Employee’s appointment from an open competitive list to a higher grade position deemed a promotion within the meaning of Civil Service Law §63(1) under a local civil service commission’s rules

Employee’s appointment from an open competitive list to a higher grade position deemed a promotion within the meaning of Civil Service Law §63(1) under a local civil service commission’s rules 

2013 NY Slip Op 08085, Appellate Division, Second Department

The school district initially appointed Employee as a cleaner and later appointed him to the position of “custodial worker.” Subsequently the school district permanently appointed Employee to a higher level position, senior custodian, from an open-competitive eligible list. This appointment was subject to Employee’s satisfactory completion of a 12-month probationary period.

Before Employee had completed the 12-month probationary period the school district had "reason to believe" that Employee had engaged in certain improper conduct and terminated him from its employ.

Employee sued the school district, contending that, among other things, his termination was unlawful and that he was entitled, pursuant to the provisions of Civil Service Law §63(1), to return to his previous position of "custodial worker."

The Supreme Court, among other things, granted that branch of Employer’s petition that restored him to his former position, custodial worker, with back pay and benefits.

The Appellate Division sustained the Supreme Court’s decision, stating that it had “properly determined that [Employee’s] appointment as "senior custodian" was a "promotion," despite its having been made from the "open competitive" list rather than from the "promotional list."*

The Appellate Division explained that although the Civil Service Law does not expressly define "promotion," Civil Service Rule 10.1 of the local commission having jurisdiction provides that "[a]ny advancement of an employee from a position in one title to a position in another title having either greater responsibilities or for which a higher maximum rate of pay is prescribed, shall be deemed a promotion, and shall be made only in accordance with the provisions of the Civil Service Law and these rules. All vacancies in the competitive class shall be filled by promotion[s] as far as is practicable"

As Employee’s advancement from the position of "custodial worker" to "senior custodian" involved both greater responsibilities and carried a higher maximum rate of pay, the Appellate Division ruled that the advancement constituted a "promotion" within the meaning of the [responsible commission’s rules].

Observing that Employee had not been removed from his probationary employment pursuant to Civil Service Law §75, the Appellate Division said that the district should have reinstated him to his prior permanent position of custodial worker.

Thus, said the court, Employee’s termination “was made in violation of lawful procedure.”

* Civil Service Law §63(1) mandates that "[w]hen probationary service is required upon promotion, the position formerly held by the person promoted shall be held open for him [or her] and shall not be filled, except on a temporary basis, pending completion of his [or her] probationary term” [emphasis supplied by the Appellate Division].

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_08085.htm
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Appointing authority not required to offer a probationary employee a second extension of his or her probationary period

Appointing authority not required to offer a probationary employee a second extension of his or her probationary period

2013 NY Slip Op 07686, Appellate Division,

Supreme Court, New York County, annulled the New York City Department of Education’s decision to terminate a probationary principal, [Probationer] and directed the Department to reinstate her to her position, with back pay. The Appellate Division unanimously reversed the lower court’s decision, on the law.

The Appellate Division explained that Probationer had failed to meet her burden of establishing that she was terminated in bad faith or for an improper or impermissible reason.

The court said that the record indicated that the district superintendent had various concerns about Probationer’s performance with respect to “students' academic performance, school budgetary issues, and her leadership abilities” throughout Probationer’s probationary period.

As a result, Probationer was offered extensions of her probationary employment twice.

Although she had accepted the initial offer of extending her probationary period, Probationer did not willingly accept the Department’s offer to extend the probationary employment a second time, noting on the second probationary extension agreement that “she disagreed with numerous clauses and that she was signing the offer ‘under duress.’" The Department then terminated Probationer from the principal position.

In particular, the Appellate Division noted that “[The Department was] not required, simply because [it] had done so once, to extend [Probationer’s] probation a second time despite [its] concerns about her performance.”

Addressing other aspects of Probationer’s petition, the Appellate Division said that:

1. Probationer had failed establish a prima faciecase of unlawful discrimination or retaliation, based on her claim of an environmental disability, under the State and City Human Rights Laws; and

2. The facts in this case “undermine the allegation that [Probationer] was denied a reasonable accommodation by the Department of Education's Medical Bureau,” as she had been provided with an air purifier, and she did not complain again about her condition until after she was offered the second extension of probation, rather than tenure.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_07686.htm
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Adequate evidence in the record supported the arbitrator’s determination that the employee was guilty of disciplinary charges filed against him

Adequate evidence in the record supported the arbitrator’s determination that the employee was guilty of disciplinary charges filed against him

2013 NY Slip Op 08027, Appellate Division, First Department

Supreme Court granted the New York City Department of Education’s motion to confirm an arbitration award terminating Educator’s employment as a New York City schoolteacher.

The Appellate Division affirmed the Supreme Court’s ruling, indicating that there was adequate evidence in the record to support the arbitrator’s determination that Educator was guilty of disciplinary charges and specifications alleging insubordination, neglect of duty, conduct unbecoming his position, and using language that constituted verbal abuse of his students as prohibited by the regulations of the Department of Education.

Further, said the court there was no basis to disturb the Hearing Officer's decision to credit the testimony of multiple students and the assistant principal over that of Educator.

Addressing Educator’s claim that that the arbitration award “was not in accord with due process and was arbitrary and capricious,” the Appellate Division said that Educator was given notice of the charges against him, had the opportunity to defend himself at a hearing at which he testified and presented other evidence, and was able to cross-examine witnesses.

Although thee Hearing Officer acknowledged that there were flaws in the investigation leading to the filing of disciplinary charges against Educator, he noted that it was fair and objective.

With respect to Educator’s challenge to the penalty imposed, termination, the Appellate Dividing said that such a penalty did not shock one's sense of fairness and that the record showed that the Hearing Officer considered mitigating circumstances such as Educator’s lack of and prior disciplinary history during his 14-year career with the Department of Education and the likelihood that Educator would not correct his inappropriate behavior.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_08027.htm
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A school board’s statutory discretion to set additional qualifications for appointment of an educator may not be impaired through collective bargaining.

A school board’s statutory discretion to set additional qualifications for appointment of an educator may not be impaired through collective bargaining.
Board of Educ. of Valhalla Union Free Sch. Dist. v Valhalla Teachers Assn., 2013 NY Slip Op 08076, Appellate Division, Second Department

The collective bargaining agreement [CBA] between the Board of Education of the Valhalla Union Free School District and the Valhalla Teachers Association provided that, where a teacher's position has been "excessed" and another position becomes available, the Board must appoint the teacher whose position was excessed to the available position, if the teacher is certified in the teaching area in the available position.

A Spanish language teacher retired and the Board made an appointment to the resulting vacancy. Two weeks later the Board "excessed" Teacher, a teacher of English as a second language.

The Association filed a grievance on behalf of Teacher claiming that Teacher, who was certified to teach Spanish and had experience teaching the subject in another school district, should have been appointed to the Spanish language teacher position.

The Superintendent of Schools denied the grievance and ultimately the Association demanded the grievance be submitted to arbitration. The Board thereupon filed a petition to permanently stay arbitration, contending that the CBA provision at issue conflicted with public policy and the mandates of the Education Law.

The Supreme Court denied the Board’s petition, which decision the Appellate Division reversed and granted the Board’s petition to permanently stay arbitration of the grievance.

The Appellate Division explained that the intent to arbitrate of parties to a collective bargaining agreement in the field of public employment may not be presumed but "[I]t must be taken, in the absence of clear, unequivocal agreement to the contrary, that the board of education did not intend to refer differences which might arise to the arbitration forum," and such reference "may not be based on implication.”

In County of Chautauqua v Civil Serv. Empls. Assn., Local 1000, AFSCME, AFL-CIO, County of Chautauqua Unit 6300, Chautauqua County Local 807, 8 NY3d 513, the Court of Appeals set out the following “two-part test” to determine whether a dispute between a public employer and the organization representing its employees is subject to arbitration:

1. Whether anything in a statute, constitution, or public policy prohibits the parties from referring the dispute to arbitration; and 

2. Whether the language of the CBA indicates a clear agreement between the parties to arbitrate the matter.

Noting that the Education Law §§3012[1][a]; 1709[16] vests discretion to the board of education, upon recommendation of the superintendent of schools, to appoint "qualified" teachers to nontenured teaching positions, the Appellate Division said determining if a prospective candidate is possessed of qualifications "is a responsibility of the type that may not be bargained away, as it is central to the maintenance of adequate standards in the classroom."

The court said that the CBA provision at issue mandates that the Board appoint a "certified" teacher, whose position has been "excessed," to a vacant position in the teacher's area of certification.

Noting that although certification may be a central qualification, the Appellate Division, citing Education Law § 2573[9], said that the Board has discretion under that provision to prescribe additional qualifications. In this instance, said the court, the CBA, in effect, divests the Board of its discretion by mandating automatic appointment of certified teachers without inquiry into any additional qualifications the Board may have prescribed. The Appellate Division held that such discretion may not be bargained away through collective bargaining.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_08076.htm
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Employee placed on administrative leave without pay after failing to report to work

Employee placed on administrative leave without pay after failing to report to work

2013 NY Slip Op 07183, Appellate Division, Second Department

Employee challenged Employer’s placing her on “administrative leave without pay,” contending that Employer had ”wrongfully suspended her without pay for a period exceeding 30 days in violation of Civil Service Law §75(3).” Employee had been served with disciplinary charges pursuant to §75.

Supreme Court dismissed Employee’s Article 78 petition; the Appellate Division affirmed the lower court’s ruling.

The Appellate Division noted that as the issue “under review” – Employee’s suspension without allegedly in violation of Civil Service Law §75(3), had not been made as a result of a quasi-judicial evidentiary hearing it would review the determination under the standard set forth in CPLR 7803(3) and consider only “whether the determination was made in violation of lawful procedure, was affected by an error of law, was arbitrary and capricious, or was an abuse of discretion.”

Although Employee argued that suspension without pay was unlawful to the extent that it exceeded a suspension for 30-days without pay permitted pursuant to §75(3), the Appellate Division ruled that Employee had not been suspended without pay pending the hearing and determination of charges of incompetency or misconduct within the meaning of 75(3).

Rather, explained the court, Employee had “failed to report to work,” whereupon she was placed on administrative leave without pay pending her return to work

Accordingly, the Appellate Division found that Employer had not violated Civil Service Law §75(3) and thus its determination “was not made in violation of lawful procedure.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_07183.htm
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