Part-time paid elected official cannot continue receiving unemployment insurance benefits while serving in office

Part-time paid elected official cannot continue receiving unemployment insurance benefits while serving in office

Cass v Commissioner of Labor, 296 A.D.2d 759

Donald M. Cass applied for and was granted unemployment insurance benefits. While he was collecting unemployment insurance benefits, however, Cass was also serving as a member of the Geneva City Council and received a salary of $208.33 per month. Later Cass was sworn in as the Mayor of the City of Geneva, a part-time position for which he was paid $625 per month. He continued to collect unemployment insurance benefits while serving at Mayor.

The Unemployment Insurance Appeal Board [Board] ruled that Cass was ineligible for benefits because he was not totally unemployed during the time he was receiving unemployment benefits and, in addition, it concluded that he had made willful false statements in order to receive these benefits.

According to the Appellate Division's decision, Cass testified that he had mentioned his status as an elected official when he first applied for benefits and was told, by a clerk at the local unemployment insurance office, not to "worry about it". Thus, he contended, he did not reveal that he had received these payments when he made his weekly certifications for benefits.

In contrast to Cass' testimony, the record before the Board included testimony from the clerk who took Cass' application that if claimant had mentioned his status as an elected official, she would have made a note of it on his application for benefits, and she had not done so. In addition, the record included testimony from another Labor Department representative indicating that she had spoken to Cass concerning his benefits and had specifically instructed him that he was required to report any activities performed by him as an elected official during the benefit period.

The Appellate Division sustained the Board's determination. It concluded that there was substantial evidence in the record to support the Board's finding that Cass was ineligible for benefits because he was not totally unemployed at the time and its further finding that he willfully made false statements in order to obtain benefits.

Selection for appointment - the Rule of Three and the Rule of One

Selection for appointment - the Rule of Three and the Rule of One

UFT v. Board of Education, New York City School District, 298 A.D.2d 60

In United Federation of Teachers [UFT] v Board of Education, an action taken to confirm an arbitration award, the critical issue concerned the degree of discretion enjoyed by an employer in determining the "most qualified applicant to fill a vacancy." In effect the court was asked to determine if the “Rule of Three” set out in Civil Service Law §61 trumped a “Rule of One” set out in a collective bargaining agreement.

Linda Feil, a third grade teacher, applied for one of six "per session" positions in Project Read, an after school program. While Feil did not have an Early Childhood or Reading License, she did have 26 years experience as a primary school teacher, possessed a "common branch" teaching license, and had substituted for the Project Read program in the past. Feil was not selected for the job.

UFT grieved the "non-selection" of Feil for the position, contending that the Board's failure to appoint Feil was arbitrary and capricious. The arbitrator, after noting that there was no provision in the collective bargaining agreement [CBA] that addressed the procedure for filling a Project Read position, awarded the position to Feil, together with back pay. In making the award, the arbitrator relied on a provision of the agreement that barred the Board from acting in an arbitrary and capricious fashion.

Although the Board placed Feil in the position, it did not grant her any back pay. In an attempt to obtain the back pay provided for in the arbitration award, UFT initiated a CPLR Article 75 proceeding seeking an order confirming the arbitrator's award. The School Board cross-moved to vacate the arbitrator's award. Supreme Court granted UFT's motion to confirm the award and the Board appealed.

The Appellate Division reversed the lower court's determination, holding that (1) the arbitrator exceeded her authority when she awarded the position to Feil; and (2) the award violated strong public policy.

The court said that despite the fact that the arbitrator acknowledged that there was no contract provision setting out any procedure for selecting an applicant for the Project Read program, she nevertheless awarded one of the positions to Feil.[1]

Accordingly, the Court said it was necessary to analyze the reasoning behind the arbitrator's decision that the CBA had been violated. The court's conclusion: the arbitrator's ruling was based on the fact that she was not convinced that Feil should have been eliminated from consideration because none of four individuals selected for appointment were any more qualified than Feil. This, in the view of the court, constituted "contract making" rather than "contract interpretation."

In addition, the Appellate Division said that the arbitrator's decision, mandating the employment of the individual in this instance, violated strong public policy. Essentially, said the court, notwithstanding the absence of any contract procedure for selecting applicants for a specific job, the arbitrator took it upon herself to decide who was the best qualified applicant -- and decided that it was Feil.

Citing Honeoye Falls-Lima CSD v Honeoye Falls-Lima Education Association, 49 NY2d 732, the Court said "[i]t is well established that `it is beyond the power of a school board to surrender through collective bargaining a responsibility vested in the board in the interest of maintaining adequate standards in the classroom.'" Clearly the Board cannot be divested of its authority concerning the selection of personnel by an arbitrator's award; not even one promulgated under color of a provision contained in a collective bargaining agreement.[2]

The Appellate Division concluded that for the arbitrator to substitute her judgment for that of the appointing authority, "at least in this case."

In contrast, courts have upheld the right of the employer to give up a right to exercise its discretion in selecting an individual for appointment in the course of collective negotiations under certain circumstances.

In Professional, Clerical, Technical Employees Association v Buffalo Board of Education 90 N.Y.2d 364, the Court of Appeals upheld the validity of a collective bargaining agreement that provided for appointment pursuant to "a rule of one" -- the selection of the highest scoring candidate on a civil service examination for appointment to a vacancy. In effect this contract provision obviated the so-called Rule of Three [Civil Service Law Section 61], which gives the appointing authority the discretion to select from among at least three eligibles on the list when filing a vacancy.

§61, in pertinent part, provides that appointment or promotion from an eligible list to a position in the competitive class shall be made by the selection of one of the three persons certified by the appropriate civil service commission as standing highest on such eligible list who are willing to accept such appointment or promotion.

Initially the Civil Service Law mandated the appointment of “those graded highest” – i.e., “the Rule of the List.” The Court of Appeals, however, ruled that such a requirement, in effect, made the Civil Service Commission the appointing authority [People v Mosher, 163 NY 32 (1900)]. As a result, Rule VIII [1] of the 1909 Rules for the Classified Service provided for the “selection of one of the three persons who are willing to accept [appointment] and are graded highest on the most nearly appropriate eligible list...” -- the so-called Rule of Three.[3]

The Professional, Clerical, Technical Employees Association [PCT] had filed a grievance objecting to the Buffalo City School District's "passing over" Melvin Cross, the highest-scoring candidate on a promotion eligible list for appointment to the position of Associate Account Clerk. Buffalo had appointed three lower ranking eligibles to fill three Associate Account Clerk vacancies.

PCT argued that the School District had agreed to be bound by the "rule of one" under a contract negotiated pursuant to the Taylor Law. The School District, however, contended that such a contract provision should not be enforced because enforcing it would violate strong public policy.

Holding the contract provision enforceable, the arbitrator directed the district to appoint Cross to the position of Associate Account Clerk, with back salary and benefits.

Could the arbitrator require the Board of Education to promote the highest-scoring negotiating unit member on a civil service eligible list based on a finding that a rule of one was mandated under the terms of the parties' collective bargaining agreement?

The Court of Appeals ruled that no strong public policy prohibits an appointing authority from agreeing through collective negotiations to give promotional preference to certain employees on an eligible list where a probationary period precedes the employee's attaining tenure.

Observing that "the public policy exception to the arbitrability of public sector labor disputes is narrow," the Court of Appeals affirmed the arbitrator's award, holding that:

The promotional practices of a public employer constitute a term or condition of employment that may be determined through collective bargaining under the Taylor Law. Thus, the court concluded, public policy is not offended by an appointing authority's agreeing to be bound by the so-called "rule of the list."

The lesson here: in contrast to being mandated to follow the rule of the list or a "rule of one," by law, rule or regulation, an appointing authority may elect to forfeit its right to select from among the candidates standing highest on the eligible list.

This concept was acknowledged by the Appellate Division in deciding Feil. It said that its ruling "is not meant to suggest that a collective bargaining agreement may not require that the most senior qualified teacher within the bargaining unit be given preference in filling an open position. Such seniority provisions are, of course, fully enforceable."

---

[1] While the arbitrator recognized that the selection of teachers for Project Read was "not covered by the Agreement," she stated that "[t]he exercise of [managerial] discretion [in making such selections] is subject to the general arbitral rule that such an exercise must be undertaken in good faith and not be arbitrary, capricious or discriminatory in nature."

[2] : The Appellate Division, citing Cohoes City School Dist. v Cohoes Teachers Association, 40 NY2d 774, commented that although an arbitrator may render an award based on a school board's failure to adhere to contractually mandated "supplemental procedural steps preliminary to the board's final [action], the school board's ultimate determination on a matter bearing directly on the maintenance of educational standards generally remains immune from arbitral review".

[3] See, also, People v Gaffney, 142 AD 122, affirmed 201 NY 535. In Gaffney the court held that a law or rule limiting the selection for appointment to a single individual on an eligible list unconstitutionally interfered with the right of the appointing authority to select its own officers and employees.

Imposing a disciplinary penalty

Imposing a disciplinary penalty

Toth v Nassau County Police Department, 302 AD2d 600

Was suspending a police officer found guilty of a number of charges of misconduct without pay for 270 days lawful? After all, the Section 75 of the Civil Service Law limits such a suspension without pay for a period not to exceed two months.

The Appellate Division, Second Department, said it was appropriate under the circumstances and the controlling law. It sustained the 270-day suspension without pay disciplinary penalty imposed by the appointing authority on Nassau County police officer Peter S. Toth after he was found guilty of:

1. Two counts of engaging in conduct unbecoming an officer,

2. One count of using departmental equipment other than in the course of official business,

3. Four counts of engaging in unlawful conduct,

4. Two counts of failing to treat as confidential the official business of the Nassau County Police Department, and

5. One count of making or submitting, or causing to be submitted, a false official communication, record, or statement.

The Appellate Division said that Toth's guilt with respect to these charges was supported by substantial evidence in the record. As to the nature of the penalty imposed, the court said that the Police Department's determination regarding appropriate internal discipline to be imposed is entitled to great deference and, "under the circumstances of this case, will not be disturbed."

Although §75 of the Civil Service Law limits the suspension without pay for a period of not to exceed two months, the Appellate Division, citing Coscette v Town of Wallkill, 281 AD2 479, ruled that the penalty of suspension without pay for 270 days was permissible pursuant to Civil Service Law §76(4) and Nassau County Administrative Code §8-13.0.

Section 76(4), in pertinent part, provides as follows:

Nothing contained in section seventy-five or seventy-six of this chapter shall be construed to repeal or modify any general, special or local law or charter provision relating to the removal or suspension of officers or employees in the competitive class of the civil service of the state or any civil division [emphasis supplied.]

In contrast to the “suspension without pay for a period not exceeding two months” cap set out in Section 75 of the Civil Service Law, §8-13.0(a)(3) of Nassau’s Administrative Code does not place any limitation on the length of any suspension, with or without pay, that may be imposed as a disciplinary penalty by he Commissioner of Police.*

* Nassau County Administrative Code §8-13.0 Discipline and punishment, in relevant part, provides as follows:

a. The Commissioner shall have power to discipline a member of the force by:

1. Reprimand;

2. Fine;

3. Suspension, with or without pay;

4. Dismissal or removal from the force; or

5. Reducing him to any grade below that in which he was serving. If he be above the grade of patrolman, after which his compensation shall be the same as that allowed to remembers [sic] of the grade to which he is reduced.

Videotape used at disciplinary hearing to demonstrate alleged misconduct

Videotape used at disciplinary hearing to demonstrate alleged misconduct

NYC Department of Corrections v Negron, OATH Index #1844/11

A New York City correction officer was charged with using unnecessary and excessive force against inmates on three different occasions. 

After reviewing videotape of the incidents and hearing testimony from a number of correction officers, two supervisors and the employee, OATH Administrative Law Judge Kara J. Miller ruled that the correction officer had used unnecessary and excessive force three times and submitted false or misleading reports concerning the incidents.  

Judge Miller, who had dismissed one of the charges filed against the correction officer – failure to report an  incident -- recommended that the employee be terminated.

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/11_Cases/11-1844.pdf

Promotion to entrance level positions

Promotion to entrance level positions

Gallagher v City of New York, 307 A.D.2d 76 

May the state or a municipal civil service commission authorize a promotion examination for an entrance level position? This was the significant issue explored by Justice Solomon in the Gallagher case.

Kevin E. Gallagher, as president of the Uniformed Firefighters Association, sued the City of New York's Department of Citywide Administrative Services [DCAS] in an effort to bar the use of a "special promotional list" in place of, or ahead of, a list established by open competitive examination for appointment to New York City firefighter positions.

According to the decision, DCAS held two identical written examinations for firefighter on February 27, 1999. One examination, No. 7514, was open only to employees of the New York City Fire Department [FDNY] and was treated as a "promotion examination." The other, No. 7029, was open to members of the general public who met age and other eligibility requirements. Essentially, only the individuals transferred into FDNY from the Emergency Medical Service of the City's Health and Hospital Corporation were eligible for examination 7514.

DCAS established an eligible list composed exclusively of candidates who passed examination 7513 and a number of appointments were made from that list. No candidate who only took examination 7029 was appointed as a fire fighter.

Gallagher asked the court to require the DCAS to "merge" the two lists and make all future appointments from this merged list on the theory that since the position of firefighter was an entrance level position, providing for a "promotion examination" for that title violated the Civil Service Law.

Justice Solomon noted that the Court of Appeals in Murray v McNamara, 303 NY 140, said that:

while it was mindful of the legislative policy embodied in then Civil Service Law Section 16 (now Section 52), favoring the filling of vacancies through promotions, under Article 5, section 6 of the Constitution, "the right to appointment is entitled to the same protection as the right to promotion ...."

Essentially the Court of Appeals ruled that "promotion examinations may be held only where the employees sought to be promoted have passed an open examination for a lower grade in the type of work involved in the position to which promotion is sought." 

In Beloten v Diamond, 276 AD2d 438, the Appellate Division, First Department, with specific reference to employees of the FDNY in titles that were carried over from EMS, held that "the position of firefighter is an 'entry level' position," and, prior to the transfer of EMS to the FDNY, there could be no "promotion" to that position.

After weighting these several decisions and the arguments made by the parties, Justice Solomon decided that "FDNY shall make appointments of candidates for the position of firefighter from a merged list encompassing both the promotional and open lists." In the words of Justice Solomon:

Fairness dictates this result because the examinations were identical, and the determination by DCAS to exhaust the promotional list before appointing candidates from the open list was arbitrary and capricious....

The Court than prohibited FDNY from making any future firefighter appointments from other than the merged list.

Availability of a record essential in reviewing administrative determinations

Availability of a record essential in reviewing administrative determinations

Gumb v Port Authority of New York and New Jersey, NYS Supreme Court, Ia Part 6, Justice Bransten [Not selected for publication in the Official Reports.]

Citing Pell v Board of Education, 34 NY 2d 222, Justice Bransten said that it is well-settled that the standard for judicial review of an administrative determination in an appeal brought pursuant to CPLR Article 78 is limited to a court's determining whether or not the agency acted arbitrarily or capriciously in making its decision.

Assume, however, the agency whose decision is under review, through no fault of its own, cannot produce the records it claims would demonstrate that its decision was neither arbitrary nor capricious. This was the situation underlying the Gumb case.

Kevin J. Gumb filed an application for appointment as a police officer with the New York-New Jersey Port Authority Police. After he took and passed the Authority's written test for the position, the Authority notified him that it had disqualified him for appointment as a police officer based on the evaluation of his psychological tests and interviews "which found ... personality traits incompatible with the unique demands and stresses of employment as a Port Authority Police Officer."

Gumb sued, claiming that the Port Authority's determination was arbitrary and capricious and amounted to an abuse of discretion.

The only available record concerning Gumb's testing: a letter sent to Gumb stating that:

Based upon the multiple written psychological screening tests administered and two individual interviews, it was determined by the Port Authority Office of Medical Services that [you] would be unsuited [sic] for the position of Police Officer for Port Authority Public Safety Division.

The medical records concerning Gumb's examination and evaluation were destroyed in the September 11 terrorist attacks on the World Trade Center. Under the circumstances, the Authority argued, the letters sent to Gumb should be sufficient evidence of the basis for its administrative determination disqualifying Gumb to justify the court's dismissal of his petition. In the words of the Authority, the loss of the actual record "is insignificant to the instant petition, because the record is clear that [Gumb] was interviewed twice and was found unsuitabl[e] for the position."

The court disagreed, noting that courts are obligated to undertake a limited review to ensure "administrative rationality" and must find that there is some "rational basis or credible evidence to support an administrative determination" in order to sustain the administrative action being challenged.

Although there was written correspondence to Gumb notifying him that he was not going to be certified based upon results of psychological examination, the court said that it had nothing to rely upon to determine the rationale behind the Authority's decision to disqualify him. Accordingly, Justice Bransten said that it would not "blindly defer to the governmental decision" and ordered the Authority to re-evaluate Gumb.

Significantly, the court did not conclude that the Port Authority was arbitrary and capricious in making its determination. Rather, Justice Bransten said that the court's difficulty concerned the fact that, through no fault on the part of the Authority, there simply was no administrative record to review.

Prospective duties considered in designating a position “managerial” or “confidential” within the meaning of the Taylor Law.

Prospective duties considered in designating a position “managerial” or “confidential” within the meaning of the Taylor Law.

Buffalo Council of Supervisors & Administrators and Buffalo City School District, 35 PERB 3018

Assistant school superintendents previously included in a negotiating unit who regularly participated in weekly meetings conducted by the school superintendent and who assisted in the formulation of recommendations concerning school operations and who were assigned major rolls in labor relations were properly designated managerial based on current and prospective labor relations duties. 

Arbitration award addressing a related but different issue does not revive an otherwise untimely cause of action

Arbitration award addressing a related but different issue does not revive an otherwise untimely cause of action

Stembridge v New York City Dept. of Education, 2011 NY Slip Op 07519, Appellate Division, First Department

Supreme Court dismissed Everett Stembridge’s petition alleging unlawful discrimination and wrongful termination as untimely, finding that Stembridge’s cause of action had accrued on August 15, 2006, when he was terminated from an Aspiring Principals program as he had not commenced this action until August 2009.  

Stembridge had argued that as a result of his prevailing in an arbitration held in 2009, which found that the New York City Department of Education could not recoup monies it had inadvertently paid to him following his termination from the program in August 2006.

The Appellate Division characterized this argument as “misplaced” as the 2009 arbitration did not create a new accrual date for the action alleging unlawful discrimination and, or, unlawful termination.

The court explained that the 2009 grievance “… did not deal with issues of either termination from the program or defendant's alleged discrimination, but only with whether there was a contractual basis for defendant to recoup the alleged overpayment.”

Accordingly, Stembridge could not rely on the 2009 arbitration determination for the purposes of claiming the present action, initiated in 2009, challenging his termination from to Aspiring Principals program in 2006 was timely filed nor that his ability to do so was revived by the Department’s seeking to recoup the monies it claimed that it had paid to him in error.

Seniority for the purposes of layoff set out in the Civil Service Law and the Education Law trump those set out in a collective bargaining agreement

Seniority for the purposes of layoff set out in the Civil Service Law and the Education Law trump those set out in a collective bargaining agreement

Matter of New York City Tr. Auth. v Transport Workers Union of Am., Local 100, 2011 NY Slip Op 07431, Appellate Division, Second Department

In 1999 the New York City Transit Authority (“NYCTA”), its subsidiary, the Manhattan and Bronx Surface Transit Operating Authority (“MABSTOA”) and the Transport Workers Union of America, Local 100 (“TWU”), entered into a collective bargaining agreement that, in pertinent part, provided for “the commingling of personnel, including bus operators,” between NYCTA and MADSTO for the purposes of selecting job assignments within both entities. TWU created a consolidated “seniority list” for bus operators it represented working for NYCTA and MABSOTA.

When TWU was advised that due to a budget shortfall, staff reductions were required that would affect bus operators employed by NYCTA and MADSTO and that at-risk NYCTA bus operators, as civil service employees, would be laid off in civil service seniority order, and at-risk MABSTOA bus operators, who were not civil service employees would be laid off in order of seniority in title, as provided for in the CBA, TWU filed a contract interpretation grievance on behalf of bus operators in the units it represented alleging that the announced method for laying off bus operators violated the surface consolidation agreement and as a remedy, asked for a determination that the bus operators for each be laid off pursuant to the consolidated seniority list used for picking job assignments.

Ultimately NYCTA initiated an Article 75 proceeding to permanently stay the arbitration on the ground that the relief sought was prohibited by the statutory requirements set out in the Civil Service Law for conducting layoffs of employees in the classified service. The Supreme Court granted the petition and permanently stayed arbitration of the grievance. The Appellate Division affirmed the lower court’s ruling.

The Appellate Division explained that “In the public sector context, determining whether a grievance is arbitrable requires a court to first determine whether ‘there is any statutory, constitutional or public policy prohibition against arbitration of the grievance'" and if there is no prohibition against arbitration, then the court must determine "whether the parties in fact agreed to arbitrate the particular dispute by examining their collective bargaining agreement."

NYCTA contended that the subject matter of the grievance was prohibited by law or public policy. In that regard, said the Appellate Division, a dispute is not arbitrable "if a court can conclude without engaging in any extended fact-finding or legal analysis' that a law prohibit[s], in an absolute sense, [the] particular matters [to be] decided' by arbitration."

The Appellate Division concluded that “assuming that the surface consolidation agreement affects how [NYCTA is] to conduct layoffs, the particular matter to be decided is prohibited, in an absolute sense, by Civil Service Law §80(1), which provides the sole manner by which an employer may lay off civil service employees in [the] competitive class,” citing Matter of County of Chautauqua v Civil Serv. Empls. Assn., Local 1000, AFSCME, AFL-CIO, County of Chautauqua Unit 6300, Chautauqua County Local 807, 8 NY3d at 521).

Accordingly, layoffs within the title of bus operator in the NYCTA can only be made in inverse order of civil service seniority consistent with the mandates of Civil Service Law §80(1) and not by any other method such as the use of the consolidated seniority list. The Appellate Division concluded that "an arbitrator could not fashion a different remedy for this particular grievance that would not violate statutory requirements or public policy.”

This element – seniority for the purpose layoff – cannot be diminished or impaired by the terms of collective bargaining agreement as demonstrated by the Appellate Division’s decision in City of Plattsburgh v Local 788, 108 AD2d 1045.*

In the Plattsburgh case the issue concerned the application of a Taylor Law contract provision dealing with seniority in a layoff situation.

The collective bargaining agreement between Plattsburgh and the Union provided if there were to be demotions in connection with a layoff, the "date of hire" was to be used to determine an employee's seniority. However, the "date of hire" might not necessarily be the same date used to determine an individual's service for seniority purposes for layoff under State law, i.e., the individual's date of initial permanent appointment in public service.

For example, assume Employee A was provisionally appointed on January 1, and Employee B was provisionally appointed February 1, of the same year. Employee B, however, was permanently appointed on March 1 of the same year, while Employee A was permanently appointed a month later, on April 1.

Under the terms of the Local 788 collective bargaining agreement A would have greater seniority for layoff purposes than B. But §§80 and 80-a of the Civil Service Law provides that the date of an individual's most recent, uninterrupted "permanent appointment" determines his or her seniority for the purposes of layoff and so, under the law, B would have greater seniority than A.

These were the critical events in the Plattsburgh case. The City laid off Mousseau rather than another worker, Racine. While Mousseau, had been employed by the City for a longer period than Racine, Racine had received his permanent appointment before Mousseau was permanently appointed.

The Union grieved, contending that under the seniority provision in the collective bargaining agreement, Racine should have been laid off. The City, on the other hand, argued that Civil Service Law §80 controlled and thus Mousseau, rather than Racine, had to be laid off first. The Appellate Division ruled that Plattsburgh was entitled to an order barring submitting the Union’s grievance to arbitration. The Court said that §80 of the Civil Service Law "reflects a legislative imperative" that the City was powerless to bargain away.

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

As the Court of Appeals said in County of Chautauqua v Civil Service Employees Ass'n, 8 N.Y.3d 513, “Once such an informed decision as to which positions are to be [abolished] is made, §80(1) obligates the employer to respect the seniority rights of its employees." The same it true with respect to layoffs of personnel in the unclassified service.

* Source The Anatomy of a Layoff by Harvey Randall, Esq., Municipal Lawyer, Summer 2009, Vol. 23, No. 2, published by the New York State Bar Association, One Elk Street, Albany, NY 12207 © 2009 New York State Bar Association. Reprinted with permission.

Tenure by estoppel

Tenure by estoppel

Dembovich v Liberty CSD, App. Div., 296 AD2d 794 

The basic rule concerning granting tenure to a probationary teacher or administrator is that although a school board may reject a superintendent's recommendation to grant the probationer tenure, a school board may not grant a probationary employee tenure unless the superintendent recommends that it do so.

Under certain circumstances, however, the teacher may attain tenure by estoppel. As the court said in Pascal v Board of Education, 100 AD2d 622, tenure by estoppel results when a school board fails to take the action required by law to grant or deny tenure and, with its full knowledge and consent, permits a teacher to continue to teach beyond the expiration of his or her probationary period.

Consideration of these two propositions were elements in resolving the Dembovich case.

Shiri Dembovich was appointed as a teacher by the Liberty Central School District. Her appointment was subject to her satisfactorily completing a two-year probationary period that was to end August 31, 2000. By letter dated March 30, 2000, the Superintendent of Schools, Brian Howard, notified Dembovich he would not recommend her for tenure and that her employment would be terminated effective June 23, 2000. Dembovich asked for, and received, the reasons for Howard's decision not to recommend her for tenure.*

In September of 2000, Dembovich asked the superintendent to obtain a substitute "to fill in for her" until September 11. Howard immediately responded, informing her that she had been terminated effective June 23, 2000 and that she should not report for work.

Dembovich disagreed, claiming that the district had failed to provide her with the procedural rights to which she was entitled under Education Law §3031 and thus she had not been properly terminated from her position. In effect, Dembovich contended that she had attained tenure by estoppel because the district had not properly terminated her prior the end of her probationary period and she had "continued in service" beyond the end of her probationary period.

§3031 of the Education Law requires that the board of education review "all recommendations not to appoint a person on tenure." The individual is to be advised of the date on which the board will consider the recommendation at least 30 days prior to the date of the meeting. Another procedural requirement: the individual "may, not later than 21 days prior to such meeting" ask for a written statement setting out the reasons for the superintendent's recommendation and may file a response to such reasons "not later than 7 days prior to the day of the board meeting."

On September 8, 2000, the school's attorney wrote to Dembovich advising her that the school board would hold the required §3031 meeting to consider the superintendent's recommendation that she not be granted tenure on September 11 and would, on that date, adopt a resolution terminating her employment retroactive to August 31, 2000.

Dembovich sued the school district contending that it had unlawfully denied her the §3031 rights to which she was entitled. Supreme Court agreed. It annulled the district's resolution and directed it to comply the procedures set out in §3031. Liberty appealed.

After dismissing the district's technical arguments concerning the timeliness of Dembovich's filing her Article 78 action, the Appellate Division addressed the merits of her claims.

The arguments advanced by the parties in support of their respective positions:

1. Dembovich contended that September 8, 2000 letter violated §3031 because it only gave Dembovich three days notice rather than the required 30 days notice.

2. The district argued that its complying with the §3031 procedure is moot because it could not grant Dembovich tenure in the absence of the Superintendent's affirmative recommendation that it do so.

The Appellate Division disagreed with the district's position as to mootness, pointing out that §3031 is very specific as to the procedure that must be followed by a school board in the event a superintendent recommends against granting tenure to a probationary teacher and a school board must be comply with these statutory mandates.

The court, however, did not go so far as to hold that Dembovich had attained tenure by estoppel because she had not been "terminate" on or before August 31, 2002, presumably because the district "had not accepted" her services after that date. All the Appellate Division ordered was that the school board to follow the procedures set out in §3031.

What is the potential impact on a school district if it is found that it did not comply with the provisions set by §3031?

In Tucker v Bd. of Education SD #10, 189 AD2d 704, the court found that Tucker, a probationary teacher, was advised that she was to be denied tenure 22 days before her probationary period was to end. As a result, the court ruled that Tucker was entitled to an award of pay for each day the district's notice to her that she would not be granted tenure was late. In other words, Tucker was entitled to pay corresponding to the number of days for which she was not provided the statutory days of notice.

Implicit in the ruling is that in the event a probationary teacher is not provided with timely notice that he or she is to be denied tenure, the failure to provide such notice is not a fatal defect insofar as any defense to the individual’s claiming tenure by estoppel or by default is concerned, provided the teacher was given formal written notice of this decision by the appropriate party prior to expiration of his or her probationary period and receives payment for each day that the notice was "late."

By the same token, a probationary period termination does not have to take effect on or before the last day of the applicable probationary period.

In Mendez v Valenti, 101 AD2d 612, the Appellate Division held that retaining Mendez on the payroll until the end of payroll period for administrative convenience did not result in his attaining tenure in the position. The Court held that under the circumstances, keeping Mendez on the payroll was permissible in view of the fact that it was of a short duration; for "administrative convenience;" and he was provided with timely notice of his probationary termination prior to the end of his probationary period.

Stated another way, the appointing authority has until the last day of the individual's probationary period to decide whether to retain the employee, extend the employee's probationary period, or to terminate the employee from his or her position. Although the employee's removal from the payroll may occur after this date, the required notice of the termination delivered to the employee before the end of his or her probationary period is deemed timely notice of termination for the purposes of determining if the individual attained tenure by estoppel.

Addressing another variation concerning the individual's employment obligation in relation to his or her tenure status, in Yastion v Mills, 229 AD2 775, the Appellate Division held that a teacher may work on a year-to-year contractual basis and never acquire tenure even after three years of continuous service. The decision points out that Yastion's continued employment was contingent on the district's receiving federal funding to support the position and his annual employment contracts specifically indicated that "tenure does not apply to this position."

* It is well settled that a probationary teacher may be dismissed from his or her position at any time during the probationary period without notice and hearing provided that such termination is not for an unlawful reason.