Including the phrase "notwithstanding any other provision of law" in a bill is typically viewed as a legislature's intent to preempt all potentially conflicting statutes

Including the phrase "notwithstanding any other provision of law" in a bill is typically viewed as a legislature's intent to preempt all potentially conflicting statutes

Lawrence Teachers' Assn., NYSUT, AFT, NEA, AFL-CIO v New York State Pub. Relations Bd., 2017 NY Slip Op 04944, Appellate Division, Third Department

The Lawrence Union Free School District [District)] implemented a universal prekindergarten program pursuant to Education Law §3602-e. Initially program tasks were performed by employees working in a collective bargaining unit exclusively represented by the Lawrence Teachers' Association's [Association] but in 2012 the District unilaterally contracted with an outside eligible agency to staff and operate the program. The Association filed an improper practice charge with the Public Employment Relations Board [PERB] contending that the District had violated Civil Service Law §§204[2] and 209-a[1][d] of the Public Employees' Fair Employment Act, commonly referred to as the "Taylor Law," by outsourcing the work without first negotiating the matter in good faith with the Association.

A PERB Administrative Law Judge [ALJ] concluded that the provisions of Education Law §3602-e vitiated the District's duty to negotiate in good faith and dismissed the charge. PERB affirmed the ALJ's ruling and the Association initiated a CPLR Article 78 proceeding challenging PERB's decision. Supreme Court annulled PERB's determination and remitted for further proceedings, holding that nothing in Education Law §3602-e "defeat[ed] the District's bargaining obligations . . . under the Taylor Law." The District appealed.

Although the outsourcing of work performed exclusively by represented employees is a mandatory subject of bargaining under the Taylor Law, rendering a failure to bargain an improper employer practice under Civil Service Law §209-a(1)(d), PERB had concluded that the outsourcing in this instance was not a mandatory subject of bargaining in view of the provisions set out in Education Law §3602-e(5)(d). That provision authorizes a school district "to enter any contractual or other arrangements necessary to implement" a prekindergarten program plan "[n]otwithstanding any other provision of law."*

The Appellate Division said that its review of the statutory landscape "nevertheless leads us to agree with PERB's interpretation." The court explained that the main goal in statutory construction is to discern the will of the Legislature and, in this instance, the statute provides for a universal prekindergarten program "designed to effectively serve eligible children directly through the school district or through collaborative efforts between the school district and an eligible agency or agencies." Thus, said the court, a school district is free to avoid collaborative efforts in crafting a prekindergarten program plan as regardless of the precise plan devised, a school district is empowered to "enter any contractual or other arrangements necessary to implement" it "[n]otwithstanding any other provision of law."

Significantly, the Appellate Division noted that §3602(5)(d) grants a school district the power to make necessary arrangements "[n]otwithstanding any other provision of law," which, said the court, is the "verbal formulation frequently employed for legislative directives intended to preempt any other potentially conflicting statute, wherever found in the [s]tate's laws."

The court held that the addition of that language "signals the intent of the Legislature to override any statutory conflicts to the exercise of the school district's contracting power, including the Taylor Law bar to outsourcing work absent bargaining beforehand."

The Appellate Division opined that "[t]here is no absolute bar to collective bargaining over" the outsourcing of prekindergarten work to an outside agency and an agreement reached after collective bargaining on the subject is enforceable. However, the court observed that the clear language of Education Law §3602-e compels the conclusion that negotiation is not required to begin with and thus PERB was correct when it determined that the absence of negotiation in this instance did not constitute an improper practice under the Taylor Law.

In contrast, the Appellate Division noted that PERB's decision with respect to the Association's allegations concerning an improper practice within the meaning of the Taylor Law does not preclude Association from demanding "impact negotiations" concerning the program in the future.

* The Appellate Division's decision noted that "[a]s PERB itself recognizes, the interplay between the Taylor Law and Education Law §3602-e presents a question of pure 'statutory construction [that] is a function for the courts[, and PERB] is accorded no special deference in [its] interpretation of statutes'."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_04944.htm

Claim for back pay upon reinstatement rejected

Claim for back pay upon reinstatement rejected

Koppman v. Board of Education, 95 A.D.2d 777

In Koppman the Appellate Division held that a former probationary employee had no claim in law for the payment of back salary upon reinstatement to service.

The employee had not been removed unlawfully, said the Court, and therefore “neither the Constitution nor New York State Law recognizes the right of a reinstated probationer to an award of back pay”.

In the absence of a statute requiring the payment of back pay, the public employer is not required to pay back wages as the payment of such compensation without the performance of service would constitute an unconstitutional gift of public funds (Article 8, §1, of the State Constitution).

Police officer dismissed for reckless handling of a firearm

Police officer dismissed for reckless handling of a firearm

Rider v. Board of Trustees, Village of Rockville Center, 78 A.D.2d 856

The Appellate Division upheld the dismissal of a police officer charged and found guilty of reckless handling of firearms. However, the Court found that the police officer was entitled to back pay for the period of his enforced absence prior to the determination of guilt in excess of the 30 days without pay authorized by §75 of the Civil Service Law.

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Fair Labor Standards Act not applicable to personnel employed by an "educational establishment"

Fair Labor Standards Act not applicable to personnel employed by an "educational establishment"

Fernandez v Zoni Language Center, USCA, 2nd Circuit, Docket #16-1689-cv

Zhara Fernandez and certain others [Plaintiffs] were employed as English teachers by the Zoni Language Center. Acting on their own behalf and others similarly situated, Plaintiffs alleged that Zoni was in violation of the Fair Labor Standards Act (FLSA), 29 U.S.C. 201 et seq., and the New York Labor Law because it failed to pay them the statutory minimum wage for hours worked out of the classroom and the statutory overtime required when Plaintiffs' classroom and out-of-classroom work exceeded 40 hours per week. 

The Second Circuit affirmed the district court's dismissal of the Plaintiffs' FLSA claims, holding that Zoni was exempt from the FLSA's mandatory minimum wage and overtime requirements as they were not applicable to teachers working as bona fide professionals. Zoni, said the court, was an "educational establishment" within the meaning of 29 C.F.R. 541.204(b).

Professional employees employed at elementary and secondary schools, institutions of higher education, or other educational institutions are deemed employees excluded from claiming compensation consistent with the mandatory provisions of the FLSA. In addition, for purposes of this exclusion, no distinction is drawn between public and private schools, or between those operated for profit and those that are not for profit.

The professional exclusion applies to employees who have as a primary duty, teaching, tutoring, instructing, or lecturing in the activity of "imparting knowledge and [who] do so in an educational establishment." Accordingly, employers of such personnel are not mandated to pay such employees minimum wages, overtime or similar compensation related rates otherwise required by Federal or New York State law with respect to its non-professional personnel.

Mere speculation and bare legal conclusions without any factual support set out in an Article 78 petition are ineffective in rebutting a defendant's motion to dismiss

Mere speculation and bare legal conclusions without any factual support set out in an Article 78 petition are ineffective in rebutting a defendant's motion to dismiss

England v New York City Dept. of Envtl. Protection, 2017 NY Slip Op 03948, Appellate Division, Second Department

The petitioner [Petitioner] in this Article 78 action had completed and passed a civil service exam for appointment to the position of Watershed Maintainer with the New York City Department of Environmental Protection [Department]. The Petitioner's name was placed  on an eligible list of candidates by the New York City Department of Citywide Administrative Services. Petitioner was subsequently considered, but not selected, for three separate vacancies for the position of Watershed Maintainer. Petitioner was then declared ineligible for further certification or appointment from the list established for the Department.

Petitioner then filed an Article 78 petition seeking a review a determination of the Department's decisions declining to select Petitioner for appointment to the position. Supreme Court granted the Department's motion to dismiss the Article 78 petition "for failure to state a cause of action and, in effect, dismissed the proceeding. Petitioner appealed.

Pointing out that although in an Article 78 motion to dismiss "only the petition is considered," the Appellate Division noted that all of allegations set out in the petition "are deemed true, and the petitioner is accorded the benefit of every possible favorable inference."

In contrast, said the court, "bare legal conclusions are not entitled to the benefit of the presumption of truth and are not accorded every favorable inference."

Applying these principles, the Appellate Division ruled that Supreme Court properly granted the Department's motion to dismiss the petition filed by Appellate Division, Second Department because it failed to state a discrimination claim and offered no more than "speculation and bare legal conclusions without any factual support."

Further, said the court, Petitioner's allegations that the Department refused to hire him because of a prior arrest history was unsupported by any factual contentions and constituted "mere legal conclusions, and are insufficient to state a claim."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_03948.htm

Educational malpractice

Educational malpractice

Helm v. Professional Children’s School, 103 Misc 2d 1053

In Helm the Supreme Court held that problems, including the practical impossibility of proving that the alleged malpractice of the teacher was the cause of the learning deficiency claimed by the parents of a child and the fact that student attitudes, motivation, home environment and temperament may all play an essential role, should, as a matter of public policy, bar consideration by the Court of Claims of educational malpractice against either public or private schools.

The opinion referred to the decision in Donahue v. Copiague Union Free School District, 47 NY2d 440, a case that involved a similar question.

The anatomy of a discrimination action

The anatomy of a discrimination action
Clarke v Metropolitan Transp. Auth., 2017 NY Slip Op 04421, Appellate Division, Second Department

In processing an employment discrimination claim "A plaintiff alleging discrimination in employment has the initial burden to establish . . . that (1) he or she is a member of a protected class; (2) he or she was qualified to hold the position; (3) he or she was terminated from employment or suffered another adverse employment action; and (4) the discharge or other adverse action occurred under circumstances giving rise to an inference of discrimination"

If the individual makes such a prima facie showing, the burden of going forward shifts to the employer "to rebut the presumption of discrimination by clearly setting forth, through the introduction of admissible evidence, legitimate, independent, and nondiscriminatory reasons to support its employment decision."

The burden of going forward then shifts back to the plaintiff "to establish every element of intentional discrimination, and if the employer had advanced a "legitimate, nondiscriminatory reasons for the challenged actions," to show that the employer's explanation or explanations were pretextual.

In this action seeking to recover damages for alleged employment discrimination Supreme Court, granted the Metropolitan Transportation Authority's [MTA] motion for summary judgment dismissing Edmond Clarke's causes of action alleging employment discrimination on the basis of age and sex, and hostile work environment.

The Appellate Division, in response to Clark's appeal challenging the Supreme Court's ruling, affirmed the lower court's determination.

The Appellate Division explained that in this instance MTA was, prima facie, entitled to judgment as a matter of law dismissing the cause of action alleging employment discrimination on the basis of age and sex by offering legitimate, nondiscriminatory reasons for the challenged actions and demonstrating the absence of material issues of fact as to whether their explanations were pretextual.

A hostile work environment exists where the workplace is "permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." However, said the court, "Various factors, such as frequency and severity of the discrimination, whether the allegedly discriminatory actions were threatening or humiliating or a "mere offensive utterance," and whether the alleged actions "unreasonably interfere[ ] with an employee's work" are to be considered in determining whether a hostile work environment exists."

Further, noted the Appellate Division, "The allegedly abusive conduct must not only have altered the conditions of employment of the employee, who subjectively viewed the actions as abusive, but the actions must have created an "objectively hostile or abusive environment—one that a reasonable person would find to be so."

MTA, said the court, "established [its] prima facieentitlement to judgment as a matter of law dismissing the cause of action alleging the existence of a hostile work environment by demonstrating that the conduct and remarks about which Clark complained were not sufficiently severe or pervasive as to permeate the workplace and alter the conditions of his employment at MTA.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_04421.htm

Circumstantial evidence relied upon to sustain a finding that an employee used his or her employers resources for private purposed in violation of law, rule or regulation

Circumstantial evidence relied upon to sustain a finding that an employee used his or her employers resources for private purposed in violation of law, rule or regulation 

Oberman v New York City Conflicts of Interest Bd., 2017 NY Slip Op 02366, Appellate Division, First Department

The New York City Conflicts of Interest Board, based on "strong circumstantial evidence" including records of numerous calls involving Igor Oberman's work telephone and donations to his political campaign, concluded that Oberman had used his public employer's resources for private purposes in violation of New York City Charter §2604(b)(2) and 53 RCNY § 1-13(a) and (b) and imposed a civil penalty of $7,500.

The Appellate Division dismissed Oberman's appeal, finding that the Board's determination was "based on substantial evidence" and there was no basis to disturb the credibility determinations of the Administrative Law Judge.

The court then opined that "The penalty is not shockingly disproportionate to the offense in light of the extent of [Oberman's] misconduct, the warnings he had received against such misconduct, his failure to accept responsibility, and the high ethical standards to which he was held as an attorney."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_02366.htm

Public policy prohibits an employer from bargaining away its right to remove those employees satisfying the plain and clear statutory requisites for termination

Public policy prohibits an employer from bargaining away its right to remove those employees satisfying the plain and clear statutory requisites for termination

Enlarged City Sch. Dist. of Middletown N.Y. v Civil Serv. Empls. Assn., Inc., 2017 NY Slip Op 02421, Appellate Division, Second Department

Thomas Turco, a member of the Civil Serv. Empls. Assn., Inc. [Union], sustained an on-duty injury to his left shoulder. After Turco was out of work for more than one year on Workers' Compensation leave, the district terminated his employment pursuant to Civil Service Law §71. Turco filed a grievance, alleging that such termination violated the CBA. After Turco's grievance was denied, the Union filed a demand for arbitration. Ultimately the Appellate Division granted the district's motion for a temporary stay of the arbitration proceedings.

Conceding the general policy favoring the resolution of disputes by arbitration, the Appellate Division held that some matters, because of competing considerations of public policy, cannot be heard by an arbitrator, explaining "If there is some statute, decisional law or public policy that prohibits arbitration of the subject matter of dispute, . . . the claim is not arbitrable'."

In this instance the district contended that arbitration of the subject matter of the dispute was prohibited by public policy, and in effect, decisional law. The Appellate Division agreed citing Matter of Economico v Village of Pelham (50 NY2d 120, overruled on other grounds Matter of Prue v Hunt, 78 NY2d 364). In Economico the Court of Appeals held that "public policy prohibits an employer from bargaining away its right to remove those employees satisfying the plain and clear statutory requisites for termination."

The district terminated Turco's employment pursuant to Civil Service Law §71 which provides that a public employer may terminate an employee who is absent due to an occupational disability for a cumulative period of one year if the employee remains physically or mentally unable to return to work.*

The Appellate Division noted that Civil Service Law §71 establish "the point at which injured civil servants may be replaced," as it "strike a balance between the recognized substantial State interest in an efficient civil service and the interest of the civil servant in continued employment in the event of a disability." The same is true, said the court, with respect to the termination of an individual absent on §72 leave for “ordinary disability” -- a disability unrelated to work -- pursuant to §73 of the Civil Service Law.**

Thus, concluded the court, the abrogation of the authority granted to a public employer by the statute to terminate the employee absent on §71 leave is implicated in Turco’s situation. As an arbitrator would not be able to fashion a remedy that would not violate public policy in this matter, the Appellate Division ruled that “a preemptive stay of the instant matter is not improper” and Supreme Court should have granted the school district’s petition to permanently stay arbitration.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_02421.htm

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* N.B. Where an employee has been separated from the service by reason of a disability resulting from an assault sustained in the course of his or her employment, he or she shall be entitled to a leave of absence for at least two years, unless his or her disability is of such a nature as to permanently incapacitate him or her for the performance of the duties of his or her position.

** Although the phrase used in the decision is "be discharged from his position," such termination is not a pejorative dismissal as both §71 and §73, in pertinent part, specifically provide that an individual terminated from a §71 or a §72 leave, as the case may be, “may, within one year after the termination of such disability, make application to the civil service department or municipal commission having jurisdiction over the position last held by such employee for a medical examination to be conducted by a medical officer selected for that purpose by such department or commission.”

Hiring policy prohibiting the appointment of teachers "above Step 5" found unlawful discrimination because of age

Hiring policy prohibiting the appointment of teachers "above Step 5" found unlawful discrimination because of age

Geller v. Markham, 635 F.2d 1027.

In Geller a School Board policy of not initially employing teachers above “Step 5” (i.e. teachers having more than 5 years of teaching experience) was held to constitute unlawful discrimination because of age by the 2nd Circuit Court of Appeals.

The rejected teachers were able to show that 93% of teachers over age 40 had more than 5 years of teaching experience but only 60% of teachers under age 40 had more than 5 years of such experience.