Determining an educator’s seniority for the purposes of layoff and reinstatement

Determining an educator’s seniority for the purposes of layoff and reinstatement

Appeal of Debra Gordon from action of the Board of Education of the PotsdamCentral School District, et al, Decisions of the Commissioner of Education, Decision No. 16,582

Due to budgetary constraints, the Board of Education of the Potsdam Central School District [Board] found it necessary to abolish a reading teacher position* effective July 1, 2011. By letter dated May 26, 2011, the superintendent notified Debra Gordon that her employment would be discontinued effective July 1, 2011 and that she would be placed on a preferred eligible list for reappointment to a position in the reading tenure area.

Gordon challenged the Board’s decision excessing her based on its determination that she was the least senior reading teacher.

Gordon, a certified reading teacher, was appointed by the Board to a reading teacher position effective September 1, 2007. Necessary party Paulette Whalen, a certified reading teacher and teacher of the deaf and hearing impaired, was appointed by the Board as a teacher in both tenure areas effective September 1, 2006.

In May 2011 when the position of reading teacher was abolished, Gordon and Whalenwere the two least senior reading teachers. Gordon, contending that she was improperly terminated because she had accrued more seniority in the reading tenure area than Whalen, appealed the Board’s determination to the Commissioner of Education.

Gordon argued that The Board improperly credited Whalen with working 40% or more of her time in the reading tenure area during the 2006-2007 and 2007-2008 school years when Whalen was actually working in the tenure area of teacher of the deaf and hearing impaired. Gordon asked the Commissioner to direct her reinstatement to her former position with back salary and benefits.**

The Board, on the other hand, contended that Whalen had greater seniority than did Gordon based on her spending “at least 40% of her time working in the tenure area of reading during the 2006-2007 and 2007-2008 school years” and, in any event, Gordon’s appeal was untimely.

Here the issue to be resolved concerned when the statute of limitations began to run. Gordon argued that the 30-day period began to run from the date that another person commences service in the position at issue. The Board on the other hand, claimed that the period should be calculated from, at the latest, the effective date of Gordon’s termination.

The Commissioner decided that in order to provide clarity, a clear articulation of the rule to be applied in such cases was warranted and explained:

a. In cases in which the teacher claims that his or her services have been discontinued in violation of Education Law §§2510(2) and 3013(2) because he or she is not the least senior teacher in the tenure area of the position, the 30-day time period for commencing an appeal under Education Law §310 begins on the effective date of the abolition of the position; and

b. Where the wrong alleged by the petitioning teacher is not that he or she should have been retained and another teacher having less seniority should have been excessed but rather that the appointment of another teacher from the preferred list was in violation of law, i.e., the reinstated teacher had less seniority than the petitioning teacher, such a claim would be timely if commenced within 30 days of the date on which the other teacher commenced service in a position to which the petitioner alleges he or she is entitled.***

However, as explained below, this was a distinction without a difference insofar as Gordon was concerned as the Commissioner determined that [a] Gordon was the less senior teacher insofar as her being laid off from her position rather than Whalen and [b] Gordon was the less senior teacher had she and Whalen both been laid off and Whalen appointed to an appropriate vacancy from the preferred list rather than she.

Addressing the merits of Gordon’s appeal, the Commissioner observed that Education Law §§2510(2) and 3013(2) provide that when a board of education abolishes a position, “the services of the teacher having the least seniority in the system within the tenure of the position abolished shall be discontinued.” 8 NYCRR 30-1.1(f) of the Rules of the Board of Regents defines seniority as follows: Seniority means length of service in a designated tenure area, rather than length of service in the district; such service need not have been consecutive but shall during each term for which seniority credit is sought, have constituted a substantial portion of the time of the professional educator.

As used in Part 30 of the Rules of the Board of Regents, the term “substantial portion” means 40% or more of the total time spent by a professional educator in the performance of his or her duties, exclusive of time spent in preparation, monitoring or in co-curricular activities (8 NYCRR §30.1[g]).

Thus, the principal issue in this appeal was whether or not Whalen spent 40% or more of her time performing duties in the reading tenure area during the 2006-2007 and 2007 - 2008 school years and Gordon had [1] the burden of demonstrating a clear legal right to the relief requested and [2] the burden of establishing the facts upon which she sought relief.

After considering the evidence presented by the parties in support of their respective positions, the Commissioner said as pertains to the 2006-2007 school year, he disagreed with The Board’s conclusion that Whalen’s time was spent primarily in the tenure area of reading, finding that for the 2006-2007 school year only 10% of Whalen’s time should have been credited to the reading tenure area.

As to the 2007-2008 school year, the Commissioner said that he although he did not agree with the Board’s finding that Whalen spent 100% of her time during the 2007-2008 school year in the reading tenure area, he did find that she spent at least 55% of her time in the reading tenure area and therefore gained a year of seniority for the 2007-2008 school year in the reading tenure area.

In view of the Commissioner’s determination that Whalen did not spend at least 40% of her time in the reading tenure area for the 2006-2007 school year, but did so for the 2007-2008 school year, the Commissioner ruled that Gordon and Whalen both had the same number of years of seniority in the reading tenure area.

Citing Matter of Schoenfeld, 98 AD2d 723, the Commissioner concluded that when full-time service is equal, the teachers’ respective appointment dates are to be used for determining seniority as the “tie-breaker.” The Commissioner further noted that in Appeal of Kulick, 34 Ed Dept Rep 613, Commissioner’s Decision No. 13,428, it was held that “In determining the order of seniority of teachers within a district ‘... it is clear that the teacher whose appointment occurred first had a longer seniority ... than the teacher who was appointed upon a later resolution.’”

Whalen’s appointment date was effective September 1, 2006, while Gordon’s was September 1, 2007. Thus, concluded the Commissioner, as of July 1, 2011, the date the Board eliminated a reading teacher position, Gordon was the reading teacher with the least seniority.

The bottom line: Although the Commissioner found that The Board’s determination regarding the time spent by Whalen in the reading tenure area improper in part, she, in fact, was deemed to have greater seniority than Gordon.

The Commissioner then directed The Board to recalculate Whalen’s seniority rights in the reading and teacher of the deaf and hearing impaired tenure areas in accordance with his decision.

* The Commissioner noted that although both Gordon and The Board refer to the position at issue as that of a “reading teacher,” in accordance with §30-1.8 of the Rules of the Board of Regents this special subject tenure area is properly entitled “remedial reading.”

** In the event an employee is improperly laid off from his or her position the employer is required to reinstate the individual to his or her former position with back salary and benefits.

*** Finding that there was conflict in the past Commissioner’s decisions addressing these issues, the Commissioner concluded that “a teacher could not know with certainty whenthey must commence an appeal challenging the abolition of a position.” Under the circumstance, the Commissioner said that he would “excuse a delay in commencing an appeal more than 30 days after the effective date of the abolition of a position” and would excuse the delay in Gordon’s filing of her appeal “and any other similar appeal challenging an abolition of a position pursuant to Education Law §§2510 or 3013 that is pending before me on the date of this decision.”

The decision is posted on the Internet at:
 http://www.counsel.nysed.gov/Decisions/volume53/documents/d16582.pdf

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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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Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending January 4, 2014

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending January 4, 2014

Click on text highlighted in color  to access the full report

State Comptroller DiNapoli Releases Year–End Accomplishments

The New York State Common Retirement Fund reached an all–time high of $160.7 billion in 2013, State Comptroller Thomas P. DiNapoli noted in a release dated January 3, 2014 summarizing his office’s major accomplishments in 2013. Other notable highlights include several convictions from the fight against public corruption, statewide efforts to deal with local fiscal stress, returning $412 million in lost money to New Yorkers through the Unclaimed Funds program, and his continued push for campaign finance reform.

DiNapoli Appoints Tina Kim Deputy for State Government Accountability

State Comptroller Thomas P. DiNapoli announced Tuesday that he has appointed Tina Kim as deputy comptroller for state government accountability. Most recently, Kim served as deputy comptroller for audit for the New York City Comptroller’s office. She will begin her new position in early January.

DiNapoli Audit Finds Amsterdam’s Finances Hampered by Poor Recordkeeping

Officials in the City of Amsterdam are unable to properly assess and monitor the city’s financial condition due to inadequate, inaccurate and incomplete accounting records, according to an auditreleased January 3, 2014 by State Comptroller Thomas P. DiNapoli.
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Appointment and removal of town court clerks

Appointment and removal of town court clerks

Reno v Van Voris, 170 Misc.2d 187, 230 A.D.2d 296

Section 20.1(a) of the NYS Town Law provides that the clerk of a town court "shall be employed and discharged from employment only upon the advice and consent of the town justice or justices." The Reno decision indicates that this 1990 amendment to the Town Law [Chapter 252, Laws of 1990] is to be strictly applied.

Roberta Reno was appointed as town court clerk by Town Justice Charles Assini, Jr., in 1988 and "was solely under his supervision."

In March 1996 Town of East Greenbush Town Justice Catherine Cholakis, the other of the Town's two sitting Town Justices, wrote the Town Supervisor requesting that Reno be terminated because of her alleged failure to correct deficiencies noted in an audit by the State Comptroller. This resulted in the Town Board's voting to suspend Reno without pay "until further notice" the following June.

Reno successfully challenged this action by the Board, winning a court order directing her reinstatement with back salary and benefits.

The Appellate Division affirmed, agreeing with the lower Court that Reno's unconditional and indefinite suspension without pay constituted a "discharge" within the meaning of Section 20.1(a).

The Appellate Division said that the legislative intent in amending Section 20.1(a) was to "blend the actions of the Town Board with the wishes of the Town Justice to whom the Court Clerk reports and to provide Town Justices with control over the selection and removal of their Court Clerks." As Reno was solely responsible to Justice Assini at the time of her suspension, the Court said that Assini's consent was required before the Town Board could be authorized to discharge her.
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State Comptroller is required to correct any errors affecting a retiree's benefits upon the discovery of the error

State Comptroller is required to correct any errors affecting a retiree's benefits upon the discovery of the error
2013 NY Slip Op 07238, Appellate Division, Third Department

A police officer [Officer] submitted an application for disability retirement benefits. While his application was pending, Officer’s employer filed disciplinary charges against him and, on November 19, 2007, he was terminated by the employer.

Officer’s application for disability retirement benefits was approved on August 12, 2008 and his effective retirement date was set as November 17, 2007, the date of Officer's last day on the employer’s payroll as reported by the employer.

However, after receiving additional information from the employer indicating that Officer had, in fact, remained on the employer’s payroll through November 19, 2007, the Retirement System adjusted Officer’s retirement date to November 20, 2007. 

Following an unsuccessful administrative appeal seeking to reinstate November 17, 2007 as the effective date of his retirement for disability, Officer filed an Article 78 petition seeking a court order vacating the Comptroller’s determination.

The Appellate Division affirmed the administrative determination noting that Comptroller “is vested with the exclusive authority to determine applications for retirement benefits and such determination, if supported by substantial evidence, must be upheld.”  Citing 2 NYCRR 309.6, the court said that the effective date of a member's disability retirement is either [1] "on the date of filing of such disability retirement application" or [2] "on the day after the last date on which the member receives salary, whichever is later."

As the Comptroller is required to correct any changes or errors affecting a retiree's benefits upon discovery thereof, notwithstanding Officer's claim that his effective retirement date was changed as a result of actions taken by the employer in retaliation for a civil rights claim that he had asserted against it, the Appellate Division held that the Comptroller is entitled to rely upon the payroll information provided by the employer.

As the record reflected Officer's termination date from the payroll as November 19, 2007, the Comptroller’s determination was held to be supported by substantial evidence and Appellate Division said that it found no basis to disturb it.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_07238.htm

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Providing the names and home addresses of employees of a private contractor to an employee organization to be determined by applying a “balancing test” to avoid an "unwarranted invasion" of privacy

Providing the names and home addresses of employees of a private contractor to an employee organization to be determined by applying a “balancing test” to avoid an "unwarranted invasion" of privacy
Massaro v New York State Thruway Auth., 2013 NY Slip Op 07234, Appellate Division, Third Department*

A union official submitted a Freedom of Information Law [FOIL] request to the New York Thruway Authority in an effort to “ensure that nonunion contractors comply with the prevailing wage law” (see Labor Law §220). Among other things, the official asked the Thruway to provide certified payroll records of a private nonunion contractor relating to work it performed on a public works project and the names and home address of the employees performing the work employed by the nonunion contractor.

The Thruway granted the official's request in part, providing employee titles and corresponding wage rates that were paid, redacting the employees' names, home addresses and Social Security numbers. The Thruway contended that providing the names and related information of the employees would constitute an unwarranted invasion of personal privacy within the meaning of FOIL.

After an unsuccessful administrative appeal, the official filed an Article 78 petition in Supreme Court seeking a court order directing the Thruway to provide him with the private employer’s employees' names and home addresses. Supreme Court dismissed the petition and official appealed that court’s ruling.

The Appellate Division, pointing out that the personal privacy exemption set out in Public Officers Law §87 [2] [b]) provides “a nonexhaustive list of categories of information that falls within the exemption.”

Where, however, none of the categories of exemption specifically cover the information demanded, the court said that the issue of whether there is an "unwarranted invasion" of privacy is decided "by balancing the privacy interests at stake against the public interest in disclosure of the information."

As to the balancing analysis, the Appellate Division said that “An unwarranted invasion of personal privacy has been characterized as that which ‘would be offensive and objectionable to a reasonable [person] of ordinary sensibilities.'  Here the official wishes to obtain the names and home addresses so that it can contact employees of the nonunion contractor to find out if they were paid as reported by their employer.”

In the words of the Appellate Division, “The scenario of nonunion employees of a nongovernment employer being contacted at their homes by someone from a union who knows their names, their home addresses, the amount of money they reportedly earn, and who wants to talk about that income would be, to most reasonable people, offensive and objectionable.” This, the court characterized as “a significant privacy interest.” Citing United States Dept. of Defense v Federal Labor Relations Auth., 510 US 487.

Rejecting the union official’s argument that the release of this information to his union is in the public interest since the union is attempting to ensure that the contractor paid appropriate wages and that the union is gathering necessary data should an underpaid employee desire its representation under Labor Law § 220-g, the Appellate Division said that the redacted payroll records that the Thruway provided – indicating employee titles and corresponding wage rates — provide “sufficient information (absent fraudulent record creation by a contractor) to confirm whether the contractor complied with wage requirements.”

Further, explained the court, in the event fraudulent or any other noncompliant conduct is suspected, an investigation may be initiated upon request to the appropriate government official as Labor Law §220 (7) provides that a governmental fiscal officer "shall on a verified complaint in writing of any person interested or of [a union] [or] may on his [or her] own initiative cause a compliance investigation to be made to determine whether the contractor . . . has paid the prevailing rate of wages."

The Appellate Division’s conclusion” “Notwithstanding the FOIL presumption of access to information gathered by the government and the important policy of ensuring payment of prevailing wages, the significant personal privacy interests implicated here prevail, particularly since the information already provided to petitioner should be sufficient to ensure compliance; in any event, other avenues are available to ensure compliance without invading the privacy of the employees of the nonunion contractor by disclosing their names and home addresses.”

* See also Stevens v New York State Thruway Authority, 2013 NY Slip Op 07235, Appellate Division, Third Department, a case involving essentially the same issues, posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2013/2013_07235.htm

The Massaro decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_07234.htm
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