Challenging an administrative determination while a related grievance is pending

Challenging an administrative determination while a related grievance is pending
Sokol v Granville CSD, 260 AD2d 692

The fact that a contract grievance is pending will not always bar an individual from suing. Nor must a complaint by a teacher necessarily be considered by the Commissioner of Education before it is ripe for adjudication by the courts. These points are illustrated in the Sokol case.

The Granville Central School District appointed David Sokol as a “noninstructional substitute teaching assistant/monitor” effective October 6, 1997. In January 1998, the district discontinued Sokol’s employment. The district viewed him as a temporary employee hired as a true substitute, while Sokol claimed he had been appointed to a vacant tenured position, and that his dismissal violated his due process rights.

Sokol served a “notice of claim” on the district and initiated an Article 78 action seeking a court order annulling his termination and directing the district to appoint him as a probationary teaching assistant retroactive to October 6, 1997.

The district did not file an answer to Sokol’s petition. It instead moved to dismiss Sokol’s Article 78 action on the grounds that:

1. A grievance was pending when Sokol filed his Article 78 action. This was a step three grievance [of a four step grievance procedure] challenging the district’s appointment of substitute teaching assistants filed by the Granville Central School Support Staff Association; and

2. Sokol had failed to exhaust his administrative remedy because he had not appealed his claims to the Commissioner of Education pursuant to Education Law Section 310.

Although these arguments proved persuasive to a state Supreme Court judge, the Appellate Division reversed the lower court’s action, holding that the existence of a grievance alleging violations of the collective bargaining agreement did not constitute an absolute bar to Sokol’s filing an Article 78 action. Nor was Sokol required to file an appeal with the Commissioner of Education before proceeding with his action at law.

The key element to this conclusion was that there was nothing in the record to indicate that Sokol was participating in the grievance brought by the Association.

The court cited the grievance itself, which said that Sokol was not a member of the Teachers Association and that he had not participated in the filing of the grievance, requested that it be filed on his behalf or actively participated in its prosecution.” Nor was the Association representing his interests in filing the grievance.

The Appellate Division commented that Sokol made a persuasive argument “that even if the Association is ultimately successful, there is no guarantee that he personally would benefit from the victory.”

Sokol was not required to exhaust his administrative remedy by appealing to the Commissioner of Education pursuant to Education Law Section 310 because he had alleged violations of his statutory rights. This, the Appellate Division ruled, allowed him a “direct resort to the courts,” citing a number of cases including Cohn v Board of Educ. of Hammondsport Central School, 58 AD2d 977.

Sokol was asserting violations of the Education Law and corresponding regulations -- not provisions of the collective bargaining agreement -- as the basis for his Article 78 petition.

The Appellate Division said that “the grounds urged for relief” and remedies sought in each forum are separate and distinct.

Reversing the lower court’s dismissal of Sokol’s complaint, the district was directed to file an answer within 20 days of the date of the decision.
NYPPL

Reviewing body must have jurisdiction to consider disciplinary appeals

Reviewing body must have jurisdiction to consider disciplinary appeals
Montella v Bratton, Court of Appeals, 93 NY2d 424

Although Section 75 of the Civil Service Law sets out what is probably the best-known statutory procedure for initiating disciplinary action against employees in the classified service, other statutory procedures are available for this purpose.* The Montella decision by the Court of Appeals points out the fact that one must consider the basis for the underlying disciplinary action in order to determine the body having jurisdiction to consider appeals.

Peter Montella, a New York City police officer, was served disciplinary charges pursuant to Section 14-115 of New York City’s Administrative Code following his testing positive for drugs. Found guilty, Montella was dismissed from the force.

As a result of litigation challenging the disciplinary action, Montella obtained a second hearing, only to again be found guilty and dismissed. This time, however, Montella filed his appeal with the New York City Civil Service Commission rather than challenge the determination in court by filing an Article 78.

The Commission reversed Montella’s dismissal and ordered his reinstatement.

Although the department had participated in Montella’s appeal before the Commission, it subsequently refused to reinstate Montella and asked the Commission to “withdraw its determination because [the Commission] lacked subject matter jurisdiction to hear appeals from discipline imposed pursuant to the Administrative Code.”

The Commission rejected the department’s application, taking the position that “the Legislature intended Section 76 to provide alternative appeal routes for disciplined civil service employees, regardless of their position ... [and that] in the absence of explicit language precluding appeal by Police Officers” it had authority to review departmental discipline taken against officers pursuant to Section 14-115 of the City Code.

Montella sued to compel the department to comply with the Commission’s directive while the department filed a petition to have the Commission’s determination annulled on the ground that the Civil Service Commission lacked subject matter jurisdiction to entertain Montella’s appeal.

Did the Commission have jurisdiction to hear and decide appeals by uniformed police officers disciplined pursuant to section 14-115 of the Administrative Code of the City of New York?

The Court of Appeals ruled that because the Civil Service Law explicitly limits the Commission’s jurisdiction to appeals from discipline imposed pursuant to Civil Service Law Section 75, and because punishment imposed by the New York City Police Commissioner pursuant to Section 14-115 is not the same as disciplinary action pursuant to Section 75, the New York City Civil Service Commission did not have jurisdiction to hear Montella’s appeal.

The decision points out that “the Civil Service Law further evidences the Legislature’s intention that New York City police officers be disciplined pursuant to the Administrative Code,” rather than pursuant to Section 75 when it amended Section 75 by adding subdivision 3-a which provides that if “such officer is found guilty of the charges, the police commissioner of such department may punish the police officer pursuant to the provisions of sections 14-115 and 14-123 of the administrative code of the city of New York.” This, the Court of Appeals concluded, acknowledges that New York City police officers are disciplined pursuant to a statutory scheme separate and distinct from Civil Service Law Section 75.

Civil Service Law Section 76(4) provides that nothing “contained in Section 75 or 76 “shall be construed to repeal or modify any general, special or local law or charter provision relating to the removal or suspension of officers or employees in the competitive class of the civil service of the state or any civil division.”

The court concluded that the Commission was not authorized to hear Montella’s appeal and its determination was void.

* In some instances an alternative to Section 75 disciplinary action has been negotiated in accordance with Section 76 of the Civil Service Law. In such cases the “contract disciplinary procedure” will typically set out the appeal procedure to be followed.
NYPPL

Timely filing of a grievance

Timely filing of a grievance
Hill v NYC Board of Ed., 258 AD2d 462

A collective bargaining agreement provided that an employee must file a grievance “within a reasonable period not to exceed 75 days following the action complained of.” The agreement also provided that an arbitration panel “shall be without power or authority to make any decision ... contrary to, or inconsistent with, or modifying or varying in any way, the terms of this agreement....”

Stanley W. Hill filed a grievance that involved various events, some of which were less than 75 days old and some of which were more than 75 days old. The arbitration panel assumed jurisdiction, ruling that the 75-day period of limitations ran from “when the grievant ‘discovered’ the infraction.” It then upheld Hill’s grievance.

The Board of Education filed an Article 75 petition [Article 75, Civil Practice Law and Rules] seeking to have the award vacated on the grounds that the arbitration panel “exceeded an express limitation of its powers.” This is one of the few grounds set out in Article 75 that would allow a court to vacate an arbitration award.

The Appellate Division sustained the board’s determination. However, the court noted that part of the award covered a portion of the grievance that was filed within the Statute of Limitations. It confirmed that portion of the award. However, the court vacated the rest -- all redress based on events occurring more than 75 days prior to his filing of his grievance.
NYPPL

Conviction for sick leave fraud upheld

Conviction for sick leave fraud upheld
People v Patino, 259 AD2d 502 [see, also, 259 AD2d 502]

The Appellate Division upheld the conviction of Robert Patino, a former Nassau County police officer, who was found guilty of grand larceny and defrauding the government in connection with his claim of disability in order to obtain sick leave benefits.

The Appellate Division said that Patino was not entitled to sick leave benefits simply because he “followed administrative procedures” as the evidence established that he “intentionally and wrongfully obtained more than $3000 in sick leave benefits from the Police Department by fraudulently misrepresenting his ailments or illnesses.”

Also rejected was Patino’s claim of “selective prosecution” because of the police department’s alleged animosity towards him. The court said that Patino failed to establish that he was singled out by the Nassau County District Attorney’s Office for this criminal prosecution “based upon an impermissible standard such as race, religion or some other arbitrary classification.”
NYPPL

An educator does not have a First Amendment right to determine the method of instruction and the books to be used in his or her classroom

An educator does not have a First Amendment right to determine the method of instruction and the books to be used in his or her classroom
Evans-Marshall v Tipp City Exempted Village School District, CA Sixth Circuit, 09-3775

Shelly Evans-Marshall, a public high school teacher claimed that she had a First (and 14th) Amendment right “to select books and methods of instruction for use in the classroom without interference from public officials” and that the school district had retaliated against her when she attempted to exercise those rights.

The Tipp City Board of Education disagreed, contending that Evans-Marshall’s right to free speech protected by the First Amendment does not extend to her in-class curricular speech.*

The U.S. Circuit Court of Appeals, Sixth Circuit, agreed with the school district's position, holding held that the use the right to free speech protected by the First Amendment does not extend to the in-class curricular speech of teachers in primary and secondary schools made “pursuant to” their official duties, citing Garcetti v. Ceballos, 547 U.S. 410.

The Circuit Court said that this free-speech-retaliation case implicates “two competing intuitions:”

1. Does a teacher have the First Amendment right to choose her own reading assignments, decide how they should be taught and above all be able to teach a unit on censorship without being censored or otherwise retaliated against?

2. Doesn’t a school board have the final say over what is taught, and how, in the public schools for which it is responsible? Who wins depends on which line of legal authority controls.

In this instance, said the court, “a First Amendment claimant must satisfy three tests: the test announced in Connick 'is the matter of public concern;' the Pickering 'balancing' requirement and the Garcetti 'pursuant to” requirement.'” Although Evans-Marshall satisfied the requirements set out in the first two tests, the Circuit Court said that had not met the third, Garcetti, requirement.

* Ohio law provides that “[t]he board of education of each city . . . shall prescribe a curriculum.” O.R.C. § 3313.60(A), thereby giving elected officials — the school board — rather than teachers, a school principal or a school superintendent, responsibility for the curriculum.

The decision is posted on the Internet at:
http://www.ca6.uscourts.gov/opinions.pdf/10a0334p-06.pdf
NYPPL

Contracting out work

Contracting out work
Vestal Employees Association, v PERB and the Vestal Central School District, 94 NY2d 409

In Matter of Webster Cent. School Dist. v Public Empl. Relations Bd., (75 NY2d 619), the Court of Appeals ruled that Education Law Section 1950 (4) (bb) permits school districts to substitute participation in a Board of Cooperative Educational Services (BOCES) summer school program for its own program without undertaking collective bargaining with their teachers' unions.

In this case the Court of Appeals considered another portion of the same statute, Education Law Section 1950 (4) (d), and determined that a school district may to subcontract out its printing services to a BOCES without collective bargaining.

The Vestal Central School District subcontracted its printing services to the Broome-Tioga BOCES.

The single District employee affected consented to the transfer and continued to perform printing duties in the same shop using the same machines.

As a result of this change, the individual performed printing services for two school districts instead of one. In addition, upon this transfer, the employee became a member of a new bargaining unit, the BOCES Support Services Association, which negotiated the terms and conditions of his employment.

PERB dismissed the improper practice charge filed by the Vestal Employees Association (30 PERB 3029) ruling that Education Law Section 1950 (4) (d) applied to contracts for shared noninstructional services. PERB commented that the Commissioner of Education's approval of the agreement "necessarily represents the Commissioner's opinion that the printing services in issue in this case fall within the 'other services' " category of Education Law Section 1950 (4) (d).

The Court of Appeals concluded that “Under this legislative scheme, which grants the Commissioner the discretion to approve aidable shared services, which provides broad protections for public employees other than teachers, and which incorporates tight time considerations, the intent is plain and clear that a school district's decision to subcontract printing services to BOCES is not subject to mandatory collective bargaining.”
NYPPL

Court vacates dismissal as too harsh a penalty after considering employee's work record

Court vacates dismissal as too harsh a penalty after considering employee's work record
Currithers v Mazzullo, 258 AD2d 460

School bus driver Steadman Currithers pled guilty to driving while his ability was impaired. He was served with disciplinary charges of misconduct and incompetence based on this conviction. Found guilty, the penalty imposed was dismissal from his position as school bus driver. Currithers appealed and won an annulment of the penalty the district had imposed.

The Appellate Division ruled that although Currithers was guilty as charged, the penalty imposed offended the Pell standard [Pell v Board of Education, 34 NY2d 222].

The court said that while the finding that Currithers was guilty of misconduct is supported by substantial evidence, under all of the circumstances of this case, “including the fact that this incident was an isolated act in an otherwise unblemished record of 15 years employment, and in light of [Currithers] unblemished driving record on and off the job prior to this incident, the penalty of dismissal is shocking to one’s sense of fairness” [the Pell standard]. It remanded the matter to the district with instructions that it “impose a new penalty other than dismissal.”
NYPPL

Vindicating an employee's right conferred by law may not be resolved by filing a grievance pursuant to a collective bargaining agreement

Vindicating an employee's right conferred by law may not be resolved by filing a grievance pursuant to a collective bargaining agreement
Marino v Hauppauge UFSD, 262 AD2d 321

If a public employee claims that some action by his or her employer violated his or her statutory rights, may the employer insist that the issue be resolved by the employee filing a grievance under a Taylor Law contract grievance procedure? No said the Appellate Division in the Marino case.

Frank Marino sued his employer, the Hauppauge Union Free School District, alleging that the district had violated his rights under Section 3013 of the Education Law by reducing his annual salary by $4,148.* The district persuaded a State Supreme Court judge to dismiss Marino’s complaint, contending that Marino complaint should be resolved under the grievance procedure set out in the Taylor Law agreement then in place.

The Appellate Division overturned the lower court’s dismissal of Marino’s Article 78 action. The Appellate Division noted that the collective bargaining agreement did provide a grievance procedure to resolve “any dispute between the parties concerning the interpretation of the terms and conditions of [the] agreement”. However, said the court, Marino had not raised any issue relating to the terms and conditions of his employment as set out in the agreement. What he was attempting to do was to “vindicate rights conferred upon him by Education Law Section 3013(1).”

The courts have consistently ruled that the statutory rights of teachers whose positions are abolished pursuant to either Sections 3013 or 2510 of the Education Law may not be changed by a collective bargaining agreement.

For example, in Szumigala v Hicksville Union Free School District, 148 AD2d 621, 539 NY2d 83, the Appellate Division, citing Cheektowaga v Nyquist, 38 NY2d 137, held that a seniority clause in a Taylor Law agreement violated Section 2510 of the Education Law when it permitted seniority in different tenure areas to be combined for the purposes of determining seniority for the purposes of layoff.

Considering a conflict between the CAB and the Civil Service Law, in Matter of City of Long Beach v Civil Serv. Empls. Assn., Inc.—Long Beach Unit, 8 N.Y.3d 465, the Court of Appeals said that where “the terms of the CBA that afford tenure rights to provisional employees after one year of service are contrary to statute and decisional law and therefore any relief pursuant to those terms may not be granted by an arbitrator.”

The same is true with respect to Taylor Law contract provisions that adversely impact upon layoff rights vested in employees in the classified service by Sections 80 or 80-a of the Civil Service Law [see Plattsburgh v Local 788, 108 AD2d 1045].

The Appellate Division, citing a number of cases including Matter of Board of Educ. of Barker Cent. School District, 209 AD2d 945, concluded that Marino “had every right to seek redress for the alleged violation of his statutory rights” by bringing a timely Article 78 action, “even after having begun a grievance procedure which related exclusively to an alleged violation of his contract.”

Why? Because, the court explained, “the issues presented and the remedies sought in each forum were separate and distinct,” quoting from England v Commissioner of Education, 169 AD2d 868, among other cases, in support of its ruling.

* Section 3013 deals with layoff upon the abolishment of a position by a school district or a BOCES and provides, in pertinent part, for the reinstatement of a person who has been laid off to “an office or position similar to the one which such person filled without reduction in salary or increment....”
NYPPL

Termination after failing the National Teacher’s Exam upheld

Termination after failing the National Teacher’s Exam upheld
Feldman, et. al., v Bd. of Ed., City of New York, 262 AD2d 276

Because they had not passed the National Teacher’s Examination, the New York City Board of Education terminated the teaching license it had issued to Sandra Feldman and a number of other teachers employed by the board. The teachers sued, contending that the board’s action in terminating their respective teaching licenses was arbitrary and capricious.

The Appellate Division noted that there were two defects in the action; one procedural and the other substantive.

As to the procedural defect, the court ruled that Feldman’s Article 78 action was untimely. The decision points out that Section 217 of the Civil Practice Law and Rules provides that “a proceeding against a body or officer must be commenced within four months after the determination to be reviewed becomes final and binding upon the petitioner”.

According to the ruling, a determination is considered final and binding for the purposes of Section 217 when it has an impact upon the petitioner and when he or she knows he or she is aggrieved by the administrative decision.

As to the substantive issue [e.g., the merits of the complaint], the court concluded that the board action was neither arbitrary nor capricious since the several teachers “admittedly failed to achieve a passing grade on the National Teacher’s Examination within five years of the issuance of their licenses” despite the requirement that they do so.
NYPPL

Employer not be liable for damages resulting from employee’s off duty misconduct absent notice of the employee's proclivity for such misconduct

Employer not be liable for damages resulting from employee’s off duty misconduct absent notice of the employee's proclivity for such misconduct
Acosta-Rodriguez v City of New York, 2010 NY Slip Op 07470, Decided on October 21, 2010, Appellate Division, First Department

An employee of the New York City Board of Education [BOE] was alleged to have sexually abused two students. When the parents of the children sued, the School Board argued that its was not liable because the abuse by its employee “was not committed in furtherance of school business and was done for [the employee’s] personal reasons.”

The Appellate Division agreed, holding that the BOE cannot be held liable under the theory of respondeat superior.*

The parents also contended that the employee was negligently hired, supervised or retained by BOE. However, said the Appellate Division, the parents “failed to raise a factual issue as to whether, at the time of the employee's hiring, BOE was on notice of facts triggering a duty to inquire further, or to contradict BOE's claim that it conducted its standard pre-employment investigation of the employee.”

As to the parents’ evidence that the BOE was on notice, either actual or constructive, of the employee's propensity for sexual abuse of minors because he “bought pizza for the students and observed them at play,” the court held that such activities “does not constitute notice of the employee's proclivity for sexual abuse.”

The Appellate Division also commented that the incident had occurred off school grounds and that there was nothing in the record indicating that BOE released the students to the employee or even knew that the three were together.

Accordingly, the court concluded that “there are no triable issues as to whether [the students’] injuries were caused by a failure of adequate supervision or a disregard on premises that should have alerted [the BOE] to a hazardous situation.

* The common-law doctrine that holds that an employer is liable for the actions of an employee when the employee's actions are within the scope of the individual's duties.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_07470.htm
NYPPL