In the event it is determined that the arbitrator has exceed his or her powers, the arbitration award must be vacated

In the event it is determined that the arbitrator has exceed his or her powers, the arbitration award must be vacated
Adirondack Beverages Corp. (Bakery, Laundry, Beverage Drivers & Vending Mach. Servicemen & Allied Workers, Local Union No. 669 of Albany, N.Y and Vic.), 2013 NY Slip Op 05031, Appellate Division, Third Department

The genesis of this appeal was the arbitrator’s rejection of Adirondack Beverages’ contention that the grievances at issue were not timely filed under the collective bargaining agreement [CBA].

Ultimately the arbitrator determined that certain of Adirondack Beverages’ employees were entitled to back wages, negotiations with respect to higher wages and a preference with respect to filling certain positions.

Supreme Court concluded that the arbitrator exceeded his powers, granted Adirondack Beverages’ petition to vacate the arbitration award and remitted the matter to a different arbitrator for a rehearing to decide the timeliness of the grievances.* Local Union No. 669 appealed the Supreme Court’s remanding the matter to a new arbitrator.

The Appellate Division affirmed the lower court’s ruling explaining that “[I]t is well established that an arbitrator's award is largely unreviewable but such an award may be vacated upon a showing that it ‘'violates a strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator's power.'"

In this instance, said the court, Supreme Court properly concluded that the arbitrator exceeded a specifically enumerated limitation on his power by failing to recognize the grievance and arbitration procedures as outlined in the CBA and, more particularly, the time limitation for filing grievances that is contained therein. The Appellate Division cited Article VII, §4 of the CBA which stated that "[t]he [a]rbitrator shall in no way have the right to modify, add to[,] subtract from or [otherwise] alter the provision[s] of [the CBA]."

In his award, said the court, the arbitrator acknowledged the CBA's limitation of his authority, as well as the controlling provisions with respect to filing a timely grievance, but “[n]onetheless, the arbitrator decided that he would ‘not mechanically apply the contractual limitations period in the instant case as to do so would discourage good faith negotiations in the future.’"

Concluding that in refusing to address the issue of the timeliness advanced by Adirondack Beverages that could otherwise preclude the grievances from being arbitrated, the arbitrator ignored a specifically enumerated limitation on his powers and effectively modified, added to or subtracted from the terms of the CBA.

Accordingly the Appellate Division held that Supreme Court properly vacated the arbitrator's award remitted the matter to a different arbitrator for a rehearing to determine whether the grievances were timely submitted under the CBA.

* Supreme Court reserved judgment on Local Union No. 669’s petition to confirm the award pending the arbitrator's decision on the timeliness issue.

The decision is posted on the Internet at:  

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_05031.htm

An employee of a BOCES is a State employee for the purposes Public Officers Law §17 when performing his or her duties under the supervision of the State Education Department

An employee of a BOCES is a State employee for the purposes Public Officers Law §17 when performing his or her duties under the supervision of the State Education Department

Formal Opinions of the Attorney General, 2013-F1

The Attorney General advised Richard J. Trautwein, Esq., State Education Department Counsel & Deputy Commissioner for Legal Affairs, that a member of the staff of a BOCES district superintendent who is serving as an integrity officer under the supervision of State Education Department is eligible for state-provided defense and indemnification in accordance with the provisions of Public Officers Law §17 in the event he or she is sued as the result of an act or an omission flowing from the performance of his or her official duties under such supervision. 

In the opinion of the Attorney General, “… an integrity officer who is a member of the district superintendent's staff also is in the service of the State when performing these duties.” Accordingly, the Attorney General explained, such personnel are eligible for defense and indemnification pursuant to Public Officers Law §17 in the event the individual is sued as the result of his or her investigating test security breaches on behalf of the State.

Subdivision 3 of §17, in pertinent part, provides that: “The state shall indemnify and save harmless its employees in the amount of any judgment obtained against such employees in any state or federal court, or in the amount of any settlement of a claim, or shall pay such judgment or settlement; provided, that the act or omission from which such judgment or settlement arose occurred while the employee was acting within the scope of his public employment or duties; the duty to indemnify and save harmless or pay prescribed by this subdivision shall not arise where the injury or damage resulted from intentional wrongdoing on the part of the employee."

The text of the opinion is posted on the Internet at:

http://www.ag.ny.gov/sites/default/files/opinion/2013-f1_pw.pdf

Tenure by estoppel, tenure by acquisition, tenure by default

Tenure by estoppel, tenure by acquisition, tenure by default, tenure by inaction

Brown v Board of Educ. of the Mahopac Cent. Sch. Dist., 2013 NY Slip Op 51026(U), Supreme Court, Putnam County [Not selected for publications in the Official Reports]

Tenure by estoppel, tenure by acquisition, tenure by default, tenure by inaction. All four terms describe the result of the failure of an appointing authority to act that results in a probationary employee obtaining tenure by operation of law because he or she was not lawfully terminated on or before the last day of his or her original, or extended, probationary period.*

As the Court of Appeals held in McManus v Hempstead Union Free School District, 87 NY2d 183, a  probationary administrator or teacher employed by a school district or a BOCES may attain tenure by estoppel when the appointing authority continues the teacher or administrator in service after failing to take the administrative action required by law to either grant or deny the individual tenure prior to the expiration of the administrator’s or teacher’s probationary term.

In this CPLR Article 78 proceeding Maura Ann Brown sought, among other things, reinstatement to her teaching position with the Mahopac Central School District based her contention she had attained tenure by estoppel and thus could not be summarily terminated from her postion.

The issue before State Supreme Court Judge Lewis Jay Lubell in this third appearance before the court:  the propriety of the school district’s recalculation of Brown’s Education Law §3012(3) probationary period end date “as directed and guided by the Court in its Decisions and Orders of March 19, 2012, and October 25, 2012”** which, in the words of the court, were “thoroughly set forth in this Court's prior two Decisions and Orders.”

The court’s conclusion: "… the Administrative Recalculation of [Brown’s] Education Law §3012(3) probationary period end date was undertaken in a manner and reaches a result that is legally insupportable and is contrary to the legal conclusions reached and directives clearly enunciated by this Court in its March and October 2012 Decisions and Orders directing remand for purposes of recalculation." Judge Lubell pointed out that the Administrative Recalculation results in a probation end date that coincided with Brown’s termination date, January 21, 2011. Brown needed just one additional date of service time to prevail on her tenure by estoppel argument, which, said the court, “she has easily established.”

Judge Lubell said the Administrative Recalculation did not properly account for his “unequivocal determination that ‘[the school district is] bound by the originally established and thereafter repeatedly reasserted June 30, 2010 probationary period end-date . . . . from [which] . . . any properly attributed extension of the probationary period must be calculated.’"

The court ruled that “it is June 30, 2010 from which to calculate [Brown’s] probationary end date….” The school district apparently “ignore the June 30th date in favor of September 2, 2010.” Accordingly, said Judge Lubell, “Upon properly accounting for the sixty-four day period from June 30th to September 2, 2010, [Brown’s] recalculated probationary end-date falls well before her termination date, i.e., the date needed by [Brown] to prevail on her tenure by estoppel argument.”

The Administrative Recalculation, said the court, “employs a ‘workday-for-workday’ methodology which is in contravention of this Court's interpretation of the methodology used in Maras v Schenectady CSD, 275 AD2d 551, wherein the Appellate Division ruled as follows:

Clearly, it was error for [the Schenectady City School District] to extend petitioner's probationary period beyond September 12, 1998 - "the period of time petitioner was absent from school in excess of her contractually allotted sick days. While respondents possess the authority to exclude from the computation of petitioner's three-year probationary period any noncontractual absences [citations omitted], they have no authority to exclude those absences provided for by contract, i.e., petitioner's 20 days of sick leave, five days of personal time and five days of medical leave that fell on school-wide vacation days. Indeed, Education Law §2509(7) expressly prohibits extension of an employee's probationary period by adding thereto contractually bargained for sick or personal leave days or school-wide vacation days.

In sum, said Judge Lubell, the court in Maras permitted an extension of Maras’ probationary period by the actual number of workdays her medical leave exceeded her paid contractual leave time, excluding any medical leave which otherwise fell on school-wide breaks or vacation days (for a total of eleven days) and which, in any event, extended petitioner's probationary period by a corresponding number of consecutive calendar days, not "workdays" as respondents would have it; thus arriving at a new probation period end date of September 12, 1998.

The bottom line: Judge Lubell held the Brown completed her three year period of Education Law §3012(3) probation well before her January 21, 2011, termination date and granted her motion to strike and dismiss the school district's Administrative Recalculation.

The court then granted summary judgment in her favor on her claim of tenure by estoppel, which tenure by estoppel matured “prior to the school district’s termination of her employment on January 21, 2011,”

Accordingly, the court directed Brown’s reinstatement to her former position as a tenured teacher effective January 21, 2011, “together with an award of back-pay, reimbursement of all employment benefits, including but not limited to medical, retirement and pension contributions, and other compensatory damages to which she may be entitled and in an amount to be determined at a damages hearing” before Judge Lubell to be held at a later date.

One exception to the general rule applied for the purpose of determining if an individual has attained tenure by estoppel is set out in Mendez v Valenti, 101 AD2d 612. In Mendez the Appellate Division ruled that as long as the termination of a probationer [in the classified service] is effected within a reasonable time after the end of his or her maximum period of probation, such as set to coincide with the end of the next payroll period, the courts will not deem the individual to have obtained tenure by estoppel because of his or her continuation on the payroll following the last day of his or her probationary period.

Stated another way, the appointing authority has until the last day of the individual's probationary period to decide whether to retain the employee, extend the employee's probationary period, or to terminate the employee from his or her position. Although the effective date of the employee's removal from the payroll may occur after this date, the required notice of the termination must be delivered to the employee before close of business on the last day of his or her probationary period.

* Military Law §243.9 [with respect to public employees other than teachers] and Military Law §243.9-a, [with respect to teachers] provide certain rights to such an employee entering military service before the end of his or her probationary period upon his or her return to his or her former position.

** See, also, Matter of Brown v Board of Educ. of the Mahopac Cent. School Dist., 32 Misc 3d 370, at http://www.nycourts.gov/reporter/3dseries/2011/2011_21182.htm

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_51026.htm

A retiree is not affected by post-retirement collective bargaining negotiations concerning health insurance contributions absent specific contract language to that effect in place at the time of his or her retirement

A retiree is not affected by post-retirement collective bargaining negotiations concerning  health insurance contributions absent specific contract language to that effect in place at the time of his or her retirement

Warner v Board of Educ., Cobleskill- Richmondville Cent. Sch. Dist., Warner v Board of Educ., Cobleskill- Richmondville Cent. Sch. Dist., Appellate Division, Third Department

Samuel T. Warner, on behalf of himself and other former school administrators who retired from the Cobleskill-Richmondville Central School District [Warner] sued the District in this combined proceeding pursuant to CPLR article 78 and action for declaratory judgment contending that the District had breached its contractual obligations as a result of its reducing the District's share of the cost of the premium it paid towards Warner’s health insurance coverage.

The relevant provision in the collective bargaining agreements (CBAs) in effect from July 1993 to June 2003 provided:

"Individuals who retire during the term of the contract shall be covered at the rate of 100 percent of the charge for individual coverage and 75 percent of the charge for dependent coverage, as applicable. Employees hired after July 1, 1976 shall be required to satisfy ten (10) years of service in order to be eligible to continue the health insurance program in retirement as offered by the District."

According to the Appellate Division’s decision, successive CBAs in effect from July 2003 to June 2009 contained nearly identical language regarding the rate and eligibility for retiree health insurance coverage.

In June 2009, the Association and the District agreed to a CBA for the July 2009 through June 2012 CBA that provided that employees who retire during the 2010-2011 or 2011-2012 school year would receive health insurance coverage at the rate of 84% of the charge for individual or dependent coverage as the “District’s contribution,” while those who retire during the 2009-2010 school year would continue to receive the rates of 100% for individual coverage and 75% for dependent coverage as the “District’s contribution.”

In March 2010, Warner received a letter from the District stating that, "[a]s of July 1, 2010, the rate of contribution for both eligible active and eligible retired [Association] employees shall be 16% of the charge for individual and dependent coverage." He filed a combined proceeding pursuant to CPLR Article 78 and action for declaratory judgment alleging seeking, among other things, a declaration that District is obligated to contribute to the cost of his health insurance throughout his retirement.

Supreme Court granted Warner’s motion for summary judgment, finding that the plain language of the CBAs unambiguously obligated the District to provide lifetime health insurance coverage for those bargaining unit members who retired prior to the 2010-2011 school year at a rate of 100% for individuals and 75% for dependents. The District appealed.

The Appellate Division commenced its review by noting that “A written agreement that is clear and complete on its face must be enforced according to the plain meaning of its terms” and that “Extrinsic evidence may be considered to discern the parties' intent only if the contract is ambiguous, which is a question of law for the court to resolve.”

In determining whether an ambiguity exists, said the court, the entire contract must be examined and consider the relation of the parties and the circumstances under which it was executed. “Particular words should be considered, not as if isolated from the context, but in the light of the obligation as a whole and the intention of the parties as manifested thereby."

The Appellate Division said that considering the CBAs as a whole and in accordance with these principles, it found no ambiguity, pointing out that pursuant to the CBAs in effect at the time Warner and his co-plaintiffs retired, an employee who had completed 10 years of service was entitled to health insurance coverage "in retirement." In order to receive that coverage at a rate of 100% per individual and 75% per dependent, the only requirement was that the individual "retire during the term of the contract."

Despite the District’s argument to the contrary, the court said that “nothing in the provisions at issue suggests that the coverage was limited to the time period of the CBA in effect at the time of an individual's retirement.”

Significantly, the Appellate Division pointed out that Warner and his co-plaintiffs, as retirees are not involved in subsequent collective bargaining negotiations and that "it is logical to assume [from the absence of any such durational language] that the bargaining unit intended to insulate retirees from losing important insurance rights during subsequent negotiations by using language in each and every contract which fixed their rights to coverage as of the time they retired."

Accordingly, the Appellate Division concluded that the CBAs at issue “unambiguously provide lifetime health insurance coverage to [Warner and his co-plaintiffs] pursuant to the terms of the CBA in effect at the time of their retirement, and therefore consideration of the extrinsic evidence submitted is unnecessary. Further, notes the opinion, were the court to have found that there was an ambiguity, the extrinsic evidence introduced to aid in the construction of the CBAs fully supports the interpretation proffered by Warner and his co-plaintiffs.

The court then ruled that Supreme Court had properly award summary judgment to Warner.

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2013/2013_05032.htm

Board member’s defeat in an election to the board renders appeal seeking his or her removal from the board moot

Board member’s defeat in an election to the board renders appeal seeking his or her removal from the board moot

Decisions of the Commissioner of Education # 16,468

The Board of Education asked the Commissioner of Education to remove one of its members from the board, alleging the board member had breach of fiduciary duties and violations of district policies.

The board member denied the allegations. The Commissioner, however, dismissed the Board complaint without addressing its merits.

Subsequent to its filing its complaint, the board submitted an affidavit from its superintendent stating that board member “was defeated in [the] school board election and is no longer a member of the board."

Accordingly, the Commissioner ruled that the Board’s application to remove the member was moot and dismissed it, explaining that "the Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest.”

The Commissioner’s decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume52/documents/d16468.pdf