Seniority for the purposed of layoff held to include both a teacher's "actual full-time service rendered" and his or her full-time regular substitute service in the tenure area

Seniority for the purposed of layoff held to include both a teacher's "actual full-time service rendered" and his or her full-time regular substitute service in the tenure area

Education Law §2510[2] provides that a school district that abolishes a teaching position for economic reasons must discontinue "the services of the teacher having the least seniority in the system within the tenure of the position abolished." As this decision demonstrates, an incorrect determination with respect to which teacher is “least senior” for the purposes of layoff could prove expensive to the school district.

A teacher [Teacher] challenged the Board of Education’s determination that she was the least senior teacher in the foreign language tenure area. Teacher contended that the Board’s determination was affected by an error of law and was arbitrary and capricious. As redress, Teacher sought "seniority credit" for certain services as a substitute teacher that she had rendered to the District, reinstatement to her former position, and "restitution" for damages that she allegedly sustained as a result of the School Board's determination, which, in effect, terminated her employment.

The Appellate Division annulled the Board’s determination with respect to Teacher’s seniority for the purposes of layoff and it was [1] directed to award seniority credit to her for her service between November 6, 2006 through and including February 10, 2010, and [2] directed to reinstate her to her position as a full-time probationary teacher in the foreign language tenure area with back pay and benefits.* 

The significant issue in this action was the criterion used in determining a teacher's seniority, i.e., the "actual full-time service rendered" including full-time regular substitute service in a particular tenure area prior to his or her probationary appointment in that same area** and the rationale for equating full-time substitute service with full-time probationary service for seniority purposes.

The Appellate Division explained that employment as a regular substitute "constitut[es] employment by the board of education on a permanent basis" and is "equivalent to service rendered pursuant to a probationary appointment in contrast to an 'itinerant' or per diem substitute assigned on a temporary, as-needed basis" for which the educator does not accumulate seniority for the purposes of layoff.

The court noted that the District had argued that Teacher’s resignation severed her employment relationship with the District and that she therefore lost all seniority accumulated prior to that time notwithstanding the fact that Teacher had agreed to "resign" in exchange for the District's promise to immediately rehire her as a substitute teacher and to reappoint her to a new full-time probationary position upon her obtaining permanent certification to teach. The Appellate Division disagreed with the District's theory as to the effect of Teacher's resignation under the circumstances.

Although the District was correct that a teacher who voluntarily severs all of his or her professional relationship with a school district through retirement or resignation forfeits his or her seniority rights under Education Law §2510, the Appellate Division questioned whether Teacher’s resignation, under the relevant facts in this case, could be deemed to have been voluntary, noting that:

1 "Public policy" favors the protection of an employees' seniority rights;

2. Although an employee may relinquish his or her seniority rights by resigning or retiring, such a relinquishment must be knowing and voluntary, i.e., the employee must take "affirmative steps" to terminate all aspects of his or her employment by a school district and in the absence of a specific contrary intent, an employee who merely assents to being reassigned to a different title within the same tenure area — even under the guise of a resignation — is not deemed to have "resigned" for purposes of determining his or her seniority credit so long as the title to which he or she is reassigned is otherwise appropriate for inclusion in determining seniority credit in the tenure area.

3. Neither the District nor Teacher complied with the requirements of Education Law §3019-a ("Notice of termination of service by teachers"), which governs the formal resignation and termination of probationary teachers.

4. The record was devoid of any intent or affirmative act by Teacher to sever all aspects of her employment relationship with the District and thereby relinquish her seniority rights.

5. Unlike the severance cases relied upon by the School District, the circumstances in this case did not evince an intent by either Teacher or the District to sever their professional relationship but instead the arrangement allowed Teacher to continue teaching in the District while her permanent certification was pending.

6. There was no actual break in Teacher's service to the District as a result of her "resignation" as the resignation was effective at the end of the day on October 1, 2009 and the next day she returned to the same classroom to teach the same subject to the same students during the same hours.***

Accordingly, as noted earlier, the Appellate Division modified Supreme Court’s ruling “on the law,” and granting Teacher’s petition in part, annulled the District's determination, awarded Teacher seniority credit for the period from November 6, 2006 through February 10, 2010, and directed the District to reinstate Teacher to her former position as a probationary teacher in the foreign language tenure area, with back pay and benefits.

* N.B. The decision notes that Supreme Court held that the District was "justified in giving more seniority credit to another teacher because that teacher had obtain … permanent certification at an earlier date.” The Appellate Division said that "[s]eniority [for the purposes of layoff] … relates only to length of service" and considerations such as prior experience, training, or educational qualifications are not properly included therein.”

** Teacher’s service with the School District for the purposed of determining her seniority within the meaning of §2510[2] of the Education Law is set out in some detail in the Appellate Division’s decision.

*** The Appellate Division characterized Teacher’s "resignation" as essentially "a legal fiction designed to allow Teacher to continue her duties as a full-time Spanish teacher while ensuring the District's compliance with the Education Law, which prohibits a school district from employing uncertified teachers."

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_00867.htm

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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.

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Opportunity to cross-examination witnesses a critical element to due process in quasi-judicial administrative proceedings

Opportunity to cross-examination witnesses a critical element to due process in quasi-judicial administrative proceedings

Barber v New York State Off. of Victim Servs, 2013 NY Slip Op 00958, Appellate Division, Third Department

An individual [Applicant] installed certain security and surveillance devices in response to alleged stalking and harassment the Applicant had experienced. Applicant filed a request for reimbursement for the cost of such devices with the State’s Office of Victim Services, which application was rejected on the ground that Applicant failed to prove that a crime had been committed.

Applicant appealed and a hearing was conducted by a three-member panel of the Office of Victim Services. The panel affirmed the disallowance of Applicant ‘s claim.

In response to Applicant‘s challenging the panel’s determination, the Appellate Division said that notwithstanding the substantial evidence in the record to support Victim Service’s denial of Applicant’s claim, reversal of the ruling was required because Applicant was not provided with the opportunity to cross-examine witnesses providing testimony at the hearing.

According to the decision, although the panel was advised that Applicant was waiting in the lobby for the hearing to begin, the panel members conducting the hearing made the affirmative decision to take the testimony from one of the witnesses without the Applicant being present. Further, Applicant was only invited to attend the hearing following the conclusion of that witness's testimony and Applicant was asked to leave the hearing after testifying. Then, said the court, testimony was taken from a second witness without Applicant being present.

The Appellate Division ruled that as Applicant was denied the right to cross-examine witnesses, the panel’s determination must be annulled and the matter remitted to Victim Services for a new hearing.

The court explained that "Regardless of the merits in a particular case, a party whose rights are being determined at a quasi-judicial administrative hearing must be given the opportunity to cross-examine witnesses," citing Matter of Seeger v Moduform, Inc., 146 AD2d at 923.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_00958.htm

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli

Issued during the week February 17, 2013   [Click on the caption to access the full report]

DiNapoli Announces $250 Million Private Equity Co–Investment Allocation for Emerging Manager Program

Comptroller Thomas P. DiNapoli announced Friday that the New York State Common Retirement Fund (Fund) has allocated $250 million to Farol Investment Advisers for private equity co–investments with the Fund’s emerging managers program. The announcement came as DiNapoli hosted the sixth annual emerging manager conference in Albany, New York.

Comptroller DiNapoli and A.G. Schneiderman Announce Felony Plea of Former Senator Shirley Huntley

Comptroller Thomas P. DiNapoli and Attorney General Eric T. Schneiderman Wednesday announced that former New York Senator Shirley L. Huntley has pleaded guilty to Tampering with Physical Evidence, an E Felony, for falsifying evidence in an effort to obstruct the investigation into the theft of a grant she sponsored for a sham non–profit entity, the Parent Workshop.

DiNapoli: Medicaid System Flaws Led to $7.8 Million in Overpayments

The Department of Health’s Medicaid program overpaid health care providers by $7.8 million over a six month period because of flaws with its eMedNY computer system, according to a reportreleased Thursday by New York State Comptroller Thomas P. DiNapoli. Auditors from the Comptroller’s Office recouped about $7.5 million of the overpayments and took steps to prevent future payment errors.

DiNapoli: Millions Sat Idle in MTA Bank Accounts

The Metropolitan Transportation Authority (MTA) held over $90 million in funds and bank accounts that could have been used to meet its budgeted costs, according to an auditreleased Wednesday by New York State Comptroller Thomas P. DiNapoli. Auditors found the MTA did a poor job managing its cash–on–hand, had excess bank accounts and no set targets for short–term investing of billions of dollars.

DiNapoli: Executive Budget Continues Spending Restraint in the Face of a Challenging Economy

The 2013–14 Executive Budget continues the state’s effort to move toward long–term structural balance and reduces projected out–year budget gaps while addressing infrastructure needs, including the recovery from Hurricane Sandy, according to a reportreleased Wednesday by State Comptroller Thomas P. DiNapoli.

DiNapoli: Growth of Local Sales Tax Collections Slows

Local sales tax collections in New York grew by $450 million in 2012, an increase of only 3.3 percent from 2011, according to a reportissued Thursday by State Comptroller Thomas P. DiNapoli. New York City had a slightly better growth rate of 3.5 percent.

Comptroller DiNapoli Releases School Audits

New York State Comptroller Thomas P. DiNapoli Thursday announced his office completed the following audits:

the Cortland Enlarged Central School District; and,

the Pawling Central School District.

Comptroller DiNapoli Releases Municipal Audits

New York State Comptroller Thomas P. DiNapoli Thursday announced his office completed the following audits:

the Village of Huntington Bay;

the Town of Long Lake;

the Village of Munnsville; and,

the City of North Tonawanda.