Including proposed staffing changes in a plan to close schools submitted to the State Education Department does not cloak the staffing issues as a state policy, law or regulation thereby precluding submitting the matter to arbitration

Including proposed staffing changes in a plan to close schools submitted to the State Education Department does not cloak the staffing issues as a state policy, law or regulation thereby precluding submitting the matter to arbitration

Board of Educ.of the City Sch. Dist.of the City of N.Y. v Mulgrew, 2013 NY Slip Op 03580, Appellate Division, First Department

The New York City Department of Education (DOE) had filed a plan seeking to close 24 “underperforming schools” and to subsequently reopen 24 "new" schools at the identical locations and facilities with the State Department of Education (SED), which conditionally approved the plan.

The Unions filed demands for arbitration to the extent that the plan proposed to "excess" the staff of the closing schools, alleging that DOE’s plan to open new schools was a pretext to circumvent established procedures in their respective collective bargaining agreements (CBAs) for removing unsatisfactory teachers and other personnel. The Unions also contended that DOE’s plan circumvented their CBAs' requirements that excessing of teachers, i.e., "those let go through no fault of their own," be done on the basis of seniority.

The arbitrator concluded [1] that the Unions' disputes were arbitrable and [2] that the plan had "as its primary, if not sole, objective," avoiding undesirable teachers by excessing them under CBA provisions relating to closed or phased out schools, which violated CBA requirements that excessing be done on the basis of seniority.*

Supreme Court, New York County denied the DOE’s CPLR Article 75 petition seeking an order vacating the arbitration award and granted the cross-petition of the United Federation of Teachers, Local 2, and the Council of School Supervisors and Administrators, Local 1, American Federation of School Administrators to confirm the award. The Appellate Division unanimously affirmed the lower court’s ruling.

The Appellate Division explained that the arbitrator neither exceeded his powers under the CBAs, nor did he violate public policy in resolving the merits of the parties' disputes. The CBAs, said the court, provide that unresolved grievances concerning the application or interpretation of the CBAs are subject to arbitration.

Although the definition of a grievance under the CBAs does not include any matter for which a method of review is proscribed by law, or any rule or regulation of the SED having the effect of law, here the grievances seek only to have the arbitrator consider the interpretations of the CBAs and whether the plan, if implemented as written, violates the contractual rights and responsibilities of the parties.

Finding DOE's argument that arbitration necessarily interferes with the SED's statutory and regulatory authority “unpersuasive,” the Appellate Division although DOE “broadly referencing educational laws and regulations,” it failed to identify any law that "prohibit[s], in an absolute sense, [the] particular matters [to be] decided," citing County of Chautauqua v Civil Serv. Empls. Assn, Local 1000, County of Chautauqua Unit 6300, Chautauqua County Local 807, 8 NY3d 513 and commenting that only when the interest in maintaining adequate standards is attached to a well-defined law that public policy is implicated."

The Appellate Division concluded that the underlying grievance in no way impinges on the authority of the SED to approve a plan for the closure or the reopening of the 24 “underperforming schools” as new schools under the Education law (Education Law § 2590-h) nor DOE’s own inclusion of proposed staffing changes in its plan to close schools to support its argument that staffing issues are now a state policy, law or regulation having the effect of law, which removes them from the dispute resolution regimen provided in the CBAs.

.

Finding that the Unions' grievance does not challenge either the DOE's right to put forth a plan to close schools or the SED's right to approve such a plan. But only seeks only a determination regarding the interpretation and implementation of staffing requirements under the CBAs, the Unions were not, therefore, relegated to raising their dispute in an Article 78 proceeding rather than submitting the dispute to arbitration.

* Although not addressed in the decision, an appointing authority may not excess or lay a tenured employee as a subterfuge for disciplinary action [Young v Board of Education, 35 NY2d 31].

The decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2013/2013_03580.htm

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A “perfect storm” of personnel transactions and decisions

A “perfect storm” of personnel transactions and decisions 

2013 NY Slip Op 03559, Appellate Division, First Department

This decision describes a series of events resulting from a “perfect storm” of personnel transactions and decisions including an incorrect administrative personnel determination by a central personnel agency and a career choice made by the employee [AR] that ultimately resulted in the frustration of AR’s immediate employment expectations.

The genesis of the Appellate Divisions ruling was AR’s filing a petition pursuant of CPLR Article 78 seeking, among other things,

1. Reinstatement to her prior position of permanent Fraud Investigator;

2. Placement on the New York City Department of Homeless Services' (DHS) eligible list for promotion to Associate Fraud Investigator; and

3. Monetary damages for wrongful denial of promotion and wrongful transfer.

Supreme Court denied AR’s petition, which ruling the Appellate Division affirmed on appeal.

According to the Appellate Division's decision, DHS had permanently appointed AR to the position of Fraud Inspector and subsequently provisionally promoted her to Associate Fraud Inspector. However, the New York City Department of Citywide Administrative Services (DCAS) ruled that AR was ineligible for permanent appointment to Associate Fraud Inspector. AR challenged and successfully appealed DCAS’s decision regarding her eligibility for promotion to the higher title.

AR, however, was employed by the New York City Human Resources Administration (HRA) when she won her administrative appeal regarding the error made DCAS concerning her eligibility for promotion to Associate Fraud Inspector. This proved to be a critical element in the Appellate Division’s analysis of AR’s several claims.

The Appellate Division said that although DCAS had erroneously ruled AR ineligible for promotion to the position of Associate Fraud Inspector, AR conceded that she was not entitled to be appointed to that position, but only to be placed on a special eligible list and given due consideration for appointment from that list.*

Further, the court ruled that AR’s contention that DCAS acted arbitrarily in failing to place her on an eligibility list certified to DHS — where she was working when the error regarding her eligibility was made, rather than HRA, where she was employed when she won her administrative appeal — was unavailing “as the record indicates that AR turned down the opportunity to return to DHS, evidently believing at that point that her prospects were better at HRA.”**

Addressing another aspect of AR’s personnel related claims, the Appellate Division agreed with AR’s argument that she would not have been laid off as a DHS Fraud Inspector but for DCAS's miscalculation of her seniority. However, the court ruled that AR was not entitled to back pay as a result of this error because she had transferred to a job at HRA with the same title and compensation.

Finally, the court ruled that AR was not entitled to compensation in connection with her demotion from provisional Associate Fraud Inspector to her permanent title, Fraud Inspector. Her provisional appointment, said the court, preceded her transfer to HRA and thus AR “had no expectation of tenure in the provisional position,” and, as a provisional employee, she could be dismissed from that title without a pre-termination disciplinary hearing or any statement of reasons for her termination from that position.

* See Andriola v Ortiz, 82 NY2d 320, Certiorari denied, 511 US 1031

** Although the decision is silent as to the nature of AR's moving from DHS to HAR, this observation by the court suggests that AR resigned, or was deemed to have resigned, from her postion with DHS simultaneously with her appointment to HAR or at some point after her "transfer" to HAR.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_03559.htm

An analysis of New York’s new teacher evaluation law

An analysis of New York’s new teacher evaluation law

Source: NYMuniBlog 

Warren Richmond, a Harris Beach partner and member of the firm’s Labor and Employment Law Practice Group and Educational Institutions Industry Team, published an article in the New York Law Journal that focuses on the new Annual Professional Performance Review (APPR) plans for teachers and the limitations the statute places on school districts to terminate probationary teachers.

The article raises the failure of the law to define “performance” and “significant factor” and the consequences of the legislation in making it more difficult to terminate non-tenured teachers whose performance is inadequate or otherwise problematic.

To read the article, click on the following link, “Evaluation Law Could Limit Ability To Terminate Probationary Teachers.”

A school district employee serving in a position in the Classified Service may not perform duties involving the supervision of pedagogical personnel unless he or she obtains the appropriate school leader certification

A school district employee serving in a position in the Classified Service may not perform duties involving the supervision of pedagogical personnel unless he or she obtains the appropriate school leader certification

Appeal of Johnny G. Destino, Decisions of the Commissioner of Education, Decision No. 16,461

Johnny G. Destino, a member of the Board of Education of the City School District of the City of Niagara Falls, appealed the school board’s appointment of Maria A. Massaro, Esq. (Massaro) to the position of Administrator for Human Resources, a position in the Classified Service.

Among the several issues addressed in this Decision of the Commissioner of Education was Destino’s challenge to Massaro’s appointment based on the allegation that Massaro unqualified to hold the Human Resources Administrator’s position because she lacked New York State certification as a School District Administrator (“SDA”).*

The school district's retiring Human Resources Administrator had sent an email dated October 18, 2010 to the Board containing the job description the position that had been adopted by the Municipal Civil Service Commission on March 22, 2007.

He also advised the school board that the posting of the vacancy dated September 13, 2010 reflected the 2007 job description and that “No changes were made to the job description.” The e-mail also reported that the minimum qualifications for the position were expanded to include candidates with a Bachelor’s degree and appropriate "HR experiences," thus permitting candidates for the position to come through either the certificated pathway (School Administrators with a Certificate) or the classified pathway (those candidates who would fall under Civil Service review).

The minimum qualifications attached to the 2007 job description were: “Graduation from a regionally accredited or New York State registered college or university with a Master’s degree and New York State permanent [SDA]certification and three (3) years experience in school administration or human resources” while the  expanded qualifications for the September 2010 job posting stated, in pertinent part:

1. A New York State permanent certification as a School District Administrator (SDA), School Administration and Supervisor (SAS), or New York Sate certification as a School District Leader (SDL) and three (3) years experience in school administration or human resources; or

2. Graduation from a regionally or New York State registered college or university with a Bachelor’s Degree including coursework in personnel management, labor relations, law or education and three (3) years experience in human resources management. 

The announcement also stated that "Additional education beyond a Bachelor’s Degree can be substituted for the required three (3) years experience. Experiences in the areas of labor relations, policy compliance, employee benefits and staff development may be used to fulfill the human resources requirement."

Noting that the position of "Human Resources Administrator" was not among the titles specifically listed in the Commissioner's certifications to the New York State Civil Service Commission pursuant to Civil Service Law §35(g) as being in the teaching or supervisory staff of a school, the Commissioner explained that it such a position would only be considered a pedagogical position for which certification was required if it involved “the function of administration of teaching, i.e., supervision and direction of supervisors, principals and all other members of the teaching and supervisory staffs.”

The Commissioner noted that with one limited exception, the duties described for Human Resources Administrator did not involve supervision and direction of members of the teaching and supervisory staffs. Therefore, said the Commissioner, the position is not one whose routine duties squarely fall within the positions certified as pedagogical in Certification.**.

The Commissioner, however, found that among the 21 “typical work activities” set out in the job description, which remained unchanged notwithstanding the change in qualifications for appointment to the position, it “impermissibly included one pedagogical duty as part of the Human Resources Administrator position that would require an incumbent to possess certification pursuant to Part 80 of the Commissioner’s regulations” --  “[a]cts as chief school officer in the absence of the Superintendent and Deputy Superintendent of schools.”

Citing Education Law §3003(1); 8 NYCRR §80-2.4, the Commissioner said that “Although [the school district] disputes that this is a “primary” responsibility of the position, nonetheless, to the extent that Massaro could be required to act as chief school officer in the district in the absence of the superintendent or deputy superintendent and carry out the duties of those positions at any time, she would need to be properly certified. As Massaro is not a certified individual, she may not be assigned as acting superintendent as such a position clearly involves supervision and direction of pedagogical personnel.

However, in light of the facts that this [1] was only one of 21 listed job activities, [2] was not a routine function of the position and [3] would only apply as a contingency in the event of the absence of the superintendent and deputy superintendent, the Commissioner declined to annul Massaro’s appointment, finding that the proper remedy on these facts is to order the school district to remove “acting as chief school officer in the absence of the superintendent and deputy superintendent from Massaro’s duties as Human Services Administrator and [to] refrain from assigning her to serve as chief school officer unless she obtains the appropriate school leader certification.”

Turning to a procedural issue raised by the school district – the timeliness of the appeal – after determining that Destino’s appeal had been timely fined, the Commissioner noted that he “would decline to dismiss the appeal as untimely in any event, because the unlawful employment of an unqualified individual is a continuing wrong.”

Finally, the Commissioner considered the board requests a certificate of good faith “as to the individuals” named in the appeal as respondents pursuant to Education Law §3811(1).

Such certification is solely for the purpose of authorizing the board to defend and indemnify school district officers for legal fees and expenses incurred in defending a proceeding brought against them arising out of the exercise of powers or performance of their duties under the Education Law. Destino challenged only the actions of the board and the superintendent. Noting that “It is appropriate to issue such certification unless it is established on the record that the requesting individuals acted in bad faith,” the Commissioner said that on the record before him he would issue the requested certification for the limited purpose of Education Law §3811(1).

* In addition, Destino asserted that there was an appearance of, or actual, conflict of interest because Angelo Massaro, the board’s general counsel, is Maria A. Massaro’s father. Maria Massaro had been employed with the district since July 1, 1999 in various capacities, including attorney, in-house counsel, member of the administrative staff responsible for district policies and health care insurance, hearing officer and district negotiator in union negotiations.

** The school district received nine applications after posting employment notices in two newspapers, on the district's website, with the Orleans-Niagara Board of Cooperative Educational Services and with an Association for personnel administration.

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume52/documents/d16461.pdf

Appointing authority's decision to terminate an employee for “serious misconduct” found appropriate under the circumstances

Appointing authority's decision to terminate an employee for “serious misconduct” found appropriate under the circumstances

2013 NY Slip Op 03560, Appellate Division, First Department

A New York City police officer was served with disciplinary charges alleging that [1] he left a loaded firearm unsecured in his backpack on a desk in a library and subsequently made an unauthorized call to a witness in an investigation that followed concerning the incident and [2] made vulgar statements and exposed his genitals to an arrestee while on duty in the precinct.

New York City’s Police Commissioner determined that the officer was guilty of serious acts misconduct and terminated his employment.

The Appellate Division*sustained the Commissioner’s decision noting that the officer had admitted the allegations with respect to the firearm incident and that there was substantial evidence to support the hearing officers determination with respect to the precinct incident.

As to the Commissioner’s decision to terminate the police officer, citing Kelly v Safir, 96 NY2d 32, the Appellate Division said that “The penalty imposed does not shock the conscience since [the Commissioner] is accountable to the public for the integrity of the Department."

* Supreme Court transferred the CPLR Article 78 petition filed with it by the police officer to the Appellate Division in accordance with CPLR §7803.4.with respect to the issue of whether substantial evidence supported the administrative determination made as a result of a hearing held at which evidence was taken.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_03560.htm

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