Processing appeals to the Commissioner of Education seeking the removal of a member of a Board of Education

Processing appeals to the Commissioner of Education seeking the removal of a member of a Board of Education

New York State Commissioner of Education MaryEllen Elia has issued decisions in three appeals submitted to her by various parties seeking the remove Carl Paladino and others as a member of the Board of Education of the City School District of the City of Buffalo and certain other board members and administrative officers employed by the school district.

Appeal 1 by teachers and others:

Decisions of the Commissioner of Education, Decision No. 17,148 (August 17, 2017) 

In this appeal Petitioners, Joseph R. Montante, Sophia Howard-Johnson, Maria A. Baker, Rachel Lyons, and Ruyvette Townsend, sought the removal of Carl Paladino [respondent] as a member of the Board of Education of the City School District of the City of Buffalo.

Petitioners are teachers, residents, parents, taxpayers, and “members of the Buffalo educational community” in respondent’s district.  Paladino was elected to a three-year term as a member of the board on May 21, 2013 and was subsequently re-elected on May 17, 2016. 

The Commissioner concluded that Paladino should be removed as a member of the Board of Education as "[t]he record demonstrates that [Paladino] disclosed confidential information regarding collective negotiations under the Taylor Law which he gained in the course of his participation as a board member in executive session, and that his disclosures constituted a wilful violation of law warranting his removal from office pursuant to Education Law §§306 and 2559...."

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume57/d17148

Appeal 2 submitted by certain parents:

Decisions of the Commissioner of Education, Decision No. 17,149 (August 17, 2017)

Petitioners are the parents and guardians of students in the City School District of the City of Buffalo.  Petitioners contended that respondent Paladino published comments in a December 23, 2016 edition of Artvoicemagazine which disrupted district operations and caused “psychological and emotional harm” to district students.  Petitioners further argue that respondent board and respondent Cash’s failure to “act to eliminate or address the extremely” harmful conduct constitutes cause for removal pursuant to Education Law §306.  Petitioners sought an order removing respondents from office pursuant to Education Law §§306 and 2559 as well as the appointment of a receiver “until new elections are held in 2018.” 

The Commissioner dismissed this appeal explaining "On this record, petitioners failed to effectuate personal service of the application upon the individuals of whom they seek removal and, therefore, did not secure jurisdiction over any of the respondents.  Accordingly, the application must be denied for failure to join the individual respondents as necessary parties."

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume57/d17149

Appeal 3, submitted by certain organizations and others:

Decisions of the Commissioner of Education, Decision No. 17,150 (August 17, 2017)

Petitioners in this application consisted of the Buffalo Parent Teacher Organization (“BPTO”), NAACP Buffalo Branch, Lawrence Scott, the Reverend Mark Blue, Eve Shippens, Katherine S. Haq, Rahwa Ghirmatzion, Gretchen Cercone, Chanda O’Donnell de Ramirez, and Rachel Dominguez, seek the removal of Carl Paladino (“respondent”) as a member of the Board of Education of the City School District of the City of Buffalo (“board”).

The record indicated that petitioner BPTO is a non-profit organization based in Buffalo, with over 2,000 members, including parents, guardians, or “other adult standing as a parent for a student” in the district.  Petitioner Scott is a co-chair of the BPTO, taxpayer and resident in the Buffalo City School District.  Petitioner NAACP Buffalo Branch is a non-profit organization based in Buffalo that primarily serves the African-American community in the Buffalo area.  Petitioner Blue is the president of the NAACP Buffalo Branch.  Petitioner Shippens is a co-chair of the BPTO, a district teacher and parent.  Petitioner Haq is a BPTO secretary and parent.  Petitioner Ghirmatzion is the deputy director of PUSH Buffalo, an organization that serves approximately 2,000 district youths per year. Petitioner Cercone is a parent, resident and taxpayer in the district.  Petitioner O’Donnell de Ramirez is a BPTO member, parent and former educator in the district.  Petitioner Dominguez is a BPTO member, parent, resident and taxpayer in the district. 

The Commissioner said that the application must be denied as moot as only matters in actual controversy will be considered by her and decisions are not rendered on a statement of facts which no longer exist or which subsequent events have laid to rest.

Commissioner Elia then noted that Petitioners had requested that the "respondent be permanently removed from his position on the board" and took administrative notice of her  August 17, 2017 decision in Application of the Board of Education of the City School District of the City of Buffalo, 57 Ed Dept Rep, Decision No. 17,147, in which respondent was removed from office for wilful violation of General Municipal Law §805-a by disclosing confidential information which he obtained in the course of his official duties.

Thus, said the Commissioner, "Petitioners’ application for respondent’s removal, therefore, is moot."

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume57/d17150

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The Discipline Book - A concise guide to disciplinary actions involving public officers and employees in New York State set out as an e-book. For more information click on http://booklocker.com/books/5215.html

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Selected reports posted in Employment Law News by WK Workday

Selected reports posted in Employment Law News by WK Workday

Source: Wolters Kulwer

Selected reports posted by WK Workday distributed August 23, 2017

Click on text highlighted in color  to access the full report

No absolute right to presence of union representative in investigatory hearing
 
OK to deny union representation in peer review meeting, but denying union info about peer review unlawful  

No work from home for pregnant employee who taught, met with patients, supervised staff

Abolishing a position for economic reasons

Abolishing a position for economic reasons

Decision of the Commissioner of Education, Decision No. 17,142

The Director of Athletics and Physical Education [Petitioner] was granted tenure in this tenure area in 2008. In May 2013 the superintendent of schools advised the Petitioner that his position was to be abolished for economic reasons and at its meeting held on June 20, 2013, the School Board approved the superintendent’s recommendation to abolish the Petitioner position effective June 21, 2013.  

Petitioner appealed the School Board's action to the Commissioner of Education contending that [1] his position was improperly excessed in violation of §135.4 of the Commissioner’s regulations, which regulation requires all public school districts with a high school to employ a director of physical education and [2] he was terminated in bad faith because the district created several new positions after he was terminated. He asked the Commissioner of Education to direct that the School Board reinstate him to his former position, with back pay and benefits. 

In response, the School Board alleged that it had the statutory authority to abolish Petitioner’s position for sound economic and budgetary reasons and that it acted in good faith in its decision to abolish Petitioner’s position.  In addition, the School Board asserted that no new employee has been hired to replace Petitioner and that, instead, the his duties had been distributed "among three long-standing employees; none of who are performing more than 50% of Petitioner’s former duties."*

The Commissioner ruled that Petitioner request that he be reinstated to this prior position was moot as he had earlier been reinstated to his former position.**

However, the Commissioner declined to dismiss Petitioner's claim that the School Board acted arbitrarily and “without a rational basis” in abolishing his position. With respect to the merits of this claim, the Commissioner noted that it was "well-settled that the authority to create and/or abolish positions rests with the board of education, which may abolish and/or consolidate positions for sound economic reasons, so long as the decision is not motivated by bad faith."

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief.

Here the superintendent said that the decision to abolish Petitioner’s position was driven by budgetary constraints and her affidavit explained that "the district paid three current administrators a small stipend to carry out a portion of Petitioner’s former duties, instead of paying Petitioner’s high salary, which resulted in a cost savings to the district of approximately $144,975." The School Board contended that it is permissible for a board of education, acting in good faith, to abolish a position for economic reasons and fractionalize its duties among multiple other existing positions.

The Commissioner ruled that Petitioner [1] failed to refute respondent’s assertion that his position was abolished in order to realize cost savings from fractionalization of his duties and [2] failed to demonstrate that by abolishing the Director of Athletics and Physical Education position, the School Board violated 8 NYCRR §135.4(c)(4)(iii).

The Commissioner said that the record indicated that the school district continued to employ a Director of Physical Education [40%] following the abolition of Petitioner’s position, ruling that this complied with this regulation.  The Commissioner commented that "even if more than 50% of the duties of Petitioner's former position involved his responsibilities as Director of Athletics and Physical Education, the regulation does not prescribe a particular percentage of duties that must be dedicated to the responsibilities of a Director of Physical Education."

Petitioner also alleged that the School Board acted in bad faith as evidenced by its creating new positions, including a Director of Social Studies, Director of Science, Technology and Engineering, Director of Science and an Assistant Superintendent for Special Education position.  

The Commissioner said that the burden of proving bad faith is on the party asserting it, and indicated that the fact that other new positions unrelated to Petitioner’s former position were created at the same time or after the abolition of a position for economic reasons does not in and of itself support finding that the School Board acted in bad faith. The Commissioner ruled that "[o]n the record before me, Petitioner has not met his burden of proving that his position was abolished in bad faith."

In addition, Petitioner did not establish that the duties of the new positions he cited were similar to those of his former position.  Rather the duties of Petitioner’s former position "were fractionalized and re-distributed among three current employees."  As Petitioner’s position was abolished for fiscal reasons and none of "the current three employees" were assigned more than 50% of the duties of his former position, the Commissioner found that the School Board had properly abolished his position, which action resulted in his being excessed and his name being placed on a preferred list.

* In Currier v Tompkins-Seneca-Tioga BOCES, 80 AD2d 979, the Appellate Division ruled that the reassignment of the work of the incumbent of an abolished position among five other (retained) employees, none being assigned more than 50% of the duties of the abolished position, was lawful.

** Petitioner was reinstated as Director of Athletics, Physical Education, Health and Chairperson District-wide Health and Safety Team from the relevant preferred eligible list effective August 31, 2015 

 

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume57/d17142

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The Layoff, Preferred List and Reinstatement Manual -This e-book reviews the relevant laws, rules and regulations, and selected court and administrative decisions. For more information click on http://booklocker.com/books/5216.html

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The Doctrine of Sovereign Immunity held to have been waived with respect to litigation challenging an arbitration award

The Doctrine of Sovereign Immunity held to have been waived with respect to litigation challenging an arbitration award

In Re: The Arbitration Between Hawai'i State Teachers Association and the State of Hawai'i, Department of Education, Hawai'i Supreme Court, SCWC-11-0000065

In the United States the Doctrine of Sovereign Immunity stands for the proposition that the Federal government or a State government cannot be sued without its permission.* This doctrine was tested in a case decided by Hawai'i's highest court ... In Re: Arbitration Between Hawai'i State Teachers Association and the State Of Hawai'i, Department Of Education [DOE].

The genesis of this case was the termination of a public school teacher for allegedly smoking marijuana and possessing alcohol while in her classroom.  The Hawai'i State Teachers Association [HSTA] filed a grievance on behalf of the teacher pursuant to the relevant collective bargaining agreement [CBA]. Article V.G.2.f of the agreement provided that the arbitrator could enter an award in favor of the grievant if he or she determined that Employer's actions were improper. Here the arbitrator sustained the grievance, ruling that the State lacked just cause to terminate the teacher and awarded the teacher back pay and benefits.

The arbitrator ordered that Morita be restored to her position with back wages “with interest at the rate of ten (10) percent per annum on any unpaid amounts that are due and owing.” Ultimately HSTA sued DOE seeking the award of 10% interest on the back pay in the arbitration award and its fees.

The Supreme Court said that the "State was a party to the collective bargaining agreement, which explicitly provided for disputes to go to arbitration and stated that '[t]he arbitrator may award back pay to compensate the teacher wholly or partially for any salary lost' [and] [t]his court has recognized that 'arbitrators have the authority to make an award of interest as part of the determination of the total amount of compensation to which the prevailing party is entitle'” and that prejudgment interest is 'an element of complete compensation.'”

Among the issues raised by DOE's was its contention that the doctrine of sovereign immunity protected it from an arbitrator's award of prejudgment interest, the Supreme Court affirmed the Intermediate Court of Appeals [ICA] conclusion that the State waived its sovereign immunity in the arbitration proceedings.

In the words of the Supreme Court, "We hold that, under the facts of this case, it does not. Because judicial review of an arbitration award is confined to the strictest possible limits, and because the arbitrator in this case reasonably interpreted the arbitration agreement in fashioning the award, we hold that the arbitrator did not exceed his authority in awarding prejudgment interest against the [DOE]. We also hold that the award of attorneys' fees and costs on appeal was proper."

* The Doctrine is reflected in the Eleventh Amendment to the United States Constitution which provides that "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." Thus a State cannot be sued in federal court without its consent or an expressed waiver of its immunity. Such immunity, however, is not viewed as being available to a political subdivision of a State.

The decision is posted on the Internet at:

http://caselaw.findlaw.com/hi-supreme-court/1870779.html

Determining if a grievance alleging a violation of a provision in a collective bargaining agreement may be submitted to arbitration

Determining if a grievance alleging a violation of a provision in a collective bargaining agreement may be submitted to arbitration

City of Yonkers v Yonkers Fire Fighters, Local 628, IAFF, AFL-CIO, 2017 NY Slip Op 06073, Appellate Division, Second Department

Yonkers Fire Fighters Local 628, IAFF, AFL-CIO [Local 628] filed a grievance alleging that the City of Yonkers [Yonkers] engaged in a continuing practice of delaying and denying medical care and treatment claimed by its members pursuant to General Municipal Law §207-a after suffering an alleged line of duty injury. Yonkers denied the grievance and the Local demanded arbitration of its grievance.* 

Yonkers filed a petition pursuant to CPLR Article 75 seeking a court order permanently staying arbitration while the Local 628 cross-moved seeking an order compelling that the grievance be submitted to arbitration. Supreme Court denied Yonkers' petition and granted the Local 628's cross-motion. The Appellate Division affirmed the Supreme Court's actions.

The Appellate Division explained that public policy in New York favors arbitral resolution of public sector labor disputes if the demand for arbitration meets a two-prong test. The first test: the court must determine if there is any statutory, constitutional, or public policy prohibition against arbitrating the grievance. If it finds no such barrier, the court then must determine whether the parties agreed to arbitrate the particular dispute by examining their collective bargaining agreement.

Noting that Yonkers did not claim any statutory, constitutional, or public policy prohibition to arbitration of this grievance, the Appellate Division said that the second test may be satisfied if the court finds that "there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the [collective bargaining agreement (CBA)]."

Finding that the relevant arbitration provisions set out in the CBA provide for arbitration of any grievance "involving the interpretation or application of any provision of this Agreement," and there was a reasonable relationship between the subject matter of the dispute, which involves the processing of General Municipal Law §207-a benefits to firefighters injured in the line of duty, the Appellate Division concluded that the grievance was arbitrable.

Addressing Yonkers' claim that the Local's grievance was untimely, the Appellate Division pointed out that the "threshold determination of whether a condition precedent to arbitration exists and whether it has been complied with, is for the court to determine."

In contrast, said the court, "[q]uestions concerning compliance with a contractual step-by-step grievance process have been recognized as matters of procedural arbitrability to be resolved by the arbitrators, particularly in the absence of a very narrow arbitration clause or a provision expressly making compliance with the time limitations a condition precedent to arbitration."

Here the CBA did not specify that "timely commencement of the grievance is a condition precedent to arbitration." Accordingly, the Appellate Division ruled that the question of whether the Local timely initiated its grievance ... must be resolved by the arbitrator, not the court.

* A third-party administrator, Pomco, Inc., processed GML §207-a claims filed by Yonkers firefighters on behalf of Yonkers.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_06073.htm

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New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending August 19, 2017

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending August 19, 2017

Source: Office of the State Comptroller

Click on text highlighted in color to access the full report

Municipal Audits released

New York State Comptroller Thomas P. DiNapoli announced his office completed audits of the 

Village of Painted Post – Board Oversight (Steuben County)
The board did not adopt policies and procedures for cash receipts and disbursements, processing of user charges, payroll and information technology. The board also did not make budget transfers on a timely basis to control spending during the year. 

Town of Schaghticoke – Water Operations (Rensselaer County)
Duties related to billings, collections, deposits and recordkeeping were not adequately segregated. The board also did not approve water billings and customer account adjustments, and did not perform an annual audit of the clerk’s records and reports. 

City of Yonkers – Information Technology (Westchester County)
The IT department’s acceptable computer use policy was not signed or acknowledged by all employees and city officials have also not classified personal, private and sensitive information based on its level of sensitivity and the potential impact should that data be disclosed, altered or destroyed without authorization. In addition, city officials have not ensured that employees received adequate cyber security training and have not adopted a breach notification policy or a disaster recovery plan. 

Unregistered Auto Repair Shops 

The Department of Motor Vehicles has not done enough to prevent automotive repair shops and inspection stations from operating without valid registrations, putting consumers at an increased risk to be scammed by dishonest businesses, according to an auditby New York State Comptroller Thomas P. DiNapoli.

Applying the substantial evidence test rather than the arbitrary and capricious test in the course of litigation

Applying the substantial evidence test rather than the arbitrary and capricious test in the course of litigation

2017 NY Slip Op 06077, Appellate Division, Second Department

The Petitioner filed a grievance with the Unified Court System [UCS] alleging that Court Office Assistants had been given responsibilities constituting out-of-title work. After a grievance meeting, the Acting Deputy Director of Labor Relations of the UCS issued a determination denying the grievance.

Petitioner challenged the Acting Director's determination by filing a CPLR Article 78 action in Supreme Court. Supreme Court concluded that the challenged duties did not constitute out-of-title work and that the administrative determination was not arbitrary or capricious. The court denied the petition and dismissed the proceeding.

Contending that Supreme Court erred in failing to apply the "substantial evidence" standard of review in deciding the petition,* Petitioner appealed.

The Appellate Division, sustaining the lower court's ruling, explained that "a substantial evidence question is presented only where a quasi-judicial evidentiary hearing has been held." Notwithstanding the fact that Petitioner had the "right to be heard . . . and to present facts in support of [his] position" at the grievance meeting," this did not render the grievance meeting "a quasi-judicial proceeding involving the cross-examination of witnesses and the making of a record within the meaning of Civil Practice Law and Rules §7803(4)."

As the administrative determination in this case was made after a grievance meeting, in contrast to having been made after a quasi-judicial evidentiary hearing, the Appellate Division ruled that Supreme Court "properly concluded that the relevant standard of review was whether the Acting Director's "determination was made in violation of lawful procedure, was affected by an error of law, or was arbitrary and capricious or an abuse of discretion."

Addressing Petitioner's alternative contention -- that the Deputy Director's determination was arbitrary and capricious -- the Appellate Division said that "[a]n action is arbitrary and capricious when it is taken without sound basis in reason or regard to the facts" and "[i]n applying the arbitrary and capricious' standard, a court inquires whether the determination under review had a rational basis." Here, said the court, the Deputy Director's determination that the challenged duties did not constitute out-of-title work was not arbitrary and capricious as work is not considered out-of-title if it is related to, similar in nature to, or a reasonable outgrowth of, the employee's in-title work."

Finding that Petitioner failed to identify any duty that has been assigned to Court Office Assistants that is not related to the types of general tasks enumerated in the relevant title standard, the Appellate Division concluded that the Deputy Director's ruling that the challenged duties were reasonably related to the duties described in the Court Office Assistant title standard was not arbitrary or capricious.

* CPLR §7804 provides, in pertinent part, "(g) Hearing and determination; transfer to appellate division. Where the substantial evidence issue specified in question four of §7803 is not raised [i.e., whether a determination made as a result of a hearing held, and at which evidence was taken, pursuant to direction by law is, on the entire record, supported by substantial evidence], the court in which the proceeding is commenced shall itself dispose of the issues in the proceeding. Where such an issue is raised, the court shall first dispose of such other objections as could terminate the proceeding, including but not limited to lack of jurisdiction, statute of limitations and res judicata, without reaching the substantial evidence issue." [Emphasis supplied.]

 

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_06077.htm

Employment Law News from WK WorkDay

Employment Law News from WK WorkDay 

Source: Wolters Kulwer

Selected reports posted by WK Workday distributed August 17, 2017

Click on text highlighted in color  to access the full report

No error in refusing to ‘look through’ arbitration petition to defeat subject matter jurisdiction 

Minnesota whistleblower need not suspect illegal conduct to bring retaliation claim  

American workplace ‘physically, emotionally taxing,’ Rand Corp survey find

Reconsidering, DC Circuit holds that denying lateral transfer can be Title VII adverse action
 

Matter of the Application of the Board of Education of the City School District of the City of Buffalo for the removal of Carl Paladino as a member of the Board of Education of the City School District of the City of Buffalo

Matter of the Application of the Board of Education of the City School District of the City of Buffalo for the removal of Carl Paladino as a member of the Board of Education of the City School District of the City of Buffalo

Decisions of the Commissioner of Education, Decision No. 17,147

The Commissioner concluded that Carl Paladino should be removed as a member of the Board of Education as "[t]he record demonstrates that [Paladino] disclosed confidential information regarding collective negotiations under the Taylor Law which he gained in the course of his participation as a board member in executive session, and that his disclosures constituted a wilful violation of law warranting his removal from office pursuant to Education Law §§306 and 2559...."

The text of the decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume57/d17147

Determining seniority and tenure area of teachers in the event of the abolishment of positions

Determining seniority and tenure area of teachers in the event of the abolishment of positions

Decisions of the Commissioner of Education, Decision No. 17,137

Petitioner [M] appealed the decision of the School Board [Board] terminating her employment as the result of "the abolishment of her position."

At the time of this appeal the district employed three teachers, M held a permanent certification as a teacher of Nursery, Kindergarten and Grades 1-6, as well as a Students with Disabilities (Grades 1-6) professional certificate. On September 1, 1998, M had been given a probationary appointment in the position of Teacher - Primary Grades and granted tenure in the Elementary Education K-6 tenure area effective September 1, 2001. 

The other staff members at this time consisted of two teachers, C and N, and two teaching assistants.  C was given a probationary appointment in the Elementary Education K-6 tenure area in September 2009 and was subsequently granted tenure effective September 1, 2012.  N, the then third teacher in the district, was given a probationary appointment on September 1, 2011 in the Elementary Education K-6 tenure area.

Effective July 1, 2004, M was designated as a Teacher on Special Assignment with a "Teacher Center." Although M served as the Director at the Teacher Center, she remained an employee of the district, was continued on its payroll and continued to accrue seniority in the Elementary Education K-6 tenure area.  The district was reimbursed for her "district-paid compensation" by the Teacher Center.

At its April 15, 2014 meeting, the Board adopted a resolution establishing a “Hybrid Tenure Area: Elementary Education K-6/Special Education” and the two teachers then in service, C and P, were granted tenure in the new “hybrid” tenure area and their seniority credit was not affected.  N, the third teacher on staff, had been appointed as a probationary teacher in the Elementary Education K-6 tenure area effective September 1, 2011 and her probationary appointment was “carried forward” to the “hybrid” tenure area and her service thus far with the district was credited in the new, hybrid tenure area and she was subsequently granted tenure effective September 1, 2014. M, however, was retained in the K-6 Elementary tenure area.

P resigned and by letter dated May 21, 2014, M advised the district of her intention to return to the district in the fall. M was then notified that the position she was seeking to fill upon her return required a special education certification, which certification M did not then possess.  However, M notified the district she would possess the necessary special education certificate by the beginning of the 2014 school year. On August 18, 2014, M was assigned to non-classroom curriculum development duties in the district.

At its April 16, 2015 meeting, the board voted to abolish one teaching position in the Elementary Education K-6 tenure area effective June 30, 2015 and M was determined to be the least senior teacher in that tenure area. As a result M was excessed, effective June 30, 2015. 

M, asserting that she was the most senior teacher in the district, appealed her being excessed to the Commissioner of Education, seeking reinstatement with full salary and benefits, retroactive to June 30, 2015.  M contended that the Board’s actions granting retroactive tenure and seniority credit to C and N in the new “hybrid” tenure area was illegal, arguing that the board’s creation of a “hybrid” Elementary Education K-6/Special Education tenure area, and the transfer of these two teachers to that tenure area while leaving her in the prior Elementary Education K-6 tenure area constitutes impermissible retroactive restructuring of her tenure area and circumvented her tenure and seniority rights. 

The Board, in rebuttal, [1] raised a procedural issue, contending that M's appeal must be dismissed "for failure to join necessary parties," and [2] contended that its creation of a “hybrid” Elementary Education K-6/Special Education tenure area was legally proper.

  

In support of its claim that necessary parties had not been served, the Board argued that there were two teaching assistants in the district that work under the supervision of  C and N and should M prevail and be reinstated, “the likely result” will be the excessing of  N, and one or both of the teaching assistants for budgetary reasons.

Noting that a party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such and be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense, the Commissioner rejected the Board's argument that M's appeal must be dismissed for failure to join necessary parties, .

Here the Board eliminated a position in the Elementary Education K-6 tenure area as a result of which M was excessed and to which she seeks reinstatement.  Teaching assistants, explained the Commissioner, hold certificates that are separate and distinct from elementary education teachers and are authorized to act only under the general supervision of a licensed or certified teacher and do not serve in the same tenure area as a classroom teacher such as M.  Thus, such individuals will not, as matter of law, be affected should M prevail in this matter. The Commissioner pointed out that Education Law §3013(2) provides that when a position is abolished, “the services of the teacher having the least seniority in the system within the tenure of the position abolished shall be discontinued.” 

Further, the Commissioner said that the Board's "speculation as to how the district would resolve a budgetary issue should M prevail in this appeal is insufficient to support a conclusion that the teaching assistants would be adversely affected, warranting their joinder as respondents."

Turning to the merits of M's appeal, the Commissioner acknowledged the Board's argument that the district was exempt from the tenure areas requirements set forth in Part of 30 of the Rules of the Board of Regents "because it employs fewer than eight teachers." However, said the Commissioner, the Board is still subject to Education Law §3012-a, which defines the elementary tenure area.

 

Significantly, the Commissioner observed that §3012-a provides that, with exceptions not relevant here, “elementary tenure area shall mean kindergarten through grade 6 for teachers employed in such grade levels [after May 13, 1975].  All teachers holding tenure [as of May 13, 1975] in the kindergarten tenure area or grade one through six tenure area shall be deemed to hold tenure in the elementary tenure area as defined by this section.” The Commissioner pointed out that, as a matter of law, "all teachers in kindergarten through grade six, apart from those in a special tenure area, shall be in a single elementary tenure area without regard to the organizational pattern of the district."

Another consideration: the Commissioner observed that a “hybrid” elementary education/special education tenure area is not permitted under Education Law §3012-a, nor is it permissible to simultaneously have an elementary tenure area and such a hybrid tenure area as the Board attempted to create in this case. 

In the words of the Commissioner, the Board "had no authority to create such hybrid tenure area" and its April 15, 2014 action establishing the “hybrid” Elementary Education K-6/Special Education tenure area, as well as the transfer of C and N to that “hybrid” tenure area, was not permissible "and void ab initio."  This meant that C and N remained in the Elementary Education K-6 tenure area for the purposes of determining seniority in the event of a layoff.

Noting that when abolishing a position in the Elementary Education K-6 tenure area the Board, was required to excess the teacher(s) “having the least seniority in the system within the tenure of the position abolished,” the Commissioner said that, based on her findings, C and N never served in the unauthorized “hybrid” Elementary Education K-6/Special Education tenure area. Rather they remained in the authorized Elementary Education K-6 tenure area and the Board must calculate the seniority of M, C and N as of April 16, 2015, in the Elementary Education K-6 tenure area. 

Further, if the Board finds that M was not the least senior teacher in that tenure area, it must reinstate her to her position with back pay and benefits effective June 30, 2015.

The decision is posted on the Internet at: 

http://www.counsel.nysed.gov/Decisions/volume57/d17137

_______________________________

The Layoff, Preferred List and Reinstatement Manual -This e-book reviews the relevant laws, rules and regulations, and selected court and administrative decisions. For more information click on http://booklocker.com/books/5216.html

_______________________________ 

  

An agreement to submit a dispute to arbitration will be enforced by the court

An agreement to submit a dispute to arbitration will be enforced by the court

Adams v Metropolitan Transp. Auth., 2017 NY Slip Op 05946, Appellate Division, Second Department

As a general rule, arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he or she has not agreed so to submit. Further, a party may not be compelled to arbitrate a dispute unless there is evidence affirmatively establishing that the parties clearly, explicitly, and unequivocally agreed to arbitrate.

In a proceeding pursuant to CPLR Article 75 to compel arbitration Supreme Court granted the petition directed the parties to proceed to arbitration. The Appellate Division affirmed the lower court's ruling.

As to the genesis of this Article 75 action, since 1973, Nassau County provided bus service for the County through an operating agreement with a subsidiary of the Metropolitan Transportation Authority [MTA], the MTA-Long Island Bus [MTA-LIB]. The operating agreement set out various protections that were set forth in various agreements, known §13(c) agreements, which included arbitration provisions.

In 2011, MTA discontinued its bus service in the County and the County contracted with Veolia Transportation Services, Inc. [Veolia] to provide bus services. Veolia agreed that the §13(c) agreements that had been entered into by the County would continue. These agreements provided for arbitration of claims by the employees of the bus service.

Certain employees of the MTA-LIB were terminated and subsequently hired by Veolia. These employees, contending that as a result of moving their employment to Veolia they encountered "negative employment consequences" that were compensable under the §13(c) agreements, demanded that their complaints be submitted to arbitration.

The Appellate Division said that Supreme Court had correctly determined that MTA, MTA-LIB, the County and Veolia "had all clearly and expressly agreed to arbitrate the claims alleged by the former MTA-LIB employees pursuant to the §13(c) agreements and that any conditions precedent to seeking arbitration had been satisfied."

Accordingly, the Appellate Division found that the lower court had properly granted the former MTA-LIB employee's petition to compel arbitration.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_05946.htm

A notice of termination may constitute an adverse employment action within the meaning of Title VII and the Family Medical Leave Act

A notice of termination may constitute an adverse employment action within the meaning of Title VII and the Family Medical Leave Act

United States Court of Appeals, 2nd Circuit, Docket #16-3140

The Second Circuit US Court of Appeals ruled that "a notice of termination itself constitutes an adverse employment action, even when the employer later rescinds the termination."

Citing two decisions by the Supreme Court, Delaware State College v Ricks, 449 U.S. 25 and Chardon v Fernandez, 454 U.S. 6, the Second Circuit held that plaintiff's notice of termination in this case may, itself, constitute an adverse employment action notwithstanding its revocation before it became effective for the purpose of litigating an alleged unlawful discrimination or other claim.

Although in this action the court found that the rescission of a notice of termination given to an employee may not constitute an adverse employment action and other facts alleged in the complaint "were insufficient to establish constructive discharge nor a hostile work environment," the court found that the plaintiff did state a plausible claim of "discriminatory termination and interference with her FMLA rights."

The Circuit Court remanded the matter to the district court for the purpose of the lower court reconsidering " ... its decision to decline to exercise supplemental jurisdiction over the [plaintiff's] state and city law [unlawful discrimination] claims."

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/e303b236-2fce-492b-9315-69b43828ec4b/1/doc/16-3140_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/e303b236-2fce-492b-9315-69b43828ec4b/1/hilite/

Employment Law News from WK WorkDay

Employment Law News from WK WorkDay 

Source: Wolters Kulwer

Selected reports posted by WK Workday distributed August 11, 2017

Click on text highlighted in color  to access the full report 

Grievance reveals possible Hatch Act violations

Despite his racist comments toward replacement workers, firing picketer violated NRLA

Head Start grant recipient must repay $1.3M used for employee bonuses

Employer can’t avoid $305K in penalties for Form I-9 and other INA violations

Waffle House’s arbitration agreement included valid delegation clause supporting motion to compel

 

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending August 12, 2017

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending August 12, 2017

Click on text highlighted in color  to access the full report

New York State Comptroller Thomas P. DiNapoli announced the following items have been issued:

Comptroller DiNapoli and A.G. Schneiderman Announce 2 to 6 Year Prison Sentence for Former Councilman Ruben Wills in Public Corruption Scheme

State Comptroller Thomas P. DiNapoli and Attorney General Eric T. Schneiderman announced the sentencing of former New York City Councilman Ruben Wills to 2 to 6 years in prison; Wills was also ordered to pay nearly $33,000 in restitution and a $5,000 fine.

Former Town of Minerva Clerk Pleads Guilty

Jordan Green, the former clerk to the supervisor for the town of Minerva, pleaded guilty to fourth degree grand larceny, official misconduct and tampering with public records, after an investigation and audit found she stole thousands of dollars from the town.

Adirondack Research posts its 2017 Research Newsletter on the Internet

Adirondack Research posts its 2017 Research Newsletter on the Internet

Adirondack Research Director Ezra Schwartzberg has announced that the organization has posted its Annual Adirondack Research Newsletter, In the Field, on the Internet in the unique form of a StoryMap – a medium that allows the organization to bring its 2017 newsletter to life using maps, photos, graphics, video and text.

The Newsletter is best viewed on a computer, but may be read on a smartphone turned sideways. Click here to view the newsletter: http://arcg.is/1XiKb0

Information about Adirondack Research is posted on the Internet at http://adkres.org/.

Hearing Officer is entitled to weigh the evidence in making his or her decision when the parties' present conflicting medical evidence

Hearing Officer is entitled to weigh the evidence in making his or her decision when the parties' present conflicting medical evidence 

2017 NY Slip Op 02270, Appellate Division, Fourth Department

A  police officer [Petitioner], filed a CPLR Article 78 petition seeking to annul the determination of the Hearing Officer that he was medically qualified to perform his light duty assignment and thus not entitled be continued on  General Municipal Law §207-c leave.

Petitioner was receiving benefits pursuant to §207-c as a result of prior on-duty injuries. Returning to work in a light-duty capacity, Petitioner twisted his ankle while at work and allegedly exacerbated his prior injuries.

Following a hearing, the Hearing Officer determined that Petitioner was able to perform his light-duty assignment notwithstanding the injury to his ankle and thus Petitioner was not totally disabled. Accordingly, the employer discontinued Petitioner's §207-c leave status.

The Appellate Division said it agreed with Petitioner's employer that the Hearing Officer's determination that Petitioner could continue to perform the light duties to which he was assigned was supported by substantial evidence.

The court said that although Petitioner presented evidence suggesting that he was not able to work at all, "the Hearing Officer instead credited other evidence that Petitioner could perform a light-duty assignment" and unanimously dismissed the petition.

In the words of the Appellate Division, "[t]he Hearing Officer was entitled to weigh the parties' conflicting medical evidence" and a court "may not weigh the evidence or reject [the Hearing Officer's] choice where the evidence is conflicting and room for a choice exists."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_02270.htm

__________________________

Disability Benefits for fire, police and other public sector personnel - an e-book focusing on retirement for disability under the NYS Employees' Retirement System, the NYS Teachers' Retirement System, General Municipal Law Sections 207-a/207-c and similar statutes providing benefits to employees injured both "on-the-job" and "off-the-job." For more information click on http://booklocker.com/books/3916.html

__________________________  

 

Claimant ineligible to receive unemployment insurance benefits after failing to comply with certification and registration requirements

Claimant ineligible to receive unemployment insurance benefits after failing to comply with certification and registration requirements

2017 NY Slip Op 06040, Appellate Division, Third Department

Claimant, a teaching assistant, filed a claim for unemployment insurance benefits after she was "laid off from her job" in April, 2015.

The Department of Labor initially found Claimant eligible to receive benefits, but this determination was overruled by an Administrative Law Judge [ALJ] in October 2015 following a hearing. Claimant appealed and, in March 2016, Claimant was notified that the Unemployment Insurance Appeal Board had reversed the ALJ's decision and found that Claimant was eligible to receive such benefits.

While her appeal was pending, however, Claimant "failed to certify" for benefits between December 21, 2015 and March 6, 2016 in accordance with Labor Law §596 and the Department found her ineligible for benefits during this time period.

This Department's determination was sustained by an ALJ following a hearing. The Board affirmed the ALJ's ruling, explaining that the Claimant was ineligible to receive unemployment insurance benefits because she did not comply with Labor Law §596 certification and registration requirements.

Claimant had contended that she "failed to certify" during the time period in question because she did not feel comfortable doing so "given the ALJ's decision finding her ineligible for benefits." Claimant, however,  admitted that both the Unemployment Insurance Handbook and the ALJ's decision advised her that she should continue to certify for benefits while her case was on appeal and that "she made a mistake by not doing so."

The Appellate Division denied Claimant's challenge to the Board's ruling, explaining that "[i]t is well settled that registering and certifying for benefits in accordance with the Labor Law and applicable regulations is a necessary prerequisite to eligibility for benefits." Further, said the court, "[w]hether good cause exists to excuse a claimant's noncompliance with these requirements is a factual issue for the Board to resolve."

The Appellate Division held that, considering the relevant facts in this case, substantial evidence supported the Board's finding that good cause did not exist to excuse Claimant's "failure to certify" and its conclusion that she was ineligible to receive benefits. Thus, said the court, it "found no reason to disturb the Board's decision."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_06040.htm

From the LawBlogs

From the LawBlogs

Source: Findlaw ADA, August 9, 2017

Esparza v. KS Industries, L.P.  -(California Court of Appeal) - Affirming an order denying the motion to compel arbitration insofar as it denies arbitration of the Private Attorneys General Act representative claims seeking civil penalties that are paid to the Labor and Workforce Development Agency and directing additional proceedings to determine the plaintiff's intent regarding their pursuit of other claims in the case of a former employee alleging employment violations.

Keep Reading

Baker v. Italian Maple Holdings, LLC - (California Court of Appeal) - Reversing the trial court's order denying defendant's motion to compel arbitration in the case of a woman entered into a nursing facility who executed an arbitration agreement that included a 30-day cooling off period for rescission during which time she died because the fact of her death did not render the agreements unenforceable.

Keep Reading

Kaiser Foundation Health Plan, Inc. v. The Superior Court of Los Angeles County - (California Court of Appeal) - Issuing a preemptory writ of mandate directing the trial court to vacate a judgment confirming an arbitration panel's award and entering a new order dismissing a petition to vacate the award because the award was not an award for which the court held jurisdiction to confirm.

Keep Reading