Probation and layoff rights of an educator being employed by a school district following a take-back BOCES program

Probation and layoff rights of an educator being employed by a school district following a take-back BOCES program
Decisions of the Commissioner of Education 13964

As a result of a “take-back” of programs by component school districts of Rensselaer-Columbia-Greene BOCES, Ellen Chernoff was excessed.

Chernoff subsequently accepted a full-time position with the Wynantskill Central School District in Rensselaer County. Later Chernoff resigned from Wynantskill after she was offered full-time employment by the BOCES, also called Questar III. However, she objected to the statement in her letter of appointment indicating that she would be required to serve a two-year probationary period.

Questar III countered by stating that Chernoff had “freely and knowingly” became a full-time Wynantskill employee and thus extinguished her preferred list rights with it. Commissioner of Education Richard P. Mills agreed and dismissed Chernoff’s appeal.

Another issue in the appeal involved a BOCES form in which excessed employees, including Chernoff, stated they had been advised that by taking a job with a component school district of the BOCES, they had forfeited their place on a preferred list to be re-hired by BOCES. The form included a statement of resignation:

"I have been advised of my rights under Section 3014-b [of the Education Law] and have accepted a full-time position [with the Wynantskill Central School District] in the Tenure area of General Special Education. As a result, I hereby resign as an employee of Questar III effective June 30, 1997. "

The Commissioner found no significance in Chernoff’s execution of this form to the issues under appeal. However, he commented that BOCES lacked authority to require such a document be signed when a teacher is excessed pursuant to Section 3014-b. He recommended that Questar III discontinue the practice.
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For information about PELP's electronic handbook Layoff, Preferred Lists and Reinstatement of public employees in New York, go to: http://nylayoff.blogspot.com/
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NYPPL

Representation and indemnification of public officers and employees sued for acts or omissions related to the performance of official duties

Representation and indemnification of public officers and employees sued for acts or omissions related to the performance of official duties
Walsh v County of Saratoga, 256 AD2d 953 [decided with Mason v County of Saratoga]

In this “tax sale” lawsuit, the Saratoga County Treasurer, George Gasser, said that his official position in the matter and that of the Board of Supervisors were incongruous. When the County Attorney said that he would represent the County in the litigation, Gasser sought independent counsel.

Gasser subsequently asked the County to reimburse his attorney’s fees as provided under Section 18 of the Public Officers Law.

The county declined to do so, claiming that Gasser “never made the required written request for a defense.”

A State Supreme Court justice ruled that Gasser “should be insulated from litigation expenses arising out of the performance of his duties” and the county appealed.

The Appellate Division rejected the county’s contention that Gasser’s failure to “tender the required written notice” precluded its reimbursing him for his legal costs. It said it “consistently held that a statute’s notice requirements need not be deemed a condition precedent to an employee’s right to legal representation.”

According to the ruling, the purpose of such a notice is “to prevent default and to afford the municipality an opportunity to promptly investigate the incident to determine, among other things, whether the employee was acting within the scope of his or her employment.”

The court found that “it was undisputed” that Gasser was acting within the scope of his employment” and that the county was aware of the proceedings at their commencement and had ample opportunity to investigate.

The Appellate Division, affirming the lower court’s ruling, said that there was “no impediment to [Gasser’s] representation pursuant to Public Officers Law Section 18.” Gasser was statutorily entitled to representation by independent counsel once the County Attorney informed him that he would not be appearing on his behalf in the matter.
NYPPL

The interpretation of a “management right’s clause” in a collective bargaining agreement is for the arbitrator rather than PERB to resolve

The interpretation of a “management right’s clause” in a collective bargaining agreement is for the arbitrator rather than PERB to resolve
Roma v Ruffo, Court of Appeals, 92 NY2d 489

The collective bargaining agreement between the Susquehanna Valley Central School District and CSEA Local 1000 provided that school matrons would normally work an eight-hour day/40-hour work week and that the district would negotiate any changes in the matron’s working conditions with Local 1000.

The agreement also included a “management rights” clause reserving to the district the right to “transfer and abolish positions” and a “non-binding arbitration” provision. The “final grievance decision” was vested in the school board.

Without negotiating the change with Local 1000, the district told the matrons that their work schedule would be changed to a six-hour day/30-hour workweek “due to budgetary considerations.” The union filed a grievance under the collective bargaining agreement contending that this unilateral change in the work schedule constituted a violation of the contract.

When the school board, the final step in the grievance procedure, denied the grievance after finding that the agreement had not been violated, Local 1000 sued. A state Supreme Court justice decided that the school board’s determination was arbitrary in view of the specific contract provision at issue. It directed the district to reinstate the matron’s former work schedule.

The district appealed, arguing that the lower court’s order was unenforceable because “PERB had exclusive jurisdiction” over the controversy. In other words, the district argued that the Supreme Court did not have jurisdiction to decide the matter. The Appellate Division agreed, vacating the lower court’s decision.

But on further appeal, the Court of Appeals, New York State’s highest court, found the issue involved an allegation that the terms of the contract were violated, not that the district may have committed and improper practice by refusing to negotiate. The court held that if a term and condition of employment specifically covered by the collective bargaining agreement is alleged to have been violated, the issue may be resolved through the agreement’s grievance procedure.

The decision notes that because the matrons’ work hours were covered by a provision in the contract, “neither party had a statutory duty to negotiate changes in those hours.” Thus, said the court, “it necessarily follows that the school district’s unilateral change cannot constitute the improper practice of failure to bargain in good faith.” The court characterized the district’s action as a breach of the contract, remediable through the contractual grievance procedure agreed upon by the parties.

If, however, the contract’s work hours provision was subject to a so-called “contract re-opener” clause, in which the parties identify in the contract a specific issue to be reconsidered at a later date, any change would be subject to collective bargaining. If a party then failed to bargain in good faith, PERB would have exclusive jurisdiction to resolve that issue.

In Susquehanna Valley situation, however, the court ruled that PERB does not have “exclusive jurisdiction” for two reasons:

1. CSEA did not allege anything that was within PERB’s jurisdiction under Section 209-a[1][d] of the Civil Service Law. This subdivision provides that an employer’s alleged failure to bargain in good faith constitutes an “improper employer practice” as Local 1000 simply complained that the district had violated specific terms and conditions of employment set out in the agreement.

2. Section 205(5)(d) places limits PERB’s authority and PERB does not have jurisdiction with respect to (a) enforcing the terms of an agreement between the parties, nor (b) considering alleged violations of a Taylor Law agreement.

Reinstating the ruling by the Supreme Court, the Court of Appeals held that the district had violated the “unambiguous” terms of the Taylor Law agreement between the parties. It directed the district to restore their full-time working hours, salary and benefits “unless/until the conditions of said employment are altered in accordance with the provisions of the collective bargaining agreement.”

As to the “management right’s clause” aspect of the controversy, the Court of Appeals observed that “the scope of the management prerogative clauses was ... ‘a contractual issue beyond PERB’s jurisdiction’” as well. Presumably, this provision could be advanced by the district in support of claim that its unilateral change in the matron’s work schedule did not violate the contract.
NYPPL

Individual dismissed employee pursuant to Civil Service Law §71 may apply for reinstatement within one year of the termination of the disability

Individual dismissed employee pursuant to Civil Service Law §71 may apply for reinstatement within one year of the termination of the disability
Stroh v Harrison School District, NYS Sup. Ct., [Not selected for publication in the Official Reports]

The Stroh case illustrates some of the elements an employer should consider in the event an individual is disabled as the result of a work-connected injury or disease for the purposes of Section 71 of the Civil Service Law.

Essentially Section 71 provides that where an individual has been disabled within the meaning of the Workers’ Compensation Law, he or she is entitled to a leave of absence for at least one year, unless the individual is permanently incapacitated from performing the duties of his or her position. This is commonly referred to as “Section 71 leave.” If the employee is terminated from a Section 71 leave, he or she may seek reinstatement by applying to the civil service commission having jurisdiction for a medical examination. This application must be submitted by the individual within one year of the termination of his or her disability.

If the commission’s medical officer certifies that the individual is physically and mentally fit to perform the duties of the position, the individual is to be reinstated to his or her former position, if it is available. If it is not available, the individual is to be reinstated to a similar position or a position for which he or she is eligible. If no position is available, the individual’s name is to be placed on a preferred list.

In this case, State Supreme Court Justice Samuel G. Fredman held that Thomas Stroh, the Harrison School District’s head custodian, had not been “properly terminated” within the meaning of Section 71 because he had never been placed on leave pursuant to Section 71. Accordingly, Stroh, said the court, was entitled to reinstatement with back salary and benefits as of December 31, 1995.

Justice Fredman concluded that Stroh had not been placed on leave pursuant to Section 71 because the district did not establish “either that [Stroh’s] date of injury was the date of commencement of the governing Section 71 time period, or that [Stroh] was made aware of this fact in any event.”

The court found that Stroh suffered a work-related injury and was out “on workers’ compensation” from April 1994 until he returned to work in February 1995. On March 20, 1995, the district determined that Stroh “was unable to perform his job duties” and placed him on “sick leave.” It later told him that was terminated pursuant to Section 71. The decision also notes that Stroh applied for, but was denied, accidental disability retirement by the New York State Employees’ Retirement System.

Justice Fredman said that he “declines to leave [Stroh] in the untenable position into which [the district’s] actions have placed him, namely, that his employment was terminated by [the district] because he allegedly was disabled, but the Retirement System has found him ‘not permanently incapacitated for the performance’ of the very same duties and denied his application for an Accidental Disability Retirement.”

Another element noted by the court was the medical opinion submitted by the district’s physician which stated that it was the “physician’s ‘impression’ that ‘Mr. Stroh will not be able to fulfill his duties as so outlined’ in ‘the job description of a Head Custodial worker’....” This, said the Justice Fredman, does not “indicate unequivocally” that Stroh was unable to fulfill his duties.

The Americans with Disabilities Act [ADA] could also be a factor in Section 71 cases. If an individual is found, or is perceived to be, disabled, ADA requires that the employer consider the practicability of providing a “reasonable accommodation” of the employee’s disability. Stroh claimed that he could perform the duties of his position while his employer decided that he was not qualified to do so.

Although the ruling is silent on this point, the respective positions of the parties suggest that it would have been appropriate for the district to have explored the possibility of providing Stroh with a “reasonable accommodation” in order to be in compliance with ADA.

NYPPL

Hearing officer recommends termination of employee unwilling to follow instructions

Hearing officer recommends termination of employee unwilling to follow instructions
Dept. of Housing Preservation and Development v Hand, OATH Index #2594/10

OATH Administrative Law Judge Kara Miller decided that a clerical employee's persistent unwillingness to properly process tenant appointments warranted termination.

Judge Miller found that the employee, Deborrah Hand, had improperly processed 112 appointments despite the fact that she had been given step-by-step instructions on how to do the task.

Hand, instead, “deliberatively chose to do it her own way.” As a result of Hand's failure to make proper computer entries complaints were automatically closed out and inspectors were not sent to scheduled inspections.

Consequently, Housing received complaints from tenants who waited at home for inspectors who never came.

Judge Miller recommend that Hand be terminated because of her unwillingness to follow instructions “constituted incompetence.” The ALJ also commented that Hand’s incompetence “cannot be cured by moving her to another job title.”

The decision is posted on the Internet at:
http://archive.citylaw.org/oath/10_Cases/10-2594.pdf
NYPPL