Teacher terminated after being found guilty of filing a fraudulent affidavit to obtain a free New York City education for her non-resident child

Teacher terminated after being found guilty of filing a fraudulent affidavit to obtain a free New York City education for her non-resident child

Matter of the Department of Education of the City of New York, 2013 NY Slip Op 06615, Appellate Division, First Department

A New York City School teacher was served with disciplinary charges pursuant to §3020-a of the Education Law alleging that she had “fraudulently obtained a free New York City public school education for her son during the 2009-2010 school year.”

Finding the teacher guilty of certain charges and specifications filed against her and not withstanding the teacher’s efforts to mitigate the penalty to be imposed by noting her previously “unblemished record as a teacher” and her offering to pay the appropriate tuition for her child’s education, the arbitrator imposed the penalty of termination for her misconduct.

The teacher then filed a petition pursuant to Article 75 of the Civil Practice Law and Rules in an effort to have Supreme Court vacate the penalty imposed. Supreme Court sustained the arbitrator's determination and dismissed the teacher's petition.*

The Appellate Division sustained the Supreme Court's ruling, noting the arbitrator’s decision was supported by adequate evidence in the record. Further, said the court the teacher “did not urge the hearing officer to apply a heightened standard in finding fraud.”

The Appellate Division said that under the circumstances “the penalty of termination is not shocking” in view of the teacher’s using “a fraudulent affidavit to obtain a free New York City education for her non-resident child.”

* The Supreme Court's ruling on the teacher's Article 75 petition is posted on the Internet at: http://www.nycourts.gov/reporter/pdfs/2011/2011_33408.pdf

The Appellate Division’s decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_06615.htm

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Some important procedural matters in processing disciplinary action

Some important procedural matters in processing disciplinary action

Decisions of the Commissioner of Education, Decision 10894

On occasion a determination by the Court or an administrative body is instructive to non-participants because of the procedural matters it discusses. An example of this is found in Decision 10894 by the Commissioner of Education.

In this appeal involving processing a disciplinary procedure initiated pursuant to §3020-a of the Education Law, the Commissioner dismissed both the appeal by the employer and the cross-appeal filed by the teacher, noting:

     1. The subpoenas duces tecum (produce the papers) served on the District was non-judicial subpoena and it was necessary for the teacher to seek a Court judicial subpoena compelling compliance [see CPLR §2308(b)].

     2. Charges served on the teacher not sufficiently specific to enable the teacher to adequately respond may be dismissed (without prejudice) by the hearing panel chair.

     3. §3020-a procedures are not required to comply with technical rules of evidence and hearsay testimony in such hearings is not improper.

     4. Admissions against interest alleged to have been made by an employee will not satisfy the District’s burden of proof, and due process requires the production of, and the opportunity to cross-examine, a witness who could competently testify to the fact that such a statement was made by the employee in question.

These basic concepts apply in Civil Service Law §75 disciplinary actions and are typically followed in contract disciplinary arbitrations as well.
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Negotiating on behalf of active employees concerning to benefits available to them following retirement and negotiating on behalf of retired employees distinguished

Negotiating on behalf of active employees concerning to benefits available to them following retirement and negotiating on behalf of retired employees distinguished

Oneida PBA v. City of Oneida, PERB Case U-5805

The Union (PBA) demanded hospitalization benefits which the City contended would apply to retired employees. The PBA reformed its demand, claiming that the benefit improvement would apply only to present employees and that it merely requested that the present health insurance benefits be continued for retired employees.

The City subsequently filed a charge with PERB claiming PBA had applied for arbitration on non-mandatory items of negotiations. When the hearing officer ruled in favor of the City, finding the “revised demand constituted a unitary demand which is nonnegotiable,” PBA appealed. 

PERB affirmed the hearing officer’s ruling, distinguishing between PBA negotiating on behalf of present employees with respect to benefits to be available to them upon their retirement and negotiating on behalf of then retired employees.

PBA, said PERB, had the right to negotiate only for current unit members and retired persons are not “current unit members”

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New York court apply a “two-step test" when determining if a grievance alleging a violation of the collective bargaining agreement may be submitted to arbitration

New York courts apply a “two-step test" when determining if a grievance alleging a violation of the collective bargaining agreement may be submitted to arbitration

Matter of Kenmore-Town of Tonawanda Union Free Sch. Dist. (Ken-Ton School. Employees. Assn.), 2013 NY Slip Op 06490, Appellate Division, Fourth Department

The Kenmore-Town of Tonawanda UFSD [District] filed a petition pursuant to Article 75 of the CPLR seeing a permanent stay of arbitration with respect to a grievance filed challenging the District’s terminating an employee. Supreme Court dismissed the District’s petition and the Appellate Division affirmed the lower court’s ruling.

The Appellate Division explained that in determining if a grievance is subject to arbitration under the relevant collective bargaining agreement (CBA), the court applies the “two-step analysis set forth in Matter of Acting Supt. of Schs. of Liverpool Cent. Sch. Dist. (United Liverpool Faculty Assn), 42 NY2d 509”

Step 1 – The court must determine whether there is any statutory, constitutional or public policy prohibition against arbitrating the grievance.

Step 2 – In the event the court determines that there is no such bar to proceeding to arbitration, it then considers whether the CBA demonstrates that the parties agreed to refer this type of dispute to arbitration.

The CBA in this instance, said the Appellate Division, set out a broad arbitration clause and thus the court’s inquiry is limited to determining “whether there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA"

The grievance filed with the District questioned whether the District had followed "the procedures mandated by the CBA in terminating the employee in question.” The Appellate Division concluded that Supreme Court “properly determined that the parties had the authority to agree to arbitrate this grievance, and that they in fact agreed to do so.”

As to the District’s argument that the provisions of the CBA “violate public policy and the Civil Service Law,” an issue raised for the first time on appeal, the Appellate Division elected to consider the claim. It ruled that that Civil Service Law §75 "may be supplemented, modified or replaced by agreements negotiated between the state and an employee organization pursuant to article fourteen of this chapter," citing Civil Service Law §76[4].

§76[4], in pertinent part, provides: “… section seventy-five or seventy-six of this … may be supplemented, modified or replaced by agreements negotiated between the state and an employee organization pursuant to article fourteen of this chapter …”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_06490.htm

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Employee terminated for use of vulgar language and conduct detrimental to the employer's interests

Employee terminated for use of vulgar language and conduct detrimental to the employer's interests

2013 NY Slip Op 06061, Appellate Division, Third Department

An employee [A] called the office to check on the attendance of a particular staff member [B] with whom she had been having difficulties. A, believing that she was speaking to another staff member, when in fact, B had answered the phone, made a statement about B that contained obscenities and a racial epithet. The employer, finding that the A’s statement had caused a disruption in the operation of the workplace, terminated her.

A’s application for unemployment insurance was rejected by the Unemployment Insurance Appeal Board after the Board ruled that A was disqualified from receiving unemployment insurance benefits because her employment was terminated due to misconduct.

A appealed the Board’s determination but the Appellate Division sustained the Board’s ruling, explaining that  “An employee's use of vulgar language and conduct that is detrimental to the employer's interests have been found to constitute disqualifying misconduct,” citing Matter of Cheeseboro, 84 AD3d 1635.

Given the undisputed facts of this case, said the court, substantial evidence supports the Board's determination that A's statement and its effect on the workplace environment constituted disqualifying misconduct.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_06061.htm

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