Individuals employed by a private entity under contract to operate a charter school are “public employees” for the purposes of the Taylor Law

Individuals employed by a private entity under contract to operate a charter school are “public employees” for the purposes of the Taylor Law

Buffalo United Charter School ("BUCS") and Brooklyn Excelsior Charter School ("BECS") were formed under Education Law Article 56, (the "Charter Schools Act", together with National Heritage Academies, Inc. (NHA) challenged PERB’s rulings regarding its jurisdiction over the employees providing services to these charter schools.

The Council of School of Supervisors and Administrators, Local 1, AFSA ("CSA") had petitioned PERB for certification as the collective bargaining representative for a unit of unrepresented assistant principals at BECS, while NYSUT/AFT, AFL-CIO (NYSUT) had petitioned PERB for certification as the collective bargaining representative of a unit of unrepresented instruction employees at BUCS.

In response to CSA’s a petition seeking to be certified as the collective bargaining representative of all assistant principals working for BECS, BECS and NHA filed an application with PERB seeking to have the assistant principals designated as "managerial" or "confidential" employees as those terms are defined in Civil Service Law §201(7)(a).

BUCS and BECS then advanced the theory that that PERB was prevented by its own joint public-private employment doctrine* from asserting jurisdiction over the cases and the employees at issue in view of the fact that both entities had contracts with NHA, a private, for-profit corporation, to operate the schools formed by BUCS and BECS.

These agreements, they claimed, provided that NHA was responsible for employing the staffs at BUCS and BECS. In addition, both also claim that PERB lacks jurisdiction because with respect to the employees of NHA the NLRA preempted the Taylor Law.**

PERB, on the other hand, argued that it had properly concluded that the Charter Schools Act "explicitly and implicitly makes (the Taylor Law) applicable to every New York charter school" and that PERB's "joint public-private employer relationship [doctrine] … has been superceded" by the Charter Schools Act.

According to PERB, its joint public-private employment doctrine was inconsistent with the Charter Schools Act and therefore explicitly superceded by §2854(1)(a) of the Education Law. Further, PERB contended that Education Law §2854(3)(a) provides that charter schools are public schools for purposes of the Act and that because the Legislature made no provision for an exception to this mandate, there is no authority permitting application of the joint public-private employment doctrine in this instance.

PERB also asserted that its conclusion that the Charter Schools Act does not authorize the designation of "managerial" and "confidential" employees is a proper legal conclusion and urged the Court to apply a deferential standard of review to PERB's conclusion in this regard.***

Finally, PERB argued that there is no unconstitutional impairment of the Management Agreements between NHA and its charter schools because even with PERB exercising jurisdiction over the charter school employees, NHA's role under the agreements was not materially diminished or impaired.

Justice Curran said that “The critical issue in this proceeding is whether the Charter Schools Act precludes PERB from following its own jurisprudence in applying the joint public-private employment doctrine.”

Concluding that “it is impossible to construe the joint public-private employment doctrine together with application of the Taylor Law via the provisions of the Charter Schools Act,” Justice Curran ruled that “the joint public-private employment doctrine is inconsistent with and contrary to the Charter Schools Act and therefore inapplicable to the petitioners in this action.

As to the question of “preemption” by NLRB, the court ruled that “given the unsettled federal law on this issue and the well researched analysis by PERB” it could not conclude as a matter of law that PERB's decision was arbitrary or clearly contrary to the law. Accordingly, Justice Curran determined that PERB's decision on the NLRB jurisdictional issue should not be annulled.

Turning to PERB’s decision that the specific provision of the Taylor Law authorizing a public employer to designate "managerial" or "confidential" employees the court concluded that “In applying the Taylor Law to charter schools, the Legislature did not employ any language precluding the designation of ‘managerial’ or ‘confidential’ employees.”

Accordingly, Justice Curran ruled that PERB's interpretation of Education Law §2854(3)(a) to mean that all charter schools' employees are public employees and therefore not "managerial" or "confidential," except for its chief executive officer, was overbroad and not supported by the language and structure of the Charter Schools Act.

The court then dismissed the petition filed by BECS. BECS and NHA except that with respect to PERB's ruling holding that assistant principals at BECS are neither "managerial" nor "confidential" employees. As to this determination by PERB the court annulled PERB’s decision and reinstated PERB’s Administrative Law Judge’s ruling on this point.

* PERB's joint public-private employment doctrine derives from New York Public Library v PERB (37 NY2d 752 [1975] where the Court of Appeals held: "[t]he Taylor Law applies only to employment which is unequivocally or substantially public.” In situations where the employment relationship involves joint public and private employers, PERB has declined jurisdiction on the premise that it has no jurisdiction unless each of the joint employers is itself a public employer.

** BUCS and BECS also argued that PERB erroneously found that the Charter Schools Act prevents the designation of the assistant principals at issue as "managerial" or "confidential." The assistant principals, according to petitioners, are members of the executive team at these charter schools and therefore PERB wrongly denied their "managerial" or "confidential" status.

*** PERB had earlier reversed its ALJ’s designating such individuals “managerial” or “confidential.”

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_22113.htm

Disciplinary action for off-duty misconduct vacated as unrelated to the employee’s ability to satisfactorily perform the duties of the position

Disciplinary action for off-duty misconduct vacated as unrelated to the employee’s ability to satisfactorily perform the duties of the position

A town building inspector cited a building owned by a Town of Huntington employee for “numerous violations” of the Town of Huntington’s Town Code. As a result the employee was served with a notice of discipline and later "suspended from his position."

The employee's union filed a grievance protesting the suspension on the employee’s behalf and ultimately the matter was submitted to arbitration. 

The arbitrator made an award finding that the Town had just cause for suspending the employee. Supreme Court, however, vacated the award after holding that it was irrational and, therefore, the arbitrator exceeded her authority.

The town appealed but the Appellate Division affirmed the lower court’s ruling. Noting that a court may vacate an arbitrator's award only on the grounds stated in CPLR §7511(b), the Appellate Division said that the only ground asserted by the union was that the arbitrator "exceeded [her] power."

Such an excess of power occurs only where the arbitrator's award (1) violates a strong public policy, (2) is irrational, or (3) clearly exceeds a specifically enumerated limitation on the arbitrator's power. In this instance the union argued that the award was irrational because the individual’s employment by the Town was “completely unrelated to the off-duty misconduct of which he [was] accused.”

Observing that if an arbitrator's award is completely irrational, "it may be said that [s]he exceeded [her] power," this basis for the objection requires a showing that there was "no proof whatever to justify the award."

The Appellate Division held that although the charges against the employee flowing from his ownership of a building situated in the town, if proven, “are substantial and directly affect the safety of the public,” they did not relate to his character, neglect of duty, or fitness to properly discharge the duties of his position. As there was no proof in the record to justify the town suspending the employee, it ruled that Supreme Court had properly vacated the arbitration award.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2008/2008_05702.htm

Lack of veracity warrants employee’s termination

Lack of veracity warrants employee’s termination

The Appellate Division affirmed Supreme Court’s denial of a petition seeking to vacate a post-hearing arbitration award.

The disciplinary hearing officer found that the employee was guilty of all of the specified charges and that the employer “had just cause for terminating her from her position as a parole officer.”

The Appellate Division, noting that the former employee had failed to establish that the arbitration award violated public policy, was irrational, or was in violation of any of the grounds enumerated in CPLR 7511(b)(1), said that the hearing record “amply supports the arbitrator's finding that [the individual] had violated the DOP's Code of Conduct by making false accusations of stalking, which resulted in her arrest.”

Finding that there was no basis for disturbing the arbitrator's rejection of former employee’s account of events in view of the testimony of an investigating detective that at the time of the alleged incident, the purported stalker was not even in the former employee’s vicinity, the Appellate Division concluded that “in light of petitioner's responsibilities as a parole officer, which depend in large part upon her veracity, her misconduct warranted the penalty of termination.”

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_03281.htm

Legislation proposed to provide for a new procedure for determining suspensions and demotions of members of certain police agencies upon abolition or reduction of positions

Legislation proposed to provide for a new procedure for determining suspensions and demotions of members of certain police agencies upon abolition or reduction of positions


In the Assembly April 20, 2012 [A9887-2011]; In the Senate April 27, 2012  S7075-2011

This bill seeks to amend §80 of the New York State Civil Service Law as it applies to members of any police agency in the State other than those police agencies already subject to the provisions of subdivisions 1-a through 1-d of §80.

The proposed amendment, if signed into law would use seniority for the purposed of demotions and,or,  reductions in force on the basis of time in grade or title in contrast seniority based on service in the classified service.

The bills sponsor state that “This amendment would address a longstanding problem in the police community, as witnessed by the fact that 4 police agencies (the City of Buffalo Police and Fire Departments, employees of secure detention facilities in the State of New York, sworn employees of the Monroe County Sheriff's Department, and the Nassau County Police Department) have already obtained passage of existing subdivisions 1-a through 1-d changing the measure [seniority for the purposes of layoff] from time in the classified service to time in grade or title.”

The sponsors offer the following justification for this amendment to the Civil Service Law:

“Under the current law, suspensions or demotions in the Civil Service upon the abolition or reduction of positions must be made based upon seniority, with demotions or reductions in force to be made in "inverse order of original appointment on a permanent basis in the classified service" (CSL, §80.1). The spirit of the law is to safeguard the employment of those employees with the most time in the system, with the general principle being "last in - first out". In the uniformed services, this law can have a reverse effect essentially retaining employees with shorter tenures in the civil service rank while demoting those with longer tenures in rank. For example, a police officer with ten years in rank as a Sergeant would have to be demoted before a police officer with 1 year in rank as a Sergeant if the latter had more time in the classified service.* As mentioned above, several uniformed services operations have recognized this inequity and obtained individual legislative amendments to §80 of the New York Civil Service Law requiring said demotions and reductions to be made by "inverse order of original appointment on a permanent basis in the grade or title". We believe that this is the preferred and equitable method to handle these issues within the context of the police community and that it should be adopted state-wide, which this bill would do.”**

The text of Assembly 9887, Senate 7075 is set out below:

AN ACT to amend the civil service law, in relation to the calculation of seniority for purposes of layoffs or demotions

THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

[Matter in ITALICS underscored is new; matter in brackets [ ] is old law to be omitted].

Section  1. Section 80 of the civil service law is amended by adding a new subdivision 1-e to read as follows:

 1-e. Notwithstanding the provisions of subdivision one of this section, the sworn members of any police agency as defined in section eight hundred thirty-five of the executive law, other than police agencies referred to in subdivisions one-a through one-d of this section shall be subject to the following procedure. Where, because of economy, consolidation or abolition of functions, curtailment of activities or otherwise, positions in the competitive class are abolished or reduced in rank or salary grade, suspension or demotion, as the case may be, among incumbents holding the same or similar positions shall be made in the inverse order of original appointment on a permanent basis in the grade or title in the service of the governmental jurisdiction in which such abolition or reduction of positions occurs, subject to the provisions of subdivision seven of section eighty-five of this chapter; provided, however, that the date of original appointment of any such incumbent who was transferred to such governmental jurisdiction from another governmental jurisdiction upon the transfer of functions shall be the date of original appointment on a permanent basis in the classified service in the service of the governmental jurisdiction from which such transfer was made. Notwithstanding the provisions of this subdivision, however, upon the abolition or reduction of positions in the competitive class, incumbents holding the same or similar positions who have not completed their probationary services shall be suspended or demoted, as the case may be, before any permanent incumbents, and among such probationary employees the order of suspension or demotion shall be determined as if such employees were permanent incumbents.

S 2. This act shall take effect immediately.

*This rationale could be applied to all positions in the classified service.

** Presumably the seniority provisions of Section 80.2 defining "continuous service" applies with respect to such an individual's rights with respect to "bumping," "displacement" and placement on a Section 81 preferred list for reinstatement.

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The Layoff, Preferred List and Reinstatement Manual - a 645-page e-book reviewing the relevant laws, rules and regulations, and selected court and administrative decisions is available from the Public Employment Law Press. Click On http://nylayoff.blogspot.com/ for additional information about this electronic reference manual.

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From the Office of New York State Comptroller Thomas P. DiNapoli -Selected audits and reports issued during the period April 23-29, 2012

From the Office of New York State Comptroller Thomas P. DiNapoli -Selected audits and reports issued during the period April 23-29, 2012

Please click on the caption to access report posted on the Internet.

DiNapoli Announces Audits of Troubled Central New York Developmental Disabilities Services Office

New York State Comptroller Thomas P. DiNapoli announced Thursday that his office will examine whether the Office of People With Developmental Disabilities’ (OPWDD) Central New York Developmental Disabilities Services Office has taken action to end the numerous criminal and ethical violations exposed in previous Comptroller’s audits. Auditors will undertake three audits to determine if OPWDD has acted on the recommendations of prior reports.


DiNapoli: School District Tax Levy Growth Averages 3 Percent Statewide Under New Limits

School district tax levies in the 2012-13 school year are limited to average increases of 3 percent under a new property tax cap law, in addition to any further increases approved by voter overrides of the cap, according to a preliminary analysisof data released Monday by State Comptroller Thomas P. DiNapoli’s office.


Comptroller DiNapoli Releases Municipal Audits

New York State Comptroller Thomas P. DiNapoli this week announced his office completed the following audits:
the Town of Duanesburg;

the Village of Endicott;

the Village of Herkimer;

the Village of North Collins;

the Village of South Blooming Grove; and

the Spencerport Fire District.


Comptroller DiNapoli Releases School Audits

New York State Comptroller Thomas P. DiNapoli this week announced his office completed the following audits:

the BOCES’ Non–Instructional Services; and

the Monroe–Woodbury Central School District.