Concerning extending the probationary period of an educator and rescinding a resolution granting an educator tenure

Concerning extending the probationary period of an educator and rescinding a resolution granting an educator tenure
Remus v Tonawanda City School Dist., 277 A.D.2d 905

May a school board rescind its resolution granting a “tenure appointment” to a probationary teacher and terminate his or her employment?

Must an educator “accept” tenure in order to attain such a status?

May an educator’s probationary period be extended beyond the “statutory period?”

These were the central issues before the Appellate Division, Fourth Department in the Remus case.

Jill Remus was appointed as a probationer effective September 5, 1995. On June 4, 1998, the Tonawanda City School Board adopted a resolution, on the recommendation of the Superintendent, to grant her tenure “effective September 2, 1998”.

About two weeks later school officials learned of, and Remus admitted, certain misconduct on her part. On August 31, 1998, the district offered Remus “an additional year as a probationary teacher.” Remus refused the offer. Later that same day the district voted to rescind what it characterized as her “conditional tenure appointment” and terminated Remus “with 60 days' pay.”

May the probationary period be extended? The Commissioner of Education considered this question in the Mau case [35 CEd 13539]. Apparently it may.

Mau and the district agreed to extend his probationary period. The agreement acknowledged that Mau's employment as a teacher was in jeopardy, “and that, in exchange for the extension of time for consideration of a tenure appointment, [Mau] waived any claim to tenure by estoppel.”

Mau was dismissed during this “extended probationary period.” Finding that “there is no evidence in this record demonstrating that [the district's] denial of tenure to [Mau] was in any way improper,” the Commissioner dismissed Mau's appeal.

Remus sued, contending that she had automatically attained tenure as the result of the board's adopting the June resolution and thus she was entitled to a Section 3020-a notice and hearing before she could be terminated.

The district, on the other hand, argued that “tenure had not yet been granted” to her and she was a probationer when she was notified of her dismissal.

A majority of the court agreed with the district. According to the court, “[t]here may be an offer and acceptance of tenure before expiration of the probationary period, in which case tenure and all its corresponding benefits will be conferred.”

In Remus' case, a majority of the Appellate Division decided that the district had “rescinded the conditional tenure appointment during the probationary period before an offer or acceptance” and thus Remus “was never granted tenure.”*

However, Judges Green and Hayes disagreed with this ruling by the majority of the court. They, in contrast to the majority's view, concluded that the Board's resolution granting Remus tenure was binding on the district notwithstanding the fact her “tenured status” would not take effect until September 2, 1998. Further, in their view, the Board did not have the power to unilaterally to rescind its June vote granting Remus tenure.

Nothing in the Board's June resolution, according to the minority, made Remus' tenure status conditional upon the communication of her acceptance of tenured status.

Judges Green and Hayes relied on the language set out in Section 2509(2) of the Education Law in their disagreement with the majority. Section 2509(2), they concluded, does not require either a school district to make an offer of a “tenure appointment” to a probationer or an acceptance of such an offer by the employee.

Their conclusion: the statute “simply and clearly extends to [a school district] the authority to ‘appoint on tenure’ at the expiration of a teacher's probationary term or within six months prior thereto”.

According to the minority opinion, once a school district has exercised its Section 2509(2) authority, “based upon its favorable evaluation of the teacher's performance during the probationary term,” its action was final and “[n]othing was left to be done” with respect to granting Remus tenure.

Judges Green and Hayes cited Weinbrown v Board of Education, 28 NY2d 474, in support of their decision.

The minority's conclusion: Remus was a tenured employee and the district “could not terminate her employment without the due process protections afforded to her by [Section 3020-a of] the Education Law.”

* If “tenure” is conditioned on the acceptance of an offer of such status by the individual, what is the impact of such a view in situations were tenure by estoppel is involved? Typically the courts have held that “inaction by an appointing authority” that results in the employee attaining “tenure by estoppel” as self-effecting.

School nurse negotiating unit established

School nurse negotiating unit established
Ichabod Crane Registered Nurses Asso. and Ichabod Crane Central School Dist., 33 PERB 3042

The Public Employment Relations Board approved the certified a unit consisting of the four registered nurses employed by the Ichabod Crane Central School District previously included in a non-instructional negotiating unit represented by CSEA. PERB concluded that the nurses were “not properly placed in units of nonprofessional or noninstructional employees.”

PERB based its ruling on the fact that, among other things, nurses are required to have a college education, meet certification and licensing requirements, participate in continuing professional education, interact with students, teachers and administrators on a daily basis and share a clear “occupational identity and professional interests.”

This is a significant change from PERB's former position regarding the “fragmentation” of a negotiating unit.

PERB said that in the future it will consider “fragmentation” petitions on a case-by-case basis.

Special eligible lists

Special eligible lists
Colavito v NYC Civil Service Comm., 277 A.D.2d 94

The general rule is that appointments may not be made from an eligible list once it has expired. However, there are a number of exceptions to this general proposition. In the Colavito case, the court considered a candidate's attempt to be placed on a special eligible list.

Joseph Colavito failed the examination for blacksmith. The list expired on May 8, 1995. Colavito, however, did not commence his Article 78 action challenging his test score on the practical part of the examination until November 1998. This, said the court, meant that his Article 78 petition was untimely.

Citing Deas v Levitt, 73 NY2d 525, the Appellate Division, First Department, affirmed Supreme Court Judge Louise Gruner Gans' dismissal of his petition. The Appellate Division said that where a candidate seeks to be placed on a special eligible list, he [or she] must commence the proceeding before the list expires and “must challenging the validity of the list itself”.

Special eligible lists may be established if certain conditions are satisfied. The basic rules governing such cases are as follows:

1. If a candidate's disqualification has been reversed or his or her rank order on an eligible list has been adjusted as a result of administrative or judicial action, his or her name is placed on the eligible list for a period equal to the period of disqualification or the period he or she has been improperly ranked, up to a maximum period of one year or until the expiration of the eligible list, whichever is longer [Civil Service Law Section 56.3].

2. If an eligible list expires before the expiration of the candidate's “period of restoration,” the candidate's name is placed on a special eligible list for the remanding period of his or her restoration, not to exceed a maximum of one year [Civil Service Law Section 56.3].

3. If a candidate's disqualification is reversed or his or her rank is adjusted after the eligible list has expired, his or her name is placed on a special eligible list for a length of time equal to the restored period of time not to exceed a maximum of one year [Civil Service Law Section 56.3].

4. If a court determines that an eligible list is invalid, it may order the creation of a special eligible list having a life of at least one year but not more than four years from the date on which the corrected list is published [Civil Service Law Section 56.4].

In any event, the First Department held that critical to obtaining any relief pursuant to Section 56.3 or Section 56.4 is the candidate's commencing his or her challenge to the examination before the eligible list expires.

Defined Benefit Retirement Plans contrasted with Defined Contribution Retirement Plans for New York State public employees

Defined Benefit Retirement Plans contrasted with Defined Contribution Retirement Plans for New York State public employees

Source:”Passing The Pension Bomb by EJ McMahon and Josh Barro, published by the Empire Center for New York State Policy [SR8-11]

In their “white paper”Passing The Pension Bomb* EJ McMahon and Josh Barro report on New York's “Exploding Pension Cost,” focusing on New York State’s defined benefit public retirement systems, the authors indicate that “While a growing number of states have been making changes to their pension systems—including 11 in 2010 alone — pure DC [defined contribution] plans so far have been mandated in only two states, Michigan and Alaska. In the wake of the November 2010 election, at least six newly elected governors in other states were 'looking favorably at some form of 401(k)-style retirement plan for public employees, adding to the momentum building nationally for a shift away from traditional guaranteed pensions,' the Pew Center’s Stateline web site recently reported.”

Noting that:

“• Tier 1 benefits are available to all employees hired before June 30, 1973;

“• Tier 2 covers all employees hired on or after June 30, 1973 and before July 27,1976;

“• Tier 3 covers employees hired on or after July 27, 1976, and before Sept. 1, 1983;

“• Tier 4 includes all employees hired on or after Sept. 1, 1983, and before Jan. 1, 2010; and

“• Tier 5 covers employees hired on or after Jan. 1, 2010”

McMahon and Barro suggest that [New York] State officials should not settle for creating a “Tier 6” that incrementally adjusts some existing pension parameters while preserving a fatally flawed system that exposes taxpayers to potentially open-ended liabilities, implying that serious consideration should be given to creating a defined contribution retirement plan.

The report addresses only New York’s public retirement systems and thus does not consider the defined contribution retirement programs now in place and available to certain employees of the State University of New York, certain employees of the State Department of Education and certain employees in the State's community colleges, among others. Significantly, these “Optional Retirement Programs** are not public retirement systems.***

Using these defined contribution plans as models, consideration could be given to the establishment of similar plans in lieu of the tradition NYSERS, NYSTRS and other public retirement systems of the State’s Defined Benefit Plan models now in place and periodically "revised" via the creation of new "Tiers" for new employees of New York State and its political subdivisions.

A viable DCP plan for employees of the State and its political subdivisions could provide that:

1. All new employees becoming members of the New York State Employees’ Retirement System and similar public retirement systems of this State would participate in a DCP;

2. Employer and employee contributions for the DCP would be negotiated through collective bargaining;

3. Employees in the DCP would “vest” immediately;

4. Current members of a public retirement system would be permitted to elect to become members of the appropriate DCP; and

5. The existing public retirement systems would administer their respective DC plans by essentially expand the existing “employee contribution” operations of the systems, with, perhaps, a variable annuity option.

* Posted on the Internet at http://www.rpea.org/news/documents/PensionExplosion.12.20102.pdf

** These several Optional Retirement Programs include, for example, the plan established in 1965 pursuant to the Education Law available to certain employees of SUNY, the Statutory Contract Colleges at Cornell and Alfred Universities, and community colleges [see Education Law §390 et. seq.]

*** Education Law §396.

Finding of guilt based on allegations not included in the disciplinary charges vacated

Finding of guilt based on allegations not included in the disciplinary charges vacated
Eckstrom v City of Ithaca, NYS Supreme Ct., [Not selected for publication in the Official Reports]

In 1997, the City of Binghamton amended the City Code to require “notice and hearing” and proof of incompetence or misconduct before a city official appointed by the Mayor could be removed from his or her office. Prior to the amendment, such officials were “employees-at-will” and not entitled to any form of a pretermination hearing.

In the Eckstrom case, State Supreme Court Judge Walter J. Relihan, Jr. concluded that having enacted such a provision, the City was required to substantially comply with the principles followed in prosecuting disciplinary charges filed pursuant to Section 75 of the Civil Service Law.

Six disciplinary charges were filed against Richard L. Eckstrom, the city's Building Commissioner, by the Mayor. One was withdrawn by the Mayor prior to the hearing and three were dismissed by the hearing officer. Eckstrom, however, was found guilty of the two remaining charges based on building code decisions he had made. Accepting the findings and recommendations of the hearing officer, the Mayor dismissed Eckstrom. Eckstrom appealed.

In reviewing the record, Judge Relihan noted that the hearing officer had concluded that as to the first charge Eckstrom's actions were “arguably correct” and that his conduct with respect to the second charge “was neither incorrect nor unreasonable.”

How then could the hearing officer have found Eckstrom guilty? In both instances, said Judge Relihan, the hearing officer relied on “an uncharged offense in support of a finding of guilt regarding an offense which does appear in the charges.”

In the words of the court:

Obtuse to his own prior findings, the hearing officer concluded that Eckstrom should be fired for incompetence and misconduct ... These jarring inconsistencies and departures from well-settled principles compel the conclusion that the “Final Determination” is arbitrary, capricious, affected by an error of law and constitutes an abuse of discretion.

As the Court of Appeals held in Murray v Murphy, 24 NY2d 150, in order to satisfy due process, a notice of the charges must be given to the employee so that he or she may mount an adequate defense, if one is available.

Further, the disciplinary determination must be based on the charges filed against the employee and “no person may lose substantial rights because of wrongdoing shown by the evidence but not charged.”

Observing that the city “disabled” itself from dismissing its high-ranking officials on policy grounds “unless, in addition, misconduct or incompetence could be proven at a hearing,” Judge Relihan ruled that Eckstrom was to be reinstated to his former position.

Judge Relihan said that this may “complicate the business of the Building Department and cause discomfort elsewhere in City Hall” but “[p]erhaps, with good will, a rational and practical denouement can...be achieved...[which] of course, rests entirely in the hands of the parties.”

Among the lessons of the Eckstrom case: In the event a public employer unilaterally decides to provide a pretermination disciplinary hearing to individuals not otherwise entitled such administrative due process by law or contract, the procedures normally appropriate to conducting such a disciplinary hearing must be followed.

Whistle blowing – complaint of retaliation

Whistle blowing – complaint of retaliation
Dobson v Loos, 277 A.D.2d 1013

In Dobson the significant issue before the Appellate Division, Fourth Department, concerned whether or not certain personnel actions alleged taken against an employee could constitute retaliation for whistle blowing in violation of Civil Service Law Section 75-b and Labor Law Section 740.

Richard Dobson, an Erie County Sheriff's Department Sergeant, complained that the Department had retaliated against him because of his “whistle blowing activities” by taking “active and extraordinary measures to preclude his appointment as Lieutenant during the life of the preferred eligibility list until its expiration by operation of law.”

The Appellate Division ruled that such alleged conduct falls within the definition of a “retaliatory personnel action”.

The court noted that retaliatory personnel action is defined in the statutes as the “discharge, suspension or demotion of an employee, or other adverse employment action taken against an employee in the terms and conditions of employment.”

In addition, the court found that the following departmental actions Dobson alleged were taken against him could constitute unlawful retaliation as well:

1. Creating and filling new positions of senior and supervisory detectives, quasi-lieutenant positions “that rightfully should have been offered to [Dobson] but were not.”

2. Assigning Dobson to “virtually nonexistent duties.”

Challenging arbitration awards

Challenging arbitration awards
Coppa v State of New York, NYS Supreme Court, Justice A. Lebowitz, [Not selected for publication in the Official Reports]

Clearly, Article 75 of the Civil Practice Law and Rules imposes significant limitations on challenging an arbitration award. Two such limitations are:

1. The arbitrator exceed his or her authority in rendering a decision and

2. Alleged bias on the part of the arbitrator. These were among the issues considered in the Coppa case.

Coppa, a Psychiatrist II employed by the Brooklyn Development Center of the Office of Mental Retardation and Developmental Disabilities [OMRDD], was suspended without pay. He was served with a Notice of Discipline, dated March 2, 1999, charging him with “endangering the welfare of a consumer, verbally abusing a consumer and verbally abusing and threatening subordinate staff members.” OMRDD's proposed penalty: termination.

Coppa filed a disciplinary grievance challenging the charges filed against him in accordance with the disciplinary procedure set out in the Taylor Law agreement between the State and his employee organization. The grievance was ultimately submitted to arbitration. The arbitrator conducted a disciplinary hearing, sustained two of the three charges, which had been preferred against Coppa by OMRDD and imposed the penalty of dismissal.

Coppa filed a petition pursuant to Article 75 petition seeking to vacate the arbitration award.

Key to resolving Coppa's appeal, said the court, were the terms of the disciplinary arbitration procedure set out in the collective bargaining agreement.

In the words of the court, the contract expressly authorizes the disciplinary arbitrator to “render determinations of guilt or innocence and the appropriateness of proposed penalties” and provides that the “arbitrator's decision with respect to guilt or innocence, penalty, probable cause for suspension, or temporary reassignment, if any ... shall be final and binding [up]on the parties.”

These explicit provisions supported OMRDD's position that the arbitrator did not exceed his jurisdiction in ruling upon the preferred charges of misconduct and imposing the penalty of dismissal.

Judge Lebowitz pointed out that:

Where a dispute has been arbitrated pursuant to a broad arbitration agreement between the parties, the resulting award may not be vacated “unless it is violative of a strong public policy, is totally irrational or clearly exceeds a specifically enumerated limitation on the arbitrator's power,” citing the Court of Appeals' ruling in Town of Callicoon v CSEA, 70 NY2d 907.

Another issue raised by Coppa: the possibility of bias on the part of the disciplinary arbitrator in view of his “prior employment by the State of New York.”

However, said the court, the arbitrator's previous employment by the State was disclosed to Coppa in the arbitrator's resume sent to the parties in advance of his selection to serve as the hearing officer. Coppa proceeded to arbitration without objecting or inquiring further into the arbitrator's possible bias.

This omission, said Judge Lebowitz, meant that Coppa waived any possible objection to the arbitrator's award based on a theory of bias resulting from the arbitrator's prior relationship with the State of New York.

Judge Lebowitz confirmed the arbitration award finding Coppa guilty of two of the charges and the penalty imposed: dismissal from his position.

Oath of office upon the appointment of a public officer or a public employee

Oath of office upon the appointment of a public officer or a public employee
A NYPPL review

When Lance Eggleston was appointed to the Village of Hamburg's Environmental Commission, he said that he wanted to postpone his filing his oath to support the Federal and State Constitutions until he had a chance to read the New York State Constitution. What, if any, impact could a delay in his filing his oath of office have on Eggleston's status on the commission?

First, some background concerning the filing of an oath of office by a public officer or a public employee.*

Individuals are typically required to execute an “oath of office” upon their initial appointment to a position in the public service. Section 62 of the Civil Service Law, for example, requires “every person employed by the state or any of its civil divisions” to execute a “Constitutional Oath of Office.”

If the individual refuses or willfully fails to file the “Section 62 oath”, his or her employment is to be terminated until the oath is taken and filed with the appropriate body.**

Similarly, Section 10 of the Public Officers Law mandates that “every officer” take and file “the oath of office required by law” before he or she may “enter upon the discharge” of any official duties.

What is the penalty if a public officer does not file a timely oath? Section 30.1 of the Public Officers Law provides that if an individual refuses or neglects to file his or her official oath within thirty days of the beginning of his or her term of office, the office becomes “vacant.”

In contrast to Civil Service Law Section 62's provision for the “reinstatement” of the terminated individual to employment once his or her oath is filed, nothing in Section 30.1 of the Public Officers Law provides for “automatic reinstatement” of the individual upon his or her filing of the required oath once the position becomes vacant “by operation of law.”

Presumably the individual must be reappointed to the position if he or she is to hold the office, at which time he or she would be required to file a new and timely Constitutional Oath of Office.

As to Eggleston's situation, it appears that Eggleston wanted delay his filing because he wanted to know what he would be swearing to uphold before he actually swore to support the State Constitution. In explaining his action, Eggleston said “[i]t's like signing a blank check.” In any event, Eggleston, as a public officer, will have thirty days to file his oath or the office to which he had been appointed will become vacant as mandated by Section 30.1.

It is noteworthy that Eggleston had recently retired from his position as a technology coordinator at the Hamburg Central Schools. Presumably he had executed the oath to support the Federal and State constitutions mandated of “any citizen of the United States [employed] to serve as teacher, instructor or professor in any school or institution in the public school system of the state ...” as required by Section 3002 of the Education Law upon his initial appointment by the school district.

The Constitutional oath of office required by the Civil Service Law, the Education Law, the Public Officers Law and similar provisions must be distinguished from so-called “loyalty oath” established pursuant to “anti-subversive activities” laws that were set out in former Section 105 of the Civil Service Law.

Section 105 [originally enacted as Section 12-a of the Civil Service Law of 1909] made individuals advocating the overthrow of government by force or unlawful means ineligible for employment in the public service of the State or any of its political subdivisions.

Section 105 was repealed following the U.S. Supreme Court's decision in the Keyishian case. In Keyishian, the high court held that State laws similar to Section 105, Sections 3021 and 3022 of the Education Law, were unconstitutional [Keyishian v Board of Regents, 87 SCt 675]. Sections 3021 and 3022 were enacted to provide for the “elimination of subversive persons from the public school system.”

* While not all public employees are public officers, all public officers are public employees.

** An individual affiliated with, or a member of, an Indian nation is permitted to file an alternate to the oath set out in Section 62.

Determining if the grievance is arbitrable

Determining if the grievance is arbitrable
Owen D. Young CSD v Morris, 278 AD2d 940

The significant issue in the Young Central School District case concerned determining if a grievance filed by an employee organization could be submitted to arbitration.

Susan Morris, President of the Van Hornesville Teachers Association, appealed a State Supreme Court's granting of the District's petition to stay submitting a grievance concerning prescription health insurance benefits to arbitration.

The Appellate Division, Fourth Department vacated the stay of arbitration issued by a State Supreme Court Judge. The court commented that “[t]here is a reasonable relationship between the matter in dispute, i.e., prescription health benefits, and the broad arbitration clause [in the collective bargaining agreement] that covers all grieved matters.”

In such cases, said the Appellate Division, arbitrators, rather than the courts, are to determine whether a particular grievance falls within the scope of the substantive provisions of the collective bargaining agreement, citing Board of Education v Watertown Education Association, 93 NY2d 132.

The Appellate Division ruled that the lower court “erred in determining as a matter of law that the matter is not arbitrable.”

Determining probation status when employee's service is interrupted by an absence
Johnston v Triborough Bridge and Tunnel Authority, App. Div., First Dept., 278 A.D.2d 34

Typically, an individual serving a “disciplinary probation” may be terminated from his or her position in accordance with the terms of his or her probationary status.

The lesson of the Johnston case: it is essential to determine if the individual is actually serving as a probationer at the time he or she is dismissed for unsatisfactory service as a probationer; probationary status may not be assumed.

In 1989, Triborough Bridge and Tunnel Authority [TBTA] police officer Edward P. Johnston settled disciplinary charges filed against him by agreeing to be placed “on probation for a period of one year.” A few months later Johnston was injured while on duty and did not return to work until October 1996.

In June 1997, following new allegations of misconduct, TBTA dismissed Johnston from his position without a pre-termination hearing. TBTA's justification for its action:

Johnston is not entitled to a pretermination hearing since the one-year probationary period agreed to in 1989 had not yet expired.

According to TBTA, Johnston's period of probation was tolled during his Johnston's extended absence from work. Essentially TBTA argued that as it had not “waived” any portion of Johnston's disciplinary probation, he was required to actually complete one year of such service.

This view is consistent with the Rules of the New York State Civil Service Commission, which applies to employees in the classified service of the State and public authorities, public benefit corporations and other agencies for which the Civil Service Law is administered by the State Department of Civil Service, with respect to absences during a probationary period [4 NYCRR 4.5(g)].

The rules provide that an appointing authority may, in its discretion, consider certain absences “as time served in the probationary term.”

The rule further provides that “[a]ny such periods of absence not so considered by the appointing authority as time served in the probationary term, and any periods of absence in excess of periods considered by the appointing authority as time served in the probationary term pursuant to this subdivision, shall not be counted as time served in the probationary term.” A number of local civil service commissions have adopted a similar rule.

Johnston protested his termination without notice and hearing but the New York City Civil Service Commission dismissed his appeal. The Commission said that it does not have “subject matter jurisdiction to consider the appeal” since Johnston's termination had been pursuant to the 1989 settlement agreement in which he waived the protections of Civil Service Law Section 75 mandating pretermination hearings for tenured employees.

The Appellate Division, First Department, disagreed with the Commission's analysis. It said the Commission apparently “assumed that the waiver contained in the 1989 agreement was still operative” -- it never actually made a finding to that Johnston was still a probationary employee.”

If, on the other hand, said the court, the probationary period had expired, the provisions of Section 75 of the Civil Service Law would control Johnston's dismissal.

Should this be the case, the lawfulness of Johnston's termination without notice and hearing would clearly be within the Commission's jurisdiction.

The Appellate Division remanded the case to the Commission to determine Johnston's probationary status and whether or not the “1989 waiver” remained effective at the time of Johnston's termination.

Discretion to discipline staff

Discretion to discipline staff
Matter of Gaul, Decisions of the Commissioner of Education #14432
Matter of Middleton, Decisions of the Commissioner of Education #14431

The Gaul and Middleton appeals both involve the challenges to the exercise of discretion involving the filing of disciplinary charges against an employee. In Gaul, the issue concerned the board's filing disciplinary charges; in Middleton, the issue involved a decision not to file such charges.

The Gaul case

Port Jefferson Union Free School District board member Kenneth Gaul, together with “presumably parents of students” in the district challenged the district's decision to file disciplinary charges pursuant to Section 3020-a of the Education Law against a school principal, Dr. Esther Fusco, and her subsequent reassignment pending resolution of the disciplinary action.

Also challenged was the abolishment of the position encumbered by the district's former director of special education, Carole Noren.

The district's superintendent, Dr. Edward J. Reilly, had recommended a reorganization plan that would involve the abolishment of Noren's position but before the board acted Noren was offered, and accepted, a retirement incentive.

Among the issues considered by the Commissioner was the question of Gaul's “standing” to appeal a personnel determination by a school board. The Commissioner observed:

1. An individual may not maintain an appeal pursuant to Section 310 of the Education Law unless he or she “has suffered personal damage or injury to his or her civil, personal or property rights.”

2. Status as a resident of a district or as a parent of a student in the district does not operate to “automatically confer ... the capacity to seek review of personnel actions by a board of education.”

Ruling that the “unsubstantiated assertion that their children have been negatively impacted by Fusco's removal is insufficient to confer standing” to challenge the board's decision, the Commissioner dismissed this aspect of the appeal.

The Commissioner also ruled that the assertion that expenditures to replace Fusco were “wasteful” in contrast to be “unlawful” did not establish “the direct personal harm” essential to conferring “standing” to appeal.

The Commissioner further found that Gaul failed to show that the board “engaged in a willful violation or neglect of duty” by its filing disciplinary charges against Fusco.

Fusco, the district conceded, had received both the Principal of the Year Award in New York State in 1997 and the National Distinguished Principal Award in 1998. However, it filed “49 specifications ranging from relatively minor offenses ... to the more serious” against her.

This, said the Commissioner, indicated that “from the breadth and length of the disciplinary charges, as well as the remoteness of some of the allegations, the [board] pursued Fusco's removal with considerable zeal” but there is insufficient evidence that “any board member willfully violated or neglected a legal duty in approving Fusco's reassignment.”

Dismissing the appeal, the Commissioner pointed out that Section 1709(33) of the Education Law grants a board of education broad authority to manage the educational affairs of the district. “Inherent in this authority” is the power to abolish administrative positions and alter an administrator's assignment.

As to Gaul's challenging the “retirement incentive” accepted by Noren, the Commissioner rejected his claim that the incentive was “an unconstitutional gift of public funds.”

This argument, said the Commissioner, is without merit, noting that in Antonpoulou v Beame, 32 NY2d 126, the Court of Appeals ruled that providing such a benefit, if statutory or contractual, is lawful. He said the retirement incentive offered Noren was authorized by Chapter 41 of the Laws of 1997.

The Middleton appeal

After Beatrice Hudgins Middleton's son was exonerated of charges that he brought a “Category I weapon” to his first grade class, Middleton asked the school district to file disciplinary charges against school officials whom she alleged had lied during the investigation of the incident or at the disciplinary hearing that followed.

The Commissioner, after dismissing Middleton's appeal for technical reasons, addressed the merits of her complaint -- the failure of the district to initiate the requested disciplinary action against its staff members.

Commenting that it is the board of education that has authority to take disciplinary action against a school district employee, the Commissioner said that “a board of education has broad discretion to determine whether disciplinary action against an employee is warranted.”

All that is required is that the board have “a reasonable basis” for its determination not to file disciplinary charges against the individual.

* These determinations were made by then Acting Commissioner Cate.

Duty of fair representation

Duty of fair representation
LeBlanc v Security Services Unit, Council 82, Appellate Division, Third Department, 278 A.D.2d 732

The LeBlanc decision illustrates some of the technical hurdles confronting members of an employee organization attempting to sue their collective bargaining agent on the grounds that it violated its duty of fair representation.

The ruling also demonstrates the proposition that a collective bargaining agreement belongs to the union, rather than to the employees covered by the agreement.

State Environmental Conservation Officer Hilary J. LeBlanc, together with other current and former officers, sued Council 82 alleging that it breached its duty of fair representation when it refused to file a grievance.

LeBlanc claimed that the State failed to pay conservation officers overtime compensation under the collective bargaining agreement in place at that time and that Council 82 should have filed a grievance to vindicate their rights under the collective bargaining agreement.

As it turned out, the complaint was untimely. The Appellate Division affirmed a Supreme Court ruling dismissing LeBlanc's petition on the grounds that the statute of limitations for bringing the action had expired.

The court pointed out that a claim against an employee organization alleging it breached its duty of fair representation must be commenced within four months of the date the employee knew or should have known that the breach occurred or when the employee suffered actual harm, whichever is later.

Although LeBlanc conceded that the officers were aware of the alleged breach in 1987, they attempted to persuade the court that they did not experience actual harm until July 2, 1999 when they:

1. Were paid overtime compensation in accordance with the Fair Labor Standards Act rather than “contractual overtime compensation;” and

2. Became obligated to pay counsel fees, costs and disbursements incurred in litigating their claim of entitlement to such overtime compensation [Mulverhill v State of New York, 257 AD2d 735].

The Appellate Division rejected LeBlanc's theory, holding that Council 82, assuming that it did in fact breached its duty of fair representation by refusing to file the grievance, did so in July 1987, more than 12 years prior to LeBlanc filing this complaint.

The Appellate Division also dismissed LeBlanc's claim of “breach of contract.” The court said that LeBlanc's breach of contract claims are based on the collective bargaining agreement between the State and Council 82.

Pointing out that the conservation officers are not parties to the contract, they lack what is called privity and thus they may not assert contractual claims directly against the State based on the collective bargaining agreement. In other words, only the State or Council 82 could sue the other for any alleged breach of the contract.*

Finally the Appellate Division ruled that LeBlanc's reliance on a claim that the officers are third-party beneficiaries of the contract between the State and Council 82 “is equally misplaced,” citing Lundgren v Kaufman Astoria Studios, 261 AD2d 513.

Although courts have ruled that members of a union may be “third party beneficiaries” of a contract between the employer and the union [Helt v Britten-Fenton Co., 180 Misc 1077], the Court of Appeals has declared that the benefit “must be one that is not merely incidental, but must be immediate in such a sense and degree as to indicate the assumption of a duty to make reparation if the benefit is lost” [Associated Flour Haulers and Warehousemen v Hoffman, 282 NY 173].

While the LeBlanc case concerned an individual suing his or her union for alleged breach of contract, sometimes an employee may attempt to sue his or her public employer alleging a breach of the collective bargaining agreement.

As a general proposition, when a public employer and a union enter into a collective bargaining agreement that sets out a contract grievance procedure, an employee subject to the agreement may not sue the employer directly for breach of that agreement. He or she must attempt to cure the alleged breach through the employee organization.

This proposition was set in by the Appellate Division, Third Department, in Sinacore v State of New York, decided November 16, 2000. In this situation, the court said that:

Unless the contract provides otherwise, only when the union fails in its duty of fair representation can the employee go beyond the agreed procedure and litigate a contract issue directly against the employer.

The Appellate Division ruled that because Sinacore “failed to allege that the union breached its duty of fair representation,” he cannot sue the State for any alleged procedural defects in his 1995 disciplinary hearing.

* Contract privity is defined as the relationship or connection between the contracting parties. Privity is essential to maintaining any legal action between a plaintiff and a defendant with respect to the matter being sued on.

Electing a disciplinary penalty

Electing a disciplinary penalty
Public Employees Federation v NYS Workers' Compensation Board, NYS Supreme Court, Judge Mason, [Not selected for publication in the Official Reports]

This decision by Judge Reynold N. Mason resolves an appeal from a disciplinary arbitration. In addition to explaining substituting negotiated disciplinary procedures for statutory procedures such as those set out in Section 75 of the Civil Service Law, it provided a rather unusual remedy: the employee is given a choice of the disciplinary penalty to be imposed.

While conducting a hearing, a Workers Compensation Board Judge, Herbert L. Levy, told a claimant's attorney to “shut up.”

An investigation followed and Levy admitted to using this language, explaining that he had been “attempting to say something dramatic to break th[e] emotionalism that [the attorney] was involved in,” and to get her, the attorney, to stop talking and “get the hearing back on track.” Levy also conceded that his plan was “perhaps ill-conceived.”

Disciplinary charges were filed charges against Levy alleging “misconduct and/or incompetence.” The Board claimed that he had violated it policy “that Board employees maintain a civil, courteous, respectful and professional attitude and practice” and proposed a penalty of a ten-day suspension from work without pay.

Levy rejected the proposed penalty/settlement and his disciplinary grievance was submitted to arbitration in accordance with the terms of the collective bargaining agreement [CBA].

Arbitrator Max M. Doner found Levy guilty of misconduct and/or incompetence in the performance of his duties as law judge. The penalty imposed: a fine of $2,400.

Levy filed an Article 75 petition seeking to vacate the arbitrator's award on the grounds that the arbitrator had exceeded his powers and thus his determination is “arbitrary, capricious and irrational.”

Levy also contended that the award violates the strong policy of the State of New York and “denies petitioner his Constitutional right to due process of law....” The Board, on the other hand, filed a motion to confirm the award.

Levy major arguments: (1) The collective bargaining agreement provides for “compulsory” binding arbitration and accordingly “the award would have to be in accord with due process and supported by adequate evidence in the record in order to be sustained;” and (2) The penalty imposed, a fine of $2,400, violates public policy.

The collective bargaining agreement

Judge Mason rejected Levy's “compulsory” binding arbitration theory.

Citing Antinore v State of New York, 40 NY2d 6, the court said that “a provision in a public employee's CBA which provides for binding arbitration as the method for disposing of challenges to disciplinary action in lieu of a statutory disciplinary procedure such as Section 75 of the Civil Service Law is deemed to have been consented to by the employee (as such provision was voluntarily agreed to by the employee's representative, the union)....”

Accordingly, Levy's submission to arbitration pursuant to his CBA is deemed to be consented to, not compulsory.

The public policy issue

Judge Mason also rejected Levy's argument that the arbitrator's imposition of a $2,400 fine is in excess of his authority and is “arbitrary, capricious and irregular” in that it violates the “strong public policy” of New York State because Section 75 provides for a fine of not to exceed $100.

He said that because the CBA's disciplinary grievance procedure replaced Section 75 and provides that the arbitrator is to determine guilt and the appropriate penalty, the arbitrator is neither subject to nor limited by the penalties contained in Section 75.

As to the public policy issue, the court said that a fine to be imposed against a public employee not to exceed $100, does not constitute an expression of “public policy” such that the arbitrator's imposition of a fine greater than $100 is violative of public policy and must be set aside.

According to Judge Mason, the fine of $2,400 imposed by the arbitrator appears to be a reduction from the original penalty imposed -- a 10-day suspension without pay.

But, said the court, if Levy disagreed and “would actually prefer to suffer the 10-day suspension rather than pay $2,400,” he may elect the suspension since he “should not be worse off for having sought review of the original finding and penalty” by an arbitrator.”

Sustaining the determination of guilt, Judge Mason modified the award to allow Levy to elect the penalty he preferred.

Judge Mason applied the following standards in reaching his determination:

1. An arbitrator is free to apply his own sense of law and equity to the facts as he has found them to be in resolving a controversy, including consideration of the employee's personnel file in setting the penalty to be imposed.

2. The court's authority for overturning an arbitration award is limited to those provided under Article 75 of the Civil Practice Law and Rules.

3. Any limitation upon the remedial power of the arbitrator must be clearly contained in the arbitration clause.

4. Although an award which is violative of public policy will not be permitted to stand, courts must be careful not to decide the dispute on the merits under the guise of public policy.

Using an individual’s employment history in disciplinary action

Using an individual’s employment history in disciplinary action
A NYPPL review

Readers raise interesting questions. For example, a reader recently asked if there were any court decisions concerning the introduction of an employee's employment history into the record during a disciplinary hearing?

According to the reader, the Section 75 hearing officer admitted the accused employee's performance evaluations during the proceeding at the request of the appointing authority, indicating that the evaluations would be considered in determining the penalty the hearing officer would recommend if he found the employee guilty of one or more of the disciplinary charges.

The question raises a number of issues, including the following:

1. May such records be introduced into the record at the disciplinary hearing?

2. If the employee is found guilty of charges unrelated to adverse material in his or her personnel record, may the records be used to determine the penalty to be imposed by the hearing officer? By the appointing authority?

3. If the employee is found guilty of charges related to an adverse comment in his or her personnel records should further consideration be barred on the grounds of “double jeopardy?”

Introducing the personnel record:

In Scott v Wetzler, 195 AD2d 905, the Appellate Division, Third Department rejected Scott's argument that he was denied due process because the Section 75 hearing officer allowed evidence concerning his performance evaluations to be introduced during the disciplinary hearing.

The court said that “such evidence was relevant to the determination of an appropriate penalty,” noting that Scott was allowed an opportunity to rebut these records and to submit favorable material contained in his personnel file.

Considering the personnel record:

Having introduced the employee's personnel records, for what purpose(s) may they be used?

In Bigelow v Village of Gouverneur, 63 NY2d 470, the Court of Appeals said that such records could be used to determine the penalty to be imposed if:

1. The individual is advised that his or her prior disciplinary record would be considered in setting the penalty to be imposed, and

2. The employee is given an opportunity to submit a written response to any adverse material contained in the record or offer “mitigating circumstances.”

Is criticism discipline?

In Holt v Board of Education, 52 NY2d 625, the Court of Appeals ruled that performance evaluations and letters of criticism placed in the employee's personnel file were not “disciplinary penalties” and thus could be placed there without having to first hold a disciplinary proceeding.

In other words, the appointing authority's placing correspondence critical of the employee's conduct or performance in his or her personnel file did not constitute discipline.

The basic rule set out in Holt is that a statutory disciplinary provision such as Section 75 of the Civil Service Law does not require that an employee be given a hearing or permitted to grieve every comment or statement by his or her employer that he or she may consider a criticism.

In contrast, alleged “constructive criticism” may not be used to frustrate an employee's right to due process as set out in Section 75 of the Civil Service Law, Section 3020-a of the Education Law or a contract disciplinary procedure.

As the Commissioner of Education indicated in Fusco v Jefferson County School District, CEd, decided June 27, 2000, and Irving v Troy City School District, CEd 14,373, decided May 25, 2000:

Comments critical of employee performance do not, without more, constitute disciplinary action. On the other hand, counseling letters may not be used as a subterfuge for avoiding initiating formal disciplinary action against a tenured individual.

What distinguishes lawful “constructive criticism” of an individual's performance by a supervisor and supervisory actions addressing an individual's performance that are disciplinary in nature? This could be a difficult question to resolve.

As the Court of Appeals indicated in Holt, a “counseling memorandum” that is given to an employee and placed in his or her personnel file constitutes a lawful means of instructing the employee concerning unacceptable performance and the actions that should be taken by the individual to improve his or her work.

In the Fusco and Irving cases, the Commissioner of Education found that “critical comment” exceeded the parameters circumscribing “lawful instruction” concerning unacceptable performance.

In Fusco's case, the Commissioner said that “contents of the memorandum” did not fall within the parameters of a “permissible evaluation” despite the school board's claim that the memorandum was “intended to encourage positive change” in Fusco's performance.

The Commissioner noted that it “contains no constructive criticism or a single suggestion for improvement.” Rather, said the Commissioner, the memorandum focused on “castigating [Fusco] for prior alleged misconduct.”

In Irving's case, a school principal was given a letter critical of her performance and the next day reassigned to another school where she was to serve as an assistant principal.

The Commissioner ruled that these two actions, when considered as a single event, constituted disciplinary action within the meaning of Section 3020-a of the Education Law.

Concerning alleged "double jeopardy"

A “counseling memorandum” is placed in an individual's personnel file and later disciplinary charges involving the same event(s) are served upon the individual. Does including or incorporating the events set out in the counseling memorandum as charges constitute “double jeopardy?”

No, according to the Court of Appeal's ruling in Patterson v Smith, 53 NY2d 98. In Patterson the court said that including charges concerning performance that were addressed in a counseling memorandum was not “double jeopardy.”

The court explained that a “proper counseling memoranda” contains a warning and an admonition to comply with the expectations of the employer. It is not a form of punishment in and of itself.

Accordingly, case law indicates that giving the employee a counseling memorandum does not bar the employer from later filing disciplinary charges based on the same event.

Further, the memorandum may be introduced as evidence in the disciplinary hearing or for the purposes of determining the penalty to be imposed if the individual is found guilty.

The employer, however, may not use the counseling memorandum or a performance evaluation to avoid initiating formal disciplinary action against an individual as the Fusco and Irving decisions by the Commissioner of Education demonstrate.

Member's claim of malpractice by the union's attorney rejected

Member's claim of malpractice by the union's attorney rejected
Mamorella v Derkasch, App. Div., Fourth Dept., 276 AD2d 152

Lucille Mamorella asked the Appellate Division “to reject as against public policy the well-established rule that an attorney who performs services for and on behalf of a union may not be held liable in malpractice to individual union members where the services at issue constitute a part of the collective bargaining process.”

The Appellate Division declined to do so. The court said,

Sound policy reasons as well as established precedent compel the conclusion that attorneys who perform services for and on behalf of a union may not be held liable in malpractice to individual grievants where the services the attorneys perform constitute a part of the collective bargaining process.

The court cited Peterson v Kennedy, 771 F2d 1244, in support of its ruling. 

Negotiating General Municipal Law Section 207-a procedures

Negotiating General Municipal Law Section 207-a procedures
City of Syracuse v Public Employment Relations Board, 279 AD2d 98

Two firefighters employed by the City were injured in the line of duty and began receiving salaries and benefits pursuant to General Municipal Law [GML] Section 207-a. The City subsequently received medical reports indicating that both firefighters were capable of performing light duty work.

Consistent with GML Section 207-a(3), the firefighters were directed to report for light duty assignments. One firefighter refused to report for light duty; the other reported to the light duty assignment late and then left early.

As to the authority for requiring a firefighter to perform “light duty,” Section 207-a(3) essentially provides that if a fireman not eligible for or not granted an accidental disability retirement allowance or retirement for disability incurred in performance of duty allowance or similar accidental disability pension but is nevertheless, in the opinion of such health authorities or physician, unable to perform his regular duties as a result of such injury or sickness but is able, to perform specified types of light-duty:

Payment of the full amount of regular salary or wages, as provided by subdivision one of this section, shall be discontinued with respect to such firefighter if he shall refuse to perform such light-duty consistent with his or her status as a firefighter if the same is available and offered to him or her.

A hearing to determine “the possible termination” of their Section 207-a benefits were scheduled for both firefighters.

The Union, Firefighters Local 280, wrote to the fire chief claiming that “the procedures to determine whether GML Section 207-a benefits should be terminated were a subject of mandatory bargaining and that the implementation of any procedures, including these hearings, without the approval of the Union would constitute an improper practice.”

Notwithstanding this communication, the City went forward with the hearing. One firefighter, Firefighter A, appeared at his hearing while Firefighter B failed to appear at the hearing as scheduled and his hearing was held “in absentia.”

The hearing officer, the deputy chief, found that both Firefighter A and Firefighter B had failed to comply in a reasonable and prudent manner with the fire chief's directive. Their Section 207-a benefits were discontinued.

Local 280 filed an improper practice charge with PERB, alleging that the City violated Civil Service Law Section 209-a (1) (d) by unilaterally implementing procedures to determine whether to terminate Section 207-a benefits despite Local 280's objection to those procedures on the ground that they were the subject of mandatory bargaining.

Syracuse argued that the forfeiture of benefits under Section 207-a for refusal to perform an appropriate light duty assignment was not a mandatory subject of collective bargaining under the Taylor Law.

PERB's Administrative Law Judge [ALJ] dismissed the improper practice charge and Local 280 appealed to PERB. PERB, reversing its ALJ's determination and ruled that the City had committed an unfair labor practice by unilaterally establishing the hearing procedure challenged by the Local.

Syracuse filed an Article 78 petition seeking to annul PERB's determination.

The Appellate Division sustained PERB's determination, explaining:

1. Under Section 207-a, a firefighter injured in the line of duty may continue to receive salary and benefits.

2. The employer has the authority to make an initial determination to order a firefighter to report for a light duty assignment, which authority is not a subject of mandatory bargaining, citing Schenectady Police Benevolent Association v PERB, 85 NY2d 480, a case involving light duty assignments for police officers pursuant to GML Section 207-c.

3. The procedures for challenging the employer's initial determinations under Section 207-a(3) are, however, subjects of mandatory bargaining, citing City of Watertown v PERB, 95 NY2d 73.

The Appellate Division, quoting from Watertown, said “the public policy of this State in favor of collective bargaining is 'strong and sweeping' ... [and] [t]he presumption in favor of bargaining may be overcome only in 'special circumstances' where the legislative intent to remove the issue from mandatory bargaining is 'plain' and 'clear.'”

Here, said the court, the City's unilateral promulgation of administrative procedures to be used to determine the continued eligibility of a firefighter for Section 207-a benefits in the event he or she fails to comply with a directive to report for light duty constituted an improper practice within the meaning of the Taylor Law.

According to the ruling, the Union objected to the City's unilateral implementation of procedures to be used to determine whether to terminate GML Section 207-a benefits. The Appellate Division ruled:

Where, as here, a dispute not covered by the existing collective bargaining agreement arises during the term of an existing collective bargaining agreement, the parties to the agreement have a statutory duty to bargain collectively to resolve the dispute. A party's refusal to do so constitutes an improper practice.

The bottom line: the court said that “under the Taylor Law, the procedures to be used in determining whether to terminate section 207-a benefits are a subject of mandatory bargaining.”

Another element in the case was Syracuse's argument that Local 280 had failed to file a “notice of claim” and thus was barred from proceeding with its action. The Appellate Division, 4^th Department, did not agree.

It said that Syracuse claim relied a decision by the Appellate Division, Third Department, Deposit Central School District v PERB, 214 AD2d 288, holding that the notice of claim requirement in Education Law Section 3813 is a condition precedent to PERB's exercise of jurisdiction over an improper practice charge. “The City's “reliance on those Third Department cases is misplaced.”

Why? Because, explained the court, “[i]t would thus be unfair for similarly situated civil service employees employed by other municipalities without such a notice of claim requirement to be allowed to pursue an improper practice charge against their respective municipalities without the necessity of filing a notice of claim while requiring the Union employees herein to file a notice of claim.”

In addition, the Appellate Division commented that “both employers and employee organizations may file an improper practice charge with PERB and it would be inequitable to place a requirement on an employee organization that is not placed on an employer; an employee organization would be required to file a notice of claim while an employer would not.