Reimbursing a school board member's legal expenses incurred in litigation

Reimbursing a school board member's legal expenses incurred in litigation  

Decisions of the Commissioner of Education, Decision No. 16,422

The Commissioner of Education, after denying the application of the school board seeking to remove one of its members for allegedly “disclosing confidential information to a third party,” considered one additional administrative matter. The board member that the board sought to have removed from the board asked the Commissioner to grant her a certificate of good faith pursuant to Education Law §3811(1). Such a certificate  would required the school district to reimburse her the “reasonable legal expenses” she incurred in the proceeding.

§3811(1), in pertinent part, provides for the reimbursement of reasonable legal expenses incurred by a board member when “the trustees or board of education of any school district … have been or shall be instructed by a resolution adopted at a district meeting to defend any action brought against them, or to bring or defend an action or proceeding touching any district property or claim of the district … as well as all costs and damages adjudged against them…."

The Commissioner rejected the board member’s request, explaining that Education Law §3811(1) does not provide for the reimbursement of legal expenses incurred by a board member in defending “a criminal prosecution or an action or proceeding” brought against a board member by a school district, including proceedings before the Commissioner of Education.

Accordingly, said the Commissioner, the board member was not entitled to a certificate of good faith because the application seeking the removal of the board member was brought by the school district of which the board member was an officer 

The Commissioner’s decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume52/d16422.html

Found guilty of charges of AWOL, incompetent performance and being disrespectful to the superior, employee terminated

Found guilty of charges of AWOL, incompetent performance and being disrespectful to the superior, employee terminated

The Department of Environmental Protection charged that a sewage treatment worker was incompetent due to excessive absence and AWOL.  The employee was also charged with being disrespectful to a supervisor. 

Supervising Administrative Law Judge Joan R. Salzman found that the uncontested proof that employee was absent on 287 of 391 work days during an 18-month period, an absence rate of 73%, established the incompetence charge.  Judge Salzman also found that agency proved the AWOL and disrespect charges.  

Noting respondent’s “abysmal attendance record (exacerbated by his use of profanity to his supervisor),” Judge Salzman found the AWOLs and the incompetence due to excessive absence to be independent bases for termination, and recommended termination of the individual’s employment. Her recommendation was adopted by the appointing authority.

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/12_Cases/12-1420.pdf

In hybrid Article 78/42 USC 1983, a timely 42 USC 1983 action will survive notwithstanding the fact that the Article 78 action was untimely

In hybrid Article 78/42 USC 1983, a timely 42 USC 1983 action will survive notwithstanding the fact that the Article 78 action was untimely

The Appellate Division reversed the Supreme Court’s denial of a petition filed by a tenured educator alleging that the New York City Department of Education (DOE) improperly terminated her in violation of her rights to procedural due process under both the State and Federal Constitutions.

The teacher had filed an Article 78 petition, which must be filed within four [4] months of the act or omission complained of to be timely and, in addition, raised essentially the same claims in her complaint under 42 USC §1983, which has a three-year statute of limitations. Supreme Court had ruled that the teacher’s Article 78 petition was untimely and dismissed the action notwithstanding the fact that her 42 USC §1983 had been timely filed within her Article 78 petition.

The Appellate Division disagreed with Supreme Court’s action, noting that the teacher had filed a “hybrid article 78 proceeding/42 USC §1983 action.” The Appellate Division explained that as federal and state courts possess concurrent jurisdiction over 42 USC §1983 actions, to hold that the teacher could not bring her 42 USC §1983 claims solely because she asserted them in the same action in which she seeks Article 78 relief due to the latter's much shorter statute of limitations would impermissibly conflict with 42 USC §1983's broad remedial purpose and result in different outcomes based solely on whether the federal claims are brought in state or federal court.

The court concluded that the teacher’s petition properly raised claims under 42 USC §1983 and thus her petition could be maintained as a hybrid action, citing Bistrisky v NYS Department of Correctional Services, 23 AD3d 866

Holding that the teacher’s action should be reinstated, the matter was remanded to Supreme Court.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_06851.htm

Arbitration award sustained as it was rational and did not violate public policy

Arbitration award sustained as it was rational and did not violate public policy

Addressing the employer’s challenge to an arbitration award, the Appellate Division determined that the arbitrator “properly found” there was no "emergency" within the meaning of the collective bargaining agreement [CBA] that justified bypassing the contract's terms regarding assignment of personnel. 

Further, said the court, the award merely enforced the terms of the parties' CBA, which already addressed the public policy issues that the employer raised in this appeal.

The award in this case, said the court, was not "totally" irrational, nor did it violate public policy. 

The Appellate Division explained that the arbitrator did not exceed her powers in making the award as the contract language relied upon by the employer “does not address the situation at issue in this matter.”

In addition, the court noted that the employer “itself requested relief that was not specified in the relevant contract language, and therefore cannot now be heard to say that the award exceeded the scope of the arbitrator's authority.”

Accordingly, the Appellate Division denied the employer's petition to vacate the arbitration award.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_06764.htm

Membership in the employee organization subjects the individual to the terms and conditions set out in the relevant collective bargaining agreement

Membership in the employee organization subjects the individual to the terms and conditions set out in the relevant collective bargaining agreement

The Appellate Division, 4th Department, in a succinct decision, said that “by accepting employment as a school instructor and entering into a collective bargaining agreement as a result of his membership in the union representing him, the [school instructor] waived any right to be credited for seniority in the tenure area of teacher.”*

The court cited Dietz v Board of Educ. of Rochester City School Dist., ___ AD3d ___ [Sept. 28, 2012] and Wiener v Board of Educ. of E. Ramapo Cent. School Dist., 90 AD2d 832, appeal dismissed 58 NY2d 1115), in support of its ruling.

In Dietz the court noted that “… the collective bargaining agreement (CBA) between the District and the union representing petitioner provided that layoffs of ‘school instructors’ would be affected within the four separate categories of school instructors identified in the CBA rather than within tenure areas; that separate seniority lists for purposes of layoffs are maintained for school instructors; and that, ‘[i]n the event that positions are abolished, school instructors shall not have rights to displace teachers in regular school programs having less seniority, nor shall teachers have rights to displace school instructors having less seniority.’"

* See Szumigala v Hicksville Union Free School District, 148 AD2d 621. In Szumigala  the Appellate Division, citing Cheektowaga v Nyquest, 38 NY2d 137, ruled 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. Further, in City of Plattsburgh v Local 788, 108 AD2d 1045, a decision involving the layoff of employees in the competitive class of the Classified Service, the court held that seniority for the purposes of layoff cannot be diminished or impaired by the terms of collective bargaining agreement, explaining  §80 of the Civil Service Law [and, presumably, §80-a of such law] "reflects a legislative imperative" that the City was powerless to bargain away.


The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_06726.htm

Filing an appeal to the Commissioner of Education as a class action.

Filing an appeal to the Commissioner of Education as a class action.
Decisions of the Commissioner of Education, Decision No. 16,417

Some 90 paraprofessional employee of the school district filed an appeal to the Commissioner of Education challenging a decision of the board of education classifying them as “teacher aides” rather than “teaching assistants,” which appeal was characterized as a “class action.”

Addressing the school district’s object to the filing of the appeal as a “class action,” the Commissioner observed that “An appeal may only be maintained on behalf of a class where the class is so numerous that joinder of all members is impracticable and where all questions of fact and law are common to all members of the class, citing 8 NYCRR §275.2.” In so doing, said the Commissioner, the petitioner is required to [1] set out the number of individuals he or she seeks to represent and [2] must show that all questions of law and fact would be common to all members of the purported class.

The petitioners had filed the appeal “on behalf of themselves and approximately 90 paraprofessionals” designated by the school district as serving in teacher aide* positions, but who allegedly were performing the duties of a teaching assistant.** 

The Commissioner, however, ruled that while the petitioners had identified each of these individuals in the exhibits to their petition, “they fail to demonstrate that all the potential class members have the same interests or claims.” Considering “the surveys submitted on behalf of these individuals,” the Commissioner said that the surveys indicated that the individuals had “differing job duties, and allege varying amounts of instructional duties.” The Commissioner also noted that the surveys also showed that not all of these individuals held a teaching assistant certificate.

The Commissioner decided that the petitioners: had not clearly demonstrated that all questions of law and fact would be common to all members of the class.Further, the Commissioner noted that the petitioners subsequently identified additional individuals as purported class members and requested, in the alternative, that they be added as petitioners, which request, he said, precluded a finding that the class members are too numerous.

The Commissioner denied the petitioners’ request for “class certification” but granted its motion that the individuals so subsequently identified be included in the appeal as “added petitioners” pursuant to 8 NYCRR §275.1.

After discussing a number of significant personnel issues that could affect the status of the petitioners in their respective positions and issues related to the collective bargaining agreement between the parties, the Commissioner remanded the matter to the school district to make its determination as to whether each of the petitioners was appropriately designated as a teacher aide or should be designated as a teaching assistant. The school district's determination was to be based on an assessment of the nature and extent of the duties performed by each petitioner, consistent with the criteria set out in the Commissioner’s decision.

In effect the district is to perform a “desk audit” of the duties of each individual to determine if he or she was performing the duties of a teacher aide or a teaching assistant.

For those individuals serving in a teacher aide position performing the duties of that title and those individuals serving in a teaching assistant position performing the duties of that title, and assuming that they are qualified to serve in that capacity, no further action would be required.

As to those individuals that the school district determines are serving in a teacher aide position but are  performing the duties of a teaching assistant, assuming, but not deciding, that each such individual is qualified for appointment to that title, the Commissioner directed that “any petitioner ... who spends a substantial portion of time engaged in carrying out such duties, [is to] be appointed to a teaching assistant position and provided with all seniority, tenure and retirement rights.”

The decision is silent with respect to those individuals the school district determines are serving in a teaching assistant position but are actually performing the duties of a teacher aide. Presumably such persons are to be appointed to the title of teacher aide, subject to the approval of the civil service commission having jurisdiction.

* Teacher aide positions are in the classified service in the civil service of the State and the incumbents of such positions are subject to the State’s Civil Service Law and the rules and regulations promulgated thereunder. Such positions are typically positions placed in the noncompetitive class of the classified service.

** Teaching assistant positions are among those certified by the Commissioner of Education to the New York State Civil Service Commission pursuant to Civil Service Law §35(g) as being in the teaching and supervisory staff of a school district and such positions are in the unclassified service of the civil service of the State.

The decisions is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume52/d16417.html