Delaying the processing of an application for retirement and the denial of “retiree benefits” because of alleged employee misconduct

Delaying the processing of an application for retirement and the denial of “retiree benefits” because of alleged employee misconduct

Union Endicott Cent. Sch. Dist. v Endicott Teachers' Assn., 2013 NY Slip Op 50833(U), Supreme Court, Broome County [Not selected for publication in the Official Reports.]

State Supreme Court Judge Ferris D. Lebous’ decision in this action considered issues raised by the union on behalf of a retired teacher concerning the school district’s delay in processing her application for retirement benefits and her eligibility for retiree health insurance under a Collective Bargaining Agreement.

The events leading to this proceeding was summarized by the court as follows. :

A teacher for the Union-Endicott Central School District became “a person of interest” in an investigation involving stolen school property. The teacher, however, tendered her resignation before the investigation was completed. Although the resignation indicated that the teacher intended to resign and retire at the end of the academic year, the Board of Education decided to delay the processing of the teacher’s application for retirement pending determinations on criminal charges and disciplinary charges.

The Association filed grievances challenging the Board of Education's decision to delay the processing of the teacher’s retirement ("Grievance No.1") and its denial of the teacher’s retiree health insurance benefits ("Grievance No.2"). Judge Lebous stayed the arbitration of Grievance #1 as “not arbitrable,” but ordered the arbitration of Grievance #2 (see Union Endicott Cent. School Dist. v Endicott Teachers' Assn., 25 Misc 3d 1210 [A]).

The Appellate Division affirmed the court's rulings, holding that arbitration could not be compelled with respect to Grievance # 1 [see http://www.nycourts.gov/reporter/3dseries/2009/2009_01060.htm] and that Grievance #2, the grievance challenging the denial of the teacher’s health insurance benefits upon retirement, was arbitrable [see http://www.nycourts.gov/reporter/3dseries/2010/2010_07647.htm].

Ultimately, the arbitration hearing on the issue of the teacher’s eligibility for health insurance benefits upon retirement was conducted and arbitrator Louis Patack issued an Opinion and Award in favor of the teacher. The school district then filed a petition pursuant to CPLR Article 75 seeking a court order vacating the arbitrator’s award.

As phrased by the court, “The School District's primary argument in support of it's petition is that the arbitrator failed to consider the issue of [the teacher’s] misconduct” in terms of  “the faithless servant doctrine,” contending that the Appellate Division had “instructed” the consideration of that issue.  The School District claimed that this failure on the part of the arbitrator constituted “misconduct in rendering his award and constitutes a ground for vacating the same under CPLR §7511 (b) (1) (i) and (iii).”

Noting that the Appellate Division “… did not mandate that the arbitrator apply the doctrine but merely stated that '[t]he issue of the effect, if any, of [the teacher’s] alleged misconduct on her entitlement to benefits goes to the merits of her grievance, not to its arbitrability,'” Further, Judge Lebous rejected the School District's representation that the arbitrator failed to consider or address the faithless servant doctrine. Rather, said the court, the record “clearly reflects that the arbitrator did considerwhether the doctrine applied under the CBA and held that it did not.”

In addition the court commented that “as outlined by the Association,” the parties had entered into a stipulation at the arbitration hearing that the School District would offer evidence of [the teacher’s] alleged misconduct only if the arbitrator determined that the doctrine applied and because he did not so rule no such evidence was accepted.

Accordingly, the court denied the school district’s petition to vacate or modify the arbitration award and, in addition, denied its application for a stay of enforcement and implementation of the arbitration award.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_50833.htm

Including proposed staffing changes in a plan to close schools submitted to the State Education Department does not cloak the staffing issues as a state policy, law or regulation thereby precluding submitting the matter to arbitration

Including proposed staffing changes in a plan to close schools submitted to the State Education Department does not cloak the staffing issues as a state policy, law or regulation thereby precluding submitting the matter to arbitration

Board of Educ.of the City Sch. Dist.of the City of N.Y. v Mulgrew, 2013 NY Slip Op 03580, Appellate Division, First Department

The New York City Department of Education (DOE) had filed a plan seeking to close 24 “underperforming schools” and to subsequently reopen 24 "new" schools at the identical locations and facilities with the State Department of Education (SED), which conditionally approved the plan.

The Unions filed demands for arbitration to the extent that the plan proposed to "excess" the staff of the closing schools, alleging that DOE’s plan to open new schools was a pretext to circumvent established procedures in their respective collective bargaining agreements (CBAs) for removing unsatisfactory teachers and other personnel. The Unions also contended that DOE’s plan circumvented their CBAs' requirements that excessing of teachers, i.e., "those let go through no fault of their own," be done on the basis of seniority.

The arbitrator concluded [1] that the Unions' disputes were arbitrable and [2] that the plan had "as its primary, if not sole, objective," avoiding undesirable teachers by excessing them under CBA provisions relating to closed or phased out schools, which violated CBA requirements that excessing be done on the basis of seniority.*

Supreme Court, New York County denied the DOE’s CPLR Article 75 petition seeking an order vacating the arbitration award and granted the cross-petition of the United Federation of Teachers, Local 2, and the Council of School Supervisors and Administrators, Local 1, American Federation of School Administrators to confirm the award. The Appellate Division unanimously affirmed the lower court’s ruling.

The Appellate Division explained that the arbitrator neither exceeded his powers under the CBAs, nor did he violate public policy in resolving the merits of the parties' disputes. The CBAs, said the court, provide that unresolved grievances concerning the application or interpretation of the CBAs are subject to arbitration.

Although the definition of a grievance under the CBAs does not include any matter for which a method of review is proscribed by law, or any rule or regulation of the SED having the effect of law, here the grievances seek only to have the arbitrator consider the interpretations of the CBAs and whether the plan, if implemented as written, violates the contractual rights and responsibilities of the parties.

Finding DOE's argument that arbitration necessarily interferes with the SED's statutory and regulatory authority “unpersuasive,” the Appellate Division although DOE “broadly referencing educational laws and regulations,” it failed to identify any law that "prohibit[s], in an absolute sense, [the] particular matters [to be] decided," citing County of Chautauqua v Civil Serv. Empls. Assn, Local 1000, County of Chautauqua Unit 6300, Chautauqua County Local 807, 8 NY3d 513 and commenting that only when the interest in maintaining adequate standards is attached to a well-defined law that public policy is implicated."

The Appellate Division concluded that the underlying grievance in no way impinges on the authority of the SED to approve a plan for the closure or the reopening of the 24 “underperforming schools” as new schools under the Education law (Education Law § 2590-h) nor DOE’s own inclusion of proposed staffing changes in its plan to close schools to support its argument that staffing issues are now a state policy, law or regulation having the effect of law, which removes them from the dispute resolution regimen provided in the CBAs.

.

Finding that the Unions' grievance does not challenge either the DOE's right to put forth a plan to close schools or the SED's right to approve such a plan. But only seeks only a determination regarding the interpretation and implementation of staffing requirements under the CBAs, the Unions were not, therefore, relegated to raising their dispute in an Article 78 proceeding rather than submitting the dispute to arbitration.

* Although not addressed in the decision, an appointing authority may not excess or lay a tenured employee as a subterfuge for disciplinary action [Young v Board of Education, 35 NY2d 31].

The decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2013/2013_03580.htm

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A “perfect storm” of personnel transactions and decisions

A “perfect storm” of personnel transactions and decisions 

2013 NY Slip Op 03559, Appellate Division, First Department

This decision describes a series of events resulting from a “perfect storm” of personnel transactions and decisions including an incorrect administrative personnel determination by a central personnel agency and a career choice made by the employee [AR] that ultimately resulted in the frustration of AR’s immediate employment expectations.

The genesis of the Appellate Divisions ruling was AR’s filing a petition pursuant of CPLR Article 78 seeking, among other things,

1. Reinstatement to her prior position of permanent Fraud Investigator;

2. Placement on the New York City Department of Homeless Services' (DHS) eligible list for promotion to Associate Fraud Investigator; and

3. Monetary damages for wrongful denial of promotion and wrongful transfer.

Supreme Court denied AR’s petition, which ruling the Appellate Division affirmed on appeal.

According to the Appellate Division's decision, DHS had permanently appointed AR to the position of Fraud Inspector and subsequently provisionally promoted her to Associate Fraud Inspector. However, the New York City Department of Citywide Administrative Services (DCAS) ruled that AR was ineligible for permanent appointment to Associate Fraud Inspector. AR challenged and successfully appealed DCAS’s decision regarding her eligibility for promotion to the higher title.

AR, however, was employed by the New York City Human Resources Administration (HRA) when she won her administrative appeal regarding the error made DCAS concerning her eligibility for promotion to Associate Fraud Inspector. This proved to be a critical element in the Appellate Division’s analysis of AR’s several claims.

The Appellate Division said that although DCAS had erroneously ruled AR ineligible for promotion to the position of Associate Fraud Inspector, AR conceded that she was not entitled to be appointed to that position, but only to be placed on a special eligible list and given due consideration for appointment from that list.*

Further, the court ruled that AR’s contention that DCAS acted arbitrarily in failing to place her on an eligibility list certified to DHS — where she was working when the error regarding her eligibility was made, rather than HRA, where she was employed when she won her administrative appeal — was unavailing “as the record indicates that AR turned down the opportunity to return to DHS, evidently believing at that point that her prospects were better at HRA.”**

Addressing another aspect of AR’s personnel related claims, the Appellate Division agreed with AR’s argument that she would not have been laid off as a DHS Fraud Inspector but for DCAS's miscalculation of her seniority. However, the court ruled that AR was not entitled to back pay as a result of this error because she had transferred to a job at HRA with the same title and compensation.

Finally, the court ruled that AR was not entitled to compensation in connection with her demotion from provisional Associate Fraud Inspector to her permanent title, Fraud Inspector. Her provisional appointment, said the court, preceded her transfer to HRA and thus AR “had no expectation of tenure in the provisional position,” and, as a provisional employee, she could be dismissed from that title without a pre-termination disciplinary hearing or any statement of reasons for her termination from that position.

* See Andriola v Ortiz, 82 NY2d 320, Certiorari denied, 511 US 1031

** Although the decision is silent as to the nature of AR's moving from DHS to HAR, this observation by the court suggests that AR resigned, or was deemed to have resigned, from her postion with DHS simultaneously with her appointment to HAR or at some point after her "transfer" to HAR.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_03559.htm

An analysis of New York’s new teacher evaluation law

An analysis of New York’s new teacher evaluation law

Source: NYMuniBlog 

Warren Richmond, a Harris Beach partner and member of the firm’s Labor and Employment Law Practice Group and Educational Institutions Industry Team, published an article in the New York Law Journal that focuses on the new Annual Professional Performance Review (APPR) plans for teachers and the limitations the statute places on school districts to terminate probationary teachers.

The article raises the failure of the law to define “performance” and “significant factor” and the consequences of the legislation in making it more difficult to terminate non-tenured teachers whose performance is inadequate or otherwise problematic.

To read the article, click on the following link, “Evaluation Law Could Limit Ability To Terminate Probationary Teachers.”