Tenure by estoppel

Tenure by estoppel

2013 NY Slip Op 04006, Appellate Division, Second Department

Tenure by estoppel results "when a school board accepts the continued services of a teacher or administrator, but fails to take the action required by law to either grant or deny tenure prior to the expiration of the teacher's probationary term."

When a probationary teacher was denied tenure prior to the end of his probationary period, he claimed that he had attained tenure by estoppel.

According to the decision, the Board of Education had employed the teacher [Educator] as a per diem substitute teacher from September through the following June. Upon Educator’s completion of that academic year he appointed as full time teacher subject to the satisfactory completion of a two-year probationary period commencing July 1, 2008 through to June 30, 2010. The decision notes that Educator was entitled to a “one-year credit” toward the statutory three-year probationary period based on his prior tenure service in another district as provided by Education Law §3012[1][a].

What was ultimately to prove critical to the resolution of Educator’s claim that he had attained tenure by estoppel was a revised “letter of intent” he had signed that memorialized his probationary appointment and which specified that he would become eligible for tenure on July 1, 2010.

In May 2010, the superintendent of schools advised Educator that would be recommend the termination of his probationary appointment and on June 23, 2010 the Board voted to terminate Educator’s employment effective June 25, 2010.

Educator challenged the Board’s action and filed an Article 78 seeking a court order directing his reinstatement to his former contending that the Board did not have the authority to summarily terminate his employment because he had acquired tenure by estoppel.

Supreme Court denied Educator’s petition.

The Appellate Division sustained the Supreme Court’s decision, explaining that Educator had failed to demonstrate that the Board unduly delayed his formal appointment to his position or that he had otherwise acquired tenure by operation of law.

The court said that it was undisputed that Educator signed a revised letter of intent. This letter was held to have superseded all prior agreements and specified that Educator would become eligible for tenure on July 1, 2010.

Educator, however, had already discharged from his employment prior to that date.

Accordingly, ruled the Appellate Division, the Supreme Court properly denied Educator’s petition and dismissed the proceeding.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_04006.htm

Determining the back pay due an individual terminated from his or her employment upon reinstatement by court order

Determining the back pay due an individual terminated from his or her employment upon reinstatement by court order

Torpey v Town of Colonie, N.Y., 2013 NY Slip Op 04085, Appellate Division, Third Department

With respect to back pay to be awarded in the event a discharged employee is reinstated by action of a civil service commission or personnel officer or a court, prior to its amendment in 1985 Civil Service Law §§76 and 77 provided that the amount of back pay due an individual found to have been unlawfully terminated from his or her position was to be reduced by the amount of compensation he or she may have earned in any other employment or occupation following his or her termination, together with any unemployment insurance benefits he or she may have received during that period.

In 1985 §§76 and 77 of the Civil Service Law, which apply to certain employees in the classified service of a public employer, were amended [Chapter 851, Laws of 1985] and currently provide that an employee reinstated pursuant to either of these subdivisions is to receive the salary to which he or she would have otherwise been entitled, less the amount of any unemployment insurance benefit that he or she may have received during such period. The clause providing for a "reduction" in the amount to be paid for any compensation earned in other employment or occupation following his or her termination was eliminated.

The issue in Torpey: May the compensation due employees reinstated to their former positions in the classified service pursuant to a court order be “reduced by” their earnings in other employments during the period in question.

The employees involved had been terminated from their long-term employment with the Town of Colonie on the ground that they were public officers who were required to, but did not meet, the residency requirement set out in the Public Officers Law. Following their termination, they accepted other employment with the Town for which there was no residency requirement.

The employees then challenged their termination and asked Supreme Court to reinstate them to their former positions "with full back pay, benefits and emoluments of employment."

Supreme Court determined that the employees had been erroneously terminated, finding that the Town had not shown that they were public officers subject to the residency requirements. The court granted the employees’ petition, ruling that the employees were "entitled to be reinstated to their former positions and to all back pay and associated benefits to which they would have been entitled had they not been improperly terminated."

Subsequently a dispute arose between the employees and the Town regarding, among other things, the meaning of the court's directive that employees were entitled to "all back pay," i.e., whether the back pay awards was to be “reduced by” the employees' earnings while employed by the Town as laborers, as the Town claimed, or whether they were entitled to full back pay without any such offset, as the employees argued.

The employees then asked Supreme Court “to resettle and/or clarify the court's prior judgment regarding back pay.” Supreme Court denied their motion, finding it represented an improper attempt to amplify and expand upon the court's prior decision and the employees appealed.

The Appellate Division agreed with Supreme Court, concluding that the employees’ motion “was one to resettle and/or clarify Supreme Court's prior judgment regarding back pay.”  Such a motion, said the court, is designed "not for substantive changes [in, or to amplify a prior decision of, the court], but to correct errors or omissions in form, for clarification or to make the [judgment] conform more accurately to the decision.” Such motions rest on the inherent power of courts to "cure mistakes, defects and irregularities that do not affect substantial rights of [the] parties."

In this instance the Appellate Division decided that the employees’ motion in Supreme Court sought to amplify and substantively amend, not merely to clarify, Supreme Court's prior judgment relating to back pay, “by invoking for the first time Civil Service Law provisions* in support of their argument that the back pay award should not be offset by earnings as Town employees during the period in which they had been improperly terminated, points which should have been raised and argued before a determination was rendered on their petition.”

The Appellate Division’s rational: “Such an offset would directly affect the amount of back pay owed by the Town and, as such, would clearly have ‘alter[ed] [a] substantial right[] of the parties.’”

Holding that “Under established precedent, no appeal lies from the ‘denial of a motion to resettle [or clarify] a substantive portion of an order,'" the Appellate Division dismissed the employees’ appeal.

* Presumably the Appellate Division did not view the employees’ reinstatement by Supreme Court as being within the ambit of Civil Service Law §76.3 or  §77 and thus the provisions of neither §76.3 nor §77 were operative in this instance as a matter of law.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_04085.htm

Past practice found sufficient to trump the absence of language in the relevant collective bargaining agreements providing for the practice

Past practice found sufficient to trump the absence of language in the relevant collective bargaining agreements providing for the practice
Chenango Forks Cent. Sch. Dist. v New York State Pub. Empl. Relations Bd., 2013 NY Slip Op 04039, Court of Appeals

The Chenango Forks Central School District told its faculty and staff it was discontinuing its practice of reimbursing Medicare Part B premiums of retirees 65 years of age or older participating in the District’s health insurance plan due to the cost involved of providing that benefit.

Initially the School District had been reimbursing these premiums as required by its then healthcare insurance plan. In 1990 the Union representing the faculty and the staff and the District agreed upon a new health insurance plan. This new plan was set out in the relevant collective bargaining agreement (CBA).

Although the new plan did not require the District to reimburse the retirees for the Medicare Part B premiums they were paying, the District continued to provide this benefit to its retirees. The successor collective bargaining agreements subsequently negotiated by the parties were silent with respect to the District reimbursing retirees for their Medicare Part B premium.

In response to the letter the Union filed a contract grievance contending that the School District had violated the CBA by failing to negotiate cancellation of Medicare Part B premium reimbursement. Shortly thereafter it filed an improper practice charge with the New York State Public Employment Relations Board on essentially the same theory.

Consistent with PERB's policy of refraining from asserting jurisdiction over an issue in dispute that was pending arbitration “until a determination is made as to whether the parties' [CBA] provide[d] a source of right to the charging party," PERB’s Administrative Law Judge “conditionally dismissed the [Union's] improper practice charge, subject to a motion to reopen.”

The arbitrator ruled there was no language in the collective bargaining agreement that would require Chenango Fork to reimburse retirees' Medicare Part B premiums that they had paid. The arbitrator explained that with respect to historical practices of the District regarding its making reimbursing retirees for the Medicare Part B premium they had paid “such practices originated from the former [healthcare plan] and a now repealed statutory obligation on the part of the District, and once the statutory obligation was removed, the District made voluntary Medicare Part B reimbursement payments to retirees. The voluntariness of the District's conduct,* given the origin of the District's Medicare Part B reimbursements, does not contain sufficient evidence of a mutual understanding and agreement to establish a binding past practice" (emphasis in the original).

The Union then asked PERB to reopen the improper practice charge it had earlier filed. PERB's Administrative Law Judge granted the Union’s request, opining that because "the arbitrator found no [contractual] source of right to [the Union] with respect to the dispute at issue ..., [the Union was] not seeking to enforce an agreement in the context of the charge, and PERB [had] jurisdiction over the alleged failure to continue a non-contractual practice."

Based on facts stipulated by the parties and the testimony given at hearings, ultimately PERB held that the District had violated Civil Service Law §209-a (1) by circulating the memorandum advising its employee of the fact that the District was going to discontinue its reimbursing retirees for the premiums they paid for Medicare Part B and there existed a past practice of providing a benefit — “the promise to reimburse current employees' post-retirement Medicare Part B premiums — which is a mandatory subject of bargaining”

PERB noted that the test for establishing a binding past practice under the Taylor Law was set out in its decision in Matter of County of Nassau (24 PERB ¶ 3029 [1991]) where it ruled that the "practice was unequivocal and was continued uninterrupted for a period of time sufficient under the circumstances to create a reasonable expectation among the affected [bargaining] unit employees that the [practice] would continue.”. PERB also noted that "the expectation of the continuation of the practice is something that may be presumed from its duration with consideration of the specific circumstances under which the practice has existed" and denied the District’s exceptions to the Administrative Law Judge’s ruling.

The Court of Appeals sustained PERB’s determination, concluding that under the facts in this case “it was reasonable for PERB not to defer to the arbitrator [as the] identity of issues was lacking and, to the extent the arbitrator purported to determine there was no past practice within the meaning of the Taylor Law, he exceeded his authority and his finding was repugnant to that statute.”

* The District contended that its continuation of the reimbursement of its retirees for Medicare premiums was the result of an administrative oversight.

The decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2013/2013_04039.htm