Educator claiming a preferred list should be used to fill a vacancy has the burden of demonstrating that the two positions are similar within the meaning of Education Law §3013

Educator claiming a preferred list should be used to fill a vacancy has the burden of demonstrating that the two positions are similar within the meaning of Education Law §3013

Matter of Michelle McDougall and the Schuylerville Central School District, Decisions of the Commissioner of Education, Decision 16505

Several positions were abolished by the school board due to budget reductions. The position encumbered by Michelle McDougall, a K-6 assistant principal, was among those abolished and her name was placed on a preferred list.

Ms. McDougall subsequently applied for a vacancy the position of K-12 Director of Curriculum, Instruction and Professional Development [Director] in response to a notice of vacancy posted by the school district. When another applicant was selected for the position, Ms. McDougall appealed the board’s action, contending that “the duties of her position as a K-6 assistant principal were substantially similar to the duties of the vacant Director position and pursuant to Education Law §3013, she was entitled to be reinstated to that position.*

The Commissioner of Education dismissed Ms. McDougall’s appeal on both procedural and substantive grounds.

As to the procedural issue, the Commissioner said that Ms. McDougall failed to “join necessary parties.” A party whose rights would be adversely affected by a determination of an appeal in favor of Ms. McDougall is a necessary party and must be joined as such.

Although Ms. McDougall had named “John/Jane Doe as a person to be subsequently named” in the caption, the Commissioner said that the record indicates that at the time Ms. McDougall commenced her appeal, an individual had been appointed by the board to the Director position. As that individual’s rights would be adversely affected if there was a decision in favor of Ms. McDougall as a result of her appeal and that individual had not been named or served with this appeal, the Commissioner said that he must dismiss the appeal for failure to join necessary parties.

However, said the Commissioner, Ms. McDougall's appeal would have been dismissed on the merits had it not been necessary to dismiss it because a necessary party had not been joined.

Noting that Ms. McDougall did not dispute board’s decision to abolish her position as K-6 assistant principal, the Commissioner rejected Ms. McDougall s contention that she was entitled to be reappointed to the Director position.

The Commissioner explained that although Education Law §3013(3)(a) governs the rights of a former employee to re-employment, it provides, in pertinent part, that in the event office or position is abolished … the person filling such position at the time of its abolishment … shall be placed upon a preferred eligible list of candidates for appointment to a vacancy that then exists or that may thereafter occur in an office or position similar to the one which such person filled ….”

Accordingly, in order for Ms. McDougall to be entitled to appointment to a vacant position from the preferred list, the vacant position must be similar to that of her former position. The test to ascertain whether the two positions are “similar” is whether more than 50 percent of the duties of the vacant position are those which were performed by Ms. McDougall in her former position.

Ms. McDougall has the burden of proving that a majority of the duties of the Director position are similar to those of her former position, assistant principal, K-6. Although, explained the Commissioner, the standard of what is similar is flexible and is not to be applied mechanically, the two positions must be in the same tenure area.

Ms. McDougall’s former position was in the K-6 assistant principal tenure area and the Director position is in the K-12 Director of Curriculum, Instruction and Professional Development tenure area, the Commissioner said that Ms. McDougall would have no rights under Education Law §2510(3)(a) to be appointed to the Director position if it is a different tenure area.

Ms. McDougall had the burden of establishing that the Director position is in the K-6 assistant principal tenure area. Finding that she had failed to meet her burden of establishing that the duties of the position of Director of Curriculum, Instruction and Professional Development are similar to those of a K-6 assistant principal, for purposes of Education Law §§2510(3) (a) and 3013(3) (a).

Further, the Commissioner noted that “it appears from the record that [Ms. McDougall] spent 75% of the time in her position as an assistant principal evaluating staff and disciplining students while less than 30% of the Director’s time will be spent on these functions.”

The Commissioner concluded that Ms. McDougall did not met her burden of proving that the duties of the two positions were similar within the meaning of Education Law §3013(3)(a) or that the two positions were in the same tenure area. Accordingly, the Commissioner ruled that Ms. McDougall was not entitled to appointment to the position of K-12 Director of Curriculum, Instruction and Professional Development from the preferred list.

* Civil Service Law §81 sets out the rights of employees in the classified service with respect to use of preferred lists for the purpose of reinstatement of employees laid-off from their position to the same or a similar position, or a position in a lower grade.

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume53/documents/d16505.pdf

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Terminated employee’s work-related dishonest constitutes disqualifying misconduct for the purposed of eligibiity for unemployment insurance benefits

Terminated employee’s work-related dishonest constitutes disqualifying misconduct for the purposed of eligibiity for unemployment insurance benefits

2013 NY Slip Op 05499, Appellate Division, Third Department

The claimant for unemployment insurance was terminated from her position because she [1] took a computer cord from the workplace without permission so that she could use it on her personal computer at home and [2] using the employer's company cellular phone for her personal use in violation of the employer's policy, causing the employer to incur additional charges for the excess minutes.

The Unemployment Insurance Appeal Board disqualified her from receiving benefits, holding that the claimant was terminated from her employment for disqualifying misconduct.

The Appellate Division sustained the Board’s determination, noting that "An employee's apparent dishonesty, including the theft of property, has been held to constitute misconduct disqualifying him or her from receiving unemployment.”

Under the circumstances, said the court, substantial evidence exists in the record supporting the Board's ruling that claimant's employment "ended under disqualifying circumstances."

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_05499.htm

A reprimand “to be expunged” from the employee’s personnel record if he or she does not repeat to offense within a specified period of time is not a penalty authorized by law

A reprimand “to be expunged” from the employee’s personnel record if he or she does not repeat to offense within a specified period of time is not a penalty authorized by law

Decisions of the Commissioner of Education, Decision 10933

A §3020-a disciplinary panel found a teacher guilty of insubordination as the result of her refusal to act as a chaperone at a school event. The penalty imposed by the panel: “… a reprimand, to be expunged from (the teacher’s personnel) records if for the next two years there are no further disciplinary problems of a similar nature”.

The District appealed the penalty imposed by the panel to the Commissioner of Education, contending that such a penalty was not authorized by §3020-a of the Education Law.

The Commissioner agreed, finding that although the penalty to be imposed, a reprimand, was authorized by §3020-a, the disciplinary panel lacked any authority to direct the District to later expunge the reprimand from the teacher’s file for “good behavior.” The Commissioner then exercised his authority to impose an appropriate disciplinary penalty on the employee and ruled that a reprimand would be appropriate under the circumstances.

The Attorney General has considered the question of an employer to remove a reprimand from an employee’s personnel file. In Opinion of the Attorney General 81-28, the Attorney General said that an appointing authority that wishes to clear the record of an employee who had in the past misbehaved but who has since performed well should have that option, observing that “public policy is not served by forever blighting the employee’s personnel file.”

Accordingly, although a §3020-a disciplinary panel may not direct the appointing authority to “remove” any reference to the penalty from the individual’s personnel file, the appointing authority, in the exercise of its discretion, may elect to do so.

Presumably the same rationale would be applied with respect to penalties set out in other statutes providing for initiating disciplinary action against an employee for alleged misconduct such as §75 of the Civil Service Law, §155 of the Town Law, §137 of the Second Class Cities Law and §8-804 of the Village Law.

However, no such limitation would apply with respect to penalties imposed by an arbitrator pursuant to a negotiated alternative to a statutory disciplinary procedure as the arbitrator is generally permitted to impose such penalty as he or she deems appropriate under the circumstances.

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Civil Service Law §106 does not authorize an individual to maintain a private cause of action based on alleged violation of the statute

Civil Service Law §106 does not authorize an individual to maintain a private cause of action based on alleged violation of the statute

Goddard v Martino, 2013 NY Slip Op 23240, Supreme Court, Dutchess County, Justice Peter M. Forman

Donald J. Goddard was appointed as a police officer in the Town of Hyde Park Police Department in 1986 and ultimately was permanently appointed to the position of Lieutenant in 2004. He was subsequently provisionally appointed to serve as Chief of Police pending his passing and qualifying for appointment from a promotion list for Chief.

In the words of Justice Peter M. Forman, “the relationship between [Goddard] and the newly-elected Town Board quickly became toxic” and Goddard subsequently submitted a letter expressing his intent “to retire from the Town of Hyde Park Police Department effective April 10, 2010.”

Goddard sued the Town alleging that:

1. He submitted this retirement letter because (a) he had become aware that the Town Board was contemplating abolishing the position of Lieutenant, and (b) he was advised by a member of the Town Board that he would never be appointed as the permanent Chief of Police, regardless of his performance on the civil service examination and “felt compelled to retire in order to preserve his health benefits, which would be forfeited if his employment ended due to termination rather than retirement;” and

2. The Town Board abolished the Lieutenant position in order to prevent him from being reinstated to that position once the permanent Chief of Police position was filled. 

Although the Town Board asserted that the Lieutenant position was being abolished for financial reasons, Goddard alleges that this financial justification was a pretext, and that "the Town Board was manipulating the civil service system in order to prevent [Goddard] from being reinstated as Lieutenant."

Ultimately Goddard filed a notice of claim with the Town alleging that the Town had “obstructed or defeated his civil service rights in violation of Civil Service Law §106.” Following a hearing conducted with respect to the notice of claim filed pursuant to General Municipal Law §50-h, Goddard commenced the instant litigation asserting a private cause of action based upon Town’s alleged violation of Civil Service Law §106.

Civil Service Law §106, in pertinent part, makes it a misdemeanor to defeat, deceive or obstruct the civil service rights of any person who seeks appointment, promotion, or reinstatement to a covered civil service position. However, notes the opinion, "Civil Service Law §106 does not expressly make a private cause of action available to individuals who believe that their civil service rights have been violated."

Addressing the Town’s motion seeking summary judgment dismissing Goddard’s complaint on the grounds that no private cause of action is available under Civil Service Law §106, Justice Forman said that a petitioner had to satisfy three tests to maintain his or her cause of action based on alleged violations of Civil Service Law §106.

The courts said that “When assessing whether a statute provides an implied right to a private cause of action, "the essential factors to be considered are: (1) whether the plaintiff is one of the class for whose particular benefit the statute was enacted; (2) whether recognition of a private right of action would promote the legislative purpose; and (3) whether creation of such a right would be consistent with the legislative scheme."

Commenting that the first factor is the one that is most easily satisfied, the court noted that “When a statute seeks to deter certain conduct, the second factor will be satisfied upon a determination that a private cause of action for injuries arising from this prohibited conduct would further the statute's deterrent goal.”

Goddard, said the court, clearly falls within the class of people for whose benefit Civil Service Law §106 was enacted. Recognizing a private cause of action under Civil Service Law §106 would also clearly advance the statute's deterrent goal. Therefore, said the court, the first two prongs of this three-prong test were satisfied.

The third factor, generally recognized as the most important factor, is whether a private right of action is consistent with the legislative scheme.

In Justice Forman’s view, there was no clear evidence that the Legislature intended to expose municipalities to the risk of financial liability for a violation of Civil Service Law §106. Rather, said the court, “Civil Service Law §102(3) squarely places the authority for enforcement of Civil Service Law §106 on the appropriate municipal civil service commission,” thus precluding an aggrived individual from bringing a private cause of action seeking redress of his or her grievance.

Justice Forman, upon reading §102(3) and §106 together, concluded that “the Legislature intended to limit enforcement of Civil Service law §106 to criminal proceedings (to punish past violations), and to actions by the appropriate municipal civil service commission seeking injunctive relief (to prevent continued violations).”

Noting the Goddard had a number of other legal remedies available to him regarding his allegations concerning his statutory right to his continued employment in the public service, including his claim that he was forced to retire because the Lieutenant position was being abolished, not for the purpose of economy or efficiency, but as a subterfuge to deprive Goddard of his civil service rights, Justice Forman granted the Town’s motion for summary judgment dismissing Goddard’s complaint.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_23240.htm

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.