Special Education Cases under the IDEA and §504 of the A.D.A. - Year 2010 in Review
Source: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/ Reproduced with permission. Copyright © 2010, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved.
Professor Perry A. Zirkel, University Professor of Education and Law, Lehigh University, wrote an excellent article summarizing special education cases for 2010 as well as related A.D.A. Section 504 and other cases.
The article is a must for school administrators and attorneys practicing in this area and is available here.
Mitchell H. Rubinstein
Summaries of, and commentaries on, selected court and administrative decisions and related matters affecting public employers and employees in New York State in particular and in other jurisdictions in general.
ARTIFICIAL INTELLIGENCE IS NOT USED, IN WHOLE OR IN PART, IN THE SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS PREPARED BY NYPPL
December 31, 2010
Dismissal recommend after employee is found guilty of off-duty misconduct that violated employer’s rules
Dismissal recommend after employee is found guilty of off-duty misconduct that violated employer’s rules
OATH Administrative Law Judge Alessandra Zorgniotti recommended that Sheron Dixon, a New York City probation officer charged and found guilty of being arrested in violation of Department rules, using profanity towards police officers, resisting arrest, spitting upon a police officer, and failing to notify the Department of her arrest and conviction of disorderly conduct, be terminated.
Although the incident occurred while the probation officer was off-duty, Judge Zorgniotti found that Dixon was subject to disciplinary action because there was a nexus between the misconduct and her official duties.
Further, the ALJ found that the Department had proved that Dixon had been AWOL from her position.
The decision is posted on the Internet at:
http://archive.citylaw.org/oath/11_Cases/11-156.pdf
OATH Administrative Law Judge Alessandra Zorgniotti recommended that Sheron Dixon, a New York City probation officer charged and found guilty of being arrested in violation of Department rules, using profanity towards police officers, resisting arrest, spitting upon a police officer, and failing to notify the Department of her arrest and conviction of disorderly conduct, be terminated.
Although the incident occurred while the probation officer was off-duty, Judge Zorgniotti found that Dixon was subject to disciplinary action because there was a nexus between the misconduct and her official duties.
Further, the ALJ found that the Department had proved that Dixon had been AWOL from her position.
The decision is posted on the Internet at:
http://archive.citylaw.org/oath/11_Cases/11-156.pdf
Unilateral changes in health insurance
Unilateral changes in health insurance
Civil Service Employees Association v PERB, 274 AD2d 930
Since 1990, Dutchess County employees represented by CSEA were offered a prescription drug plan for negotiating unit members enrolled in the Mohawk Valley Physicians’ Health Plan [MVP] that provided for employee co-payments of $3 for generic prescriptions and $5 for brand name drugs.*
Effective January 1998 MVP discontinued its $3/$5 co-payment rates. Employees were then provided with the lowest co-payments available from MVP: $4 for generic prescriptions and $7 for brand name drugs.
CSEA filed an improper practice charge with PERB, contending that by unilaterally increasing the co-payment to be paid by unit members enrolled in the MVP plan, the County breached its duty to negotiate with CSEA in violation of Civil Service Law Section 209-a(1)(d). PERB dismissed petitioner’s improper employer practice charge, finding that:
1. The record did not establish a past practice of providing prescription drug coverage with a co-payment at a fixed cost to employees of no more than $3 for generic prescriptions and $5 for brand name drugs; and
2. The record was equally supportive of the County’s argument that the past practice was to provide unit employees with a prescription drug plan with the lowest co-payment amounts available from MVP.
The Appellate Division sustained PERB’s determination, pointing out that CSEA had burden of proof with respect to the preliminary factual issue -- the existence of the past practice it relied upon in its improper practice claim.
Citing Essex County Local 816 v County of Essex, 31 PERB 3026, the court said that:
Where the record is susceptible to two or more equally reasonable conclusions, one of which is inconsistent with the proposition asserted, the party bearing the burden of proof on the proposition asserted cannot prevail.
In other words, if the record could be read as either supporting the existence of a past practice or supporting the absence of such a past practice, CSEA could not win on the basis of its claim that there was a past practice concerning the amount of the co-payment for prescriptions that the county was required to support.
* CSEA and the County stipulated that [f]rom its initiation in 1990 until January 1, 1998, the co-pay amounts for CSEA bargaining unit members under the MVP prescription rider were $3 and $5, the lowest available from MVP.
Civil Service Employees Association v PERB, 274 AD2d 930
Since 1990, Dutchess County employees represented by CSEA were offered a prescription drug plan for negotiating unit members enrolled in the Mohawk Valley Physicians’ Health Plan [MVP] that provided for employee co-payments of $3 for generic prescriptions and $5 for brand name drugs.*
Effective January 1998 MVP discontinued its $3/$5 co-payment rates. Employees were then provided with the lowest co-payments available from MVP: $4 for generic prescriptions and $7 for brand name drugs.
CSEA filed an improper practice charge with PERB, contending that by unilaterally increasing the co-payment to be paid by unit members enrolled in the MVP plan, the County breached its duty to negotiate with CSEA in violation of Civil Service Law Section 209-a(1)(d). PERB dismissed petitioner’s improper employer practice charge, finding that:
1. The record did not establish a past practice of providing prescription drug coverage with a co-payment at a fixed cost to employees of no more than $3 for generic prescriptions and $5 for brand name drugs; and
2. The record was equally supportive of the County’s argument that the past practice was to provide unit employees with a prescription drug plan with the lowest co-payment amounts available from MVP.
The Appellate Division sustained PERB’s determination, pointing out that CSEA had burden of proof with respect to the preliminary factual issue -- the existence of the past practice it relied upon in its improper practice claim.
Citing Essex County Local 816 v County of Essex, 31 PERB 3026, the court said that:
Where the record is susceptible to two or more equally reasonable conclusions, one of which is inconsistent with the proposition asserted, the party bearing the burden of proof on the proposition asserted cannot prevail.
In other words, if the record could be read as either supporting the existence of a past practice or supporting the absence of such a past practice, CSEA could not win on the basis of its claim that there was a past practice concerning the amount of the co-payment for prescriptions that the county was required to support.
* CSEA and the County stipulated that [f]rom its initiation in 1990 until January 1, 1998, the co-pay amounts for CSEA bargaining unit members under the MVP prescription rider were $3 and $5, the lowest available from MVP.
Failure to exhaust administrative remedy bars appeal to the courts
Failure to exhaust administrative remedy bars appeal to the courts
Matter of Sands v City of Rochester, 38 A.D.3d 1174
Sands filed an application for medical and disability benefits. When his application was rejected, Sands filed an administrative appeal from that determination. However, without determining the merits of Sands’ administrative appeal, the City of Rochester Fire Chief reconsidered Sands’ application. As a result of this reconsideration, Sands was approved for medical benefits but his application for disability benefits was disapproved.
Later Sands again applied for medical and disability benefits related to his original injury and again his application was approved only with respect to medical benefits.
Sands next filed a petition seeking a court order compelling the City to hold a hearing to determine if he was eligible for medical and disability benefits. The Appellate Division dismissed his petition, noting that Sands did not file an administrative appeal from this second determination and thus failed to exhaust his administrative remedies.
Matter of Sands v City of Rochester, 38 A.D.3d 1174
Sands filed an application for medical and disability benefits. When his application was rejected, Sands filed an administrative appeal from that determination. However, without determining the merits of Sands’ administrative appeal, the City of Rochester Fire Chief reconsidered Sands’ application. As a result of this reconsideration, Sands was approved for medical benefits but his application for disability benefits was disapproved.
Later Sands again applied for medical and disability benefits related to his original injury and again his application was approved only with respect to medical benefits.
Sands next filed a petition seeking a court order compelling the City to hold a hearing to determine if he was eligible for medical and disability benefits. The Appellate Division dismissed his petition, noting that Sands did not file an administrative appeal from this second determination and thus failed to exhaust his administrative remedies.
Arbitrator’s award must be confirmed if not completely irrational
Arbitrator’s award must be confirmed if not completely irrational
Matter of Rochester City School Dist. v Rochester Teachers Assn., 38 AD3d 1152
Supreme Court, Monroe County, Judge William P. Polito, confirmed an arbitration award in favor of the Rochester Teachers Association, rejecting the School District’s motion to vacate the award. The arbitrator had ruled that teachers who had attained their Masters Degree while in service would be advanced two steps on the salary scale.
The District contended that the arbitrator had exceed her authority when she concluded that under the terms of collective bargaining agreement, teachers would advance two steps on the salary scale upon obtaining their Masters Degrees.
According to the Appellate Division, the parties had stipulated the follow question in submitting the matter to arbitration:
Did the School District breach the collective bargaining agreement between it and the Association when if failed to advance incumbent teachers two steps on the salary scale after they obtained their Masters?
The Appellate Division rejected the District’s claim that the arbitrator had exceeded her authority, ruling, “the arbitrator merely resolved the stipulated issue before her.”
Accordingly, the issue before the Appellate Division was not whether the court agreed with the arbitrator’s determination. The court, citing Wien & Malkin LLP v Helmsley-Spear, Inc., 6 NYPD 471, said, "[a]n arbitration award must be upheld when the arbitrator offer[s] even a barely colorable justification for the outcome reached.” Rather, said the court, the issue to be resolved was whether the decision was rationale.
In addition, the court noted that in Matter of Lackawanna City School Dist. v Lackawanna Teachers Federation, 237 AD2d 945, it was held that where an arbitrator’s interpretation of the agreement is not completely irrational, the award is beyond the court’s power to review.
The Appellate Division dismissed the School District’s petition.
However, Presiding Justice Henry Scudder dissented, stating that in his view “the arbitrator exceeded her authority in disregarding the provision of the CBA requiring that any amendment to it be duly executed by both parties, and in modifying the CBA by providing that teachers obtaining a Masters Degree during the course of their employment would receive a two-step increase on the salary scale” because although the CBA “provided that teachers who obtained a Masters Degree during the course of their employment would be entitled to tuition reimbursement … the CBA, however, did not provide a two-step increase on the salary scale for teachers who obtained a Masters Degree during the course of their employment.”
Matter of Rochester City School Dist. v Rochester Teachers Assn., 38 AD3d 1152
Supreme Court, Monroe County, Judge William P. Polito, confirmed an arbitration award in favor of the Rochester Teachers Association, rejecting the School District’s motion to vacate the award. The arbitrator had ruled that teachers who had attained their Masters Degree while in service would be advanced two steps on the salary scale.
The District contended that the arbitrator had exceed her authority when she concluded that under the terms of collective bargaining agreement, teachers would advance two steps on the salary scale upon obtaining their Masters Degrees.
According to the Appellate Division, the parties had stipulated the follow question in submitting the matter to arbitration:
Did the School District breach the collective bargaining agreement between it and the Association when if failed to advance incumbent teachers two steps on the salary scale after they obtained their Masters?
The Appellate Division rejected the District’s claim that the arbitrator had exceeded her authority, ruling, “the arbitrator merely resolved the stipulated issue before her.”
Accordingly, the issue before the Appellate Division was not whether the court agreed with the arbitrator’s determination. The court, citing Wien & Malkin LLP v Helmsley-Spear, Inc., 6 NYPD 471, said, "[a]n arbitration award must be upheld when the arbitrator offer[s] even a barely colorable justification for the outcome reached.” Rather, said the court, the issue to be resolved was whether the decision was rationale.
In addition, the court noted that in Matter of Lackawanna City School Dist. v Lackawanna Teachers Federation, 237 AD2d 945, it was held that where an arbitrator’s interpretation of the agreement is not completely irrational, the award is beyond the court’s power to review.
The Appellate Division dismissed the School District’s petition.
However, Presiding Justice Henry Scudder dissented, stating that in his view “the arbitrator exceeded her authority in disregarding the provision of the CBA requiring that any amendment to it be duly executed by both parties, and in modifying the CBA by providing that teachers obtaining a Masters Degree during the course of their employment would receive a two-step increase on the salary scale” because although the CBA “provided that teachers who obtained a Masters Degree during the course of their employment would be entitled to tuition reimbursement … the CBA, however, did not provide a two-step increase on the salary scale for teachers who obtained a Masters Degree during the course of their employment.”
Police officer’s September 11 line of duty injury claim rejected
Police officer’s September 11 line of duty injury claim rejected
Matter of Teran v Kelly, 2007 NY Slip Op 30009(U), March 1, 2007, Supreme Court, New York County, Docket Number: 0109358, Judge: Marcy S. Friedman [Not selected for inclusion in the Official Reports]
Teran, a New York City police officer, was performing routine police duties while the City was undergoing a citywide emergency as a result of the September 11, 2001 attacks on the World Trade Center. She applied for accidental disability retirement benefits claiming that she had suffered a “line-of-duty accident.”
Although Teran’s psychotherapist, Robert Driscoll, submitted a letter in which he stated that Teran was suffering symptoms of Post Traumatic Stress Disorder brought on by her duties in connection with the events of September 11, 2001, the Police Department’s expert said that “there was no [sic] evidence to support the claim of [Teran’s] psychotherapist that [Teran’s] injuries were the result of her work in connection with the events of September 11, 2001.”*
Supreme Court Justice Marcy S. Friedman concluded that Teran’s claim of entitlement to accident disability retirement was supported neither by the facts nor by any legal authority.
Further, said the court, contrary to Teran’s claim, Administrative Code 3 13-252.1, which sets out a presumption of accidental disability for police officers injured during their participation in World Trade Center rescue, recovery or clean-up efforts, does not apply to Teran, as she was not involved in any of the World Trade Center rescue, recovery or clean-up efforts at the time.
* The decision states that Teran “was sent home just after the attacks because she was pregnant. [Teran] did not witness the attacks on the World Trade Center or the collapse of the buildings, and she did not participate in any rescue or recovery work at the World Trade Center site after September 11.”
Matter of Teran v Kelly, 2007 NY Slip Op 30009(U), March 1, 2007, Supreme Court, New York County, Docket Number: 0109358, Judge: Marcy S. Friedman [Not selected for inclusion in the Official Reports]
Teran, a New York City police officer, was performing routine police duties while the City was undergoing a citywide emergency as a result of the September 11, 2001 attacks on the World Trade Center. She applied for accidental disability retirement benefits claiming that she had suffered a “line-of-duty accident.”
Although Teran’s psychotherapist, Robert Driscoll, submitted a letter in which he stated that Teran was suffering symptoms of Post Traumatic Stress Disorder brought on by her duties in connection with the events of September 11, 2001, the Police Department’s expert said that “there was no [sic] evidence to support the claim of [Teran’s] psychotherapist that [Teran’s] injuries were the result of her work in connection with the events of September 11, 2001.”*
Supreme Court Justice Marcy S. Friedman concluded that Teran’s claim of entitlement to accident disability retirement was supported neither by the facts nor by any legal authority.
Further, said the court, contrary to Teran’s claim, Administrative Code 3 13-252.1, which sets out a presumption of accidental disability for police officers injured during their participation in World Trade Center rescue, recovery or clean-up efforts, does not apply to Teran, as she was not involved in any of the World Trade Center rescue, recovery or clean-up efforts at the time.
* The decision states that Teran “was sent home just after the attacks because she was pregnant. [Teran] did not witness the attacks on the World Trade Center or the collapse of the buildings, and she did not participate in any rescue or recovery work at the World Trade Center site after September 11.”
Compulsory arbitration demand
Compulsory arbitration demand
Matter of City of Poughkeepsie, 33 PERB 3029
In the course of collective bargaining the Poughkeepsie Professional Firefighters Association demanded de novo binding arbitration pursuant to PERB’s Voluntary Dispute Resolution Procedure [VDR] to resolve disagreements involving the granting and terminating benefits provided by the City of Poughkeepsie pursuant to Section 207-a of the General Municipal Law.
PERB said that demanding that the matter be submitted to VDR for such a de novo review was fatal to its being found to be a mandatory subject of collective bargaining.
PERB pointed to its ruling in the Watertown case [30 PERB 3072] in which it said that a collective bargaining demand seeking arbitration as an alternative to bring an Article 78 action to determining Section 207-a disputes was a mandatory subject of collective negotiations.
Matter of City of Poughkeepsie, 33 PERB 3029
In the course of collective bargaining the Poughkeepsie Professional Firefighters Association demanded de novo binding arbitration pursuant to PERB’s Voluntary Dispute Resolution Procedure [VDR] to resolve disagreements involving the granting and terminating benefits provided by the City of Poughkeepsie pursuant to Section 207-a of the General Municipal Law.
PERB said that demanding that the matter be submitted to VDR for such a de novo review was fatal to its being found to be a mandatory subject of collective bargaining.
PERB pointed to its ruling in the Watertown case [30 PERB 3072] in which it said that a collective bargaining demand seeking arbitration as an alternative to bring an Article 78 action to determining Section 207-a disputes was a mandatory subject of collective negotiations.
December 30, 2010
A court's review of a disciplinary arbitration award is limited and does not encompass consideration of the merits of the award or the penalty imposed
A court's review of a disciplinary arbitration award is limited and does not encompass consideration of the merits of the award or the penalty imposed
Matter of State of New York v Civil Serv. Employees Assn., Inc., 2010 NY Slip Op 09330, Appellate Division, Third Department
David H. Jackson, a Youth Division Aide at Tryon Residential Center for Boys, was served with a notice of discipline as a result of an incident in which it was alleged that he punched a juvenile resident and pushed a coworker into a wall.
The charges filed against Jackson were presented to an arbitrator in accordance with the disciplinary arbitration procedure set out in the controlling collective bargaining agreement [CBA]. The arbitrator found Jackson guilty of the charged misconduct but, after reviewing Jackson's entire employment record, found the proposed penalty – dismissal - to be inappropriate.
Pursuant to his authority under the CBA to set an appropriate remedy, the arbitrator imposed a penalty of suspension without pay for eight months, six hours of anger management therapy and a three-month disciplinary probationary period upon Jackson's return to work.
The Division for Youth filed a petition pursuant to Article 75 of the CPLR seeking to vacate the arbitrator’s award with respect to the penalty imposed. Essentially, Youth argued that continuing Jackson’s employment as a Youth Division Aide violated the public policy of protecting the safety and welfare of the children placed in its facilities and the arbitrator should have imposed the penalty of dismissal.
Supreme Court, rather than grant Youth’s petition, granted the Civil Service Employees Association’s motion to confirm the award and Youth appealed.
Noting that a court's role in reviewing arbitration awards is limited and involves neither consideration of the merits of an arbitration award nor the substitution of the court’s judgment for that of the arbitrator simply because it believes its interpretation would be the better one, the Appellate Division sustained the lower court’s disposition of the matter.
As to Youth’s argument that the “public policy exception” should control in this instance as the protection of children in residential facilities and programs operated or certified by the Division is involved, the court said the exception would apply only in "'cases in which public policy considerations, embodied in statute or decisional law, prohibit, in an absolute sense, particular matters being decided or certain relief being granted by an arbitrator.” The court explained that although there is undoubtedly a strong public policy to protect children and prevent the abuse of them, particularly by those entrusted with their care, for a court to vacate an arbitration award on public policy grounds, "more than a general societal concern must be at issue."
Further, the Appellate Division said that "Judicial restraint under the public policy exception is particularly appropriate where, as here, the case involves arbitration pursuant to a collective bargaining agreement.”
In this instance the CBA specifically granted the arbitrator "full authority, if the remedy proposed by [the Division] is found to be inappropriate, to devise an appropriate remedy and, in doing so, the arbitrator may consider the employee's entire employment record.”
In fashioning what he deemed an appropriate penalty, the arbitrator acknowledged it was the duty of employees in Jackson's position to keep the children in Youth’s care safe from harm and to refrain from inflicting any harm upon them. However, the court said that the arbitrator had credited Jackson's testimony that he had "accepted responsibility for his actions, understood them to be wrong and had volunteered to attend anger management therapy and to be placed on probation upon his return to work."
The Appellate Division, acknowledging Youth’s reluctance to continue Jackson’s employment was understandable, ruled that “the public policy cited simply does not prohibit [Jackson] from remaining employed in his position and it is not within this Court's power to ‘second-guess’ the factual or legal determinations of the arbitrator.”
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09330.htm
.
Matter of State of New York v Civil Serv. Employees Assn., Inc., 2010 NY Slip Op 09330, Appellate Division, Third Department
David H. Jackson, a Youth Division Aide at Tryon Residential Center for Boys, was served with a notice of discipline as a result of an incident in which it was alleged that he punched a juvenile resident and pushed a coworker into a wall.
The charges filed against Jackson were presented to an arbitrator in accordance with the disciplinary arbitration procedure set out in the controlling collective bargaining agreement [CBA]. The arbitrator found Jackson guilty of the charged misconduct but, after reviewing Jackson's entire employment record, found the proposed penalty – dismissal - to be inappropriate.
Pursuant to his authority under the CBA to set an appropriate remedy, the arbitrator imposed a penalty of suspension without pay for eight months, six hours of anger management therapy and a three-month disciplinary probationary period upon Jackson's return to work.
The Division for Youth filed a petition pursuant to Article 75 of the CPLR seeking to vacate the arbitrator’s award with respect to the penalty imposed. Essentially, Youth argued that continuing Jackson’s employment as a Youth Division Aide violated the public policy of protecting the safety and welfare of the children placed in its facilities and the arbitrator should have imposed the penalty of dismissal.
Supreme Court, rather than grant Youth’s petition, granted the Civil Service Employees Association’s motion to confirm the award and Youth appealed.
Noting that a court's role in reviewing arbitration awards is limited and involves neither consideration of the merits of an arbitration award nor the substitution of the court’s judgment for that of the arbitrator simply because it believes its interpretation would be the better one, the Appellate Division sustained the lower court’s disposition of the matter.
As to Youth’s argument that the “public policy exception” should control in this instance as the protection of children in residential facilities and programs operated or certified by the Division is involved, the court said the exception would apply only in "'cases in which public policy considerations, embodied in statute or decisional law, prohibit, in an absolute sense, particular matters being decided or certain relief being granted by an arbitrator.” The court explained that although there is undoubtedly a strong public policy to protect children and prevent the abuse of them, particularly by those entrusted with their care, for a court to vacate an arbitration award on public policy grounds, "more than a general societal concern must be at issue."
Further, the Appellate Division said that "Judicial restraint under the public policy exception is particularly appropriate where, as here, the case involves arbitration pursuant to a collective bargaining agreement.”
In this instance the CBA specifically granted the arbitrator "full authority, if the remedy proposed by [the Division] is found to be inappropriate, to devise an appropriate remedy and, in doing so, the arbitrator may consider the employee's entire employment record.”
In fashioning what he deemed an appropriate penalty, the arbitrator acknowledged it was the duty of employees in Jackson's position to keep the children in Youth’s care safe from harm and to refrain from inflicting any harm upon them. However, the court said that the arbitrator had credited Jackson's testimony that he had "accepted responsibility for his actions, understood them to be wrong and had volunteered to attend anger management therapy and to be placed on probation upon his return to work."
The Appellate Division, acknowledging Youth’s reluctance to continue Jackson’s employment was understandable, ruled that “the public policy cited simply does not prohibit [Jackson] from remaining employed in his position and it is not within this Court's power to ‘second-guess’ the factual or legal determinations of the arbitrator.”
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09330.htm
.
Seniority in a tenure area and the “40% rule”
Seniority in a tenure area and the “40% rule”
Appeal Of Kathi Gimbrone and the Board Of Education, Randolph Central School District, decisions of the Commissioner of Education, Decision No. 16,177
Kathi Gimbrone challenged various actions of the Board of Education of the Randolph Central School District to terminate her employment after being notified that her reading teacher position was abolished that she would be placed on a preferred eligibility list for reappointment to a position in the reading tenure area.
After noting a number of procedural difficulties that required the dismissal of Gimbrone’s appeal, the Commissioner of Education elected to note had Gimbrone’s appeal been considered on its merit, he would have dismissed.
The Commissioner said in situations such as presented by Gimbrone’s being excessed following the abolishment of her position, “Section 30-1.13(c) of the Commissioner’s regulations [8 NYCRR §30-1.13(c)] provides that, in cases involving the abolition of a position,
if the teacher identified as having the least seniority in the tenure area affected by the abolition has tenure or is in a probationary status in additional tenure areas, the teacher shall be transferred to that tenure area in which he or she has the greatest seniority and shall be retained in such area if there is another teacher having less seniority than he or she in such other tenure area.”
Further, said the Commissioner, 8 NYCRR §30-1.1(f) defines seniority as follows:
Seniority means length of service in a designated tenure area, rather than length of service in the district; such service need not have been consecutive but shall during each term for which seniority credit is sought, have constituted a substantial portion of the time of the professional educator.
and as used in Part 30 of the Commissioner’s regulations, substantial portion means:
40% or more of the total time spent by a professional educator in the performance of his duties, exclusive of time spent in preparation, monitoring or in co-curricular activities (see 8 NYCRR §30.1[g] [emphasis in the original]).
The principal issue in this appeal is whether or not 40% or more of the total time spent by Gimbrone in the performance of her duties in the relevant school years was spent in the elementary tenure area. In an appeal to the Commissioner, the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief.
The Commissioner said that an examination of these provisions and the record supports the conclusion that Gimbrone failed to meet her burden of proving that she spent more than 40% of her duties in the elementary tenure area.
Accordingly, had be matter been considered on its merits, the Commissioner said that “In view of the foregoing, I cannot conclude that [the Randolph Central School] board was arbitrary or capricious in terminating Gimbrone’s employment.”
The decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume50/d16177.htm
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Appeal Of Kathi Gimbrone and the Board Of Education, Randolph Central School District, decisions of the Commissioner of Education, Decision No. 16,177
Kathi Gimbrone challenged various actions of the Board of Education of the Randolph Central School District to terminate her employment after being notified that her reading teacher position was abolished that she would be placed on a preferred eligibility list for reappointment to a position in the reading tenure area.
After noting a number of procedural difficulties that required the dismissal of Gimbrone’s appeal, the Commissioner of Education elected to note had Gimbrone’s appeal been considered on its merit, he would have dismissed.
The Commissioner said in situations such as presented by Gimbrone’s being excessed following the abolishment of her position, “Section 30-1.13(c) of the Commissioner’s regulations [8 NYCRR §30-1.13(c)] provides that, in cases involving the abolition of a position,
if the teacher identified as having the least seniority in the tenure area affected by the abolition has tenure or is in a probationary status in additional tenure areas, the teacher shall be transferred to that tenure area in which he or she has the greatest seniority and shall be retained in such area if there is another teacher having less seniority than he or she in such other tenure area.”
Further, said the Commissioner, 8 NYCRR §30-1.1(f) defines seniority as follows:
Seniority means length of service in a designated tenure area, rather than length of service in the district; such service need not have been consecutive but shall during each term for which seniority credit is sought, have constituted a substantial portion of the time of the professional educator.
and as used in Part 30 of the Commissioner’s regulations, substantial portion means:
40% or more of the total time spent by a professional educator in the performance of his duties, exclusive of time spent in preparation, monitoring or in co-curricular activities (see 8 NYCRR §30.1[g] [emphasis in the original]).
The principal issue in this appeal is whether or not 40% or more of the total time spent by Gimbrone in the performance of her duties in the relevant school years was spent in the elementary tenure area. In an appeal to the Commissioner, the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief.
The Commissioner said that an examination of these provisions and the record supports the conclusion that Gimbrone failed to meet her burden of proving that she spent more than 40% of her duties in the elementary tenure area.
Accordingly, had be matter been considered on its merits, the Commissioner said that “In view of the foregoing, I cannot conclude that [the Randolph Central School] board was arbitrary or capricious in terminating Gimbrone’s employment.”
The decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume50/d16177.htm
.
An employee organization's duty of fair representation
An employee organization's duty of fair representation
Agosto v Correctional Services Benevolent Association, USDC SDNY, 107 F.Supp.2d 294
Blaca Agosto, a New York City corrections officer, filed a complaint with the deputy warden of the facility alleging that another guard had shown her sexually explicit photographs of another female corrections officer and then asked her to pose with him as well. When the deputy warden responded that he did not consider photographs offensive, she filed a complaint with the agency’s equal employment office.
After she was reprimanded by the deputy warden as a result of her filing her complaint, Agosto asked her local union representative for assistance. When her request was ignored, she asked other union officials for help.
Eventually Agosto filed a Title VII complaint against the department alleging sexual harassment. She also sued the union, contending that it violated Title VII because she was told by union officials that the union did not pursue grievances on behalf of unit employees who raised sexual harassment complaints.
US District Court Judge Denise Cote refused to dismiss Agosto’s complaint against the union, ruling that she could sue the union for breaching its duty of fair representation because it refused to assist her when she filed a sexual harassment grievance against the department.
Agosto v Correctional Services Benevolent Association, USDC SDNY, 107 F.Supp.2d 294
Blaca Agosto, a New York City corrections officer, filed a complaint with the deputy warden of the facility alleging that another guard had shown her sexually explicit photographs of another female corrections officer and then asked her to pose with him as well. When the deputy warden responded that he did not consider photographs offensive, she filed a complaint with the agency’s equal employment office.
After she was reprimanded by the deputy warden as a result of her filing her complaint, Agosto asked her local union representative for assistance. When her request was ignored, she asked other union officials for help.
Eventually Agosto filed a Title VII complaint against the department alleging sexual harassment. She also sued the union, contending that it violated Title VII because she was told by union officials that the union did not pursue grievances on behalf of unit employees who raised sexual harassment complaints.
US District Court Judge Denise Cote refused to dismiss Agosto’s complaint against the union, ruling that she could sue the union for breaching its duty of fair representation because it refused to assist her when she filed a sexual harassment grievance against the department.
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New York Public Personnel Law Blog Editor Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard.
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