If the CBA provides for the arbitration of alleged contract violations, unless there is a statutory, constitutional or public policy prohibition barring such arbitration courts cannot stay the arbitration

If the CBA provides for the arbitration of alleged contract violations, unless there is a statutory, constitutional or public policy prohibition barring such arbitration courts cannot stay the arbitration

County of Rockland v Civil Serv. Empl. Assn., Inc., 2012 NY Slip Op 01815, Appellate Division, Second Department

The Civil Service Employees Association, Inc., Local 1000, AFSCME, AFL-CIO (CSEA), filed a grievance on behalf of one of its members in the collective bargaining unit and shortly thereafter filed a similar grievance on behalf of another of its members in the unit. Both grievances filed by CSEA alleged that Rockland County had violated certain provisions of the Collective Bargaining Agreement [CBA] between CSEA and the County when it assigned per diem employees to perform certain work instead of giving those assignments to regular full- and part-time employees in the collective bargaining unit.

Rockland denied the grievances and ultimately CSEA demanded that the grievances be submitted to binding arbitration.

Rockland County filed an Article 75 petition in Supreme Court seeking a court order permanently staying the arbitration. Supreme Court granted its petition and permanently stayed the arbitration of the grievances. The Appellate Division reversed the lower court’s order.

The Appellate Division said 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.

If the demand for arbitration meets this test, then the court must then determine "whether the parties in fact agreed to arbitrate the particular dispute by examining their collective bargaining agreement."

The Appellate Division said that inasmuch as the grievances allege that Rockland County violated certain provisions of the CBA, and the CBA contains a procedure to arbitrate "any alleged violation, misrepresentation, or inequitable application of [the CBA]," the parties have agreed to arbitrate the grievances.

Further, noted the court, Rockland’s allegation that CSEA’s demand for arbitration was untimely is an issue to be resolved by the arbitrator and not the courts.

Thus, said the Appellate Division, Supreme Court erred in granting the County’s petition and permanently staying the arbitration. 

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_01815.htm

Removal from public office

Removal from public office

Warren v Bielecki, 2012 NY Slip Op 01037, Appellate Division, Fourth Department

Although this action seeking to remove two persons from public office pursuant to Public Officers Law §36 was dismissed as moot as the individuals targeted for such removal no longer held public office, the Appellate Division commented that had it consider the matter on its merits if would have dismissed the petition seeking such removals.

The court noted that based on the findings of fact made by a referee it had appointed, there were insufficient grounds upon which to remove either individual from office pursuant to Public Officers Law §36.

Removal from public officer pursuant to Public Officers Law §36 requires evidence of "self-dealing, corrupt activities, conflict of interest, moral turpitude, intentional wrongdoing or violation of a public trust."

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_01037.htm

Lack of objective evidence of a disability supports rejection of employee’s application for disability retirement benefits

Lack of objective evidence of a disability supports rejection of employee’s application for disability retirement benefits

Hughes v Kelly, 2012 NY Slip Op 02393, Appellate Division, First Department

A New York City police officer, Jeffrey Hughes, filed an application for accidental disability retirement benefits. He also filed an application for ordinary disability retirement benefits. Police Commissioner Raymond Kelly rejected denied both applications and Hughes filed a petition pursuant to CPLR Article 78 seeking to overturn the Commissioner’s determination.

Supreme Court dismissed Hughes’ petition. Unanimously affirming the lower court’s ruling, the Appellate Division held that there was a rational basis the Commissioner’s determination.

The record, said the court, showed that after reviewing the medical evidence submitted by Hughes and the findings from its physical examinations of Hughes, the Medical Board concluded that "there was no objective evidence of a disability." Citing Matter of Appleby v Herkommer, 165 AD2d 727, the Appellate Division noted that “ It is well established that the court may not substitute its judgment for that of the Medical Board.”

The decision indicates that the Medical Board found that the deficits in Hughes’ “range of motion” were attributable to "voluntary guarding" and there were no objective radiographic studies presented showing any abnormal findings. Further, said the court, Board considered evidence submitted by Hughes' personal physicians and provided a rational explanation for its medical judgment.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_02393.htm

Retrenchment in education: a national problem

Retrenchment in education: a national problem

Source: Selected items reported in newspapers and blogs and on television concerning teacher layoffs

Below are some of the articles concerning the reduction of teaching personnel in schools districts throughout the United States.

Montville schools brace for cuts; 18 teachers get layoff notices Norwich Bulletin By KALA KACHMAR The Montville school district has issued layoff notices to 18 teachers indicating the school board might not renew their contracts next year because of budget constraints. The state requires teachers be notified by May 1 if there is a ... See all stories on this topic »

Pontiac schools to lay off 95, including 43 teachers The Detroit News By Shawn D. Lewis Pontiac— The Pontiac Public School District will lay off 95 employees, including 43 teachers, beginning next month as part of its plan to eliminate a $24.5 million deficit. The cuts also include 27 school administrators, ... See all stories on this topic »

Zionsville economy, property values, quality teachers hang in the balance of ... Indianapolis Star The rejection resulted in the layoff of 21 teaching and counseling positions. Last year, the school district finally got a money-saving ballot measure passed when 74.5 percent approved a plan to refinance debt as a way to generate a few million dollars ... See all stories on this topic »

Ohio Federation of Teachers says Cleveland reform plan lacks any proven ... Plain Dealer Jackson's plan would possibly expand the school year or school day, set-up a merit pay for teachers, base layoffs on teacher performance and make getting rid of poor teachers easier. Seniority would no longer be the sole determining factor in layoffs ... See all stories on this topic »

Shrewsbury parents object to class sizes, talk override Wicked Local Although Superintendent Joseph Sawyer announced $2.3 million in cuts recently, including five teacher layoffs and the loss of 32 full-time positions, the district is still facing an $844000 budget gap. If the town does not receive increased revenue, ... See all stories on this topic »

979 fewer teachers in Maryland public schools The Star Democrat Half of the state's school systems have fewer teachers this year than last with a system's largest decline reaching 634. In recent years, some other states have undergone budget cuts sometimes resulting in thousands of teacher layoffs. See all stories on this topic »

School board works to close budget gap YNN After last week's recommendation of more than 100 teacher layoffs, Superintendent Joe Hochreiter laid out further possible reductions in special education services and facility usage. Hochreiter also challenged the district staff to make concessions if ... See all stories on this topic »

Littleton Educators' Association, School Committee reach tentative agreement Wicked Local ... would cost $16.9 million in fiscal 2013, including step-and-lane salary increases and increased special education costs, the School Committee has voted for a $16.3 million budget, which may incorporate both teacher layoffs and fee increases. See all stories on this topic »

Public speaks against Shenandoah Valley budget plan Republican & Herald SHENANDOAH - The proposed cuts in many programs and layoffs of teachers drew a standing-room-only crowd for Wednesday's regular meeting of the Shenandoah Valley Board of Education, with most speakers focusing on the planned loss of the music program. See all stories on this topic »

Schools Will Be Protected From Cuts Next Year, Walcott Says New York Times By Anna M. Phillips After years of painful cuts and threats of teacher layoffs, New York officials laid out on Tuesday a decidedly more optimistic portrait of financing for city schools next year, saying they expected that principals would have enough ... See all stories on this topic »

Massie tells City Council funding gap will bring more teacher layoffs Lynchburg News and Advance Interim Superintendent Larry Massie told Lynchburg City Council Tuesday the school division will cut more teachers, beyond the 34 positions already budgeted, if $3.7 million in additional funding does not materialize. Massie and School Board Chairman ... See all stories on this topic »

No teacher layoffs in Kingsburg schools Kingsburg Recorder By Mary Lou Aguirre Kingsburg Joint Union High School District teachers can enjoy their spring vacation knowing their jobs aren't in jeopardy. KHS Principal/Superintendent Randy Morris was asked if state cuts to education would result in layoffs for ... See all stories on this topic »

Hundreds protest layoffs at Baldwin Park Unified meeting Pasadena Star-News BALDWIN PARK - Dressed in red and armed with signs and chants, hundreds of parents, children and teachers Tuesday took on a half-mile march to a Baldwin Park Unified board meeting to protest recent teacher layoffs. The rally came on the heels of a ... See all stories on this topic »

Breaking Down the Budget: What Teacher Layoffs Would Mean Patch.com Patch File photo As the Three Village Central School District copes with losses in state aid combined with unfunded mandates and rising costs, administrators have proposed eliminating nine full-time equivalent teaching positions at the elementary level ... See all stories on this topic »

Fulton County Schools officials say budget could be balanced without layoffs ... Atlanta Journal Constitution By D. Aileen Dodd Fulton County Schools chief financial officer Robert Morales said Tuesday as the district prepares for budget season it is facing a $41.9 million funding gap that it could handle without teacher layoffs or furlough days. See all stories on this topic »

Students upset iPads bought for school while teachers are laid-off 39online.com Well originally there was the suggestion that the $18 million spent on the devices would be better served preventing teacher's layoffs. But since bond money can't be used for salaries, the argument of equality came up, suggesting that rather than ... See all stories on this topic »

School Board Approves 52 Layoff Notices, Technology Upgrades Patch.com By Carl Engelking As part of the planning process for the 2012-13 budget, the Menomonee Falls School Board on Monday approved the issuance of 52 preliminary layoff notices for teaching staff. School Board Member Gina Palazzari said the total number of ... See all stories on this topic »

Protest Planned at School Board Meeting for Teacher Layoffs Patch.com "There will be hundreds of parents, teachers and students wearing red to support our teachers." At least seven teachers are being laid off in Geddes Elementary, according to Mata. The school is located at 14600 Cavette Place, close to the intersection ... See all stories on this topic »

Dublin to lay off 16 teachers, cut 30 vacant positions Columbus Dispatch By Collin Binkley Two central Ohio school districts are finalizing layoffs for next school year after November levy failures. The Dublin school board voted tonight to cut 46 teaching jobs –– though only 16 people will lose jobs –– and 133 supplemental ... See all stories on this topic »

Republicans look to governor on teacher layoffs Pioneer Press By Megan Boldt State lawmakers who want to end seniority-based teacher layoffs put Gov. Mark Dayton's education chief on the hot seat Monday, March 26, on whether the Democrat's administration had any appetite to negotiate an agreement this year on ... See all stories on this topic »

Calif. Schools Urged to Change Layoff Policy to Improve Teaching NewsMax.com By Andy Butcher California school officials should change their staff downsizing policy to improve teaching and boost morale, according to the state legislative analyst's office. Procedures now base layoffs on seniority, which means that the most ... See all stories on this topic »

California Urged To Address Teacher-Layoff Policies Education Week News (blog) By Stephen Sawchuk on March 26, 2012 10:18 AM An analysis from California's Legislative Analyst's Office urges the state to consider revamping its teacher-layoff policies, including reducing the emphasis on seniority. The report makes nonpartisan ... See all stories on this topic »

Board Rejects Plan to Lay Off 500 Teachers, Staff Patch.com “Our teachers and paraprofessionals are our children's greatest asset. We really urge you to have some discussions with us before making a decision.” Staff members urged the board to reject the layoffs, and some questioned a proposal to implement a ... See all stories on this topic »

Lennox district shields teachers Daily Breeze By Rob Kuznia Staff Writer In a move that has the teachers union up in arms, the Lennox School District is making an end-run around "last-hired, first-fired" seniority laws, sending layoff notices to 100 of the district's 340 teachers, yet shielding ... See all stories on this topic »

Cleveland Teachers Union and Mayor Frank Jackson move closer to agreement on ... Plain Dealer (blog) The major accord came with how to handle the layoff and recall of teachers, with Jackson agreeing Monday to use the plan suggested by teachers last week. The compromise plan would rely on teacher evaluations first, and tenure and seniority second. See all stories on this topic »

Teachers' Support For Reform Depends In Part On Experience -- Gates/Scholastic ... Huffington Post "Layoffs shouldn't be based on seniority, and it's good to make it hard to let go of teachers who are doing well." Many of these reform measures involve shaking up the teaching profession in a way that makes promotion less dependent on experience. See all stories on this topic »

Teacher tenure bill may be unacceptable to Gov. Dayton Minnesota Public Radio They want public school administrators to be able to consider job performance, and not just years of service, when making decisions about teacher layoffs. Cassellius said she shares the goal of having effective teachers in every classroom. See all stories on this topic »

Clyde cuts teachers, mulls levy Fremont News Messenger Elchert said there is a possibility the district could receive more retirements in the summer, which could lead to some of the laid-off employees being called back to work. The board also approved reductions to several non-teaching positions. See all stories on this topic »  ========================= The Layoff, Preferred List and Reinstatement Manual - a 645 page e-book reviewing the relevant laws, rules and regulations, and selected court and administrative decisions is available from the Public Employment Law Press. Click On http://nylayoff.blogspot.com/ for additional information about this electronic reference manual.  =========================

In an Article 75 challenge to a §3020-a disciplinary decision, the court asks [1] does the award have evidentiary support? and [2] is the award arbitrary and capricious?

In an Article 75 challenge to a §3020-a disciplinary decision, the court asks [1] does the award have evidentiary support? and [2] is the award arbitrary and capricious?

Malone v Board of Educ. of East Meadow Union Free School Dist., 2012 NY Slip Op 02306, Appellate Division, Second Department

A tenured teacher was stopping cars exiting the driveway of East Meadow High School in order to distribute leaflets concerning ongoing contract negotiations between the teachers' union and the East Meadow Union Free School District.

When the teacher continued to distribute the leaflets after the school principal directed him to cease that activity, he was served with disciplinary charges pursuant to §3020-a of the Education Law alleging [1] misconduct for causing a hazardous condition and [2] insubordination for failing to obey the principal's directive.

Ultimately the charges proceeded to arbitration and the arbitrator found the teacher guilty of both charges. The teacher then filed an Article 75 petition seeking to vacate the arbitration award.

Supreme Court denied the teacher’s petition and dismissed the proceeding. The Appellate Division affirmed the Supreme Court’s ruling.

Noting that where the requirement to arbitrate is statutory, as is the case in a disciplinary action conducted pursuant to Education Law §3020-a* the arbitrator's determination is subject to "closer judicial scrutiny" under CPLR 7511(b) than it would receive had the arbitration been conducted voluntarily.

However, said the court, in an Article 75 proceeding a court determines only whether the award had evidentiary support and whether the award was arbitrary and capricious.**

Here, the Appellate Division decided that the determination of the arbitrator was based on the evidence proffered at the hearing. This, said the court, including the the teacher's testimony that he approached vehicles as they exited the driveway of the high school, which required him to cross in front of moving vehicles. This, according to the decision, "established the charge of misconduct by adequate evidence."

Further, said the court, “The testimony of both [the teacher] and the school principal that [the teacher] continued to distribute leaflets after being directed to cease this activity established the charge of insubordination by adequate evidence.”

Thus, concluded the Appellate Division, “the findings with respect to both charges were not arbitrary and capricious.”

* See Education Law §3020-a[3]

** Education Law §3020-a[5], “Appeal” provides that “ Not later than ten days after receipt of the hearing officer's decision, the employee or the employing board may make an application to the New York state supreme court to vacate or modify the decision of the hearing officer pursuant to section seven thousand five hundred eleven of the civil practice law and rules. The court's review shall be limited to the grounds set forth in such section. The hearing panel's determination shall be deemed to be final for the purpose of such proceeding. In no case shall the filing or the pendency of an appeal delay the implementation of the decision of the hearing officer.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_02306.htm

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The Discipline Book, - a concise guide to disciplinary actions involving public employees in New York State. This more than 1500 page e-book is now available from the Public Employment Law Press. Click on http://thedisciplinebook.blogspot.com/ for additional information concerning this electronic reference manual.

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