A school board’s “essential responsibilities” can’t be negotiated away

A school board’s “essential responsibilities” can’t be negotiated away

Sweet Home Central School District v. Sweet Home Education Association, 90 AD2d 683, affd, 58 NY2d 912 

The collective bargaining agreement [CBA] between the Sweet Home Central School District [District] and the Union permitted the District to "transfer" teachers subject to the teacher involved being advised of the reason(s) for the transfer and being given an opportunity to select from among  “current openings” for which the teacher was qualified. The contract also provided that wishes of the teacher were to be taken into consideration to the extent possible.

A music teacher grieved his “involuntary transfer out” as concert band director. The arbitrator directed the District to review the appropriate positions available with him and to permit him to select from among them. He further directed the District to permit the teacher to return to the concert band director position if he wished and the District was to “develop a program, with outside assistance, ‘to assure a smooth functioning’ of the concert band” were he to choose to return.

On appeal the arbitrator’s award was modified by the Appellate Division. The court explained that §1711 of the Education Law gave the Board a non-delegable responsibility to maintain adequate standards in the classroom and the District’s authority to assign and reassign teachers was essential to that responsibility.

“Public policy prevents a school district from bargaining away this responsibility,” said the court. In keeping with this view, the arbitrator was held not to have the power to direct the District to retain the teacher in the position from which he had been reassigned.

The Court then held that the CBA between the District and the Union could (and did) establish procedural rules regulating the District’s right to reassign teachers. That portion of the arbitrator’s award directing the District to comply with the procedural rules to which it had agreed was upheld.

Dismissal of disciplinary charges recommended because superior condoned the employee's alleged failure to follow department policy

Dismissal of disciplinary charges recommended because superior condoned the employee's alleged failure to follow department policy

OATH Index No. 866/13

A New York City juvenile counselor was charged with failing to conduct three inspections during a tour or duty as required. 

At the disciplinary hearing, however, the counselor proved that the ”three inspections” requirement had not been enforced by management for many years. 

OATH Administrative Law Judge Alessandra F. Zorgniotti recommended dismissal of charges.

The counselor admitted that she did not make three tours of inspection and testified that the failure to do so was a regular practice caused by an excessive work load.

Judge Zorgniotti found that the counselor had proved her affirmative defense of condonation and waiver by showing that her not making three inspections each tour of duty was condoned by supervisors. Further, said the ALJ, the employer did not show that it placed the counselor on notice that the “three inspection” during a tour of duty policy would be enforced

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/13_Cases/13-866.pdf

An alternative to a principal for each school

An alternative to a principal for each school

Matter of Mennella, Decisions of the Commissioner of Education Number 10851

Although the Regulations of the Commissioner of Education provide that each school in a District shall have assigned to it a qualified principal, waivers from that requirement may be obtained under appropriate circumstances.*

An example of this is found in the Commissioner’s decision in Matter of Mennella.

One issue involved Mennella's seeking an order to restore funds for an abolished position of principal. The District had decided to administer its two smallest elementary schools by assigning one principal and two assistant principals to them.

The Commissioner rejected Mennella's claim that the District could not do so, noting that earlier the District had been granted the required exemption each school have a principal. The Commissioner also noted that the assistant principals involved held valid elementary principal certificates and were qualified to perform the duties assigned to them.

* 8 NYCRR 100.2(a), addressing the administration of elementary and secondary schools, provides, in pertinent part, as follows: “The board of education of each school district shall employ and assign to each school under its supervision a full-time principal holding the appropriate certification as required pursuant to section 80.4(b) of this Title. Upon the submission of evidence that there are circumstances which do not justify the assignment of a principal to a particular school, or that another mode of building administration would be more effective, the commissioner may approve an alternative mode of building administration.”

The threshold decision as to the arbitrability of a matter is to be made by the court absent the parties “clear and unmistakable agreement to arbitrate arbitrability”

The threshold decision as to the arbitrability of a matter is to be made by the court absent the parties “clear and unmistakable agreement to arbitrate arbitrability”
In the Matter of the Arbitration of Sherwood (Kirkpatrick), 2013 NY Slip Op 05372, Appellate Division, Third Department

While a collective bargaining agreement (CBA) was in effect, the Dryden Central School District (District) and Dryden Faculty Association (Association) entered into a separate memorandum of understanding (MOU) in which the parties [1] recognized the Association as the bargaining unit representative for all regularly appointed registered professional nurses working in the District, [2] agreed upon the nurses' terms and conditions of employment, and [3] agreed that the terms and conditions set out in the MOU would remain in effect until incorporated into the next collective bargaining agreement following the expiration of the then current CBA

The District subsequently terminated a nurse represented by the Association* and the nurse grieved the District’s action. When the grievance was denied by the District the Association demanded that the matter be submitted to arbitration. In response the District initiated a proceeding to permanently stay arbitration. The Association counterclaimed seeking a court order to compel arbitration.

Supreme Court granted the District’s petition and permanently stayed the arbitration. The Association appealed, contending that an arbitrator, rather than a court, should decide whether the parties' dispute was arbitrable.

The Appellate Division disagreed with the Association, noting that the responsibility for this threshold determination lies with the courts unless the parties have "evinced a clear and unmistakable agreement to arbitrate arbitrability.” Here, said the court, neither the CBA nor the MOU contains any such agreement and thus Supreme Court properly addressed this issue.

The court explained that “It is well settled that ‘[a] party cannot be compelled to arbitrate in the absence of an express, direct and unequivocal agreement to do so,’" citing Matter of Massana Central School District, 82 AD3d 521.

While the CBA provides for arbitration as the final step of the grievance process, the MOU neither contains its own arbitration provisions nor explicitly incorporated those provisions as set forth in the CBA. Although the Association argued that the CBA's arbitration provisions apply to covered nurses as the MOU does not expressly exclude them, this argument, said the Appellate Division, is unsupported by the terms of the MOU and the rules governing contract interpretation.

The Appellate Division noted that the MOU specifically identified selected provisions of the CBA to be applied to covered nurses and set out detailed additional provisions on several other subjects, including procedures for discharging nurses and terminating their employment, but did not include the arbitration provisions. Accordingly, said the court, as the MOU neither mentions arbitration nor indicates that any CBA provisions other than those expressly stated will apply to nurses, read as a whole, the MOU “unambiguously reflects the parties' intention to establish independent terms and conditions of employment for nurses that do not include the CBA's arbitration provisions.”

The bottom line: Absent an "express, direct and unequivocal agreement" to arbitrate this dispute, the Appellate Division ruled that Supreme Court had properly granted the District’s application to permanently stay the arbitration. To hold otherwise, said the court, would violate the basic principle that "courts may not by construction add or excise terms, nor distort the meaning of those used and thereby make a new contract for the parties under the guise of interpreting the writing"

* The Appellate Division noted that although the nurse's employment was terminated after the end date specified in the CBA, no new agreement has been negotiated, both the CBA and the MOU remain in effect under the Triborough Doctrine {Civil Service Law §209-a [1] [e]).

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_05372.htm

An employee removed from his or her position by a civil service commission pursuant to Civil Service Law §50.4 is not entitled to a pre-termination hearing

An employee removed from his or her position by a civil service commission pursuant to Civil Service Law §50.4 is not entitled to a pre-termination hearing

95 AD2d 1005

Citing Mingo v Pirnie, 55 NY2d 1019, the Appellate Division ruled that "Contrary to the petitioner’s contention, her status as a permanent appointee in the competitive class of the classified civil service did not entitle her to a mandatory pretermination hearing under Civil Service Law § 75(1)(a), where the Nassau County Civil Service Commission relied upon Civil Service Law § 50(4) in revoking her payroll certification and directing the termination of her employment."

In Mingo a county civil service commission disqualified an employee following his permanent appointment and removed him from his position with the village pursuant to §50.4 of the Civil Service Law. The Commission had determined that the individual had “intentionally made false statements of material facts in his application or (had) attempted to practice (a) deception or fraud in his application”. 

The employee sued, contending that the commission could not disqualify him for employment in the position without first providing him with a pre-termination hearing.

The Court of Appeals rejected this argument, stating that §50.4 “requires no more than that the person be given a written statement of the reasons [for his or her disqualification for employment] and afforded an opportunity to make explanation and to submit facts in opposition to such disqualification. No hearing is required.”

The Commission had found that the employee had falsified his application with respect to his experience and had concealed relevant facts related to his separation from previous employment.

Governor Cuomo announces estate tax refunds available to qualified spouses of same-sex couples

Governor Cuomo announces estate tax refunds available to qualified spouses of same-sex couples

Source: Office of the Governor

On July 23, 2013, Governor Andrew M. Cuomo announced that Estate Tax refunds are available to qualified spouses of same-sex couples. Refunds may be available as a result of the recent United States Supreme Court decision, United States v. Windsor, in which the Court held that §3 of the Defense of Marriage Act (DOMA) is unconstitutional. 

Edie Windsor, a New Yorker, sued the federal government after the Internal Revenue Service denied her refund request for the $363,000 in federal estate taxes she paid after her spouse, Thea Spyer, died in 2009. She also had filed a protective claim with the New York State Tax Department asking for a similar Estate Tax refund from New York. Generally, a claim for credit or refund of an over-payment of estate tax must be filed by a taxpayer within three years from the date the original return was filed or two years from the date the tax was paid. 

Taxpayers believing that they may affected by the Windsor ruling should contact the New York State Taxpayer Information Center at 518-457-5387.

Additional information can be found on the Tax Department’s memorandumon estates of same-sex couples.

The Unemployment Insurance Appeal Board may apply the doctrine of collateral estoppel in denying a claimant UI benefits based on a disciplinary arbitration that led to the claimant’s dismissal

The Unemployment Insurance Appeal Board may apply the doctrine of collateral estoppel in denying a claimant UI benefits based on a disciplinary arbitration that led to the claimant’s dismissal

2013 NY Slip Op 05280, Appellate Division, Third Department

A claimant for unemployment insurance benefits challenged his dismissal from his position by the employer but an arbitrator concluded that there was just cause for his termination.

Subsequently the Unemployment Insurance Appeal Board denied the claimant’s application for unemployment insurance benefits, ruling that he was disqualified from receiving such benefits because he was terminated for disqualifying misconduct. The claimant then appealed the Board’s ruling.

The Appellate Division affirmed the Board’s decision explaining that "as there was a full and fair opportunity to litigate the issue in the prior [arbitration] proceeding, collateral estoppel effect must be given to the arbitrator's factual findings regarding claimant's misconduct."

As the Board had appropriately taken into account the arbitrator's factual findings and made "an independent evaluation as to whether that conduct constitutes 'misconduct' for the purposes of unemployment insurance" the Appellate Division found no basis to overturn the Board's ruling.

Although the individual contended that “at worst, the alleged conduct constituted an excusable error in judgment,” the Board disagreed.

The decision notes that the individual had been counseled by the employer prior to this incident "for various safety violations" and where the misconduct is potentially detrimental to the employer's best interest may, “as in this instance, be sufficient to constitute disqualifying misconduct.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_05280.htm

Contract provision providing for the temporary appointment of a substitute teachers held a waiver of the educator’s statutory entitlement to a permanent appointment

Contract provision providing for the temporary appointment of a substitute teachers held a waiver of the educator’s statutory entitlement to a permanent appointment

Decisions of the Commissioner of Education, Decision 10918

The relevant collective bargaining agreement provided that a temporary appointment was to be made when a substitute teacher was to be so employed for more than 40 consecutive days.

When the teacher for whom she was substituting died, the School Board, at the request of the Union to fill the position in accordance with the terms of the CBA, “temporarily appointed” the substitute teacher to the vacancy.

The substitute was subsequently notified that she was not under consideration for permanent appointment. She sued contending that she was a probationer in the vacant position “by operation of law”. 

Following a series of administrative and Court proceedings, the question was remanded to the Commissioner of Education for further consideration.

The Commissioner, in considering the merits of the teacher's appeal, held that although the Board has no authority to make other than probationary appointments to fill permanent vacancies, a teacher may waive the statutory entitlement.

The Commissioner then found that the CBA provision, with which the Board had complied at the request of the Union, provided for a “temporary appointment.” Accordingly, the Commissioner concluded that the CBA’s provision constituted such a waiver and the substitute teacher could not challenge the School Board’s appointing her as a temporary teacher rather than as a permanent appointee subject to the satisfactory completion of a probationary period under the circumstances.

Employee terminated after being found guilty of misuse of funds

Employee terminated after being found guilty of misuse of funds

OATH Index No. 494/13

The New York City Department of Educationcharged a custodial engineer with the misuse of funds. 

OATH Administrative Law Judge Kevin F. Casey found that the custodian failed to repay more than $43,000 he owed to the Department in excess funds, that he wrote a check to the Department for $43,620, knowing that there were insufficient funds in his account to cover the check, and that he overpaid himself by $14,000

The Department apportions funds to custodian engineers based on the square footage of buildings that they maintain. Funds are kept in a custodial bank account which custodian engineers can access online. Custodian engineers must repay the Department any excess funds that they receive each year. In this instance the custodian acknowledged overpaying himself and his staff.

Judge Casey recommended termination of the employee, which recommendation was adopted by the Chancellor of the New York City Department of Education.

.

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/13_Cases/13-494.pdf

An administrative agency’s rules and regulations must be consistent with and supplemental to the legislation relied upon by the agency for their promulgation

An administrative agency’s rules and regulations must be consistent with and supplemental to the legislation relied upon by the agency for their promulgation
Kigin v State of N.Y. Workers' Compensation Bd., 2013 NY Slip Op 05360, Appellate Division, Third Department

In this challenge to a determination by the Workers’ Compensation Appeal Board, one of the arguments advanced by the claimant denied certain benefits was that the Board lacked the authority to promulgate the regulations and the “incorporated Guidelines” relied upon by the Board for its ruling, contending that they were inconsistent with the enabling legislation and the workers' compensation statutory scheme.

Addressing this argument, the Appellate Division said that “[a]lthough administrative agencies have no inherent legislative power, they have ‘all the powers expressly delegated to [them] by the Legislature and are authorized to ‘fill in the interstices in the legislati[on]’ by promulgating rules and regulations consistent with their enabling legislation.”

Further, said the court, "[I]t is not always necessary that the Legislature provide precise guidelines to an agency charged with carrying out the policies embodied in a legislative delegation of power. In certain technical areas, where flexibility is required to enable an administrative agency to adapt to changing conditions, it is sufficient if the Legislature confers broad power upon the agency to fulfill the policy goals embodied in the statute, leaving it up to the agency itself to promulgate the necessary regulatory details."

Also, said the Appellate Division, courts will uphold regulations that are consistent with and supplemental to the relevant statute “provided they have a rational basis and [are] not unreasonable, arbitrary, capricious or contrary to the statute under which [they were] promulgated."

The Appellate Division ruled that the Board acted within its legislatively conferred authority in this instance.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_05360.htm