Special Education Cases under the IDEA and §504 of the A.D.A. - Year 2010 in Review

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

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

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.

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.

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.”