Contract provisions agreed upon in the course of collective negotiations pursuant to the Taylor Law cannot not override a statutory mandate

Contract provisions agreed upon in the course of collective negotiations pursuant to the Taylor Law cannot not override a statutory mandate
Matter of City of Long Beach v Civil Serv. Empls. Assn., Inc. [Long Beach Unit], 8 NY3d 465

Article V, Section 6 of New York State’s Constitution mandates that appointments and promotions in the civil service of the State and its political subdivisions "shall be made according to merit and fitness to be ascertained, as far as practicable, by examination which, as far as practicable, shall be competitive."*

Although the Civil Service Law permits provisional appointments to positions in the competitive class, such appointments may be made only when there is no eligible list available for filling a vacancy in a competitive class, and then only for a maximum period of nine months (see Civil Service Law Section 65 [1], [2]).

Further, once a provisional employee has been in a position for one month, a civil service examination for the position must be scheduled and the provisional appointment to the position must end within two months of the date on which an appropriate eligible list is established.**

Finally a provisional appointee may be terminated "at any time without charges preferred, a statement of reasons given or a hearing held" so long as such termination is not for an unlawful reason.

The relevant collective bargaining agreement [CBA] included the following provision:

"Section 6-1.0—Definition of Tenure

"Employees with one (1) year of service in the annual employment of the City, regardless of classification, will be deemed tenured employees. This period of tenure is to be computed retroactively and only employees enumerated in Section 2-1.0 of this Agreement shall be deemed non-tenured.

"Section 6-1.1—Rights of Tenured Employees

"All tenured employees will be protected from separation from employment with the City for any reason other than (a) voluntary withdrawal; (b) dismissal for disciplinary reasons after a hearing pursuant to Section 75 of the Civil Service Law; (c) provisional employees in the competitive class will be protected by tenure with the exception that their employment may be terminated pursuant to Civil Service Law should it be necessary pursuant to Civil Service Law to appoint a qualified candidate from a Civil Service eligible list to their position. In that event, the displaced provisional employee will be transferred by the City to another position in the City for which he/she qualifies, should such a position be open. A position will be deemed open if it was vacated within six (6) months of a tenured provisional employee's displacement by a candidate from an eligible list certified by the Civil Service Commission."

In effect, the CBA obviated the provisions of Article V, Section 6 and the provisions of the Civil Service Law adopted to effect “appointment and promotion” in the public service based on merit and fitness and, in effect, gave provisional and temporary employees subject to its provisions almost the same “permanent status” enjoyed by individuals appointed from a open-competitive or promotion eligible list upon their satisfactorily completion of their probationary period.

The City brought this action seeking to stay arbitration on public policy grounds. CSEA answered and cross-moved to compel arbitration.

The Court of Appeals, noting that it “repeatedly held … that a dispute is not arbitrable when the subject matter of the dispute violates a statute, decisional law or public policy,” ruled that here CSEA’s grievance “is not arbitrable because granting the relief sought on behalf of the provisional employees under the so called "tenure" provisions of the CBA would violate the Civil Service Law and public policy.”

Further, noted the court, provisional appointments carry no expectation nor right of tenure. The court, citing Koso v Greene, 260 NY 491, said that provisional employees, while appointed to positions in the competitive class, are “exempt from the civil service requirements for appointment; and similarly, so long as they hold such positions, they are entitled to none of the advantages secured by period of tenure under the [Civil Service Law]."

Again quoting from Koso, the Court of Appeals pointed out that “Such appointments ‘are mere stop-gaps, exceptions of necessity to the general rules with respect to the filling of such positions’ and ‘[w]hile such appointments may on occasion be succeeded by a permanent appointment, this may only be by virtue of examination and eligibility under the civil service laws, and not by reason of any ripening of the temporary or provisional appointment into a permanent appointment.’”

The decision states that “CSEA relies on those portions of the CBA which provide that a provisional appointee is considered a tenured employee after one year of service. The Civil Service Law, however, clearly sets a time limitation on provisional appointments and that period is nine months.” Accordingly, the City’s agreement providing superior rights to provisional employees holding positions beyond that statutory time period is a nullity.

The Court of Appeals conclusion: “the provisions under the CBA are unenforceable as a matter of law” as 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 concept of selection based on merit and fitness is also applied in situations where it has been determined that a competitive examination is not "practicable." Section 42.1 of the Civil Service Law mandates that appointment to a classified civil service position [other than to positions in the exempt and labor classes] shall be made only "after such non-competitive examination as is prescribed by the State Civil Service Department or municipal commission having jurisdiction."

** There is a narrowly defined exception to this mandate that is only applicable when termination would "disrupt or impair essential public services."

*** Chief Judge Kaye (dissenting in part, in which Judge Ciparick concurred) said that “I agree that, as an arbitrator may not rely on the portion of the CBA that purports to grant tenure to provisional employees after one year of service (section 6.1-0), or on the section that prohibits termination until and unless the City appoints from an eligible list (section 6-1.1 [c]), a stay should be granted with regard to arbitration of section 6.1-0 and the first part of section 6-1.1. I conclude, however, that the second component of the bargained-for section 6-1.1 (c)—that a displaced provisional worker will be transferred into an open position for which he or she is qualified—is arbitrable.”
NYPPL

Police officers claim they were subjected to punishment after failing to meet their "traffic ticket quotas"

Police officers claim they were subjected to punishment after failing to meet their "traffic ticket quotas"
Matarazzo v NYC Police Dept., 261 AD2d 142

Section 215-a of the State Labor Law makes it unlawful to penalize an individual who fails to meet any quota related to the issuance of tickets or summonses written within a specified period of time for traffic violations. The section further provides that any individual who is penalized may “cause to be instituted a grievance proceeding pursuant to the provisions of a collective bargaining agreement, if any, or pursuant to the provisions of section seventy-five-a of the Civil Service Law if no collective bargaining agreement exists.”

However, there is an exception that allows discipline for non-performance of duty in issuing traffic tickets, as long as the employer does not define non-performance as failure to fulfill a quota. In other words, an employer may take a “job action against an employee for failure to satisfactorily perform his or her job assignment of issuing tickets or summonses for traffic violations including parking, standing or stopping except that the employment productivity of such employee shall not be measured by such employee’s failure to satisfactorily comply with the requirement of any quota that the employer may establish.”

Louis Matarazzo and other New York City police officers put Section 215-a to the test when they sued the department for allegedly depriving the officers of meal breaks “as punishment for failure to meet a ticket writing quota.” They asked the court to compensate them for “lost meal time” and to issue a “cease and desist order.”

The Appellate Division dismissed the case because, it said, the officers failed to prove a critical element in their case -- they did not allege the existence of a quota as defined in Labor Law Section 215-a(2). The Appellate Division said that there was no indication of how many tickets the officers were required to write nor the period of time involved.

According to the decision, all that Matarazzo and the others showed was that “two supervising officers from two different precincts directed the individual petitioners to perform duties, during their meal breaks, that were likely to result in the issuance of tickets.” This, said the court, fails to support an inference that Matarazzo and other officers were punished for failure to meet a quota for issuing tickets in violation of Labor Law Section 215-a.
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Challenging a disciplinary determination based on allegations that it was not based on "substantial evidence"

Challenging a disciplinary determination based on allegations that it was not based on "substantial evidence"
Spry v Delaware Co., 253 AD2d 178

One of the most common of reasons set out in an appeal challenging an adverse Section 75 disciplinary determination is that the decision is not supported by substantial evidence. In deciding Spry, the Appellate Division considered the degree of precision with which the individual must identify his or her claims.

Spry was a ward clerk employed by the Delaware County Countryside Care Center. She was charged with numerous specifications of incompetence, insubordination, conduct unbecoming an employee, serious misconduct and unauthorized use of facility property. Following an 11-day administrative hearing conducted pursuant to Civil Service Law Section 75, Spry was found guilty of a great many of the charges.

Rejecting the hearing officer’s recommendation as to the penalty to be imposed, the appointing authority dismissed Spry from her position.

Spry appealed, contending that the findings of guilt were not supported by substantial evidence but her petition “made only conclusory assertions and stated no evidentiary facts in support of its claims.” A State Supreme Court judge dismissed her petition for “failure to state a cause of action.” The sole issue before the Appellate Division: does a petition in a CPLR Article 78 proceeding “raise” the substantial evidence issue within the meaning of CPLR 7804 (g) “by simply alleging that the challenged administrative determination is not supported by substantial evidence”?

First, the court noted that the hearing officer heard testimony over a period of 11 days, generating a record containing 2,664 pages of testimony and 300 pages of exhibits, and issued a 106-page decision finding petitioner guilty of over 100 separate specifications of misconduct.

Nonetheless, said the court, Spry’s petition failed to identify any of the challenged findings of misconduct or the manner in which the hearing evidence is claimed to have been deficient; rather, it merely alleges that “[t]he Hearing Officer’s Recommendation finding the Petitioner guilty of the charges is not supported by substantial evidence within the meaning and intent of CPLR 7803 (4)”.

The Appellate Division then commented that nothing in the record cites any legal authority for the proposition that in order to raise the substantial evidence issue, an Article 78 petition must set out the precise fashion in which the agency determination is not supported by substantial evidence. Accordingly, the court said that it would have to analyze the fundamental legal prerequisites of a petition within the context of the rather unique certiorari proceeding. It concluded that the absence of factual averments is not of itself fatal.

Next the Appellate Division observed that the challenged determination was judicial or quasi-judicial in nature and made on the basis of a hearing at which evidence was taken pursuant to direction by law (CPLR 7803 [4]). The court said that as is clearly the case here, an aggrieved party is entitled to have a court test the legal sufficiency of the evidence relied upon by the agency by simply requesting that it do so.

Finally, the court said that in a certiorari proceeding there is essentially nothing to be “proved”. All evidence has already been adduced at the administrative hearing and findings made thereon. The petitioner’s task is not to prove transactions or occurrences, but rather to present legal argument on the substantial evidence issue.

The bottom line: the claim that the administrative determination is not supported by substantial evidence did not “fail to state a cause of action” and was therefore it was incorrect for Supreme Court to dismiss Spry’s petition.
NYPPL

Graduate Student seeks assistance concerning "making decisions in employment discrimination cases involving personnel selection procedures"

Graduate Student seeks assistance concerning "making decisions in employment discrimination cases involving personnel selection procedures"

Erica Drew, a graduate student at Florida International University, is collecting data for her Masters Thesis. This research is being supervised by Dr. Vish C. Viswesvaran, Director of the Industrial/Organizational Psychology Program at FIU.

Ms. Drew has asked that NYPPL post the following notice in an effort to assist her in obtaining an appropriate survey population for her study:

"The purpose of this research is to gain perspective on how attorneys make decisions in employment discrimination cases involving personnel selection procedures. I hope that this research will inform organizations, practitioners, and attorneys of selection procedure best practices.

"If you decide to participate, you will be asked to read a short vignette and complete a questionnaire. No identifying information will be collected, so rest assured your identity will remain anonymous. This study should take about 15 minutes of your time.



"If you are willing to participate please click the link below. Thank you for your time and I sincerely hope you will consider participating! If you have any questions or would like the results of this study sent to you, please contact me at edrew001@fiu.edu."

Ms. Drew notes that "IN ORDER TO PARTICIPATE YOU MUST BE A 3RD YEAR LAW STUDENT OR A PRACTICING ATTORNEY WHO HAS EITHER TAKEN AN EMPLOYMENT LAW COURSE OR PRACTICED EMPLOYMENT/LABOR LAW."

Here is the link to "sign-up" to participate in Ms. Drew's study:
https://fiu.qualtrics.com/SE/?SID=SV_8koUuQcezBBvb4E
NYPPL

Substantial evidence consists of relevant proof that a reasonable person would accept as adequate to support a conclusion

Substantial evidence consists of relevant proof that a reasonable person would accept as adequate to support a conclusion
Matter of Seltzer v City of Rochester, 2010 NY Slip Op 06846, Decided on October 1, 2010, Appellate Division, Fourth Department

Lawrence M. Seltzer commenced an CPLR Article 78* proceeding in an effort to obtain a court order annulling the determination terminating his employment as a City of Rochester Municipal Parking Coordinator following a disciplinary hearing held pursuant to Civil Service Law §75.

The Appellate Division dismissed his appeal, commenting that the disciplinary determination was supported by “substantial evidence, i.e., ‘such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact’”

The court also concluded that, under the circumstances of this case, the penalty of termination of employment does not constitute an abuse of discretion as a matter of law because it is not " so disproportionate to the offense as to be shocking to one's sense of fairness,’" citing Matter of Kelly v Safir, 96 NY2d 32.

* Section 76 of the Civil Service Law provides alternative appeal procedures to challenge a Section 75 disciplinary determination: [1] Appeal to the Civil Service Commission having jurisdiction within 20 days of his or her receiving notice of the determination; or [2] A judicial appeal pursuant to Article 78 of the Civil Practice Law and Rules.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06846.htm
NYPPL

Duty of fair representation

Duty of fair representation
Runfola and Local 2028, 32 PERB 3028

Peter Runfola filed charges claiming that the Local 2028, International Longshoreman’s Association breached its duty of fair representation when it negotiated a contract layoff provision that “was a material change in the then existing contractual language, and that the recently elected [union officers] negotiated the clause to reward their supporters and punish their opponents, who included Runfola.”

PERB dismissed Runfola’s complaint as untimely, commenting that such a complaint had to be filed within four months of the date on which Runfola knew of the amendment to the collective bargaining agreement.

The contract had been amended in July 1998; Runfola filed his complaint in January 1999, more than six months after the contract had been amended.

PERB rejected Runfola’s argument that the Statute of Limitations to file his charge began to run in October 1998, when he was “actually harmed” because of the application of the amended provision to him and “caused him to lose a position ... he would have retained under the provisions of the prior agreement.”
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Conforming of the arbitration award

Conforming of the arbitration award
Patry v Vill. of Tupper Lake, 262 AD2d 757, Motion for leave to appeal denied, 94 NY2d 753

The Patry decision by the Appellate Division provides an example of a rather rare event: a court providing relief that the award itself neglected to include.

In this instance, the arbitration panel decided that the employer had acted improperly in discharging Patry, but did not provide him with any remedy such as directing his reinstatement. The court corrected this omission.

The case began after Tupper Lake heavy equipment operator Jacques Patry was terminated from his position because he tested positive for marijuana in a random drug test. Patry filed a grievance under the collective bargaining agreement. Ultimately the “board of arbitrators” ruled that the village had discharged him “without proper reason”. The decision, however, did not indicate what remedial action was to be taken. When the village failed to restore him to his former position, Patry filed an Article 75 action to confirm the award together with an Article 78 action to compel the village to reinstate him. The village objected, citing paragraph 7.09 of the contract, which read as follows:

No Board of Arbitrators shall have power or jurisdiction to modify the Board of Trustees’ action. The Board of Arbitrators shall either find that the Board of Trustee’s action was not without proper reason in which event the suspension, demotion or discharge shall be sustained in full; or that the suspension, demotion or discharge was without proper reason.

A Supreme Court judge dismissed the action “because the arbitrators did not direct that petitioner be reinstated to his former position or awarded back pay and the labor contract did not grant them the authority to do so, there was no “award” to confirm”.

The Appellate Division reversed the lower court’s ruling. It pointed out that in the context of the contract, which established a “hierarchy of penalties that may be imposed under varying circumstances,” paragraph 7.09 merely precluded the arbitrators’ modification of a penalty, e.g., reduction of a penalty of discharge to one of suspension, that has been permissibly imposed by the Board.

In other words, if the arbitrators found that the individual was guilty of the disciplinary charges that were brought, they could not change the penalty imposed by the village.

The construction urged by the village “leads to an irreconcilable and absurd result, with the arbitrators granted the authority to declare that a grievant had been wrongfully suspended, demoted or discharged but denied the power to annul the impermissible penalty ....”

The Appellate Division’s conclusion: the arbitrators were authorized to annul the discharge and restore Patry to his former position. Although there was no indication of the reason why the arbitration board failed to do this, the court said the fact that the arbitrators failed to make a complete award does not mean that it could or should not recognize and confirm the award that they did make.

The Appellate Division apparently found it significant that the village did not contest the arbitrators’ finding that petitioner’s discharge was “without proper reason” nor did it provide any legal basis for vacating or modifying the arbitrators’ award (see, CPLR 7511).

The Appellate Division ruled that “on the merits, given our construction of paragraph 7.09 of the labor contract and the arbitrators’ determination that petitioner’s discharge was without proper reason, we conclude that the Board was required to retroactively restore petitioner to his employment, “less any amounts he received from employment or unemployment insurance benefits.”
NYPPL

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....”
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