2009. Thus, said the Commissioner, she must be deemed to have worked the six working days included in that period. 

Applying Swaim, the Commissioner said that as Zaccaro had worked only six of the required 15 working days in April 2009 and, because she worked less than half the working days in the month of April, she was entitled to one two-hundredths of her salary for each “day worked.” 

As during the period of April 9-17, the spring recess, no other teacher was required to render service, yet received compensation, and the school district would not receive any more service from Zaccaro than from any other teacher, under the rationale of these prior decisions, which clearly resulted in teachers being compensated for days in which school was not in session, the days of spring recess should be counted as days worked, under ordinary circumstances.

Zaccaro case, however, is somewhat more complicated. 

Although it is undisputed that at some point, either immediately after April 8, 2009 or effective April 15, 2009, the school district placed Zaccaro on unpaid leave, a pending grievance proceeding alleges that the school district violated the collective bargaining agreement when it placed her on unpaid leave effective April 15, 2009. 

The bottom line: Any day on which Zaccaro was not on unpaid leave during the period from April 9 to April 17, she was entitled to one two-hundredth of her salary.  

1. If such unpaid leave commenced on April 15, 2009, as Zaccaro contends, she would be entitled to four days compensation from April 9 to April 14; or

2. If, Zaccaro was placed on unpaid leave effective April 8, as the school district claims, Zaccaro would not be entitled to any additional compensation "unless the unpaid leave was set aside in the grievance proceeding or otherwise."  

Finding that record was not adequate to make such determination, the Commissioner remanded the matter to school district to determine if Zaccaro is entitled to additional compensation and directed the school district “to the extent they have not already done so,” one two-hundredth of her salary for any day during the period of April 9-17, 2009 on which she was determined to be entitled to paid leave.

* In this appeal the Commissioner was asked to determine if a teacher, Denise Zaccaro, was entitled to be paid for seven days during spring recess.

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume51/d16336.html

Determining the compensation to be paid a teacher absent from work when “school is in recess”

Determining the compensation to be paid a teacher absent from work when “school is in recess”

Appeal of Denise Zaccaro from actions of the Board of Education of the Garden City Union Free School District, Decisions of the Commissioner of Education, Decision #16,336

This appeal addresses calculating the compensation to be paid a teacher absent from work during a period of time when there is an intervening “recess period.”*

Education Law §3101(3) sets out the methodology for determining a teacher’s salary in the event he or she does not fulfill his or her "professional service obligation" and provides that such compensation is to be prorated as follows: In the event the teacher does not render service during the full 10 months that public schools are required to be in session “[f]or purposes of prorating the salary of a teacher not rendering all the service required of teachers during such period, the monthly rate for services rendered shall be at least one tenth of the salary and the daily rate at least one two-hundredth of the salary.” 

Citing Matter of Swaim, et al. (9 Ed Dept Rep 23, Decision No. 8031), the Commissioner said that there is an ambiguity in Education Law §3101(3) “... resulting from the statutory rate of one two-hundredths and the factual situation that some months have fewer or more than 20 working days.” The Commissioner then stated that this ambiguity can most reasonably be resolved by the following interpretation of the statute:

If the teacher provides services for half or less of the working days in the month, he or she should be reimbursed at the rate of one two-hundredths of his annual salary for each day he or she works.  Similarly, if a teacher works more than half of the required working days in a given month but is absent without authority for the remainder of such working days, a deduction of one two-hundredths of his annual salary should be made for each of the days of unauthorized absence.

Using the Swaim method entails counting all of the “working days” during a given month (excluding days in which school is not in session) and dividing that number in half, then comparing that number with the amount of days the teacher worked.

If, said the Commissioner, the number of days worked exceeds one-half of the “working days” in that month, the teacher would be entitled to one-tenth of his or her annual salary, minus one two-hundredths for each “working day” he or she did not work. 

On the other hand, the Commissioner indicated that in the event “the number of days the teacher actually worked is equal to or less than half of the ‘working days’ in that month, the teacher would be entitled to payment only for each of the individual days worked (or one two-hundredths of his or her salary for each day).”

In Denise Zaccaro case there were 15 total working days in the month of April, 2009.  There were six working days prior to spring recess: April 1-8; and nine working days following spring recess: April 20-30.  Accordingly, all teachers were required to render service to the district on each of those 15 working days during the month of April. Zaccaro, however, was on paid leave through April 8, 2009. Thus, said the Commissioner, she must be deemed to have worked the six working days included in that period. 

Applying Swaim, the Commissioner said that as Zaccaro had worked only six of the required 15 working days in April 2009 and, because she worked less than half the working days in the month of April, she was entitled to one two-hundredths of her salary for each “day worked.” 

As during the period of April 9-17, the spring recess, no other teacher was required to render service, yet received compensation, and the school district would not receive any more service from Zaccaro than from any other teacher, under the rationale of these prior decisions, which clearly resulted in teachers being compensated for days in which school was not in session, the days of spring recess should be counted as days worked, under ordinary circumstances.

Zaccaro case, however, is somewhat more complicated. 

Although it is undisputed that at some point, either immediately after April 8, 2009 or effective April 15, 2009, the school district placed Zaccaro on unpaid leave, a pending grievance proceeding alleges that the school district violated the collective bargaining agreement when it placed her on unpaid leave effective April 15, 2009. 

The bottom line: Any day on which Zaccaro was not on unpaid leave during the period from April 9 to April 17, she was entitled to one two-hundredth of her salary.  

1. If such unpaid leave commenced on April 15, 2009, as Zaccaro contends, she would be entitled to four days compensation from April 9 to April 14; or

2. If, Zaccaro was placed on unpaid leave effective April 8, as the school district claims, Zaccaro would not be entitled to any additional compensation "unless the unpaid leave was set aside in the grievance proceeding or otherwise."  

Finding that record was not adequate to make such determination, the Commissioner remanded the matter to school district to determine if Zaccaro is entitled to additional compensation and directed the school district “to the extent they have not already done so,” one two-hundredth of her salary for any day during the period of April 9-17, 2009 on which she was determined to be entitled to paid leave.

 

* In this appeal the Commissioner was asked to determine if a teacher, Denise Zaccaro, was entitled to be paid for seven days during spring recess.

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume51/d16336.html

Employee terminated after failing to establish and maintain a domicile in the jurisdiction as required the Town’s Code

Employee terminated after failing to establish and maintain a domicile in the jurisdiction as required the Town’s Code
Peck v Town Bd. of Town of Amherst, 2012 NY Slip Op 02220, Appellate Division, Fourth Department

When the Town Board of Town of Amherst (Board) terminated James D. Peck’s employment with the Town because he failed to satisfy the residency requirements set out in the Town’s Code,* he filed an Article 78 challenging the Town's action.

Supreme Court dismissed certain allegations advanced by Peck but held his allegations that the Board's determination was arbitrary and capricious and that the Board failed to make findings of fact in support of its determination in abeyance, remitting the matter to the Board "for a fuller explication of its rationale for determining that [Peck]" failed to satisfy the residency requirements.

Although the Town invited Peck to appear before the Board and present evidence of his being domiciled within the Town, neither he nor his attorney appeared at that meeting. Peck’s attorney, however, subsequently submitted documentary evidence that allegedly established Peck’s domicile in the Town.

Upon receipt of the amplified findings of fact made by the Board, Supreme Court dismissed these remaining causes of action, determining that the Board's determination resulting in Peck's termination was neither  arbitrary nor capricious.

Peck’s appealed, contending that Supreme Court erred in remitting the matter to the Board for further findings of fact. The Appellate Division dismissed this argument, noting that he was not prejudiced by the remittal inasmuch as, in doing so, Supreme Court effectively extended the date for him to establish a domicile in the Town and that the remittal also afforded him another opportunity to answer questions from the Board concerning his claim that he was domiciled within the Town and to submit additional evidence in support of that claim.

As to domicile, the Appellate Division explained that:

[1] ”An existing domicile, whether of origin or selection, continues until a new one is acquired, and a party, [such] as [Peck] here, alleging a change in domicile has the burden to prove the change by clear and convincing evidence;" and

[2] "For a change to a new domicile to be effected, there must be a union of residence in fact and an absolute and fixed intention' to abandon the former and make the new locality a fixed and permanent home."

Peck, said the court, “was not domiciled in the Town when he was hired, nor was he domiciled there for at least two years after that time.”

Although the Town granted Peck two six-month extensions to meet the residency requirements, it denied his requests for further extensions, indicating that it intended to enforce the residency requirements against him. Peck then claimed that he had established domicile by renting a room in a house located within the Town despite his earlier acknowledging that renting "that room would not satisfy the Town's residency requirements."

Notwithstanding Peck’s claim that he thereafter informed the Town that he was "losing" his home in Buffalo to creditors and thus demonstrated that he intended to make the single room that he rented in a house in the Town his domicile, the Appellate Division said that “There is no evidence in the record” supporting such an allegation.

Further, said the court, “the mere fact that [Peck] may have been losing his home in Buffalo did not standing alone establish that his domicile was in the Town” and affirmed Supreme Court’s dismissal of Peck’s Article 78 petition.

* The relevant provisions of the Town Code provide: § 45-3, "any person who enters Town service . . . shall be a resident of the Town on the date that the employee enters Town service and shall thereafter maintain residence in the Town as a condition of employment . . . Failure to establish or maintain Town residence as required by this section shall constitute a forfeiture of employment . . . ." The Code defines "[r]esidence" as "[d]omicile" and "[r]esident" as "[d]omiciliary" (§ 45-2).

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2012/2012_02220.htm

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