Board of Education’s decision concerning the discontinuing of the services of the school superintendent sustained by the Commissioner of Education

Board of Education’s decision concerning the discontinuing of the services of the school superintendent sustained by the Commissioner of Education

Decision of the Commissioner of Education, Decision No. 16,352

The contract of employment between the school board and its superintendent included a provision entitled “Termination” wherein it provided that the employment relationship between the superintendent and the board could be terminated for any of the following reasons:

1. Disability of the superintendent;

2. Written resignation of the superintendent;

3. Termination upon agreement; or

4. Discharge for cause.

When the board and the superintendent entered into an agreement entitled “Separation Agreement, Release and Waiver” providing for a payment of $89,500 in full satisfaction of the district’s financial obligations to the superintendent and the superintendent’s agreement to resign from the position and forfeit all claims against the District, an individual filed an appeal with the Commissioner of Education challenging the execution of such an agreement.

Essentially the appeal argued that the superintendent should be terminated for cause without compensation, alleging various acts of misconduct on the part of the Superintendent. 

In addition, the appeal alleged that the Board “wilfully neglected its duty and misused district funds by offering to buy out the superintendent’s employment contract and by failing to investigate [the petitioner's] allegations and take corrective action.” The redress requested: the Commissioner should remove members of the Board from their positions and appoint a new board to serve until a special election is held and appoint or oversee the process to appoint a new superintendent.

After noting a number of procedural omissions requiring dismissal of certain allegations advanced by the individual, the Commissioner turned to turn to the merits of the remaining claims.

Citing Education Law §§1709(13) and (33), and 1804(1), the Commissioner said that a board of education has broad powers “concerning the superintendence, management, and control of a central school district.” In addition, noted the Commissioner, “a board of education has the authority to enter into an employment contract with a superintendent including provisions regarding termination, citing Education Law §§1711 and 1804[1]. 

Finding that in this instance the Board had entered into an employment agreement with the Superintendent that contained several options with respect to termination, the Commissioner dismissed the appeal commenting that “I will not substitute my judgment for that of a board of education unless it is demonstrated that the board acted arbitrarily, capriciously, abused its discretion or failed to comply with applicable law.”

In an appeal to the Commissioner, the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief. 

The Commissioner decided that “On the record before me, petitioner has failed to meet her burden,” explaining that “The terms of the contract specifically permit termination by mutual agreement, and [the Board’s] answer indicates that [the Board] carefully considered the issues, including weighing the costs of discharge for cause versus a negotiated agreement.”

Although the Commissioner noted that the petitioner disagreed with the Board’s decision not to dismiss the superintendent for cause, the Commissioner said that “she has submitted no reply to refute the board’s statements that it reviewed its options and determined that a separation agreement was more responsible than a protracted dismissal for cause” and dismissed the appeal."

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume51/d16352.html

Volunteer firefighter injured while engaged in the Fire District’s program to maintain his or her ability to perform his or her duties compensable under the Volunteer Firefighters' Benefits Law

Volunteer firefighter injured while engaged in the Fire District’s program to maintain his or her ability to perform his or her duties compensable under the Volunteer Firefighters' Benefits Law

All volunteer firefighters and emergency medical technicians in the Volunteer Fire District were informed that the swine flu vaccine was going to be provided for them at a designated clinic. One firefighter/EMT was refused the vaccine at that clinic but subsequently went to different clinic to receive her flu shot. Returning home, the firefighter/EMT was involved in a one-car accident that resulted in multiple injuries.

The individual filed a claim for benefits available pursuant to the Volunteer Firefighters Law and a hearing was held to determine whether her claim fell within the provisions of the Act. Ultimately, the Workers' Compensation Board determined that her injuries were incurred while she was engaged in an activity covered by the law and awarded her benefits. The District and its workers' compensation carrier appealed.

The Appellate Division affirmed the Board’s determination, explaining: “[W]hether a given activity of a volunteer fire fighter falls within the line of duty is a question of statutory construction particularly within the Board's expertise.” In this instance the Board found that injuries suffered by the firefighter/EMT were compensable pursuant to Volunteer Firefighters' Benefit Law §5(1)(p).

§5(1)(p). covers individuals participating in a "supervised physical fitness class, group session or program for the purpose of promoting or maintaining the performance of their duties as firefighters, as well as necessary travel to and necessary travel from such activity."

Here, said the court, the record demonstrates that “the District, at the very least, strongly encouraged EMTs to receive the swine flu vaccination and made arrangements for them to receive the vaccine at no cost.” Under these circumstances, the Appellate Division found that the Board could reasonably conclude that individual's injuries were sustained pursuant to her participation in a program to maintain the performance of her duties and, thus, its determination was supported by substantial evidence

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_03920.htm

Filing of an amicus brief with PERB

Filing of an amicus brief with PERB

Selected Rulings posted by PERB  – Matter of the County of Suffolk, Decision U-28610

The Board granted motions by the Police Conference of New York and the Suffolk County Police Conference to file amicus briefs* with respect to exceptions from an ALJ decision dismissing a charge alleging that the County of Suffolk violated §209-a.1(d) of the Public Employees’ Fair Employment Act when it unilaterally transferred supervisory police duties previously performed on the Long Island Expressway and Sunrise Highway by the members of the Supervisor Officers’ Association of the Police Department of the County of Suffolk. 

* This decision reflects PERB’s view that an amicus brief may be valuable during consideration of pending exceptions. 

Failing to provide for the timely removal of a contested writing from an employee's personnel file or record is not fatal to filing §3020-a charges against the employee

Failing to provide for the timely removal of a contested writing from an employee's personnel file or record is not fatal to filing §3020-a charges against the employee

The arbitrator found a New York City school teacher guilty of various specifications filed against her pursuant to §3020-a of the Education Law. The penalty imposed: a four months' suspension of employment without pay and benefits.

Supreme Court denied a New York City school teacher’s petition seeking to vacate a post-hearing arbitration award brought pursuant to Education Law §3020-a(5) and CPLR 7511, unanimously affirmed, without costs.

In affirming the lower court’s ruling, the Appellate Division said that the arbitration award had been made in accord with due process and was not arbitrary and capricious, irrational, or lacking in evidentiary support, citing City School District v McGraham, 17 NY3d 917.

In response to the teacher’s challenge to the award on the theory that the New York City Department of Education [DOE] had failed to meet the time requirements set forth in Article 21(C)(3) of the collective bargaining agreement, the Appellate Division said the even if DOE had failed to comply with such time requirements “dismissal of the disciplinary charges against the educator was not required.

Article 21(C)(3), explained the court, “merely provides for the removal of a contested writing from an employee's personnel file or record in the event the procedural requirements of the Article are not followed.” Accordingly, such a defect “does not preclude the filing of formal disciplinary charges pursuant to Education Law §3020-a.”

Citing Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, the Appellate Division said that “The penalty imposed does not shock our sense of fairness,” and dismissed the educator’s appeal.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_03879.htm

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Terminated probationer not entitled to a pre-termination hearing

Terminated probationer not entitled to a pre-termination hearing

The Appellate Division affirmed a Supreme Court’s ruling dismissing an Article 78 petition filed by a former employee challenging his termination from his position during his probationary period.

In dismissing the former employee’s appeal the Appellate Division said that “It is well-settled that a probationary employee may be discharged without a hearing and without a statement of reasons, in the absence of any demonstration that the dismissal was in bad faith, for a constitutionally impermissible purpose, or in violation of law, citing Swinton v Safir, 93 NY2d 758.

In this instance, said the court, evidence in the record regarding the individual’s unsatisfactory completion of his duties provide a rational basis for the employer’s determination, “particularly since petitioner received ample opportunity to improve.”

As there was nothing substantial in the former employee’s allegations purporting to show bad fait, the Appellate Davison held that no hearing was required and the petition was properly denied by Supreme Court.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_03875.htm