Legal Briefs & Resources
Contact Kim Hoggan at email@example.com with any questions regarding the salary surveys.
This article is intended to be a friendly reminder as to the importance of maintaining confidentiality in communications between unit members and also with SAANYS counsel. While we recognize confidentiality is a bit of a broad concept, we want to point out some reasons for maintaining confidentiality, and also some tips for going about doing so. Ultimately, the confidentiality in communications we speak of deals with those which we transmit by e-mail or text message.
Although this booklet provides important information, it is not intended to be a viable substitute to speaking directly with a SAANYS attorney or negotiator. If you are nearing the time to negotiate a new contract, please call SAANYS at (518) 782-0600 or email Kim Hoggan at firstname.lastname@example.org.
This newly updated guidebook outlines the legal processes involved in termination and members’ related legal rights. Also discussed within are tenure areas, transfers, bumping rights, seniority/preferred lists, and more. This booklet is an especially important resource for members while addressing staffing and employment issues in our current environment. Download the booklet today by clicking here.
When you or one of your unit members are faced with the prospect of a lengthy leave of absence
because of a medical or family-related emergency, it is important to know that the duration of leave
is not necessarily limited to contractually accrued sick time. The Family and Medical Leave Act
(FMLA) requires private and public employers in the United States to provide unpaid, jobprotected leave to employees for medical and family related care, including the care of immediate
Under FMLA, eligible employees may take up to 12 weeks of FMLA leave every 12 months.
FMLA leave may be taken as a continuous period of leave; it may be broken up throughout the
designated 12 month period on a day-by-day basis; it may be used to reduce hours worked daily,
if medically necessary.
This article will discuss some general principles of FMLA leave and also address issues specific
to public school administrators, including the consequences of taking FMLA leave on pension
calculations and the duration of a probationary appointment.
Eligibility for FMLA Leave
In order to be eligible for FMLA leave, employees need to have worked for their current district
for a total of 12 months. The 12-month eligibility period need not be continuous.
Further, the employee must have worked for the district at least 1,250 hours in the 12 months
immediately preceding the requested leave. 1,250 hours is roughly equal to 24 hours a week over
the course of a calendar year.
Finally, the employee must be employed in a district that has at least 50 employees. Accordingly,
employees in some of the smallest districts may not be eligible.
Employers are required to grant FMLA leave to care for serious health conditions experienced by
employees, their children, their spouses, or their parents. A serious health condition renders the
employee unable to perform some or all essential job functions, including absences required to
attend necessary medical appointments. FMLA leave is also available for bonding time following
childbirth or adoption.
Requesting FMLA Leave
SAANYS recommends that, when requesting FMLA leave, members do so in writing, stating the
reasons the leave is requested. The notice should be provided as soon as it is foreseeable, and,
excepting emergencies, at least 30 days before leave will be required. Members should reach out
to a SAANYS representative if they have any questions about requesting FMLA leave. Note that
employers are permitted to request information from an employee’s medical provider before
granting a leave request. Generally, the employee will have 15 days to provide the requested
Calculating Leave Time
Under FMLA, the employer designates the 12-month period based on which an employee’s 12
weeks of leave is calculated. The employer may designate the 12-month period in one of four
ways: (1) the calendar year (Jan. 1 to Dec. 31); (2) any other fixed 12-month period, including
individual periods commencing on each employee’s start date; (3) the 12 months beginning the
date on which the employee first requests leave; or (4) a backward-looking 12-month period,
where, for any leave requested, the employer will look back 12 months to determine whether any
leave has been taken, and what amount of leave remains.
Generally, FMLA leave may be taken all at once or, when medically necessary, intermittently in
weeks, days or even hours. FMLA leave may only be charged to an employee for time actually
taken, and time that an employee is not scheduled to report to work does not count against the
remaining leave time available.
Concurrent Use of Contractual Sick Time, Pensionability, and Tenure
Contractually accrued sick time may be used simultaneously with FMLA leave, and employers
may require that it is. Periods of FMLA leave during which contractually accrued sick time is in
use count toward employees’ pension benefits under TRS and toward the completion of
administrators’ probationary appointments. Any FMLA time that is taken after contractually
accrued sick time runs out, or any time when an employee is permitted and elects to take FMLA
leave non-concurrently is not pensionable and will not contribute to a tenure determination.
Employee Protections During and After Leave
Continuation of health insurance. Employers must continue an employee’s health insurance
benefits during FMLA leave as though the employee was not on leave.
Prohibition on discrimination. Employers are forbidden from retaliating against employees who
request or use FMLA leave. Retaliation includes, discipline, threats of discipline, negative
performance reviews, or denial of a promotion or other rights based on leave taken or requested.
Returning to work. Following FMLA leave, employees have the right to return to the same position
they previously occupied or an equivalent job that provides the same, pay, benefits, and other terms
and conditions of employment.
Members are encouraged to contact a SAANYS representative if they feel their FMLA rights or
protections have been violated.
The legal department at SAANYS consistently handles several calls throughout the day from members and unit leadership regarding a member being notified by their district that the member has been summoned to appear for questioning, regarding an incident, claim or point of concern from the district’s perspective. From a legal perspective, it is our intention to advise the unit leadership and the member as to what they can expect during questioning, what their rights are, and what they should do when questioned. Many times, our legal advice will advise the unit leadership as to how to represent the member during questioning or having legal representation present during the meeting. This article will touch on some general legal theories that all administrators and unit leadership should be aware of, and some pointers for how to go about being interviewed and/or representing someone being interviewed. Keep in mind, we often call them “interrogations,” as many times that is exactly what they are. While the term carries with it a level of significance, and has an adversarial undertone, recognizing the potential magnitude of the situation can be helpful, in and of itself.
First and foremost, a general note is that the district is not required to notify an administrator, or unit leadership, what the purpose of the questioning is, or what the subject matter of the questioning will be. While this can be quite perplexing, this is an unfortunate reality. What we advise our unit leadership to do, is, if possible, build relationships with the district. In building these relationships, oftentimes the district may provide some insight in advance of a meeting as to what that meeting will be about. The same goes for connecting with SAANYS and looking to see if SAANYS legal counsel can inquire in advance of the meeting as to what topics the interview will cover. While this will not always produce helpful information, many times it will. There is one caveat however which is to note that the district is not required to identify what the interview will be about. If the questioning may result in “disciplinary action” against the administrator being questioned, the administrator must be notified of such, and the administrator has the right to have union representation present, whether a fellow unit member, or a SAANYS attorney. While this may not be a notice consisting of the subject matter of the meeting, we at least know that the person being interviewed may very well be the current or eventual target of a counseling memo or even disciplinary charges.
As noted, if the interview may result in “disciplinary action” against the member being interviewed, the district must notify the member in advance and allow for union representation during the meeting. Failure to do so may cause the interview to be thrown out or deemed illegitimate. Important to remember is that the administrator must request a representative before questioning occurs. Always be aware though, that a district may be able to claim that though they did not anticipate the interview would result in “disciplinary action”, the defense exists that the district only learned of conduct later during the interview that could then result in “disciplinary action.” Be vigilant to seek union representation regardless of whether the district notifies our member that the interview may result in “disciplinary action”.
Know your Cadet Rights. Cadet Rights are rights reserved for Administrators (and Teachers). Cadet Rights can be viewed as analogous to your Fifth Amendment right against self-incrimination. Understand that Cadet Rights apply to both tenured and probationary administrators. What this means is that if an administrator is tenured, they respond to a question, some questions, or even all questions, by asserting their Cadet Rights, and thus invoking the right to not answer the question asked. In doing so, an administrator’s response, or lack thereof, cannot be deemed insubordinate, and held against them. While a lack of response will also prevent potential exculpatory information from being presented in responsive form, the failure to answer the question cannot be deemed insubordinate. Many times, it is a complete judgment call as to when and why to invoke Cadet Rights. From our perspective, Cadet Rights should be invoked when questions are posed that clearly indicate that the district has already made up their mind as to the answer of the question, when the district looks like they will plan to seek “disciplinary charges” regardless of the answer; when the answer to the question will be damaging to our member, or when the question is too complicated/or unclear to provide a helpful or meaningful response to. Again, it is a judgment call, but we oftentimes find Cadet Rights to be quite useful to invoke. With that said, Cadet Rights are not usually invoked by a probationary administrator. Understand that if a probationary administrator invokes his/her Cadet Rights, the likelihood of continued employment is doubtful. There are also times that a probationary administrator should decide not to answer a question, and those would be when the answer will be highly damaging to the administrator, such as when the answer will support a finding of criminality or otherwise. In those cases, it is imperative to consult with a SAANYS attorney.
When answering questions – answer truthfully, and succinctly. Providing inaccurate or false information in response to a question can support a disciplinary charge in and of itself. As for answering questions succinctly, do so as if in a legal deposition. It is not the job of the answering party to guess or to speculate. It is also not the job of the answering party to go on lengthy tangents, unresponsive to the question. Without a legal mindset, the way in which we answer questions can be distorted. The best answer is a clear, concise answer.
When the questioning has concluded, the interview is done. This is not the time to ask follow-up questions, or to attempt to learn more about how the district interpreted answers to questions. The same adage for a deposition can be applied here. When the questions stop, the meeting should stop. This is to protect our members from giving information not asked of them that has not yet been vetted by union leadership or SAAANYS counsel. There will come a time to learn more about what the district has planned and at that time, those plans may be addressed.
If an interview results in a counseling memo, or some other form of “constructive feedback” review this with union leadership and SAANYS counsel. It is always helpful and truly necessary to respond appropriately to counseling memos or other forms of constructive feedback such as performance improvement plans to ensure that their terms are well understood and defined, and that we produce a responsive record to rebut the claims presented by the district. Should the interview result in “disciplinary charges,” again, these will need to be discussed with union leadership and SAANYS counsel. SAANYS will defend our membership throughout the process.
If ever in doubt, contact the SAANYS Legal Department for guidance, legal advice, and possible representation.
Once upon a time, Suzy Smith was a Principal of the Middle School located in Imaginary, New York. Ms. Smith was employed by the Imaginary Central School District (CSD). Due to the significant number of communications Ms. Smith had daily with other administrators, teachers, building staff, and parents, all of which were in the furtherance of Ms. Smith’s job duties as principal of the middle school, Imaginary CSD provided Ms. Smith with a cell phone.
he cell phone, a brand-new Apple iPhone 14 Pro, was part of a wireless cellular plan hosted by Verizon Wireless. The plan was invoiced to Imaginary CSD on a monthly basis. From a property ownership standpoint, Imaginary CSD is the owner of Ms. Smith’s cell phone, whereas Ms. Smith was the authorized user and in technical legal terms the bailor . Why is this relevant you may ask? School districts are considered municipal corporations (see General Municipal Law § 119-N) and as such, are subject to the incredibly powerful tool known as the Freedom of Information Law (FOIL). While the applicability of FOIL to state, county, and local agencies is more narrowly defined by Public Officers Law § 86, for the purposes of this analysis, it is only relevant that school districts, as municipal corporations, are subject to FOIL request(s).
Briefly stated, a FOIL request may be made by virtually any individual of the public, and may seek any record of the school district so long as said record is not specifically statutorily exempted. What does this mean? Virtually any and all records of a school district are subject to FOIL so long as they fall within the meaning of “Record” as prescribed by Public Officers Law § 86 and as set forth here:
“Record means any information kept, held, filed, produced or reproduced by, with or for an agency or the state legislature, in any physical form whatsoever including, but not limited to, reports, statements, examinations, memoranda, opinions, folders, files, books, manuals, pamphlets, forms, papers, designs, drawings, maps, photos, letters, microfilms, computer tapes or discs, rules, regulations or codes.”
See Public Officers Law § 86(4).
In furtherance of the foregoing, in recent years, given the digitization of records and significant advances in technology, courts in the State of New York have more broadly interpreted “records” within the constraints of FOIL to mean those stored in electronic format and even, system metadata, which is the electronic equivalent to notes on a file folder indicating when the documents stored therein were created or filed. See Irwin v. Onondaga County Resource Recovery Agency, 72 A.D.3d 314, 895 N.Y.S.2d 262 (4th Dept. 2010).
It has been even more recently held that records held by third parties on behalf of a government agency are records which are presumptively subject to disclosure pursuant to FOIL. See N.Y. Public Officers Law § 86(4); see also McGee v. Bishop, 192 A.D.3d 1446, (3d Dept. 2021). Further, as briefly set forth above, under FOIL, all government records (remember school districts are considered part of the government) are presumptively open for public inspection and copying unless they fall within one of the enumerated exemptions. See McKinney’s Public Officers Law § 87(2); see also McFadden v. Fonda, 148 A.D.3d 1430 (3d Dept. 2017).
While it has been long held by the courts that a FOIL request that could or would cause “an unwarranted invasion of personal privacy under the provisions of [Public Officers Law § 89(2)]” should be denied, the burden is on the responding government agency (school district) to show that the request rises to the level of an “unwarranted invasion of personal privacy.” See (Public Officers Law § 87[b]). Further, as it relates to the statutory exemptions mentioned herein above, [n]othing in [FOIL] shall require the disclosure of the home address of an officer or employee” of the state see Public Officers Law § 89; see also Public Officers Law § 87[a]; cited by Suhr v New York State Dept. of Civ. Serv., 193 AD3d 129, 137 [3d Dept 2021], lv to appeal denied, 37 NY3d 907 .
Transitioning back to our fictitious principal, Suzy Smith of Imaginary Middle School. As mentioned, Imaginary CSD provided Ms. Smith with and pays for on a regular monthly basis, her brand-new Apple iPhone 14 Pro. Imaginary CSD provides no guidance and/or restrictions on the time, place, or manner in which Ms. Smith may utilize her iPhone. Imaginary CSD does not expressly prohibit Ms. Smith from utilizing her iPhone for personal purposes. Ms. Smith’s iPhone, and all text messages, photographs, phone calls, voice mails, e-mails, and documents thereon, which were produced during Ms. Smith’s regular workday schedule, are subject to FOIL. To provide context, on Wednesday, April 26, 2023, Ms. Smith exchanged text messages with her soon to be ex-husband John Smith regarding their dissolution of marriage. Said text messages took place during the school day while Ms. Smith was in her office reviewing documents. These text messages are subject to FOIL due to the fact that they transpired on a district provided iPhone during Ms. Smith’s scheduled workday, although it was a private conversation.
Suppose the above text messages took place at 10:00 p.m. at night while Ms. Smith was watching television and preparing for bed. While generally, in said instance, that correspondence would fall outside of FOIL because it did not transpire during Ms. Smith’s regularly scheduled and defined workday. However, if Ms. Smith was simultaneously interacting or corresponding with any other individual in her official capacity as building principal of Imaginary Middle School, these communications, even at 10:00 p.m. at night may be subject to FOIL.
Further, suppose that Imaginary CSD had a districtwide policy in place that district issued iPhones were not to be used for personal purpose but exclusively for work-related purposes. Let’s further say that Ms. Smith, although aware of the district policy, sometimes inadvertently and without the intent to break the district policy, interacts with her son, Johnnie Smith by way of text message on her district iPhone. Although these interactions utilizing the district iPhone are few and far between, they generally occur on the weekends or at night, when Ms. Smith is handling other work-related business and her personal cell-phone is not nearby. In the foregoing scenario, ALL of Ms. Smith’s iPhone records, regardless of the time, place, and manner in which such records were created, are subject to FOIL. Why is this disclosure permissible? It is because the district policy prohibited personal use, all district iPhones are presumed to be strictly comprised of district records.
As a wrinkle, suppose Ms. Smith had a personal cell phone in which she infrequently used it for school business. Is her phone’s data subject to FOIL? SAANYS position is no because her personal phone is not subject to FOIL. A gray area is if the district reimbursed Ms. Smith for the cost of her personal cell phone bill for use on official district business.
Considering all the foregoing, be smart, be cautious, and most of all, be thoughtful should you find yourself or a fellow unit-member utilizing any technology that is provided or paid for by the school district. Should you have any questions or concerns arising from this subject matter, please do not hesitate to contact your SAANYS Legal Department, who is committed to keeping you apprised of these risks.
 A “bailor” is an individual or entity who is entrusted with the possession of defined property for a defined purpose. In this example, Ms. Smith is entering into a mutual benefit bailment with Imaginary CSD, Ms. Smith is entitled to use and possess the cell phone and in return, Imaginary CSD has an administrator who is better equipped to communicate at any time necessary.
Your district has agreed to cover 100 percent of your individual retirement medical coverage; however, you retire, only to soon find out that the district disclaims coverage of your total medical monthly premiums citing the Income-Related Monthly Adjustment Amount (IRMAA) as its basis for disclaiming the same. This is precisely the issues faced in the Supreme Court action Tyron v. Cobleskill-Richmondville Central School District which as set forth below, resulted in a significant win for administrators whose Collective Bargaining Agreement (CBA) entitles them to the same or similar medical coverage expenditures.
First, IRMAA, what is it? IRMAA applies to Medicare Part B premiums. While the intricacies of Medicare could fill a 1,200 page novel, essentially, Medicare is broken into four (4) parts as follows: (1) Part A; Part B; Part C; and Part D. Whereas Part A relates to inpatient/hospital coverage, Part B covers outpatient/medical or physician coverage; Part C offers an alternative way to receive Medicare supplemental benefits and Part D provides prescription drug coverage.
As applied herein, IRMAA relates to coverage provided as a result of Part B and Part D premiums. Essentially, the Social Security Administration (SSA) is tasked with making the initial determination whether IRMAA applies to Medicare beneficiaries with Part B and Part D coverage utilizing Internal Revenue Service (IRS) data. If your annual adjusted gross income in retirement is above a certain level, SSA will assess an additional monthly IRMAA premium you, as the beneficiary will owe.
Turning to Tyron v. Cobleskill-Richmondville Central School District, SANNYS commenced a hybrid Civil Practice Law and Rules Article 78 action against the School District for breach of the CBA with the Administrator’s Association of which Ms. Tryon is a 3rd part beneficiary. In sum and substance, the action sought a determination by the Supreme Court, Schoharie County, that the School District’s unilateral disclaiming of coverage for Medicare premiums such as IRMAA was arbitrary and capricious, and moreover, a prior negotiated term explicitly set forth within the CBA between the School District and the Administrators’ Association.
The CBA guaranteed a lifetime retirement health insurance benefit provided by the School District entitling “individuals who retire during the 2009-10 school year…be covered at the rate of 100% of the charge for the individual coverage and 75% of the charge for dependent coverage.” See Hon. Ferreira, Decision & Order/Judgment [March 15, 2023] at Pg. 7.
On Motion for Summary Judgment, Plaintiff/Petitioner, by and through SAANYS General Counsel, Attorney Arthur P. Scheuermann, Esq., was granted Summary Judgment thereby requiring the School District to pay premiums arising from IRMAA. The Court held that 100% of the charge for individual coverage was clear and unequivocal language, meaning, the District was responsible for all premium costs associated with retirement health insurance. What does this mean for you? Whether your CBA covers a percentage basis of retirement healthcare coverage or the whole sum, the contention that IRMAA premiums are not contemplated within the plain meaning of the contract language is contrary to the holding in Tryon. While it is possible your CBA reflects negotiated provisions which differ from that of 100 percent of individual retirement healthcare coverage being covered by the School District upon retirement, it is important to recognize and be cognizant of your entitlement to IRMAA premium coverage. Even if your CBA covers merely a percentage basis of retirement healthcare, said percentage basis should be inclusive of any IRMAA premiums you may be required to pay.
From a negotiation standpoint, the legal department at SAANYS would like you to be cognizant of the nuisances governing contractual interpretation and standards of review that Courts utilize to determine whether a contractual term is unambiguous and therefore enforceable. While in the Tyron matter, the Court found the CBA to be unambiguous with regard to the Plaintiff/Petitioner’s entitlement to 100 percent retirement healthcare coverage inclusive of IRMAA costs, this is not always the case. As such, you should be sure your CBA makes clear that whether a percentage portion of retirement healthcare or all of your retirement healthcare is covered by the district in retirement, that said allotment is inclusive of all costs associated with coverage.
Should you have any further or additional questions, please do not hesitate to contact your SAANYS Legal Department and The Office of General Counsel at SAANYS.
Interested in learning more about IRMAA, or curious as to what income brackets are subject to IRMAA allotments? See the link below to learn more!
 A “Motion for Summary Judgment” is a motion seeking the Court to make and/or compel a determine as a matter of law on the merits, such that no issue of fact exists.
With the tragic Sandy Hook Elementary School shooting having occurred a little more than a decade ago and an ever-evolving need for threat, violence, and self-harm protections in our school systems, school administrators state-wide have become the designated 24/7/365 fielding source for the anonymous reporting of safety threats, bullying, alcohol, drug use, depression, self-harm, and conflicts, posing a risk to the safety of students, teachers, and staff within their respective building.
By Press Release dated June 4, 2022, the New York State Assembly announced the passage of Alyssa’s Law, which was subsequently signed into law by Governor Kathy Hochul on June 23, 2023. Alyssa’s Law requires school districts and district-wide safety teams to consider, as part of their review of the comprehensive district-wide safety plan, the installation of a panic alarm system to silently alert law enforcement in the event of a life threatening or emergency situation. The law is named after Alyssa Ahadeff, who was shot and killed at Marjory Stoneman Douglas High School on February 14, 2018.
Paralleling the awareness and evolving need for threat and violence protection in schools has arisen the continued efforts in the prevention of bullying and self-harm among students. This was most recently demonstrated in February 8, 2021, during the New York State Assembly Regular Session, with the introduction of Assembly Bill A4763. Although stricken in September 2021, the proposed legislation sought to enact the student suicide prevention act, requiring local educational agencies to produce policies, procedures, and guidelines that direct teachers and school administrators on how to respond to students who have demonstrated suicidal thoughts or intentions.
In the advent and passage of laws such as Alyssa’s Law and proposed legislation such as Assembly Bill A4763, school districts have begun employing third-party reporting applications and software technologies that allow for individuals, namely students, and parents, to 24/7/365 anonymously report real-time safety threats, bullying, alcohol or drug use, depression, self-harm and conflicts posing a risk occurring within the district to building administrators. These applications further allow for secure direct two-way communications with building administrators about any incident report submitted by a student or parent. Notably, some of these reporting applications and software technologies currently employed by various districts state-wide include GoGuardian, Anonymous Alerts and Sandy Hook Promise.
While these applications have led to significant developments in the prevention of credible threats, violence, self-harm, and bullying, the burden has shifted to namely school administrators to monitor, assess, react, and communicate with parents and students in a 24/7/365 capacity. The impact has had a tremendous effect on administrators in New York. Administrators no longer have down time. Monitoring these software applications has consequently expanded the work hours, work days, work weeks and work years of administrators, which constitutes a mandatory topic to bargaining. Thus, before a school district can instituted such applications the district must first negotiate with administrative units about (1) undertaking this additional work, (2) who will be assigned, (3) is there a rotation of district level and building level administrators, (4) compensation, (5) defense and indemnification to name but a few considerations. SAANYS is not hearing from some units and their members that they want no part of monitoring these applications anymore.
While administrators remain the utmost committed to ensuring student safety and the fostering of a safe learning environment within their respective districts, immediate discussions must be had to resolve the issues related to administrative burnout. The current level of monitoring these applications is unsustainable.
In addition, this type of triage level, call-center reporting system poses a significant risk of misapplication in the absence of individuals properly trained and equipped to handle the assessment and immediate reaction to any reports require, including, but not limited to in the instance of reported self-harm, the dispatch of skilled crisis counselors as well as other public safety officials and first responders. These additional duties, including the fielding of 24/7/365 incident reports with the possibility for immediate and severe danger to individual students and the school community as a whole, in no way lends itself to the task of one individual, let alone an administrator who is also tasked with the daily on-site oversight and safety of individuals within the school building. While threat, violence, and self-harm preventative measures remain of the utmost importance to superintendents, administrators, and teachers alike, districts must work together in order to ensure the establishment of policies and procedures that allow for the proper assessment of these real-time threats and dangers by trained crisis professionals and first-responders.
SAANYS remains committed to its members to address the ever-evolving needs of threat, violence, and self-harm protections in our school systems and stands read alongside members to ensure that these preventative measures are collectively negotiated first and foremost. Then we can discuss the proper training and supervision of administrators to act using these applications if the administrators choose to do so.
The Family Educational Rights and Privacy Act (FERPA) is a federal law designed to protect the privacy rights of student education records. The law applies to all schools that receive funds under an applicable program of the U.S. Department of Education, including New York State K-12 public education institutions.
While the student is under the age of 18, FERPA fives certain rights to parents with respect to children’s educational records, and the dissemination of information contained within those records. In particulars, parents or eligible students have the right to inspect a student’s education records in-person; parents or eligible students have the right to request the a school correct records that they believe are inaccurate or misleading, and if the school decides that not to amend the record, the requesting party has the right to a formal hearing to correct the record; and schools must general have written permission from the parent or eligible student before disclosing or releasing any information from a student’s record, unless the information released or the party to whom the information is released meets a specific category. Records may be released without permission under the following conditions or to the following parties: (1) school officials with a legitimate educational interest; (2) other schools to which a student is transferring; (3) specified officials for audit or evaluation purposes; (4) appropriate parties in connection with financial aid to a student; (5) organizations conducting certain studies for or on behalf of the school; (6) accrediting organizations; (7) to comply with a judicial order or lawfully issued subpoena; (8) appropriate officials in cases of health and safety emergencies; and (9) state and local authorities within the juvenile justice system, pursuant to State law.
Notably, schools may disclose, without consent, “directory” type information such as a student’s name, address, telephone number, date and place of birth, honors and awards, and dates of attendance. Before doing so, schools must notify parents or the eligible student of the school’s intention to disclose such directory information .
Schools must notify parents and eligible students of their rights under FERPA on an annual basis, though the form this notice takes is left to the discretion of the school and oftentimes takes the form of a letter, bulletin posting, included section in the student handbook, or newspaper article.
Considering the legitimate interest in preserving confidentiality with regard to a student’s educational records, we advise taking precaution and considering some best practices whenever a possible dissemination of educational information of a student is or may be involved, whether intentionally or unintentionally.
- First and foremost we recommend considering a FERPA Release/Authorization form be drafted, or reviewed if one already exists, for accuracy and purpose. This release can be drafted with both broad and fine strokes to be general in nature and then more narrowly tailored depending on the situation. Once the district and you are comfortable with the FERPA Release/Authorization form, we recommend that on all such occasions that you believe educational records or information may need to be shared, that you ensure the parent or eligible student has been provided the form and that they have signed off. While we note that notice of FERPA rights must be disseminated annually, and can be done so by general postings or inclusion of student handbooks, we would also recommend delineating some form of an authorization and release section that may deal with situations which the district will inherently deem the records to be authorized to be released, as in the circumstances discussed above, or even in other circumstances.
- Second, in any situation that may arise where a student’s records may be involved and where an outsider may need to be present, we caution you on the dissemination of any information relative to the educational records of the student to any person not necessarily approved or required to be aware of such information.
- One example in particular could involve a teacher/parent meeting, or administrator/parent meeting, neither the teacher nor the administrator would be allowed to have a unit representative present with them, without the authorization of the parent or eligible student, should the meeting involve confidential educational records information pertaining to the student, which the unit representative would not have been privy to.
- A second scenario could involve an administrator meeting with the parents of a student who was potentially involved with another student or students who may have been disciplined. In this situation, the administrator would need to be cautious not to share confidential information related to the disciplinary outcome or process related to the other students, when meeting with the parents of the other involved student or the eligible student.
- A third scenario involves the dissemination of information related to a student’s IEP. With regard to the IEP, as you all are aware, the hyper sensitive nature of the IEP from both a medical and educational perspective carries with it the utmost caution with who such information is provided to and when. When considering IEP information, this information may only be released to those members of the staff who are associated with providing or assisting with providing the services associated with the IEP. This same theme can assist with an overall understanding of FERPA. Think, “does this record involve this school employee or staff member, whether by way of being the author or implementer of such information, and if not, then they likely are not allowed to be privy to such information without authorization.”
Overall, think of FERPA as being very similar or analogous to the commonly understood HIPAA federal law dealing with the confidential nature of medical records. Consider that any educational decision, outcome, or impact on the student, and the information involved must have a level of confidentiality applied to it, and unless authorized, that information must remain with the school and appropriate administrators and teachers involved, and the parents or eligible student. While there are carve-outs, and releases or authorizations can be helpful, ultimately preserving a high level of confidentiality and maintaining the integrity of that confidentiality will always prove most prudent.
This information, and more, can be found at the U.S. Department of Education’s website, and specifically: https://www2.ed.gov/policy/gen/guid/fpco/ferpa/index.html.
Protecting your retirement health insurance benefit is more important than ever. Being aware of the protections afforded to you by contract and New York’s Retirement Health Insurance Moratorium Act is one step towards securing your right to your deserved retirement health insurance.
On November 23, 2022, the Appellate Division, Second Department in Matter of Perrotta v. Syosset CSD, overturned a judgment from the Supreme Court, Nassau County, which dismissed a retired SAANYS member’s hybrid action seeking to overturn a hastily enacted school district policy that deprived the retiring member free health insurance in retirement for life.
Ms. Perrotta had an individual employment contract that guaranteed her with the same health insurance benefit enjoyed by members of the Syosset Principal’s Association, namely 100% district paid health insurance for life once reaching constructive retiree status under the rules of the New York State Health Insurance Plan (NYSHIP). Ms. Perrotta submitted her letter of retirement from Syosset. The Board approved her retirement. Although she retired from Syosset she intended and did, in fact, start working at another school district. The Board at the very same meeting she submitted her retirement letter, approved a new policy that prohibited constructive retirees under the NYSHIP plan, like Ms. Perrotta, from receiving free health insurance from Syosset until she retired into the NYSTRS system and began to receive a pension. Instead, the new policy required Ms. Perrotta to contribute 50% for individual coverage and 65% for family coverage until she began to receive her state pension. This policy violated the NYSHIP’s participating agency regulations as well as her contract and the Moratorium Law as explained below.
After Ms. Perrotta filed her lawsuit, the district moved to dismiss case asserting its actions were not arbitrary, capricious, irrational, or contrary to law. The court summarily dismissed her breach of contract claim as well as her declaratory judgement cause of action. In the Appellate Division’s opinion, the court noted that because the district reduced her individual contribution rates to 50% but did not affect the rates for members of the Principals Association, the District violated the Moratorium Law.
The Moratorium Law prohibits a school district from unilaterally altering retirement health insurance benefits for retirees without collectively bargaining the same change for active employees, which did not occur here. Essentially, the statute prevents a school district from providing retirees with lessor benefits than active employees and ensures retirees who are no longer represented in the current bargaining unit maintain their rights. (Matter of Altic v. Board of Educ). The Court’s action effectively nullified the policy, paving the way for Ms. Perrotta to be reinstated in the NYSHIP plan through Syosset at no cost. Based on the decision, Ms. Perrotta is entitled to incidental damages including the higher premiums she paid for coverage under her husband’s NYSHIP plan.
The appeals court also reinstated Ms. Perrotta’s breach of contract and declaratory judgment claims holding that the court had illegally dismissed them.
SAANYS is frequently involved in litigating matters regarding retirees’ health insurance and is committed to preserving members’ hard-earned retirement health benefits. If you are a retiree and have recently faced a reduction in your health insurance benefits, be sure to check if your school district reduced their contributions for active employees and contact the SAANYS Legal Department for assistance.
At some point in your career as an administrator, you may be contacted by your district regarding a meeting involving a problematic issue or possibly as part of an investigation. That notice may or may not include informing you that due to the nature of the meeting, you may bring unit representation. When you are notified of such a meeting, you should first ask if the meeting could lead to discipline, a letter of counseling, or may to terminating your probationary employment. Determining the nature of the meeting or interview is very important.
If the answer is that the results of the interrogation could, in fact lead to some form of discipline, counseling document or termination of probation, your next step is to contact your SAANYS and your unit representatives. Even if you feel you have a good relationship with your superintendent or assistant superintendent, you should not go into the meeting alone. At a minimum have your unit representative present if you fear bringing a SAANYS’ attorney, but please contact SAANYS to discuss what is the district’s motivation for the meeting and how to prepare to answer the questions asked to minimize your liability and maximize your work.
As a unit-represented employee, you have the right to have representation with you at the meeting. This right stems from the U.S. Supreme Court case of NLRB v. J. Weingarten, 420 US 251 (1975). In fact, your district should inform you of your right to have your representative accompany you at the meeting. If the meeting is for investigatory purposes, you have a right to have your unit representative with you. These are referred to as Weingarten rights. An interview may be investigatory if:
- A manager, representative of management or supervisor is seeking to question an employee.
- The questioning is part of an investigation into the employee’s performance of work conduct. During an investigatory interview the employee may be asked to defend, admit or explain misconduct or performance issues that may be used as the basis for discipline or discharge
- The employee reasonably believes the investigation may result in discharge, discipline or other adverse consequences to their job status
If the employer does not inform the employee of their right of representation. If the employer violates this premise, a claim made by the employee may result in an order that the employer must cease and desist, post a remedial notice, rescind and remedy discipline taken or repeat the interview with a Weingarten representative present.
An employee must affirmatively request to have a representative there. Understand that the employer is not required to specify an employee needs a Weingarten representative, but once an employee makes the request for that representative, they are not required to repeat that request. This is why the initial question as to the nature of the meeting is vitally important.
If your representative cannot attend the scheduled meeting, you must be provided with reasonable time to enable the representative to be present. While “reasonable time” is not specific, it is generally accepted that a few days is reasonable. Usually, your SAANYS attorney can contact the district or its attorney directly and agree upon a time that is mutually acceptable to all parties.
If for any reason you are in a meeting alone and the meeting starts to become one in which disciplinary action could result, or appears to be investigatory in nature, you can stop the meeting by saying you want to have your unit representative or your SAANYS attorney with you and you would ask to continue the meeting when you have that representation.
Again, by contacting a SAANYS attorney, we can talk you through what you can do and we can advise you as to whether or not you answer questions or how to answer questions during the meeting. Many times we may try to talk to you and your unit representative in a conference call to ensure we are all aligned in our actions.
If you are a tenured administrator, you can invoke your Cadet rights. This is the equivalent of invoking your 5th Amendment rights in a criminal matter. The underlying case was an appeal by the Board of Education of the City School District of the City of New York v. Andre Cadet, Ed. Dept Rep decision 13,589. This case affirmed the ability of a tenured educator to not answer incriminating questions if they could possibly lead to a 3020-a proceeding. If you invoke your Cadet rights, you do not have to answer any questions. You can simply answer that you invoke your Cadet rights.
If you are untenured or your position falls under a non-certificated category, you do not have the ability to invoke Cadet rights. You must answer the questions. In effect, you can be compelled to answer questions, or you could be considered as insubordinate. That could lead to possible termination based upon that insubordination. The case for non-certificated personnel is Matt v. Larocca, 71 N.Y.2d 154 (1987), which holds that termination is possible for non-certificated personnel who willfully refuse to answer questions.
In fact, for non-certificated personnel who may incriminate themselves answering questions, there may be situations that arise where testimony may incriminate a member and lead to criminal liability. In such a case, it may be beneficial to resign prior to the interview to avoid being compelled to testify, rather than incriminate themselves. Although prosecuting agencies are prohibited from using such compelled testimony, but why give prosecutors the information, especially if the information establishes the criminal liability. That scenario needs to be reviewed and discussed between for you and your SAANYS attorney.
If you are called in for an interview as a part of an investigation, we can give you advice as to how to answer those questions. We advise you to listen to the question and answer only the question. Don’t guess and don’t add anything else other than the answer to that specific question. If you do add, you can give the investigator other avenues to explore. We can also attend the interview with you, either in-person or via virtual means.
We can also help following an investigation. We can appear with you for the results, or you may want your unit representative present. In many districts, you may be able to bring both.
If it is a meeting other than an investigation, you must make a decision as to whether you answer the question or even speak at the meeting. This is one reason it is so important to have your unit representative with you.
Not only can SAANYS attorneys help you at the beginning of an investigation or disciplinary meeting, but they also can be invaluable in trying to resolve the matter in a manner acceptable to all parties. For example, if you do receive a counseling letter or memorandum, your SAANYS attorney can help you craft a rebuttal. While you may not think a rebuttal is necessary, we recommend that you submit one. Otherwise, the District’s memo takes on a level of accuracy that it should not have and becomes a permanent part of your personnel file. Your side of the story is not heard. That could make a difference later if you are charged with disciplinary charges and never refuted the allegations in a prior counseling memo.
If the district’s intentions are more than a simple memorandum or letter, SAANYS needs to be contacted immediately to protect your rights. A SAANYS attorney can minimize inculpatory evidence being gathered during such an interrogation. Also, SAANYS can negotiate a separation agreement from the district if you so choose. If your probation is terminated after an interrogation, SAANYS probably will be unable to save your position, but we may be able to help you negotiate a graceful exit from the district that provides financial security and future employability.
Remember to keep your unit and SAANYS apprised of any issues you may be having in your district so that we can continue to help you.
LET’S GET BACK UP TO SPEED AND BE PREPARED TO HAVE YOUR APPR NEGOTIATED BY THE BARGAINING UNIT!
What is the Annual Professional Performance Review (APPR) and where has it been?
The Annual Professional Performance Review, or APPR, is a New York State mandated evaluation process for New York teachers and building principals or administrators in charge of an instructional program of a school district or BOCES. The process was promulgated by New York Education Law § 3012-c, then revised by § 3012-d in addition to various Department of Education regulations and guidance, but ultimately it is the bargaining unit’s responsibility to be involved in the process of interpreting and outlining all negotiable aspects of the APPR.
As result of the impact on school districts and BOCES due to COVID-19, in June 2020, the governor signed an executive order that suspended the requirement for school districts and BOCES to complete the annual professional performance review for any classroom teacher or building principal for the 2019-2020 school year. Following the 2019-2020 school year, legislation was passed in June 2021, and then May 2022, continuing the suspension of the requirement for the 2020-2021 and 2021-2022 school years.
While some schools may have continued conducting APPRs despite the state requirement being suspended, as it is not likely that the legislature will suspend professional evaluations in the 2023 session, It is therefore, essential that we prepare for the APPR process again.
As a probationary employee, should I be concerned with how the lack of an APPR may impact the school district’s treatment of my tenure consideration?
How this suspension impacted tenure determinations is to be taken note of. With regard to tenure determinations, the legislation accounted for the fact that school districts were temporarily not required to conduct the APPR and thus a teacher or building principal may be without the necessary number of APPR composite ratings For those appointed during the 2018-2019 or 2019-2020 school year, if a building principal did not receive composite APPR ratings for 3 consecutive years, APPR ratings would not be required in order for superintendents to be able to recommend those individuals for tenure. For individuals appointed during the 2020-2021 school year, building principals would be eligible for tenure if they received composite APPR ratings of either effective or highly effective during two of the prior four years, and they did not receive a rating of ineffective in the final year of their probationary period. In both scenarios, the building principal also must be determined by the superintendent to be qualified for tenure based on their performance during those school years in which they did not receive a composite APPR rating.
If school districts begin conducting APPRs again, what should I expect and what can I do?
The legislative action taken during the 2020-2021 and 2021-2022 school years has not continued into the 2022-2023 school year, and the APPR is again, a mandated requirement of school districts to complete for their classroom teachers and impacted administrators (building principals or administrators in charge of an instructional program of a school district or BOCES). While the process and standards for the APPR have not changed from those that predated the COVID-19 suspensions, the issue of negotiating your APPR remains essential. With many school districts suspending the APPR during the period of time that they were not required by law to conduct them, we believe it is critical that the APPR format and guidelines that you will be evaluated based on be reviewed by your bargaining unit and by SAANYS. Also, you will evaluate the teachers in your building pursuant to the APPR negotiated between the teachers union and the school district.
When negotiating your APPR, your bargaining unit and SAANYS will want to be sure that several essential areas are covered and mutually agreed upon. Negotiating these areas can protect your rights and provide us with more control of the process, as well as a greater mutual understanding of what is expected. These topic areas include:
- What is the negotiated student achievement measurement, and how is that measurement arrived at?
- Are SLOs (student learning objectives) to be used?
- How many announced and unannounced school visits will there be, who will conduct them (supervisor or independent evaluator or is there a waiver in place) and is there a difference in number for tenured and probationary principals?
- How will the HEDI scores (highly effective, effective, developing and ineffective) be broken down?
- Should the input model be accepted, or should the observation rubric be changed?
- What will the terms and direction of any type of IP (improvement plan) improvement plan?
- What will the appeals process format take?
DO NOT fall victim of being invited into the superintendent’s office to sign the “portal document” without negotiations. By signing that document, you are certifying that the contents of that document were negotiated! It is imperative that prior to agreeing to the contents of the document that your bargaining unit and SAANYS have had the opportunity to negotiate on your behalf.
To reiterate, if your school district and superintendent address the issue of agreeing upon your APPR and the format such will take, please be sure to take the time to discuss the APPR with your bargaining unit and SAANYS so that we can assist in the negotiation process. It is our advice that you do not simply sign off on the APPR that is presented to you, and essentially forgo your right to negotiate it.
We look forward to assisting you with the APPRs now that they are back, and as always, we are here to help!
If the contract you retired under does not state your health insurance is for life at a fixed rate, you may not have the benefit you think you have.
In a case decided this year by the New York Court of Appeals, entitled Donohoe v. Cuomo, the State’s highest court has stated for the first time what SAANYS has been preaching for years, spell out exactly what your retirement health insurance benefit consists of, including that its “for life” and fixed the plan, rate of premium cost sharing, co-payments, Medicare Part B reimbursement, etc. Unfortunately, some contracts lack this necessary clarity. Meaning that retirees are vulnerable to having their health insurance plan changed in retirement, contributing more toward the retirement health insurance premiums, or being forced to pay higher co-pays for office visits or drugs.
If you have read this far, pull out your contract and read the retirement health insurance provision, if you have it. Does the contract identify the health insurance plan that retirees will be enrolled in? Does the contract fix the retirees contribution toward the premium cost of health insurance in retirement? Does the contract language articulate what the retiree will be responsible to pay as it relates to deductibles, out-of-pocket expenses, co-payments, and for prescriptions (tiers as well as amounts of co-pays)? Does the retirement health insurance provision provide for Medicare Part B or D reimbursement? If not, you are as vulnerable! Like all retired State CSEA Local 1000 employees who retired from State service after January 1, 1983 in Donohoe v. Cuomo, your retirement health insurance benefit may be unilaterally changed by your employing community college, school district or BOCES in tough economic times, which are unfortunately fast approaching again.
As background, in Donohoe v. Cuomo, and ten other similar lawsuits filed on behalf of other retired State employees, CSEA Local 1000 members had inferior contract language that did not provide a duration for the retirement health insurance benefit. The language merely stated that “[e]mployees covered by [[NYSHIP] have the right to retain health insurance after retirement upon completion of  years of service.” The contract was silent as to how long the benefit lasted. The State’s highest court rejected a presumption that the benefit was “for the life of retiree” since the contract did not state so. The Court further held it was equally plausible the benefit only lasted until the expiration of that contract. Hence, the affected retirees, in essence, had no guaranteed retirement health insurance benefit.
In Donohoe v. Cuomo, the Court further held that the retirees were powerless when the State, through a regulatory act, increased their premium cost sharing amount by 2% for individual and family health insurance coverage in retirement. The Court noted that the CSEA contract lacked any expressed language that fixed the retirees’ rate of contribution in retirement.
What to do now? If your contract language regarding retirement health insurance is vague, contact SAANYS. The labor relations specialists and lawyers at SAANYS are specially trained on how to improve retirement health insurance language. Also, if you are simply unsure what your retirement health insurance coverage says, also call SAANYS to review the language. Chances are if you do not understand what it states, the language is unclear. The most important thing NOT to do is to sit around and wait for your employer (or former employer) to unilaterally change your retirement health insurance benefit. It is not a question of “if”, it’s only a question of “when”.
Consistently, SAANYS is engaged in litigation attempting to preserve its members and retired members hard earned retirement health insurance benefit. However, understand the likelihood of success is always measured by the clarity of the health insurance in retirement language. The clearer the language the greater likelihood of winning the case when the employer changes the benefit.
“The contents of this communication are intended to convey general information only and not to provide legal advice or opinions. The contents of this communication should not be construed as, and should not be relied upon for, legal advice in any circumstance or fact situation. The information presented in this communication may not reflect the most current legal developments. No action should be taken in reliance on the information contained in this communication and we disclaim all liability in respect to actions taken or not taken based on any or all of the contents of this site to the fullest extent permitted by law. An attorney should be contacted for advice on specific legal issues.”
It is essential to preserve confidentiality when communicating with a SAANYS attorney. This guide is to help association members protect the privacy of their communications while at work. Please note that this guide is not intended to be comprehensive or exhaustive. Additionally, this communication does not and cannot replace personalized legal advice. When in doubt, please call the SAANYS Legal Department at 518-782-0600.
Key Concept: Confidentiality v. Attorney-client Privilege
There are significant differences between confidentiality and attorney-client privilege, but enough overlap exists making it easy to conflate the two concepts. Confidentiality generally relates to an attorney’s professional obligation to not reveal confidential client matters to others without authorization. Attorney-client privilege, on the other hand, applies when a client and their attorney communicate confidentially for the purposes of seeking/rendering legal advice. Importantly, attorney-client privilege does not attach to emails sent to SAANYS attorneys when sent via work email because work emails are the employer’s property. Rest assured, SAANYS attorneys will never reveal confidential client matters to unauthorized individuals. Clients, however, may inadvertently destroy both confidentiality and attorney-client privilege by communicating with SAANYS attorneys using the employer infrastructure, e.g., the employer’s VoIP phone or email.
Tip No. 1: Always email SAANYS from a personal email address.
The SAANYS Legal Department receives many emails from association members’ work email addresses. As previously stated, this immediately destroys both confidentiality and attorney-client privilege, because the employer owns the email address, the emails, and the network over which the emails are sent. Therefore, always use a personal email address to protect the privacy of your communications.
Tip No. 2: Never use employer Wi-Fi.
Employers can track information from devices connected to their network (e.g., Wi-Fi). For example, the employer can see the name of the device, the MAC address, and any unencrypted traffic sent over the employer’s Wi-Fi, including web searches and communications. For this reason, it is important to avoid using the employer’s Wi-Fi. Additionally, because Wi-Fi can be used to track a variety of personal details (including location), employees should disconnect their personal devices from the employer’s network. (For further reading, look up “indoor positioning system” or “received signal strength indicator.”) This means using a cellular service provider’s network (e.g., 5G, 4G/LTE, etc.) or, if at home, home Wi-Fi.
Tip No. 3: Never sign into personal accounts on employer devices.
Never sign into personal accounts on an employer device. In addition to the fact that the employer will see the non-work internet traffic, it opens the employee’s life up to scrutiny. Facebook, Google, and other technology platforms track location, log web searches, store photos, and more. Employees who do not wish for their employer to see their entire lives on display should never log into a personal account on an employer device.
Tip No. 4: Be aware of keyloggers.
Keyloggers are either hardware or software modules and log keystrokes entered on a keyboard. Keyloggers can track length and velocity of each keypress, as well as the identity of the key. Additionally, keyloggers run silently in the background while employees use their computers, so employees will not normally know if a keylogger is tracking their keystrokes. One should assume their keystrokes are always being logged. Importantly, when an employee types something into a computer with a keylogger, every keypress is logged. Therefore, even if an employee types something which they subsequently delete, the keylogger will track all the keypresses—including the deleted material. It is important to think carefully before typing something into a work laptop, because whatever typed may become part of a permanent record.
Tip No. 5: Do not use work email, work phone, etc. for personal use.
Regular business communications are generally subject to New York Freedom of Information Laws, even if done on a personal device. Therefore, keep work communications separate from your personal devices. If this is impossible, limit the number of work communications to phone calls because the substance of phone calls is generally unrecorded and would therefore not be subject to FOIL. (Things that do not exist cannot be FOIL’d.)
Call SAANYS Legal Department
When in doubt as to how to preserve confidentiality with a SAANYS attorney, call us (from your personal phone) at 518-782-0600 for assistance.
With the approach the end of the school year, probationary administrators are usually being granted tenure or, in some cases, being notified of the discontinuation of employment. This year, SAANYS is observing a significant increase in the number of non-tenured administrators being terminated right before their tenure date or early in the process. SAANYS has attributed several elements to this uptick, such as frustration caused by the pandemic or the pervasive of local politics in the consideration of tenure grants. Whatever the reason, good administrators are being sacrificed at record numbers. So, the question is what happens with tenure, probation, termination and what can you do to protect yourself.
When an administrator is first hired, they are appointed by that district’s Board of Education to a specific tenure area. If no tenure area is enunciated the administrator or supervisor defaults to a general tenure area typically referenced “administration”. Understand that the probationary term is set by statute to be four-years. However, through SAANYS’ governmental relations efforts a few years back, now any administrators who has previously been tenured and then appointed to a new administrative position on or after June 1, 2020 will qualify for a shortened period of probation of three years before eligibility for tenure.
Once in your position, periodically ask for feedback. Meet with your supervisor on a quarterly basis to discuss your progress. Document such encounters in a diary or journal. Always conclude such meetings with the question if you continue to be on track for tenure. Some practical tips, keep your head down and focus on your tasks. Don’t socialize with employees you supervise. Do not engage school or district politics or gossip. If you have a struggling teacher, talk to your supervisor about how to handle the situation. You do not want that teacher running to the union claiming a hostile work environment. Also, do not send jokes over email or joke around with staff. SAANYS has seen such behavior come back on probationary employees more frequently than not. Always be visible at arrival and dismissal of students walk the hallways during the school day. Some very hard-working administrators fall into the trap of never leaving their office. Volunteer for committees and activities. Be upbeat and positive with everyone.
Certain tasks you perform must be done in a timely fashion. Make sure that you have your evaluations done on time. If you handle student discipline make sure you follow the law. If you have questions about discipline, ask other administrators, the school lawyer or SAANYS for advice. If assigned DASA complaints, investigate such matters promptly and thoroughly. Don’t leave complaints lingering for weeks or months. Follow verbatim all state testing rules and be hypersensitive with compliance. If a problem arises, e.g., a teacher copies the exam, notify the superintendent immediately and be guided by her/his response and document it.
Your unit also plays a critical role in your probationary success and eventual tenure. Every unit should have a clear, objectively-based evaluation procedure with deadlines for probationary administrators and supervisors. If your contract does not, make the evaluation procedure a priority in your next round of collective bargaining. Here are tips for a solid evaluation procedure, which if negotiated into the contract, may be used to obtain an additional year of probation if the school district failed to comply with it.
- Establish annually, usually by the end of the summer, e.g., August 31, that the probationary employee and her/his supervisor will mutually agree on up to three goals. These goals may be tied to the superintendent’s plan or the Board’s goals. The critical aspect of these goals are that they are measurable, and not aspirational like “improve school culture”. Also, the goals should be objectively based. Agree on the criteria to achieve each goal during the goals setting meeting. The worst thing that can happen is the goals are unobtainable or subjectively based. The act of being proactive and keeping in contact with your supervisor/superintendent is a plus.
- Establish a first evaluation meeting each year around mid-December. At that meeting discuss the progress toward achieving your goals. Also, if any deficiencies are noted, now is the time to devote resources, such as professional development opportunities or a mentor, to address the matter. Do not let a simple cut turn into a raging infection by benign neglect.
- Establish a second evaluation status meeting around mid-March. Like the first meeting, this meeting should be devoted to your progress toward the goals and also included discussion of continued employment.
- Establish a final end of the year meeting prior to the issuance of your evaluation on or about June 30th. A draft of your evaluation should be presented and you provided an opportunity to offer additional information and materials in support of your achievement of the goals and continued employment.
- Any evaluation procedure worth its weight will also include resources to be used to assist struggling administrators. Remember the district has invested time, energy and money in hiring you. As an employer, the school district should have an equally commitment to your success. Hence, a defined improvement procedure with articulated resources is a must.
SAANYS has arbitrated for members when school districts have failed to follow the evaluation procedure in the contract. While an arbitrator (nor a court) can grant an administrator tenure, they are legally empowered to impose an additional year of probation for non-compliance with the evaluation procedure.
The goal here is to eliminate surprise in the evaluation and tenure granting process. It serves no one’s interest to have a revolving door of probationary employees. Studies have confirmed that successful schools have solid administration. The suggestions offered in this article maximize your chances of being granted tenure. There may be some cases where a district may simply ignore the evaluation process or the probationary employee’s positive attributes and decide to terminate your probation. In that case, it is very important to contact SAANYS legal.
I’ve been given more duties. What do I do?
In these inflationary times, we may see a reduction in workforce soon. When the terms and conditions of employment change for a collective bargaining association member, the employer will have to negotiate the impact of the change, if it involves a mandatory topic of bargaining. What is a mandatory negotiable topic of bargaining? A mandatory topic of negotiation is something that the employer must, by law, negotiate with a collective bargaining association. Compensation is a mandatory topic for example. An employer must also negotiate non-mandatory or permissive topics of bargaining when, the employer makes a change that impacts a mandatory topic of bargaining, such as work hours or work week. The request to negotiate the impact is called “impact bargaining.”
What is impact bargaining?
Impact bargaining is when an association demands in writing to commence negotiations regarding a change in the terms and conditions of employment, whether mandatory or non-mandatory/permissive, that impacts a mandatory topic of bargaining. The most typical example is when the superintendent directs a unit member to perform extra duties. Extra duties typically arise by positions being unfilled and the work being reassigned, new statutory/regulatory mandates – i.e., new reporting requirements, or the advent of new technology in the school district such as Gaggle or anonymous alerts that directly impacts building and/or program administrators and supervisors. Suppose additional duties are assigned to a member due to a retirement that extends their workday from 4:00pm to 5:00pm daily. The impact of the increase of 5 additional hours of work each week is the impact that needs to be negotiated. Also understand that there is a separate improper practice charge that may be filed if the duties must be performed every day and the administrator lacks discretion to do them at other times.
Foremost, the Association must make a formal written demand for impact bargaining. Typically, such bargaining centers around three aspects of the impact. The first consideration is compensation for the additional 5 hours of work. Can the parties reach accord on how to calculate that time for a reasonable settlement such as a per/diem hourly rate? The second aspect of impact bargaining is if these additional duties are critical to the operations of the school district, may the affected member be excused from performing other assigned tasks? This aspect requires analysis of the person’s current duties and what tasks may be easily transferred to someone else. The third and final consideration here is requesting additional staff to execute the new duties and assist the affected administrator in performing her/his regular assignments. These aspects and other unique considerations should be discussed to resolution at the negotiating table.
Suppose the parties meet four or five times without a resolution. Both sides appear to be getting frustrated by the process. Or perhaps management is present at the table but rejects or ignores the cogent arguments by the union for additional money, relief from previously assigned duties and/or additional support staff. Then, after consulting with SAANYS, declare impasse with the Public Employment Relations Board (“PERB”), and use the traditional mediation and fact-finding processes available under the Taylor Law. The introduction of a neutral third party may be what breaks the deadlock in bargaining. If the union feels that management has not engaged in good faith bargaining of the impact, then also file an improper practice charge with PERB against management for engaging in bad faith negotiating practices.
How long do we have to declare impasse or file an improper practice charge?
Remember there is a firm four-month statute of limitations that runs on all improper practice charges brought in PERB. Therefore, it is important to promptly contact SAANYS Legal Department with any questions when the district or BOCES unilaterally changes a term or condition of employment so we can evaluate any potential claims the association may have. As discussed above, the act of declaring impasse has no set time limit, but PERB typically will not entertain declarations of impasse where the parties have not negotiated on three separate occasions.
Improper Practice v. Impasse
In the context of impact bargaining, an improper practice charge should be promptly filed if there was a unilateral change in a mandatory topic of bargaining, e.g., increased work hours or the assignment of new duties not intrinsic to their current job assignment. Then subsequently file a demand for impact bargaining and commence collective bargaining. If, during negotiations, the union feels that the college, school district, or BOCES has engaged in bad faith bargaining practices, then the union may file a separate improper practice charge for bad faith bargaining and declare impasse on the underlying negotiations. All improper practices involve filing formal pleadings, followed by a pre-hearing conference, and then an adjudicatory hearing on the merits at which the parties present the witnesses. At any time prior to the administrative law judge’s decision, the parties may settle the case by negotiating an agreement that would obviate the need for the judge to render a decision.
The Impasse process facilitates negotiations. After declaring impasse, PERB will assign a mediator to assist both parties in negotiations. The mediator cannot force the parties to agree to any particular agreement. Rather, the mediator pushes both sides to reach common ground upon which an agreement can be reached. If mediation fails, the parties may request a fact finder be appointed, who, in the first instance, will attempt to mediate. If that attempt fails, the fact finder will conduct a hearing identifying the issues at hand, evaluate the parties’ positions through oral and/or written arguments, consider documentary evidence, and then issue a Fact Finder’s report making recommendations to the parties for what the neutral believes is a fair compromise. Neither the mediator nor the fact finder can dictate that the parties agree to any particular settlement of the impasse, their recommendations are purely advisory.
Which avenue(s) to pursue will depend on the facts of any given situation. Therefore, it is important to promptly contact SAANYS Legal Department at 518-782-0600 with any issues or questions.
On January 24, 2022, Supreme Court, Nassau County Judge, Thomas Rademaker, handed down a decision that held as unconstitutional the state mask mandate, 10 NYCRR § 2.60 and its corresponding Commissioner of Health’s December 10, 2021 Determination (updated after commencement of the action on January 13, 2022), promulgated through emergency rule-making by the New York Department of Health (DOH).
The January 24 decision, Demetriou et al. v. New York Department of Health, provides two rationales: (1) the at-issue regulation, 10 NYCRR §2.60 was promulgated without a legislative grant of power (i.e., a statutory source); and (2) the emergency rulemaking failed to follow the State Administrative Procedure Act, which details the legal process by which state agencies may promulgate rules. Importantly, in March 2021, the New York State Legislature extinguished the Executive’s authority to issue executive orders during a state disaster emergency by passing Executive Law § 29-A. Judge Rademaker’s decision goes on to say that Governor Kathy Hochul impermissibly circumvented Executive Law § 29-A by using the New York State Department of Health to issue the emergency rule 10 NYCRR §2.60.
The governor’s office appealed the January 24 decision to the Appellate Division, Second Department and, at about 2:00pm on January 25, 2022, the Second Department heard oral arguments. Shortly thereafter, Justice Robert J. Milller issued a stay, meaning the mask mandate is still in effect pending a Second Department decision on whether to overturn, uphold, or modify the Judge Rademaker’s decision.
Complicating things further is that there is disagreement among jurisdictions. The Supreme Court, Albany County in a November 23, 2021 decision in Massapequa Union Free School District et al. v. Kathy Hochul et al. In Massapequa, the Supreme Court denied the legal challenge on procedural grounds; specifically, the court noted that the petitioners did not have capacity to sue and having failed to establish standing to sue for want of injury. Notwithstanding the procedural grounds for dismissal, the Court opined that had the petitioners had capacity and standing to sue, their petition would still have failed because the DOH had the power to promulgate emergency regulations under Public Health Law §206—which is directly opposite of Judge Rademaker’s January 24 decision.
The Bottom Line
While the Second Department moved quickly, the stay they issued means that the mask mandate is still in effect pending the Second Department’s ultimate decision on the matter. SAANYS members with questions regarding CoVID-19 laws, rules, and regulations should contact SAANYS Legal Department at 518-782-0600 for assistance.
Leaves of absences are a common occurrence in the education system. Often, SAANYS members have questions regarding a leave of absence. Many times, those questions are regarding issues as to whether a leave of absence is considered as regular salary, is considered as pensionable, and whether or not the member will receive service credit for the period of the leave. While the answer may be obvious in some instances, it may not be quite as clear cut in others. In fact, for those members who are under the Teachers’ Retirement System (TRS), there are some instances where TRS makes that determination on a case by case basis.
Leaves of absence can be requested and or given for a variety of reasons. There are medical leaves, maternity/paternity leaves, administrative leaves or sabbaticals to name just a few. Many times, a Collective Bargaining Agreement, (CBA), or employment contract may designate some of the times a leave of absence may be granted by a school district.
Paid leaves of absence that are reportable to TRS as regular salary or considered as pensionable
Generally, for a paid of leave to considered as regular salary or pensionable, it must meet the following criteria:
1.) The paid leave of absence must be provided for in the governing employment contract, CBA or Memorandum of Agreement (MOA);
the paid leave of absence must not be tied to retirement or resignation.
2.) The employee is expected to return to his or her position after the leave of absence.
3.) The paid leave of absence is available to all members of the bargaining unit or administrative staff, regardless of age or proximity of retirement.
4.) In disciplinary cases, the paid leave must be in the process of an active dispute and not part of a settlement agreement.
Under the above conditions listed, the earnings during the leave would be considered as pensionable and the employee would be entitled to service credit for the period of paid leave of absence. In the case of an involuntary leave of absence during the pendency of a proceeding, the leave is generally considered to be pensionable, although these are decided on a case by case basis. We highly recommend providing TRS documentation of this leave as soon as possible.
It is important to note that unpaid leaves of absence are not reported to TRS and the employees do not receive service credit for pension purposes, even if those employees are eligible for health insurance or other employment benefits. This can include unauthorized medical leaves of absence or could include unpaid leave under the federal Family Medical Leave Act, or FMLA.
Paid leaves of absence not reportable to TRS as regular salary or not considered as pensionable
A paid leave of absence is not reportable to TRS as regular salary or considered as pensionable if is it tied to the employee’s retirement or resignation. The reasoning behind this is that the pay for this would be considered as termination pay, which is not pensionable unless the member is in Tier 1 with a date of membership prior to a June 17, 1971. It would not be considered in calculation for final pay with Tier 1 members with a membership date after June 17, 1971 or Tier 2 through Tier 6 members.
Such a leave of absence is also not reportable to TRS as regular salary or considered as pensionable under the following circumstances:
1.) The paid leave of absence is selectively negotiated outside the terms of the governing employment contract, CBA or MOA;
2.) The leave of absence requires employee’s resignation or immediately followed by the employee’s retirement;
Eligibility for the leave is dependent on employee’s age or proximity to retirement:
3.) The leave is not available to all members of the bargaining unit or administrative staff;
4.) The leave provides for payment for time not worked following the execution of a Settlement or Separation Agreement.
It is important to remember that these criteria give us a general overview of determinations used when members are under the Teachers Retirement System and is not exhaustive. As stated above, there are cases that TRS makes a determination on a case by case basis. Depending on your retirement system or your bargaining unit, the criteria may change. If you have questions, you should contact us at SAANYS to help you determine whether or not a leave of absence will be considered as regular salary, will be considered as pensionable and also whether or not you will receive service credit for your leave.
What do you do when confronted with a parent, member of the public, or even another staff member who objects to certain instruction materials? Such challenges may be on the rise. And while teachers are often the ones responsible for introducing students to allegedly objectionable materials, the difficult tasks of investigating and deciding the ultimate issue of whether the challenged instruction material is removed from the curriculum or library typically fall at least partially on administrators.
The ability to challenge instruction materials is, of course, an important tool for the public to exert a degree of control over what public schools expose children to. But what instruction materials can someone object to? Generally, anything is fair game. The public can often challenge class materials, books, documents from the internet, videos, or even guest speakers. A person can also object to education materials that are available outside the classroom; notably, library books. To offer this tool to the public, boards of education typically have board policies that outline the process for challenging instruction materials.
While these policies vary, some elements or themes are common to most, if not all, policies. A typical policy may require a formal, written objection to the superintendent, who will then assemble a committee to review the challenged materials. The committee may include several people, such building principals, librarians, teachers, or parents. The committee will deliberate and make a recommendation to the superintendent or the board of education. The superintendent or board of education will then render a decision on whether to keep or remove the challenged instruction material. Some challenge policies also have an appeal procedure, which commonly goes to the board of education (if, for example, the superintendent rendered the initial decision).
Different flavors of these policies occasionally appear. For example, one policy affords the objector a hearing where that person may voice their concerns, if they feel that presentation of certain materials is biased or unfair. In another example, some policies include an informal meeting with the superintendent to discuss the objections and potential informal solutions. Additionally, some policies may touch on materials that are in conflict with religious beliefs. The diversity among these policies makes it folly to assume the content of your district’s specific policy.
These policies also have the full force and effect of law; following them is therefore mandatory. It’s essential to be able to find your district’s policy on the board policies website. Because parents and students may be unaware of these policies as well, their challenges may take on many different forms, such as angry letters, emails, phone calls, and even personal confrontations. Prudent administrators will be knowledgeable of their district’s specific policies on the matter and will be able to direct objectors thereto. It may therefore behoove administrators to revisit these policies in advance of being confronted with a challenge, especially as more controversial ideas make their way into classrooms.
Employees confronted with a challenge to instruction material or who wish to know more about their district’s specific policy should contact SAANYS Legal Department at 518-782-0600 for assistance.
While the governor’s mandate that all school district employees must either provide proof of receiving the COVID-19 vaccine or be tested on a weekly basis has been in place for several weeks, there is a recent influx of Memoranda of Agreements (MOAs) on the topic reaching administrative bargaining units. SAANYS has heard a wide variety of opinions from both school district attorneys and non-administrative bargaining units as to what can or cannot be done unilaterally. Many of these opinions vary depending on the region. The reason for these discrepancies is that this scenario has not been contemplated by the courts or lawmakers in the past. Based on comparable scenarios, the following items are things for your unit to consider and positions the SAANYS Legal Department recommends should be taken if your unit is presented with a MOA on this topic.
Initially, the clearest point of law is that the time, place and cost of testing is a mandatory topic of bargaining for all unionized employees. SAANYS currently has a PERB case pending on this topic based upon a unit that was unilaterally directed to have all mandatory testing occur outside of the workday, with the burden of all arrangements and costs falling solely upon the unit members. Should this occur in your unit, contact the Legal Department immediately so that we may take the necessary actions to compel negotiations. There is a four month statute of litigation to commence an action at PERB if the district refuses to negotiate. While such actions are taking place, anyone who is ordered to be tested outside the workday at their own expense must comply and keep track of the time and cost associated. Given the influx of federal monies, there is no reason why a school district cannot have several clinics on site to accomplish the weekly testing at no cost to the employees. In fact, many districts have already set this up.
The next, and more complicated issue arises when an unvaccinated employee refuses to be tested. Many MOAs are providing that employees who refuse to be tested are automatically placed on unpaid leave. While this particular scenario is untested in the courts, it is SAANYS position that such automatic unpaid leave is a violation of an individual’s due process rights. What can and cannot occur depends on the type of employee and their probationary status. It should be noted that refusal to comply with a state mandate is a form of insubordination and will likely result in serious discipline, up to and including termination, as the health, safety and welfare of the students has long been held in many scenarios to outweigh personal opinions or concerns by the courts.
For example, if a permanent Civil Service employees refuse to comply with the testing mandate, they can be suspended without pay for up to 30 days pending the issuance of formal disciplinary charges. After 30 days, they must be returned to payroll while the disciplinary proceeding goes on.
Probationary certificated members will likely be subject to the Education Law Section 3031 termination process. Just like any individual who is going to be denied tenure for any other purpose, someone who refuses to comply with Covid testing will be given a written notice indicating that at the next board meeting that is at least 30 days in the future, termination will be recommended to the Board of Education. During that 30 day period, the person may request the reasons for termination in writing and can refute the reasons in writing to the Board of Education for its consideration during the vote. Should the Board agree with the recommendation for termination, it will take effect at least 30 days after the vote. The employee is still subject to receiving all pay and contractual benefits during this time. Thus, a probationary certificated administrator would receive a minimum of 60 days’ salary and benefits before being terminated.
Tenured certificated members are entitled to formal disciplinary charges under Education Law 3020-a, which is with pay the entire time the matter is pending and can take several months, if not longer. Some school attorneys have indicated that in such situations, they will try to have the hearing expedited like when an individual does not have a valid certification because the testing in lieu of vaccination is a prerequisite of employment. This is an issue that will have to be litigated should it occur, which may draw out the process even longer.
Another avenue we are hearing talks of is the idea that the testing requirement is akin to an Education Law Section 913 examination. For those who are not aware, this statute allows a Board of Education to order an employee to be examined by a doctor of the district’s choosing to ascertain whether the person is physically and/or mentally capable of working in a school. A negative report will lead to a disciplinary hearing seeking termination for those who are not probationary, which typically turns into a battle of the medical experts. Pursuant to caselaw on this particular statute, refusal to comply with the exam may lead to suspension without pay until the person is examined. This being said, it is a very specific individual process. It is our position that in order for the Covid testing to qualify as a 913 examination, every individual would have to be specifically ordered by the applicable Board of Education (through the use of their employee ID numbers) on a weekly basis to undertake the examination. There is no statutory mechanism for a blanket examination order of a group of employees on a weekly basis. Failure to specifically order this examination under the processes for 913 means that they are not in violation of that particular statute and; therefore, cannot be suspended without pay. Again, this is an untested scenario and would be subject to litigation.
Since this is an ever-evolving legal area of the law, it is important that units send any MOAs on this topic to the SAANYS Legal Department promptly for review and revision. Do not sign or otherwise agree to anything without our input, even if other units within your district are allegedly signing off on the process. What might not seem important to your unit today may impact someone later in the school year.
On September 2, 2021, New York Commissioner of Health Howard Zucker, MD, JD, issued a determination directing public school districts to require mandatory testing for faculty and staff who have not provided proof of vaccination, impacting school staff throughout the state. Earlier, New York City Mayor Bill de Blasio, through the NYC Health Department, issued an order on August 23 requiring all New York City public school staff to show proof of vaccination by September 28 or be put on unpaid leave. Additionally, on August 26, Governor Hochul issued a statewide vaccine requirement for healthcare workers that provided for no medical or religious exemptions. The SAANYS Legal Department is closely following all these cases, and this legal update attempts to succinctly synthesize the overall legal trends regarding these issues. Bear in mind that this is a non-exhaustive list of recent or ongoing cases, and that the legal landscape may change drastically by the time of publication.
In response to de Blasio’s August 23 vaccine mandate for school staff, the United Federation of Teachers (UFT) demanded impact bargaining over the mandate’s implementation. One issue the UFT raised was that the mandate did not specifically address either medical exemptions or accommodations, or sincerely held religious exemptions, which subsequently led to state and federal litigation, as well as collective bargaining and arbitration. The arbitration was initiated on September 1, 2021, and hearings were held from September 1 to September 5. On September 10, 2021, Arbitrator Martin Scheinmann, Esq., issued an arbitration award decision on an Arbitration between the Board of Education for the New York City School District and the United Federation of Teachers.
The award granted, among other things, an expedited review process for religious and medical exemption claims, the requested accommodation being allowing employees to work from home during the pending review. It further details the process for requesting exemptions and appeals. The Department of Education is allowed, under the award, to place unvaccinated or unexempted employees on unpaid (albeit non-disciplinary) leave as of September 28, 2021. Employees who separate during their unpaid leave will be considered to have resigned involuntarily for non-disciplinary reasons.
Federal litigation regarding de Blasio’s vaccine mandate resulted in a Second Circuit Court of Appeals decision granting a temporary restraining order (TRO) on September 24, 2021. A TRO is an emergency court order that suspends the effects of a law or regulation until the court can render a decision on whether to issue a longer-term, but still impermanent, suspension called a preliminary injunction. The Second Circuit subsequently reversed and dissolved this TRO in a decision that came down on Monday, September 27 by a three-judge panel, thereby ending the potential for a preliminary injunction.
A federal judge for the Northern District of New York, Judge Hurd, granted a TRO, which temporarily halted the August 26, 2021, state-wide vaccine mandate for healthcare workers. The TRO requires healthcare entities to issue medical and religious exemptions until Judge Hurd renders a decision on making the injunction permanent, argument for which are scheduled to be heard on October 12, 2021.
These cases are being rapidly adjudicated, and the legal landscape is therefore constantly changing. The trend appears to be that the vaccine mandates and testing mandates are upheld. Additionally, even if religious and medical exemptions are granted, it appears that the accommodations are frequent testing. Therefore, it is likely that all faculty and staff will have to at least test for the foreseeable future. With vaccine mandates without religious or medical exemptions being upheld, it appears possible that school districts may functionally mandate vaccination should districts decide to cease paying for testing.
SAANYS has a pending improper practice charge against CiTi BOCES, challenging the unilateral imposition of COVID-19 policies that require faculty to be tested on their own time. The BOCES’ decision unilaterally expands the work hours of its faculty, which implicates a mandatory topic of bargaining that will require negotiation. As we all continue to navigate these issues, please reach out to SAANYS’ Legal Department at 518-782-0600 with questions or concerns at any time.
Individual members with employment agreements with their district are in a unique position: They aren’t part of a bargaining unit and yet they enjoy the benefits of an employment agreement and representation. The benefits of being covered under a collective bargaining agreement are numerous and administrators may therefore find themselves concerned with how a promotion outside of the unit will affect their terms and conditions with their district. Do the benefits simply disappear when the individual member is promoted? Fortunately, the member may continue to enjoy certain benefits under their agreement or negotiate an entirely new agreement. Here are some important elements of such employment agreements and their rationale.
All agreements must have certain basic terms and conditions of employment. A non-exhaustive list of key terms includes salary, benefits, duties and responsibilities, and contract duration. Salary, benefits, and job duties are, of course, some of the most important elements, and individuals should negotiate this vigorously. While these are important elements that are essential for any agreement, it is equally important to implement them correctly. None of these provisions should incorporate its substance from another agreement, policy, or any other source. This is known as “incorporation by reference.” Why is this inadvisable? Because those sources are subject to change at any time—without your input. For example, if you want the benefits that an administrators’ association enjoys, then deliberately and clearly include each desired provision. That way, there’s no ambiguity as to whether you’re entitled to those benefits or not. Similarly, a clause stating that you will receive a benefit “in accordance with Board policy” is inadvisable. Much like how a collective bargaining agreement you are not a direct beneficiary of can be changed through negotiations without your input, Board policy can be altered at any time. By expressing spelling out the terms and conditions you want in your contract, you can avoid making your benefits dependent on something that you have no control over.
Duration refers to the start and end dates of the agreement and is another important term. While straight forward at its most basic level, an agreement’s duration can be negotiated to better suit the parties’ intentions. Specifically, parties may choose to include an automatic renewal clause (also known as an evergreen clause), which is a provision that allows an agreement to roll over at the end of its term. Instead of self-terminating at the end date, the agreement will automatically renew for the same duration of the agreement. For example, if your employment contract is for two years, then an evergreen clause would renew the agreement for another two years at the contract’s termination. The advantage to this is that the employee automatically enjoys the benefits of their contract, year after year, without additional negotiations. A party- may, of course, renegotiate their agreement even if there’s an evergreen clause. Evergreen clauses specify a time period during which the parties may agree to terminate or negotiate the agreement. For example, an evergreen clause may specify that either party may terminate or negotiate the agreement with proper notice to the other party sixty days prior to the contract’s end date. Even without an evergreen clause, having a duration in your contract is important because it is a fundamental of contract structure. The longer the duration, the more time you can rest assured that your benefits are locked in.
Perhaps most importantly, an employee with an individual agreement who is subject to tenure (or is currently in a tenure track position in a probationary capacity) may retain their tenure if they are promoted to an unrepresented supervisory position within their tenure area. . Many people do not realize that quite a few unrepresented certificated positions, including assistant superintendents (except in small city school districts), are subject to tenure laws. Unless you are serving in a title that is legally exempt from these laws, you should have your tenure area spelled out in the contract and upon Board appointment. If it is not, you may receive tenure by estoppel after serving in the position for the number of years necessary to complete a probationary period. Tenure by estoppel may grant an employee tenure if a district accepts and pays for the services of the administrator beyond the end of their probationary term with full knowledge and consent of the board of education. The law is clear that the only way a qualifying individual may not be awarded tenure is either through a vote to terminate during the probationary period or through an explicit written waiver agreeing to waive the possibility of tenure in exchange for an agreement that secures their employment for a period of time.even for probationary employees. Such an agreement must either be an explicit agreement between the parties for the district to waive its statutory rights under the Education Law, or there must be “compelling evidence that the school district made a conscious decision to do so.” Merely having a duration on the contract is insufficient. Therefore, employees may be unaware of their tenure rights or may be able to negotiate waiver of their probationary period and should consult a SAANYS attorney to help them negotiate those terms.
It is important to consult a SAANYS attorney any time you’re negotiating an agreement with your employer to ensure that the agreement says what you intend and also to make sure you are fully protected. Please call SAANYS’ counsel at 518-782-0600 for legal advice.
In a shocking decision, the United States Supreme Court in late June 2021 issued a decision in Mahanoy Area School District v. B.L. a Minor, 141 S.Ct. 2038 (2021) that overturned the commonly accepted rules regarding student off campus speech, sending school districts scurrying to figure out next steps. Up until the high court’s decision, school districts could regulate students off campus speech if there was a nexus back to the school. The Supreme Court blew up that precedent by declaring that a Pennsylvania “school violated B.L.’s First Amendment rights” when it suspended her from the cheerleading team for a year for using inappropriate language in a snapchat post regarding the school and cheerleading team, which was posted after school hours and off of school premises.
The facts before the court were that B.L., a high school freshman tried out for the Varsity Cheerleader team at the end of her first year of high school. Unfortunately, B.L. did not make the team. Instead, she was placed on the Junior Varsity team. What frosted B.L. was that a freshman made the Varsity team, whose mother just happened to be one of the coaches. Adding insult to injury, she also tried out for the Girls Softball team, made that team but was not selected for her preferred softball position.
Angered, and not accepting these decisions with good grace as the court noted, B.L. took action. At a local convenience store on Saturday night, B.L. used her smart phone to post two photos on Snapchat. The Court observed that Snapchat is a social media app that allows users to post photos and videos that disappear after a set period of time, here 24 hours. This fact was critical to the Court’s decision as was the further fact under Snapchat’s story feature, it only was viewed by B.L’s user “friend group” of about 250 people for the 24-hour period.
B.L.’s photos depicted B.L. and a friend with middle fingers raised, and bore the caption “F*** school F***softball F***cheer F*** everything”. The second image was blank but for the caption, which read: “Love how me and [another student] get told we need a year jv before we make varsity but tha[t] doesn’t matter to anyone else?” The caption also contained an upside-down smiley-face emoji.
B.L.’s Snapchat “friends group included high school students, some of whom also belonged to the cheerleading squad. At least one of the “friends” using another smart phone took pictures of B.L.’s post and shared them with other members of the cheerleading squad. One of the students who received the photos from showed them to her mother (who was a cheerleading squad coach), and the images spread. That week, several cheerleaders and other students approached the cheerleading coaches “visibly upset” about B.L.’s posts. The posts were also discussed during Algebra class taught by one of the two cheerleading coaches.
The cheerleading coaches discussed the matter with the principal. The coaches argued that the posts used profanity and that conduct involved a school extracurricula activity and, as such, violated the team and school rules. B.L. was suspended by the coaches from the JV cheerleading squad for the upcoming year. B.L’s. subsequent apologies did not move school officials. The school district’s athletic director, principal, superintendent, and school board affirmed the suspension. In response, B.L. and her parents sued the school district in federal court arguing deprivation of her first amendment free speech rights.
Contrary to prior precedent, the Supreme Court established a new standard that can be stated succinctly as: when students are off-campus during off school hours they are held to the same standards as adults and the school may not penalize their speech except if their speech materially disrupts classwork or invades the rights of others in a substantial manner, in which case the school may discipline them regardless if it occurs on or off campus.
If a student names the school, individuals working at the school, or other students in a hateful message where others can see such communications on social media, then under this standard speech could be held to invade the rights of others even if it occurred off campus and the school may penalize that speech. For example, if a student uses social media to bully or harass another student or individual then that may be able to be punished by the school because that is invading the rights of another.
Furthermore, the message must be more than unpleasant or an unpopular viewpoint and must rise to the level of a disruption. Disruption is more than a topic spoken about for a few minutes in class. If the speech is not disruptive then it may not be penalized. If the student were to say that they dislike the school play, then that may be unpleasant or an unpopular viewpoint, but it would need to be more than that to be a disruption or to invade the rights of others.
If the speech at issue causes serious morale issues at school, then it may be held as disruptive of classwork or invades the rights of others substantially and may be penalized. Low morale is more than a slight decline in morale, or a general negativity. The student saying they dislike the school football team might cause a slight decline in morale but one student alone would likely not have enough impact to cause low morale.
A school could say it has an interest in teaching good manners to its student but if the school does not have a policy of preventing vulgar language outside of school, then the school’s interest in teaching good manners is not sufficient to prohibit the free speech of its students.
If the student transmits the hateful message off campus but directly to the school or in a manner where others would have an easier time viewing it, then it might be punished. For example, if the student tags a teacher, the school, or another student in a hateful post then it is more likely to be able to be penalized by the school.
The Supreme Court’s new standard in student free speech cases is obtuse. Under this Supreme Court decision as building leaders making suspension determinations relating to student off-campus speech you must consider what day of the week and time of day the speech was uttered. Also critical is the how the speech was communicated. In the Mahoney Area School District v. B.L. a Minor case would the same result have occurred if Facebook, a more permanent social medium been used to post the photos instead of Snapchat? Another critical factor to consider is who was the student’s speech directed to? Finally, and most critically, what was the actual content of the speech. When confronted with such decisions, a good idea would be to run the facts past the school attorney. In doing so, you will exercise reasonable care, just in case the student sues.
Collective bargaining, or the process of collective negotiations, is a process whereby an employer and employee organization come together to meet at reasonable times and places to discuss in good faith wages, hours, and other terms and conditions of employment, or the negotiations of an agreement or any question arising thereunder and the execution of a reached agreement.
Individuals who are not a part of an employee organization can and will negotiate their own contract. It is an important point to remember that individuals who are a member of an employee organization or whose contract is negotiated by an employee organization are precluded from negotiating their own part of the contract. As an example, an individual who is a member of the recognized employee organization in their school district may not negotiate their own pay raise outside of the contract and outside the organization. Should an individual whose title is covered by a Collective Bargaining Agreement, including those who opt-out of union membership, directly negotiate a benefit with the employer, the association has the right to challenge the matter at PERB, which will invalidate the individually negotiated benefit.
Throughout, the negotiation process is governed by the Taylor Law. This law is officially entitled the Public Employees’ Fair Employment Act and is codified as Article 14 of the Civil Service Law. This law governs the labor relations between public employers and public employees in New York State. The purpose of the Taylor Law is to promote harmonious cooperative labor relations in the public sector and to avoid strikes.
Under the Taylor Law, a school district has the right to recognize employee organizations for the purpose of negotiating collectively and the right to enter into collective bargaining agreements. The law requires public employers to negotiate in good faith with an employee organization that has been recognized as the exclusive representative of a bargaining unit of its public employees. Failure to negotiate in good faith is considered to be an improper practice. While the parties must engage in negotiations regarding mandatory subjects of bargaining, neither party may be compelled to negotiate permissive or non-mandatory subjects.
Public employees are guaranteed the right of self-organization and representation for collective bargaining. As with public employers, the employees’ unit is also required to negotiate in good faith. Managerial and confidential employees are not covered under this law. Charter schools and their employees, while considered public employers are also not covered.
There are a lot of questions as to what “good faith” means. It has been described as Public Employment Relations Board, or PERB, as approaching the negotiating table with a sincere desire to reach an agreement. Good faith is based on the totality of the circumstances and requires a party to actively participate in negotiations indicating an intent to find a basis for agreement. It does not require a party to agree to a proposal from the opposing part nor does it require making a concession. It prohibits misrepresentations of information and withholding information regarding economic consequences. Each party must listen and promptly respond to the other party’s proposals. It does also require that each party give its negotiators sufficient authority to reach agreement on open issues. Good faith has no requirement as to the order of issues to be negotiated.
Two of the non-mandatory subjects of negotiation are the ground rules and the actual negotiation procedures. These can include the time and place for negotiating sessions, the length of the sessions and the procedures for ratification of the agreement by the parties. While these are non-mandatory subjects, it would be considered as an improper practice if one party insists on a ground rule that would prevent or deter progress or substantive negotiations. It is not an improper practice if one party violates a ground rule as long as the parties can continue negotiating in good faith.
The basic three classes of subjects are:
Mandatory: Deemed a term and condition of employment, as defined in Section
201(4) of the Taylor Law. These include wages, salaries, hours of employment and any other terms and conditions of employment.
Prohibited: Expressly prohibited by law or managed through public policy.
Permissive: Not terms and conditions of employment but do not violate a statute or a public policy.
Examples of each category are as follows and remember these lists are by no means exhaustive of the subjects:
Mandatory subjects can include items such as salaries, wages, hours, benefits, leave provisions, procedures for pre-approval of paid time off, changes in sick leave, disciplinary procedures, implementation of drug testing, and submission of medical documentation, different than what had previously been done.
Examples of prohibited subjects include retirement benefits provided by a public retirement system, delegation of a Board of Education’s (BOE) power to grant or deny tenure and preclusion of a BOE from inspection of teacher’s personnel files.
Permissive subjects can include hiring of substitutes and services and staffing levels, including staff reductions.
If the parties reach a stalemate of deadlock, an impasse can be declared by either party. When this occurs, the parties can agree to a procedure to resolve the impasse or PERB can become involved. PERB involvement can include mediation or fact finding. If fact finding occurs, either party may accept or reject the fact-finder’s report. If rejected, an additional mediation referred to as a Conciliation may be provided.
This description of collective bargaining is a very basic list. It is not intended to instruct you on all of the ins and outs of bargaining. You should remember that a negotiator provided by SAANYS understands not only the basics, but also the intricate parts of negotiation and the subtleties of those parts. SAANYS negotiates several contracts every year and can help negotiate a contract for you and your organization.
With the start of another academic year rapidly approaching on July 1, it is an opportune time for bargaining units to remember some of their rights and responsibilities, as well as to educate new members. The two most important documents for bargaining units are the Collective Bargaining Agreement (CBA) and the unit’s bylaws. Despite the importance of these documents, many do not fully know or understand the contents and importance of their applications in unit operations.
Initially, it should be reminded that since the Janus decision in 2018, units do not have the ability to assess modified dues, known as agency fees, against those who opt out of being a member of the unit. Members, both old and new, who opt out of paying dues should be educated at the local level on what this means. Opting out does not mean that people within titles covered by the recognized unit may negotiate their terms and conditions of employment directly with the district. Instead, they are bound by the terms negotiated by the bargaining unit within the CBA. A person who opts out has no say in those terms. In other words, they cannot be a member of the negotiations team, are not given input on the terms of negotiations, and cannot vote on successor agreements. This being said, since they are bound by the terms of the CBA, if it is violated, the unit must pursue the grievance in the same manner in which it would for a dues paying member. The same would hold true for a violation of the Taylor Act at PERB. However, this is where unit protections end. Those who opt out of the bargaining unit are not allowed to become officers of the unit or vote in unit elections. More importantly, a clarification to the Civil Service Law states that non-members are not entitled to representation in disciplinary matters. In the large scheme of things, this means that they must retain and pay a private attorney if they are charged under either Education Law §3020-a or Civil Service Law §75. It also means that they are not entitled to representation at the local level in smaller matters like poor evaluations, counseling memos, or investigations that are potentially disciplinary in nature. Bargaining units should not take on such representation, even if it is for good will among colleagues because it could lead to further obligations that the individual has not paid for. Contact SAANYS immediately should you run into such a situation and a reminder to all who chose to opt out would be well advised.
As previously mentioned, the CBA covers the terms and conditions of employment for all those covered by titles within the unit’s recognition clause. For most people, the important parts of the CBA are the salary increases and the health insurance contributions. While these are certainly the main benefits, it is important to understand your contract in order to ensure that you are receiving everything to which you are entitled. A common problem surrounds the payment of longevity. If it is provided under your CBA, you should be aware of when you hit certain benchmarks (does time spent as a teacher count?) and when you are to be paid (anniversary date versus start of the next school year if you were a mid-year hire). At least once per year, SAANYS receives calls from members who realize that they have not received their contractual longevity on time, sometimes for many years. Another term and condition of employment that has surprisingly popped up multiple times this year involves the contractual work year. People have worked time over summers and during recess periods when they were not contractually obligated. The remedy in such situations is largely dependent upon when a grievance is brought in relation to the statute of limitations, which is spelled out in the contractual grievance procedure. It is of vital importance to understand the timelines in the CBA’s grievance procedure and bring any potential violations of your contract to the attention of unit leadership and/or SAANYS as soon as possible.
Finally, an often overlooked document that plays an important part in any bargaining unit is its bylaws. Every unit should have and regularly update this document, as it spells out the rights and responsibilities of both unit officers and all members. SAANYS regularly refers units back to their bylaws when questions arise about determining whether a grievance should go forward, composition of negotiations teams, or even unit elections. It is strongly recommended that units send the bylaws to SAANYS for recordkeeping purposes in the event that they become lost when there are changes in leadership. Additionally, if your unit has not revised your bylaws since the Janus decision, it is important to amend them in order to specifically spell out the rights of unit members, versus those who have chosen to opt out. SAANYS has template bylaws for units of varying sizes and is willing to assist units in the drafting of new or revised ones. In some larger units, SAANYS works directly with a bylaws committee to create unique governing structures that address various unit undertakings and the representation of subgroups within the unit.
These simple documents and rules are vital to the orderly operation of a bargaining unit, as well as protecting your negotiated rights. Should you have any questions or need assistance interpreting these documents, the SAANYS Legal Department is always ready to assist you.
The First Amendment to the United States Constitution provides that governmental entities may not abridge an individual’s freedom of speech. (U.S. Const. Amend. I). That constitutional protection is not without limits. Previously, public employees, including public school district employees, enjoyed free speech protection under the First Amendment when they spoke on matters of public concern. Public concern can be a matter of political, social, or other matters of concern to the community.
More recently, this has been interpreted by the courts to only pertain to certain situation where a public employee is speaking on a matter of public concern, as a private citizen. This is applicable to school district employees. In fact, district employees may be disciplined or even terminated for speech that is not a matter of public concern or where that speech addresses a matter of public concern but is made pursuant to the discharge of official duties or responsibilities rather than that of a public citizen. However, protection may be available under the state’s whistleblower laws.
Determining whether or not speech is spoken as a citizen and protected by the First Amendment depends on whether it is spoken outside of the employee’s employment duties. Matters that fall into this category include giving sworn testimony as part of harassment and discrimination in the workplace investigations. It also includes testimony given pursuant to a subpoena.
One standard that has been followed since the U.S. Supreme Court’s 1969 decision in Tinker v. Des Moines Independent Community School District, is that of disruption. A school district employee may be subject to discipline or dismissal for speech that is deemed to be disruptive. A school district does not have to prove that speech actually caused disruption to the district’s operation, but only has to show that the speech threatened to interfere with that operation.
While this may seem simple, determination is not straightforward. As an example, a teacher was terminated for his much publicized active participation in the North American Man Boy Love Association. This group advocates legalizing sexual relationships between men and underage boys. The potential disruptiveness of returning him to the classroom outweighed his free speech rights. While this example may be a bit extreme, it easily illustrates the point. Conversely, a school district was precluded from taking disciplinary action against a faculty advisor to an extracurricular student newspaper, who allowed the publication of a cartoon depicting board members and an administrator unfavorably. The court here found no evidence of substantial disruption or material interference with school activities. If you have a question about where a particular activity falls, contact the SAANYS Legal Department to help you with that determination.
A question that has arisen recently is whether or not a school district can discipline an employee based on postings made by an employee on social media platforms or internet blogs. Social media postings may form the basis for discipline only if such postings were not in the context of a private citizen commenting on a matter of public concern. An example is one where a district employee was terminated based upon making comments regarding a desire to kill people, shoot down airplanes, and delusional theories regarding governmental conspiracies in private messages in an on-line game. The court held that even if his speech would fall under protected speech, his termination did not violate the First Amendment based upon the potential disruption his speech would have generated among parent and students.
At the time of this article, the U.S. Supreme Court is hearing a case involving this very issue as it pertains to a student. In this case, a 14 year old student failed to be picked for her schools varsity cheer squad. She posted a photo of herself giving the middle finger with the caption “F…school, f…softball, f…cheer, f…everything.” on Snapchat. Consequently, she was suspended from the cheer squad. The school relied on the Tinker case and claimed her actions would cause disruption. The student and her family sued the district based on the fact that the action took place on a Saturday and was not on campus. A federal court held in favor of the student and a federal appeals court upheld that decision. This case has now progressed to the U.S. Supreme Court. The decision is expected during the summer of 2021. While this decision directly involves a student, it will most likely have far reaching implications for school district employees as well.
Remember that we at SAANYS work to keep up on decisions and changes that affect our members. If you have a question regarding your First Amendment rights, contact us and we can help you.
In the past five years, SAANYS has posted several articles about health insurance, and particularly about retirement health insurance. As the New York Legislature floats a state-wide retirement incentive and many administrators have openly expressed exhaustion of having to work 24/7 over the past 13 months, retirement plans are legitimately being considered by many members. Besides the larger issue of whether I can afford to retire, a related issue (because of its cost) is do I have adequate health insurance that cannot be changed by subsequent negotiations or other actions. This article will identify considerations that must be carefully weighed by you in making this ultimate decision about your career.
Under New York law, there is no right to health insurance in retirement. In the western New York, SAANYS members either do not receive health insurance in retirement or only have health insurance coverage until they are 65 years old and then enroll in Medicare. Therefore, your source of right to health insurance in retirement inures from your collective bargaining agreement or in a few cases individual employment contracts. A limited number of community colleges, school districts, and BOCES that we represent also provide health insurance in retirement by board policy. CAUTION, if that is the source of your right, CHANGE IT, because at any time and for any reason, the board may amend the policy and thereby permanently alter your retirement health insurance benefit without any legal recourse by you. HOW TO CHANGE IT? You must collectively bargain retirement health insurance into your contract.
Understand that for members currently enrolled in the New York State Health Insurance Plan (NYSHIP), the community college, school district, or BOCES are a Participating Agency in NYSHIP, and as such, must provide health insurance in retirement at a minimum 50% individual premium cost sharing and 35% family premium cost sharing under the Civil Service rules of participation. In addition, under NYSHIP’s current rules, the retired employee and her/his spouse will be fully reimbursed for the cost of Medicare Part B premium costs, which will be discussed further below. However, understand that you are one decision away from the board deciding to leave NYSHIP and contract for cheaper health insurance that does not recover retirees. BEWARE!
Your collective bargaining agreement must protect your retirement health insurance benefit. Once you retire, you are no longer a member of your association. Hence, whatever rights you have for health insurance benefits in retirement are in the applicable contract under which you retired. The best way to protect your retirement health benefits is to state clearly in the contract what your retirement health insurance benefits are when you retire.
Years ago, almost every administrator retired at age 55. These retired members continued on the district’s health insurance plan for 10 years until the retiree turned 65 years old and enrolled in Medicare. The ten-year health insurance benefit was valued at between $200,000 to $300,000. Unfortunately, the trend now is that administrators retire later in life, typically around 58-60 years old.
To guarantee retirement health insurance, identify by name the health insurance plan in retirement. Lock in the plan. Then, spell out the amount of any deductibles, out-of-pocket expenses, and co-payments levels. Do not let these hidden costs escalate each year. Remember you are on virtually a fixed income. Remember, as a retiree, ensure your premium contribution toward health insurance in retirement should be fixed at the time of retirement (not subject to active employees’ contribution levels). All contract provisions involving health insurance coverage in retirement MUST include language that the benefit is FOR LIFE. A common misunderstanding is that a spouse has the right to survivorship health insurance coverage when the retiree predeceases their spouse. WRONG. That assumption is incorrect. The truth is that the right to survivorship is rare and must be collectively bargained in the contract. Finally, as discussed below, the contract must spell out what type of health insurance plan the retiree will participate in when the retiree enrolls in Medicare and does the employer reimburse the retiree for the cost of Medicare Part B coverage?
One suggestion, at the bargaining table, negotiate a contribution structure for premium cost sharing in retirement that is based on years of service to the employer. For example, if you work for the employer for 10 to 14 years you will contribute 15% toward the premium cost of health insurance. If you work 15 to 19 years, you will contribute 10%. If you work more than 20 years for your employer, you will receive free health insurance in retirement.
As a practical matter, contact your employer’s benefits clerk and inquire whether it will be cheaper to subscribe to two individual health insurance plans in retirement for you and your spouse instead of one family plan. Typically, it is cheaper. Also, if you predecease your spouse, they may forget to stop your spouse’s insurance if you die first.
When you turn 65 years old, almost all health insurance plans in New York require the covered retiree (and spouse) to enroll in Medicare, a federal health insurance program providing health coverage for individuals over 65 years old or who are found to be permanently disabled by the Social Security Administration. Understand that Medicare provides health insurance coverage for hospitalizations (Part A) and physicians (Part B) on an 80-20 split. Note that if you are still actively working past the age of 65, you need not enroll in Medicare Part B, but you should enroll in Medicare Part A. When you enroll in Medicare, the federal health insurance program will become your primary insurance and your employer provided retirement health insurance coverage will become secondary. If you do not have employer health insurance after turning 65 years old, SAANYS does not recommend you go without health insurance coverage. You will need to enroll in a Medicare Supplemental Plan. Please note the federal government offers a Medicare Supplemental Plan under Part C. According to health industry experts Medicare Part C has come a long way and is a good product, but still shop around. Remember post 65 years old you are responsible to pay for the remaining 20%.
If you are fortunate and you have employer provided insurance post 65, your employer insurance will now be secondary. In a minority of school districts because of poor financing and occasionally contractual obligations, a former employer continues to enroll retirees in its active employee health insurance plans. Such continued coverage costs a district approximately 300% more to do so. Most employers, however, remove retirees from their active employee health insurance plan and enroll them in a Medicare Supplemental Plan to cover its 20% obligation at significant less cost. Also, such supplemental plans are customized to meet the needs of the retirees. Again, in Western New York, many employers cease health insurance coverage altogether when a retiree enrolls in Medicare. Do not let that happen. Try to negotiate for continued health insurance coverage after enrollment in Medicare. Again, if you cease to have employer health insurance post Medicare enrollment, purchase Medicare Part C or a private supplemental plan, such as through AARP. The cost of a Medicare supplemental plan will run around $5,000 on Long Island and in the lower Hudson Valley, but decrease in cost upstate.
Most clients are unaware of who pays for your federal Medicare coverage. Part A hospitalization premium costs you have previously paid in your FUTA/FICA payroll taxes. However, if you spouse has not worked out of the home, they will have to pay for Part A for them. Medicare Part B premiums are paid by the enrolled retiree. Payment may be deducted from your monthly Social Security check or paid directly by the retiree to the federal government each month.
Under the Medicare Modernization Act of 2003, the amount of the Medicare Part B premium payments is calculated based on your adjusted gross income two years prior (known as a two-year look back) to the year in question. The increased levels of Medicare Part B premium costs are part of the Income Related Monthly Adjustment Amount (IRMAA) established in 2003 under the Medicare Modernization Act. The IRMAA acts as a surcharge based on your income. =Remember that 85% of your monthly Social Security payments are federally taxable income, as is your pension and any other money you earn or remove from IRC Sections 401k, 403(b), 457, or other types of private annuities or investments.
In 2021, the standard/base premium cost for Medicare Part B coverage is $148.50/month per person or $1,782 a year for an individual who earns less than $88,000 or for a husband and wife who earn less than $176,000 in adjusted gross income. The first IRMAA surcharge will kick individually with income between $88,000-$111,000 or if you file jointly a combined income between $176,000 and $220,000. In such case, your monthly premium will be $207.96/month; the next IRMAA surcharge kicks in individually between $111,000 and $138,000 or jointly between $220,000 and $276,000, your monthly premium will be $297.00/month. The surcharges increase based on your adjusted gross income. IRMAA will affect clients on Long Island, Westchester, the lower Hudson Valley, and in other urban/suburban areas in the state and/or who have spouse who earn higher salaries than they do.
If you are fortunate enough to be enrolled in the NYSHIP or your employer provides Medicare Part B reimbursement based on a contractual obligation or established practice, make sure your contract expressly states that the employer fully pays the Medicare Part B reimbursement benefit for the retiree and their spouse. A trend in collective bargaining in recent years is for school districts or BOCES to negotiate, or worse, unilaterally change to provide only the standard reimbursement amount instead of the longstanding IRMAA. Currently, the Medicare Part B reimbursement benefit is actuarially valued around $35,000 for the retired employee. Add another $35,000 for the spouse of the covered employee and you see how valuable this $70,000 deferred compensation benefit is to you. Thus, fight to get this benefit in your contract and keep it.
Many public sector health insurance plans include a prescription drug rider. However, some public employers purchase an entirely separate prescription drug plan with a mail order option. In reviewing many contracts, frequently prescriptions drugs coverage is not spelled out well. Therefore, set forth in clear detail for both active employees and retirees the specific drug plan by identifying it by name, including any mail order option. Also, specify the number of tiers and associated co-payments with each tier. Some employers attempt to negotiate the exclusion of drug coverage in retirement, do not let that happen. According to industry standards the average person over 50 years old take 6 drugs daily. If you do not have prescription drug coverage in retirement, buying it on the open market will be costly. Understand you can purchase prescription drug coverage from the federal government as part of your Medicare enrollment at age 65, i.e., Part D coverage. However, the premium costs of Part D coverage also have an IRMMA adjustments based on your annual adjusted gross income from 2 years before. Thus, if you opt to purchase Medicare Part D coverage it could prove very costly. Again, ensure through collective bargaining that the employer will continue your prescription drug coverage in retirement for life.
This article was meant to have you review your contract’s health insurance provision. Review it. And, by all means consult with SAANYS on how to improve your hard-earned health insurance benefits in retirement.
Administrators expend great time, energy, and thought when creating high-quality work products to meet the academic and safety needs of their students. When a new system or documentation works out well, they justifiably take great pride in their work product and eagerly look forward to sharing their progress with others. However, many people are unpleasantly surprised when their employing districts prevent them from applying the fruits of their hard earned labor when they move on to other opportunities. Similarly, there can be a dispute over the ability to download what are considered to be “personal” documents off of district servers upon separation.
Initially, it is very important to remind our members that there is absolutely no expectation of privacy when using district servers or equipment. Check your employer’s acceptable use policy to see what, if any, personal business you may conduct through district email or using district owned equipment, such as computers, tablets, and phones. Some employers strictly prohibit the use of its property or servers for personal business, even if it is for an innocent purposes such as registering your own child for a scholastic program or paying bills. Other districts may allow such use as long as it does not interfere with the administrators’ work. In either scenario, it is important to understand the policy you are working under and realize that, even if you have permission to use district email for personal reasons, as an example, that the district may still read your correspondence and/or online habits and use any abuse of the privilege as part of a neglect of duty charge. It should go without saying that any illicit behaviors, such as online gambling, sexting, or pornography should be kept to your personal equipment/servers and only take place during off hours.
Regardless of the permissions you may or may not have, it is important not to save vital personal documents or passwords on district computers or cloud accounts without having copies on your personal devices. Even when separating from an employer under good terms, administrators are often surprised when districts refuse to allow them unrestricted access to remove personal files from emails or servers. While a supervised removal is often permitted, the district typically will want to ensure that no district work product or student data leaves the premises. The same holds true for paper documentation. While it may be convenient to do your taxes in your office while waiting for an evening event, it is important to bring the documents back home promptly to avoid any confusion and/or invasive review of personal information upon separation.
What is district work product? Simply put, it is anything you author and/or implement within the scope of your employment. As an example, if you were to create a new schedule or curriculum that worked very well, that belongs to the district, even if you were the sole author. This means that the district you worked for at the time of creation has every right to prevent you from taking the files you created and using them at a different district. Unless you have permission from the owning district, you will have to recreate the product from memory to use elsewhere.
Similarly, any notes or calendar entries you may take within the scope of your duties do not belong to you and must be turned over upon district demand. This means that the notes of an investigation or potentially disciplinary meeting you could be requested years later for use by the district when defending a legal claim or pursuing disciplinary charges against an employee. Thus, it is important to have a clear understanding from the district what types of documents should be saved and for how long.
An important distinction comes into play when an administrator feels as if he/she may be the subject of harassment or other targeting. In such cases, SAANYS will often suggest keeping a log of notable events and copies of pertinent documents. As this is something that would be kept in your private capacity and not specifically to carry out the mission of the district, it is not something that has to be turned over unless litigation commences. However, such a log should be created after the workday and kept off of district property. This is to ensure the privacy of the documentation, as even though it is your personal record, again, the district has the unfettered right to read your emails, computer files and any handwritten documents stored on district property.
While it is understandably difficult to separate your personal and professional lives given the overwhelming dedication each of you provide to your districts, best practice is to particularly do so when it comes to documentation to avoid undue invasions of your privacy. Any questions relating to whether documentation can or should be turned over upon request should be directed to the SAANYS Legal Department so we can advise you accordingly.
A school district may have reason to try to reorganize its administrative structure. School districts have broad latitude to reorganize administrative positions including abolition of positions. One of the most common reasons for reorganization is that of economic considerations. Other reason may include changing student enrollment or evolving pedagogical or social/emotional needs of the students. Occasionally, these considerations require the abolishment of one or more administrative positions. A district must be able to show that the abolishment of a position actually results in a benefit and is not being used to circumvent an employee’s tenure rights. If a position is abolished, what can the displaced administrator do?
To answer that question, we must first discuss tenure areas, which are critically important for several reasons. Unlike with teachers, administrative tenure areas are not regulated by the state. This means that your current employing district or BOCES may have a single tenure area for all administrators, including those in the central office who qualify for a tenure track position, and the district next door may have title-specific tenure areas. There are positives and negatives to either scenario. A broad tenure area gives the district the ability to move employees as it sees fit and also allows for administrators to be promoted without having to start a new probationary period. (NOTE: an administrator cannot be transferred outside of his/her tenure area without express written consent, so when taking a promotional position, it is important to look at your probationary board appointment minutes. Signing an acceptance letter when taking a new position that states a different tenure area than that set forth in your initial probationary appointment minutes might result in an unnecessary restarting of a probationary period.) Conversely, a broad tenure area can be used to demote a person to a subordinate position. It also has the potentially negative effect of eliminating an administrator in a position completely unrelated to the one abolished. Having a narrower tenure area gives a bit more structure when it comes to layoffs, but comes with decreased flexibility when moves are to be made, which may be in a person’s interest anyway. Thus, it is vitally important for both individuals and units to understand which tenure areas are applied in the district when layoffs are to occur.
When an administrative position is abolished, the administrator with the least amount of seniority in the tenure area is the first to be dismissed. If the displaced administrator is not the least senior in that tenure area, they are able to bump a less senior administrator.
If the district is creating a new position with similar duties, the displaced administrator may be eligible for that position, without a reduction in salary. To be eligible for the new position, the administrator must show the following:
- The new position is in the same tenure are as the abolished position, AND
- The new position has more than 50 percent of duties in common with the administrator’s position. Skill, experience, training, and certification to perform the duties of the new position must be considered.
It may seem to be a simple matter to determine if tenure areas are the same, however, it can and frequently does, become complicated. For example, a district may believe that a tenure area is one thing, but it is, in fact, something completely different. This is why getting the probationary appointment minutes for those in the unit is important when layoffs are being discussed. Oftentimes, tenure areas are not set forth in board minutes. In such situations, the law is clear that the default tenure area is that of a broad administrator. SAANYS won a case before the commissioner of education in the summer of 2020 in such a situation. In Appeal of Gallagher, the district abolished the high school principal position in favor of a k-12 executive principal and determined that the incumbent principal was in the singleton tenure area of high school principal and placed him on a preferred eligibility list. However, the probationary appointment minutes failed to specify a tenure area, which meant that the principal was in a general tenure area and not the least senior administrator at the time. The commissioner of education confirmed this fact and ordered the district to recall the principal to an administrative title without loss of salary, tenure or seniority, as well as back salary and benefits for the period in which he was unemployed. According to the commissioner, this recall, if necessary, could result in his displacing another administrator in a narrower tenure area. This also illustrates the reason why it is important to contact the SAANYS Legal Department when this type of situation initially arises.
When a new position is created, the comparison of jobs to determine the similarity can also be something less than straightforward. The commissioner of education has previously determined that the jobs of k-6 principal and director of curriculum, instruction, and professional development are not similar. It has also been held that building principal and assistant superintendent were not the same. If it is determined that the administrator is, in fact, the least senior in his or her tenure area and there is no open position similar enough to claim, that administrator has the right to be placed on a Preferred Eligibility List (PEL) for appointment to a similar position within his or her tenure area. The administrator may be called back from the PEL for reinstatement for up to seven years after the position is abolished. As with a new position, the administrator must show that the position to which he or she claims they are entitled is in the same tenure area as the abolished position and includes more than 50 percent of duties in common. Upon recall, the administrator will continue his or her seniority and tenure status when it left off. This means that if an administrator had three years towards tenure when the position was abolished, he or she will return upon recall with only one year left in the probationary period.
The timeframe for challenging seniority or recall decision is a brief thirty days. Therefore, it is of vital importance that the SAANYS Legal Department is called as soon as things start to occur, for careful analysis and potential action. It is also recommended that units both request a seniority list and appointing documents from the district, as well as prepare and maintain a seniority list by tenure area whenever administrative restructuring is being discussed to be able to ascertain the rights of unit members.
SAANYS extends warm greetings to all members for a happy, healthy, and prosperous New Year. The events of the past year involving COVID-19 have permanently affected the delivery of public education in New York State. Without the Herculean efforts of our members, the children in NYS would have been deprived of the sound, basic education as required by the New York State constitution. We thank you for all you have done and the mountain of work that still lies ahead as COVID-19 is brought under control. This article will recap the government’s actions in response to COVID-19 and how they have significantly affected your jobs and will continue to do so in the near future.
On January 20, 2020, the World Health Organization designated COVID-19 as a public health emergency of international concern. On January 31, 2020, the US secretary of health and human services determined that a public health emergency existed in the United States nationwide since January 27, 2020. Governor Andrew Cuomo declared a state of emergency on March 7, 2020 due to COVID -19, thereby empowering him to “temporarily suspend or modify any statute, local law, or ordinance, order….” On March 13, 2020, President Donald Trump declared a national emergency in response to COVID-19. As of December 30, 2020, Governor Cuomo has issued 87 Executive Orders dealing specifically with the COVID-19 pandemic and six other Executive Orders without any legislative oversight. Executive Order 205 and the subsequent related orders all involve restrictions on travel to and from New York.
By Executive Order 202-4, which was subsequently amended four times, the governor closed all public and private schools in New York State for the reminder of the 2019-20 school year. In those orders, the governor declared public schools must perform three essential functions during the “pause.” As many of you remember, the three essential functions involved were providing (1) online instruction to students, (2) availability and distribution of meals, and (3) providing childcare for frontline health and hospital workers. Administrators and supervisors throughout the state quickly mobilized to perform these public functions. They worked around the clock to address every student, parent, and community member’s needs while managing and encouraging staff in executing the three essential services the public schools were mandated to provide during school closure. For that, SAANYS thanks you.
Some school districts engaged in collective bargaining with teachers’ unions regarding the delivery of online instruction. Sadly, building-level administration and programmatic supervisors were not at the table. As a result, in those districts, the negotiated virtual instruction has left much to be desired, in that the instruction was not conducted on an ainteractive platform with teachers and students.
Most districts were also caught off guard based on the magnitude of the requirements to successfully provide online instruction. Issues arose regarding distribution of computers, iPads, internet access, and conductivity, to name but a few of the problems administrators and supervisors tackled. Virtual attendance still remains a problem in urban and rural areas.
A few school districts still required their administrators and supervisors to work on site during the initial months of the pause. However, the overwhelming majority of administrators and supervisors worked virtually during the spring of 2020. However, in May 2020, the governor required 50% of the essential workers who were home, working remotely, to return to work. This Executive Order ignited a debate statewide whether school administrators and supervisors were essential workers. Like most of the governor’s Executive Orders, and the subsequent guidance issued by the State Health Department and the State Education Department, the issue of who was an essential employee was clear as mud. SAANYS stepped in and worked with many local unions and districts to agree who is an essential employee — sometimes we were unsuccessful. Shortly, all districts must file with SED the identification of its essential employees and describe the essential job functions that the district requires to be performed by its essential employees, in addition to the three essential services the governor has previously identified.
In addition, by Executive Order, spring school vacation was obliterated. As a result, many administrators were denied use of vacation days as they worked around the clock to meet the needs of their communities. SAANYS assisted many bargaining units in successfully negotiating agreements to roll over or get paid for unused vacation leave during the 2019-20 school year. SAANYS is now working on extending those vacation rollovers or payout agreements for the 2020-21 school year.
In the 2019-20 school year, SED with the approval of the governor suspended Regents examinations in the spring of 2020 as well as the requirements of APPR. SAANYS again stepped in and worked with school districts and BOCES to grant tenure to building principals and program leaders up for tenure under the APPR structure, who obviously did not comply with statutory mandates involving APPR that school year. So far, there has been no litigation on the award of tenure without strict adherence to the statutory mandate of three consecutive effective ratings and no rating of developing or ineffective in the final year of probation. Yet, SAANYS anticipates in the future there may be litigation on this topic.
In June 2020, as graduation 2020 drew near, much time was devoted to working with administrators and supervisors, especially high school principals who were left with a daunting task of providing parents and students with a virtual and/or drive-in graduation ceremony, if not an in-person graduation ceremony. SAANYS frequently reviewed with our clients, the rules of County Departments of Health as well as State Department of Health guidelines regarding public gatherings to ensure the ceremonies adhered to that guidance.
Over the summer, SAANYS worked with many members on vacation-related issues and the mandates of quarantining upon return from vacation. It is interesting that in certain cases, superintendents would declare administrators essential employees to obviate compliance with the mandate of quarantining from out-of-state travel. Also, Governor Cuomo did not order quarantining for travel to any state contiguous to New York, since many New York workers reside in those states, including some of our members. Currently, travel beyond the contiguous states currently requires (1) a testing requirement in the destination state within three days as well as testing within four days of a person’s return to New York or (2) quarantine upon return for 14 days, which has recently been modified to 10 days according to the latest CDC guidance.
Also, in the summer of 2020, administrators and supervisors worked with central administration in presenting school reopening plans in the fall of which plans had to include in-person instruction, full remote instruction, as well as a hybrid, or combination of both. Again, SAANYS assisted members in working on their reopening plans.
A few big issues have developed over the past few months. One issue involves COVID-19 testing of school employees and students. Early on, problems arose concerning the lack of coordinated notification of test results of employees and students. It quickly became apparent that the County Departments of Health were not synchronized with other local Department of Healths as well as the State Department of Health, all of whom had to work closely in conjunction with local school districts and BOCES when positive test results occurred in the school setting. Delays in notification of positive results occurred, especially where administrators and supervisors worked in one county but lived in another. Remember, you are obligated to report your positive test result to your superintendent immediately.
A second issue now upon us involves who is going to test students and/or employees who return to work. As we currently know, school nurses, based on their licensure, are currently authorized to test students and employees for COVID-19. In fact, during the pandemic, the value of school nurses has been recognized and very much appreciated. However, now if an administrator or supervisor completes the three-hour course on test administration, they too may be called upon to perform these tests in the school setting. In this regard, SAANYS’ college administrator members have not been asked to perform testing. Such testing is being handled by others. Understand that a directive to administrators and supervisors to perform COVID-19 testing will lead to impact bargaining.
SAANYS has also explored the constitutionality of ordering school personnel and students to be tested prior to admittance into the school. Under the public health, safety, and welfare exception to government action, such requirements will be upheld in any constitutional challenge.
There have also problems associated with the governor’s rollout of zones based on metrics and the designation of red, orange, yellow, and green zones. After some flip-flopping, schools in red or orange zones do not have to completely close down. Instead, the school buildings must conduct testing that guarantees 25% of the building population will be tested each week until the entire school population has been tested.
Presently, County Departments of Health are stepping back from contract tracing. Administrators and supervisors are now performing these tasks in school districts, especially on Long Island. In addition, the administrators and supervisors are also now responsible for notification of employees and students regarding positive cases of COVID-19 and mandatory or precautionary quarantining. These two additional tasks being performed by administrators increases the workday and work weeks of our members and will also lead to impact bargaining.
With the cancellation of the January 2021 Regents examinations, the question remains whether SED will require administrators to adhere to the APPR plans previously submitted to the state. SAANYS is working to have the state forebear compliance for this year, but we recommend that our clients continue to adhere to the mandates of their plan until otherwise directed. Furthermore, APPR plans need to be revised. SAANYS strongly suggests that you contact our Legal Department for guidance and recommendations.
The next COVID-19 related issue on the horizon is vaccination. As you may know, school personnel are designated in Phase 1B for inoculation, though the rollout of vaccinations has been horribly delayed in New York thus far. That mandate leads to the next possible constitutional challenge involving whether community colleges, school districts, or BOCES can mandate its administrative/supervisory employees to be vaccinated. Some people may object for personal reasons, on religious grounds, or due to medical reasons (like the flu vaccination which may be fatal if administered to people with Guillain Barre Syndrome). Neither New York nor the United States has been confronted with a fatal virus of this magnitude before. Therefore, if a state law (akin to the 2019 mandatory measles vaccination) or federal law is passed that mandates vaccination for all school personnel including students, it will probably be upheld as necessary on constitutional grounds in the interest of public health, safety, and welfare unless medical information is presented that would show the administration of the vaccination will lead to serious medical complications and/or death. The other grounds for refusal will be rejected in a subsequent court challenge. However, that litigation and decision is still down the road.
Looking ahead, several issues will need attention. SAANYS is here to help its members tackle these issues. Members should be prepared again to negotiate the rollover or payout of unused vacation leave that cannot be taken during the 2020-21 school year. Bargaining units should also negotiate the impact of the multiple COVID-19-related tasks thrust upon administrators during the pandemic as discussed. As mentioned, APPR needs to be renegotiated and SAANYS may be of assistance there. With New York’s poor economic forecast, including the still threatened 20% cut in state aid, some administrative positions have already been cut resulting in larger workloads for the remaining members of the administrative unit. This situation also warrants impact bargaining. Equally important in those situations is to file improper practice charges with community colleges, school districts, or policies; or if BOCES attempts to transfer administrative duties outside the bargaining unit. Those units, which have negotiated single-year rollover contracts from last year or have multiyear contracts expiring this year, would best be served by enlisting SAANYS to help them in collective bargaining successor contracts as effectively, efficiently, and quickly as possible. Continue to do the outstanding jobs that you are currently performing and remember SAANYS has your back.
In today’s society we are facing issues that are new to all of us. The global pandemic has caused economic devastation to many businesses and industries. School districts are not immune to this.
With the economic downturn, New York State is facing a massive financial deficit. Due to that deficit, the state is looking to drastically reduce spending (see ECB article to the left). One of these cost cutting measures is to cut aid to school districts this year. School districts are unique in the sense that there are limitations as to revenue that can be raised by the district, which is typically through school tax. What schools do not raise through tax is normally provided through aid from the state. For districts that do not have a large tax base, that aid can be a significant part of their budget.
It is projected that aid will be reduced by as much as 20 percent this year. For school districts that are highly dependent on that aid, their yearly budgets will be gutted. This means that schools will be forced to reduce spending and one way to do that is through reduction in staff. This raises the issue of how to accomplish these reductions. The discussion of layoffs or furloughs has come to the forefront. While many may use those two terms interchangeably, they are different procedures and can actually have very different implications. It is important to understand those differences and the pros and cons of each.
As each is described, keep in mind that most of the provisions can be altered through a Collective Bargaining Agreement (CBA) or even a Memorandum of Agreement (MOA). While these may be altered by a CBA or MOA, it must be remembered that any Taylor Law contract provisions may not contradict layoff rights vested in employees by laws such as §§80 or 80-a of the New York State Civil Service Law.
A furlough is used as a temporary period in which an employer requires a worker to take unpaid time off work. This can come in the form of a reduction of hours, a reduction in days worked, or a temporary unpaid time period out of work. The intent is to recall the employee and typically, a furlough will have a “date certain” to recall the employee. Employment is not severed, and the employee is still considered to be an employee.
A furlough will save a school district money in that the salary for the individual(s) is not paid. The economic savings may not be as great since the individual is still considered as employed and would arguably still be eligible for benefits. This could be addressed through an MOA. That MOA would spell out the terms and timeframe for the furlough.
A furlough could be beneficial to a school district because when the individual is returned to work, it is simply a status change. At that time, the individual is returned to their position, any pay and benefits that had been suspended would resume. As they were always considered an employee, it is only a status change. Using furlough as an option for reducing expenses may be a benefit in working with a union representing employees because the position(s) are not lost, and employment is not severed. For example, employees may only be furloughed for one day every two weeks, which would minimize the loss to the employee while still ensuring adequate staffing for the district.
Use of layoffs is a more permanent action. School districts will utilize this action through abolishing positions. A layoff does not have a “date certain” and the intent may or may not be to recall the employee. Here, the individual’s employment is severed and he or she is no longer considered to be an active employee. However, as used in a school setting, this becomes more of a gray area, which we will address in a moment.
A school district may layoff employees from a designated tenure area, based on seniority or a LIFO principle (Last In First Out). This means that the employee may be able to “bump” other individuals within that layoff unit. These “bumping” rights are based on seniority in that specific tenure area. This can cause some confusion as an employee with more seniority in a district may not have as much seniority in a tenure area. SAANYS recommends that units head this confusion off at the pass by requesting the tenure documents and seniority lists in advance of any potential layoffs for analysis by the SAANYS Legal Department.
The laid-off individual is placed on a Preferred Eligibility List (PEL). As opportunities arise within the specific tenure area, the PEL must be used to offer positions to individuals. This is commonly referred to as recalling the individual. Recall is based on seniority in the school district, as opposed to time in the tenure area. This means that someone who has graduated through the ranks first as a teacher and then as an administrator may be recalled before someone who has served longer as an administrator. Offers for recall are within the tenure area the individual was in when laid off.
School districts will typically use layoffs because of the economic savings because not only would the employee pay be discontinued, but payment for benefits would typically stop, as the individuals are no longer considered as active employees. However, this, again, may be altered by a MOA or the CBA. A furlough would reduce the amount paid out through salaries, but would maintain a cost of the benefits, such as health care. So, while there is a smaller cost saving, the school could also benefit from not having to go through the hiring process and simply recall the individual(s) without any goodwill with the union or association being affected.
As has been shown, a furlough and a layoff can both accomplish a cost savings, but they are not the same. Employers, especially school districts, need to understand the differences between the two. They also need to weigh the pros and cons of both before they act. Similarly, should your district be considering either of these actions, it is important that you contact the SAANYS Legal Department promptly for analysis of the proposals and strategies for minimizing the impact upon the unit and its members.
Even prior to Governor Cuomo’s threatened 20 percent cut in state aid, school districts were looking for ways to save money. For some unfortunate districts, the decrease in funding may result in school closures and/or the elimination of positions. While there are many nuances and case-by-case variations as to the possible outcomes of an abolished position, the following is a brief overview as to your rights and responsibilities should your position be abolished.
When a board of education abolishes a certificated administrative position, the least senior administrator in the tenure area of the position being abolished is subject to layoff and is placed on a preferred eligibility list for seven years. Seniority for administrators is based on the time spent in a tenure area, which is not necessarily the same as the position the administrator serves in. Thus, for example, it is possible that a specific position, such as middle school assistant principal, is abolished, but the person serving in that position is not the one laid off because his tenure is merely “administrator” and he has more years of service within that tenure area than another.
Administrators whose positions are abolished are eligible for recall to any open positions within the tenure area throughout the seven-year period. A certificated administrator may decline a recall and the district will have to continuously offer openings within the tenure area throughout the time they are on the preferred eligibility list. While layoffs are based in on the concept of last in, first out, recall is not necessarily that simple. Recall from a preferred eligibility list is based upon total continuous service within the district. Thus, it is entirely possible for an individual who has lesser seniority within a tenure area to be recalled before someone who has more time in the same tenure area because of prior service in the district as a teacher or in another administrative tenure area. Note that seniority for recall purposes is based upon consecutive service, which means if you taught in a district, left for another district, and returned, your time before separating will not count in a seniority calculation.
When a competitive class Civil Service position is abolished, the seniority of all of the employees in the affected competitive class is considered. Seniority for civil service employees is based upon continuous service in the classified service and is measured from the date of the original permanent appointment, with constant service in the class to the date of abolition of the position.
After seniority within the competitive class is determined, layoffs occurs in the following order: (1) temporary employees, (2) provisional employees, (3) contingent permanent employees, (4) probationary employees, and finally, (5) permanent employees. If a permanent employee is to be laid off, the least senior appointment is the one terminated.
Some Civil Service employees may have what are known as bumping or retreating rights. Bumping occurs when the abolished position is one that had a direct line of promotion. The laid off employee can take over the position of the least senior employee in the immediately subordinate position, provided the individual in the subordinate position does not have greater overall seniority. In situations where there are no subordinate positions, a competitive class employee may retreat to the last competitive class position she/he served in, so long as their performance in that position was satisfactory, the former position was in a lower salary grade, and the individual to be displaced does not have greater overall seniority.
If the laid off employee does not displace another, she/he is place on a preferred eligibility list for four years. Such an employee may be eligible for an opening in the excised positions, any openings in subordinate position in the direct line of promotion, or any other positions that the local civil service agency deems to be analogous to the excised position. However, unlike certificated individuals, civil service employees only get one opportunity to be recalled. If a position is declined, the employee will be ineligible for recall in the future. Another difference from the certificated rules is that Civil Service employees can have a break in district service for prior service to count as long as the separation in service is for less than one year.
Should your district be threatening layoffs, it is SAANYS’ recommendation that unit leadership ask the district for the seniority lists for the unit, as well as all appointment documentation for the members so that the SAANYS Legal Department may analyze the lists to ascertain any inaccuracies in advance. It is also recommended that units should decline to take part in any decisions as to what unit positions will be eliminated, although conversations after the decision is made about the reallocation of the work is absolutely appropriate.
In the event your position or one within your unit is abolished or threatened to be eliminated, contact the SAANYS Legal Department promptly, as the situations presented above do not include all of the possible factors that may impact seniority and recall rights. Additionally, we will look at your employment agreement to see if there are any contractual provisions that may affect your seniority and recall rights.
With end-of-year evaluations, an important topic to discuss is surveys, otherwise known as votes of no confidence. Pursuant to New York Education Law § 3012-d, surveys may not be considered as part of a principal’s evaluation process, but all too often votes of no confidence influence administrators’ overall ratings.
So what exactly is a vote of no confidence? Generally speaking, a vote of no confidence, or a survey, is intended to be a symbolic representation of a union’s discontentment with a BOCES’ or school district’s leadership, or a union’s disapproval of a particular school district leader. In the public education setting, surveys are usually conducted by other bargaining units, such as teacher associations. Within the public sector, votes of no confidence are considered to be an extreme measure. The way a survey works is that a bargaining unit’s membership will be polled. Members will be asked to share their opinions related to the effectiveness, or perhaps ineffectiveness, of a particular administrator or group of administrators. Although a vote of no confidence is non-binding, the results of a vote can lead to a variety of problems for our members. For example, the unfavorable results of a survey tend to influence administrators’ ratings. This is a problem because almost all school districts and BOCES have adopted board policies that establish the superintendent as the sole and exclusive evaluator of administrators. Votes of no confidence violate board policy when they improperly influence superintendents’ evaluation decisions. Additionally, the results of surveys often are shared publically and are broadcast by local media. This causes harm to our members’ professional reputations, which makes it difficult for them to maintain a good rapport with their faculty, staff, students, and the community.
Votes of no confidence should not be considered in an administrator evaluation process. First and foremost, surveys are not research-based and thus the efficiency of surveys is unknown. More often than not, surveys are unreliable and lack scientific merit. Moreover, the persons polled in surveys are often uninformed, or misinformed, regarding the underlying facts and circumstances. Further, the persons polled in surveys do not usually hold the proper credentials or experience required to effectively critique an administrator’s performance. For example, although teachers are qualified to engage in teaching and student learning, they are not qualified to evaluate the performance of an administrator, and therefore a teacher survey should not play any role in an administrator’s rating.
Administrator evaluation processes and procedures are mandatory topics of bargaining, as performance evaluations are a term and condition of employment. Administrators’ evaluations are typically governed by two things: (1) a collectively bargained APPR agreement, and/or (2) a collectively bargained contractual evaluation process. Under no circumstances should a bargaining unit permit votes of no confidence or surveys to be considered as part of their negotiated evaluation process. The SAANYS legal team has filed improper practice charges and grievances against school districts when the results of surveys get improperly considered by a superintendent as part of an administrator’s evaluation process. It is important to note that even when a survey is not directly considered in the evaluation process, the mere fact that a vote was held and the results were shared can improperly influence a superintendent. Thus, even if the results of a survey are merely shared with a superintendent, it is arguably an improper practice and/or a violation of the negotiated APPR agreement.
Like most legal matters, prevention is the best solution to a troublesome situation. As such, if an administrator has reason to believe that another bargaining unit is growing discontent with their leadership, or finds out that a vote of no confidence has been planned against him or her, they should contact their unit president immediately. The SAANYS Legal Department should also be contacted so that our experienced attorneys can assist with developing a plan. Since a vote of no confidence against a school district leader creates an unfriendly and uncomfortable work environment for all employees, it can in turn have a negative impact on students. Therefore, it is always encouraged that the opposing persons or groups meet to discuss the issues in a professional and mature manner before a survey or vote is ever even considered. It may be valuable for both sides to bring in their respective attorneys so that an honest and constructive conversation can occur. Oftentimes, some or all of the issues can be resolved in this manner, preventing the conflict from escalating.
There will, of course, be times when a vote of no confidence cannot be prevented. Despite best efforts, the issues may not get resolved and a vote of no confidence may become unavoidable. In those instances, it is critical that the
SAANYS Legal Department be contacted. Our attorneys have often sent cease & desist letters to groups conducting votes of no confidence against our members. Through carefully crafted letters and follow up discussions, the SAANYS Legal Department has had success in lessening the negative impact that can be caused by surveys. As discussed above, votes of no confidence are generally conducted by other collective bargaining units. As such, they too are governed by the Taylor Law, making them familiar with mandatory topics of bargaining and evaluation processes. Because of this, we have found that they are receptive to the information contained in our cease & desist letters. By providing a stern reminder of the consequences associated with circumventing the negotiated evaluation process, the SAANYS Legal Department has had success in getting other bargaining units to abandon their votes of no confidence. Since surveys often contain false, misleading, and disparaging statements, the SAANYS Legal Department will often remind the polling unit that their conduct could result in a defamation lawsuit.
If you believe that you may become the subject of a survey or vote of no confidence, contact the SAANYS Legal Department so that our attorneys can help formulate a plan based upon the individualized facts and circumstances involved in your matter.
Having a medical condition or injury is stressful enough without having to worry about how it will impact your ability to perform your job functions. Sometimes additional supports are needed in order to successfully operate within the workforce. These additional supports could be something as basic as the use of crutches for a broken leg or could be a much more complicated mix of modified job duties and breaks for medical treatments. Thanks to COVID-19, people with underlying health conditions who have otherwise managed to be a successful member of the workforce are now faced with the possibilities that their medical conditions may increase the likelihood of contracting the disease and/or have much more severe symptoms.
Should you need an accommodation due to a medical condition, which may be physical, mental, or due to an underlying condition that makes you more susceptible to COVID-19, you have the right to request such from your employer pursuant to the Americans with Disabilities Act (ADA). In order to start the process, you must provide your employer, typically the Human Resources Department, with a note from your doctor specifying your medical condition and what accommodations are necessary for you to perform your duties. This step is often nerve wracking for employees because medical conditions are typically confidential and need not be disclosed. While disclosing your medical conditions is necessary in order for the district to ascertain what accommodations it can reasonably provide, the information is required to remain confidential under federal and state law. Notably, the request and any accompanying documentation must be kept in a secure location and cannot be disclosed, even to a direct supervisor. In the event that accommodations are made, your supervisor is only to know the work restrictions and/or supports and not the reasons for them.
From there, your employer must engage in an interactive process wherein they must discuss your essential job functions and what accommodations are reasonably necessary. Several districts are anticipating an increase in requests for remote assignments based upon COVID-19 and are sending out form letters detailing safety plans and making the interactive process only upon the request of the employee. This is procedurally incorrect and a meeting must take place to discuss your request. Just because you and your physician would like a specific accommodation does not mean that you are automatically entitled to it. Accommodations that pose an “undue hardship” on the employer will not be required under the law. “Undue hardship” means significant difficulty or expense to the employer. In determining whether an accommodation would result in undue hardship, any relevant factor may be considered, including the nature of the business and the employee’s job duties, the staffing needs of the district, and the nature and cost of the accommodation needed. Currently, many are seeking the accommodation of working remotely in order to prevent the exposure and spread of COVID-19. The concepts of past practice and precedent do not apply to ADA accommodations, so just because one person has been granted the ability to work remotely does not mean that it must be granted for everyone who seeks an alternate assignment. This is something that must be decided on a case-by-case basis. Employers are strictly prohibited as a matter of law from retaliating against any employee who requests an accommodation.
Your health and safety is of paramount importance. This process can be stressful and complicated, depending on your specific situation. The SAANYS Legal Department continues to be available to walk you through the process and ensure that your privacy and rights are protected.
Recent economic times are unfortunately resulting in a number of positions either being abolished or reduced to part-time. However, as we all know, just because a position is eliminated or is cut down doesn’t mean that the work associated with the job disappears. You must be cognizant of position eliminations and/or cutbacks within your unit and follow where your district is reassigning the duties. At all costs, the duties from the eliminated position must remain within your bargaining unit, even if members are unreceptive to the idea of receiving additional duties on top of their already burdensome workloads.
Stand vigilant and committed against districts reassigning the work from an abolished administrative position to either teachers on special assignment (“TOSAs”), retired administrators, consultants, or central office staff. Such reassignments constitute an improper practice under the Civil Service Law, provided the work at issue was exclusively performed by bargaining unit members. This type of action is known as a transfer of bargaining unit work charge that would be prosecuted before the Public Employment Relations Board (“PERB”). If you suspect that improper transfer of bargaining unit work may be occurring or has recently occurred, immediately contact SAANYS’ legal department for advice and assistance. There is only a four-month statute of limitations to file an improper practice charge, so time is of the essence. Failure to timely file the charge will result in the union permanently losing the right to reclaim the duties and/or any newly created position that encompasses the duties.
Other school districts are eliminating administrative positions and reassigning the work to the local BOCES pursuant to an agreement. Such an arrangement poses a different and slightly more complicated problem for SAANYS members. As noted above, the general rule is that contracting out exclusive bargaining unit work is a mandatory subject of bargaining which will result in an improper practice charge. The one caveat involves work transferred to BOCES. Under Education Law §1950(4), school districts may subcontract certain specific job functions to BOCES, such as school nurses, bus transportation, information technology, and psychologists. This section also prohibits other duties from being contracted out to a BOCES. Such situations require a legal analysis that is best suited for SAANYS’ legal department to tackle. Thus, as soon as you learn of such subcontracting, contact us to make timely evaluation of the transfer and determine whether any legal action is appropriate.
Besides the improper transfer of bargaining unit work when a position abolishment occurs, other issues will be triggered. Often times when a person is excessed, whether they are in the same bargaining unit, a different unit, or central office, their duties are simply reassigned to other unit members. Taking on additional duties frequently causes significant impact on the assigned administrator’s ability to professionally execute those duties in addition to her/his regularly scheduled duties in a timely fashion. Don’t be taken advantage of in this way. Call SAANYS and let us assist in determining the critical facts surrounding the new duties. Immediately, we must analyze the work being reassigned. Are the duties typical of the work an administrator in the title would perform? If not, there may be a viable workload improper practice charge, which charges are typically difficult to win.
Another, more successful, avenue is to quantify the new work. For example, how many hours a day, or hours in a week must be devoted to the new task? Compare the new work with the rest of the administrator’s responsibilities and determine how the additional work expands the member’s workday or workweek? Does the administrator have discretion when the new duties must be performed? For instance, if the duties require daily attention, this will inevitably expand the member’s workday. If we can quantify that the new nondiscretionary duties increase the daily or weekly work hours we can file an improper practice relating to the school district’s unilateral assignment of duties that have expanded the member’s workday, workweek, or work month.
A third option to explore when new duties are assigned is to demand impact bargaining. Unlike many other legal processes, there is no statute of limitations for commencing impact bargaining, although SAANYS does not recommend waiting more than a few months. It should be noted that newly created duties, and not just those related to an abolished position, may be the subject of impact bargaining. For example, we anticipate many requests for impact bargaining around the required designation of a school district’s data privacy officer. If the district refuses to negotiate, an improper practice charge may be filed because the assignment of new duties, which are not intrinsic to the job description, are a topic of mandatory bargaining – meaning the district is required to negotiate the assignment of such duties.
When a situation arises that involves impact bargaining, consult SAANYS. Do not become a victim of “work creep.” SAANYS will offer guidance, including how to commence impact bargaining, which can only be commenced by sending a written request to collectively bargain the impact of the new responsibilities. SAANYS will assist in the required analysis of whether the person can successfully perform the new duties along with their incumbent job.
Like any other form of negotiations, in impact bargaining, data is vital to success. Again, we need to quantify how many additional hours a day and/or weekends the impacted administrator is working to complete regularly assigned tasks with the additional imposition. Extrapolate a monetary value for such work. From there, negotiate an appropriate stipend, which amount should be added to the individual’s base salary, if possible. We also must examine whether the impact of the additional duties is mitigated by removing duties before bargaining takes place. If the new duties cannot be successfully performed and/or a monetary remedy is inadequate, then impact bargaining must explore (1) relief from current assignments (which may result in impact bargaining for another member), and (2) additional support personnel or other assistance to ensure all tasks are satisfactorily performed. Again, do not blindly accept new duties. Above all else, protect untenured administrators who are being told to perform such additional duties.
While not all assignments of duties will result in additional compensation or even legal action, it is important to monitor where unit duties go and when new duties are created. Contact SAANYS right away if you have any questions. We will ensure that the rights of the unit and its members are protected and provide the best ways to avoid losing bargaining unit work while safeguarding against work creep.
Like most things in public sector education, the answer will depend on your contract. Those that provide for unlimited rollover and accrual of vacation time provide the easiest resolution, but many contracts provide limitations on how many days can be carried over from one year to the next. The next step is to look at the number of days you can sell back for cash at the end of the school year. Many people already factor that ability sell back days when planning their vacation usage for the year, still leaving an overage due to the current predicament.
If after utilizing all of the remedies discussed above that are available to you under your contract, you or someone in your unit still has a surplus of vacation days that will be forfeited due to the Executive Orders, SAANYS recommends that a Memorandum of Agreement (MOA) be negotiated and drafted to prevent such unforeseen losses this year. There are many different combinations as to how this goal can be accomplished with the district. The easiest solution would be for the MOA to permit unit members to sell back all unused vacation days at the conclusion of the 2019-2020 school year. With increasing budget concerns, this might not be feasible in some districts. The cap on vacation accruals and rollover amounts, if any in your contract, could be enlarged to cover the unused vacation for this year. This could be a permanent change or for a limited duration during which time the unused vacation time must be used. If it is the latter, make sure that the timeframe is sufficiently long enough to allow your members to be able to take the time. Depending on how many extra days are being rolled over, taking them all during the 2020-2021 school year might not be practical. Of course, there is also always the ability to combine these options in a way that best benefits both the district and the unit.
The SAANYS Legal Department is here to help you navigate the options within your contract, as well as negotiate an agreement for preserving your unused vacation days at the end of the year. Please reach out to us with any questions so that we may help lessen your contractual concerns during this trying time.
We’ve all heard of Miranda Rights, rights granted to all Americans by law. But did you know that the same protections granted to someone being arrested also exist in cases when a tenured administrator might be subject to disciplinary action? No one goes into the educational profession expecting to deal with the types of unfortunate situations that could cost one his/her job; however, it is important to keep in mind that if you are ever faced with one of those situations, your right to remain silent prior to a proper hearing is protected by law.
In 1994, a tenured teacher, Andre Cadet, was brought to a 3020-a hearing that resulted in termination from his teaching position. One of the charges within the 3020-a hearing was insubordination because he refused to answer questions during an investigation by the New York City Department of Education’s Special Commissioner of Investigations (SCI), on the basis that his answers could be used against him. Mr. Cadet appealed the results of his 3020-a hearing in 1996 and lost. However, during the appeal, the New York State education commissioner ruled that Mr. Cadet did not have any obligation to testify before the New York City School District SCI and would not be subjected to any discipline in this regard. The reason for this decision, the commissioner explained, was that the 3020-a hearing was the sole method by which tenured teachers could be disciplined and therefore Mr. Cadet had, in essence, the right to remain silent in response to any questions put to him prior to that hearing. While it is true that Mr. Cadet lost his job, his case established a legal precedent that protects all tenured teachers and administrators.
As a result of the Cadet decision, a tenured educator is not required to answer any questions in any investigation that precedes a 3020-a hearing. Therefore, if you have any reason to believe that you are being asked questions regarding a situation that could result in disciplinary action, you can assert your “Cadet rights.” By doing so, your employer cannot use your silence against you. If you do exercise your Cadet rights, you are left in the position where your employer will have to make a determination without hearing your version of events.
It is important to understand that the district has no obligation to remind you of this right to remain silent, so it is up to you and your representation to invoke the right. Whether or not to exercise your Cadet rights will be a very fact-specific situation. Therefore, it is extremely important that you call the SAANYS Legal Department as soon as you know of the interview to secure representation and/or receive advice. Further, while Cadet rights are technically only for tenured educators, there will be situations where probationary employees may be better off refusing to answer questions and risk termination for insubordination (or submit a resignation) in lieu of providing statements that could be used against you in an alternate forum. This often arises when there are allegations of testing improprieties and the factual basis for the allegations could result in a license revocation proceeding by the State Education Department.
As always, if for any reason you are asked to speak with a representative of the district/BOCES you are employed by about a matter which you feel might lead to disciplinary action, immediately halt any discussion and request union representation before proceeding. Building representatives are always available to assist members in these situations and ensure that your rights are protected; however, it is always in your best interest to call the SAANYS Legal Department to review the facts of the matter and strategize as to the best method of representation.
Prior to being granted tenure, an administrator’s employment is essentially “at will.” New York is an “employment-at-will” state that provides probationary administrators with very little due process rights or protections. Probationary appointees do not enjoy the protections provided by NY Education Law Section 3020-a. For example, probationary appointees are not afforded the right to a hearing before termination. This means public school employers have a nearly unfettered right to deny tenure, or terminate a probationary employee during their probationary period, with or without cause–as long as it is not for an illegal reason, such as discrimination or retaliation.
The unexpected news that tenure is being denied often comes as a shock, and unsurprisingly, creates a great deal of stress for some our members. The SAANYS Legal Department frequently receives calls from members whose tenure has been denied, or whose probationary employment has been terminated. Unfortunately, when SAANYS receives these types of calls from probationary employees, we are very limited in regard to what, if any, legal action we can take due to the lack of protection afforded under New York’s laws.
NY Education Law Section 3031 governs the limited protections afforded to probationary administrators when their services are being discontinued. The law only provides that: (a) an administrator must be given thirty days notice of a superintendent’s intention to recommend that the board of education deny tenure; (b) allows an administrator to request the reasons for the recommendation to deny tenure, in writing; and (c) allows an administrator to submit a written response before the board of education makes its final decision. Notably excluded from Section 3031 is the ability to challenge the employer’s actual decision to terminate a probationary employee’s services. Furthermore, it is usually futile for a probationary appointee to request the reasons for termination, or to submit a response to the board of education as it is unlikely to have an effect on the employer’s ultimate decision. In fact, requesting the reason for termination can have a negative effect on securing future employment because then the employee is expected to reveal the reason(s) they were provided to prospective employers, if requested.
Since there is very little that can be done after tenure is denied, it is critical to identify early warning signs before a final decision to terminate has been rendered by the board. Members can take certain steps to protect themselves in advance of receiving an unfavorable employment decision. For example, probationary administrators should request a meeting with their superintendent and/or direct supervisor at the conclusion of each probationary year. At those meetings, members are encouraged to ask questions such as how their performance has been, what they can do to improve performance, and whether they are on track for tenure. Members should pay close attention to the responses provided. There may be subtle clues, or perhaps not-so-subtle ones, as to whether tenure will be denied. If there is any indication that tenure will be denied, it is time to start seeking new employment. This should be done sooner rather than later, ideally before a final decision has been made. History has shown that members are more likely to secure a new position while they are still actively employed. Members increase their chances of securing a new position by interviewing before their tenure is denied or probationary appointment gets terminated.
Pay attention to signs that indicate that tenure may be denied. Being subjected to progressive discipline, such as the issuance of counseling memos, should be viewed as a warning. If performance concerns were raised in an end-of-year evaluation, or pursuant to the district’s APPR plan, you may want to consider searching for a new position. The same holds true if your contract provides a date by which your employer is required to provide notice of its intention to grant tenure, and the date passes without you receiving said notice.
We recognize that there are not always clues or clear signs in advance of an unfavorable tenure decision. In those situations where tenure has been denied, it is critical that you contact the SAANYS’ Legal Department. Our attorneys will attempt to negotiate a severance package, including continued insurance benefits, until a new position is secured. This can help mitigate the injury caused by an abrupt discontinuance of employment. We can also review your case to determine if the unfavorable tenure decision was discriminatory, retaliatory, or motivated by some other unlawful factor, in which case there may be legal recourse available. When negotiating a severance package, an important item to secure is a positive letter of reference to help secure a new position.
Bargaining units can protect their probationary members through the collective bargaining process by negotiating protections into the contract. By negotiating protections into the contract, it provides a legal mechanism (i.e. grievance procedures) by which an employer’s decision to deny tenure or terminate probationary employees can be challenged. One basic protection that can be negotiated into a contract is a notice requirement. At the very least, notice requirements prevent short-notice terminations and abrupt loss of income by requiring employers to provide advanced notice to the employee of the intent to discontinue employment. Other examples of protections that can be negotiated into contracts are: (1) clear evaluation procedures with firm deadlines that provide members with the ability to challenge the denial of tenure if the evaluation procedure was not properly followed; (2) “Just Cause” provisions which provide a basis to challenge termination determination; (3) provisions that require management to give probationary employees advanced notice of any performance issues, and at least three to six months for the employee to correct/cure any deficiencies before termination; and (4) a severance provision that requires the district/BOCES to continue paying salary and benefits for a specified number of months after termination, such a provision ensures a steady flow of income while seeking new employment.
Do not hesitate to contact the SAANYS Legal Department to discuss how we can assist you to negotiate protections into your contract.
Your collective bargaining agreement must protect your retirement health insurance benefit. Once you retire, you are no longer a member of your local association. Hence, whatever rights you have for health insurance benefits in retirement may be found in the applicable contract under which you retired. The best way to protect your retirement health benefits is to state clearly in the contract what your retirement health insurance benefits are when you retire.
Years ago, many administrators retired at age 55, thereby continuing on the district’s active employee health insurance plan for ten years until the retiree turned 65 years old and enrolled in Medicare. The ten-year health insurance benefit was valued at the ten-year cost of the health insurance, typically in excess of $200,000.
To ensure that administrators receive retirement health insurance, it is critical to spell out in the contract the health insurance plan with specific reference to deductibles, out-of-pocket expenses, and co-payments levels. Also, the retiree’s contribution toward health insurance in retirement should be fixed at the time of retirement (not subject to active employees’ contribution levels). Further, health insurance coverage in retirement should include language that the benefit is for life. Of note, some clients mistakenly believe that if they predecease their spouse, the spouse has the right to survivorship health insurance coverage. Unfortunately, that is incorrect. The truth is that the right to survivorship is rare and must be collectively bargained for in the contract. Finally, as discussed below, the contract must spell out what type of health insurance plan the retiree will participate in when the retiree enrolls in Medicare.
At the bargaining table, negotiate a contribution structure for premium cost sharing in retirement that is based on years of service to the employer. For example, if you work for the employer for 10 to 14 years you will contribute 15 percent toward the premium cost of health insurance. If you work 15 to 19 years, you will contribute 10 percent. If you work more than 20 years for the employer you will receive free health insurance.
As a practical matter, contact your employer’s benefits clerk and inquire whether it will be cheaper to subscribe to two individual health insurance plans in retirement for you and your spouse instead of one family plan. If it is cheaper, it would be the preferred way to go.
Medicare and Your Retirement Health Insurance Coverage
When you turn 65 years old, almost all health insurance plans in New York require the covered retiree (and spouse) to enroll in Medicare, a federal health insurance program providing coverage for individuals over 65 or who are found to be permanently disabled. Medicare provides coverage for hospitalizations (Part A) and physicians (Part B) on an 80-20 split. Note that if you are still actively working past the age of 65, you do not have to enroll in Medicare Part B, but you must enroll in Medicare Part A, meaning that Medicare will become your primary insurance upon enrolling at age 65 and your employer provided retirement health insurance coverage will become secondary. Because your employer provided insurance will now be secondary, your former employer will remove you from its active employee health insurance plan and enroll you in a less costly Medicare Supplemental Plan to cover its 20 percent obligation. Note that in some parts of the state, like western New York, the employer ceases health insurance coverage when you enroll in Medicare. Don’t let that happen. Try to negotiate for continued health insurance coverage after enrollment in Medicare. If you will not have health insurance coverage post Medicare enrollment, you may purchase a Medicare Supplemental Plan from the federal government, which is commonly referred as Medicare Part C. For the past ten years or so, the Medicare Part C supplemental plan has been on par with those supplemental health insurance plans you can purchase privately, such as through AARP. Otherwise you will need to purchase a supplemental insurance plan on the open market. The cost of a Medicare supplemental plan will run around $5,000 on Long Island and the lower Hudson Valley and decrease in cost as you go upstate and across the state.
What most clients are unaware of is who pays for their Medicare coverage. Part A hospitalization premium costs have previously been paid through their FUTA/FICA payroll taxes. However, if their spouse has not worked outside of the home, they will have to pay for Part A. Medicare Part B premiums are made by the enrolled retiree either from their monthly Social Security payment or by direct pay from the retiree to the federal government.
Under the Medicare Modernization Act of 2003, the amount of the Medicare Part B premium payments are calculated based on your adjusted gross income two years prior to the year in question. Remember that 85 percent of your monthly Social Security payments are taxable income, as is your pension and any other money you earn or remove from IRC Sections 401k, 403(b), 457, or other types of private annuities or investments. The standard or base premium cost for Medicare Part B coverage for a husband and wife who earn less than $174,000 in adjusted gross income for 2020 is $144.60 per month per person or $1,735.20 for the year. From 2019, that is a $10 increase per month. However, if you and your spouse earn between $174,000 and $218,000, your monthly premium will be $202.40 per month; if you and your spouse earn between $218,000 and $272,000, your monthly premium will be $289.20 per month; if you and your spouse earn between $272,000 and $326,000, your monthly premium will be $376.00 per month; if you and your spouse earn between $326,000 and $750,000, your monthly premium will be $462.70 per month; and if you and your spouse earn more than $750,000, your monthly premium will be $491.60 per month. The increased levels of Medicare Part B premium costs are part of the Income Related Monthly Adjustment Amount (IRMAA), established in 2003 under the Medicare Modernization Act. The IRMAA will affect clients in Long Island, Westchester, the lower Hudson Valley, and in other urban/suburban areas in the state.
If you are fortunate enough to be enrolled in the New York State Health Insurance Plan or your employer provides Medicare Part B reimbursement based on a contractual obligation or established practice, make sure your contract spells out the Medicare Part B reimbursement benefit for the retiree and their spouse. Recently, a school district unilaterally changed its reimbursement policy and only provided the standard reimbursement amount instead of the longstanding IRMAA. SAANYS successfully litigated that case, which is now on appeal. This past year alone in at least three separate negotiations across the state, employers have attempted and some did in fact, reduce their Medicare Part B reimbursement obligation to only the standard rate or eliminated the reimbursement benefit altogether. Understand that the Medicare Part B reimbursement benefit is valued currently at around $35,000 for the retired employee. Add another $35,000 for the spouse of the covered employee. Hence, that is a $70,000 deferred compensation benefit that you will have to pay for until death, which is actuarially projected for men at age 83 and women at age 84. Thus, fight to keep this benefit in your contract.
Retirement Prescription Drug Considerations
Until 65 years of age, your employer insurance will be your primary insurer.
Like active employee prescription drug coverage, retirement prescription drug coverage should be spelled out in the contract. It is better to be more specific and identify the drug plan and mail order plan, and if applicable, the number of tiers and associated co-payments with each tier. Some employers attempt to negotiate the exclusion of drug coverage in retirement, don’t let that happen. According to industry standards the average person over 50 years old takes six drugs daily. If you do not have prescription drug coverage in retirement, buying it on the open market will be costly. Understand you can purchase prescription drug coverage from the federal government as part of your Medicare enrollment at age 65, i.e., Part D coverage. However, the premium costs of Part D coverage also have IRMMA adjustments based on your annual adjusted gross income from two years before. Thus, if you opt to purchase Medicare Part D coverage, it could prove very costly. Again, ensure through collective bargaining that the employer will continue your prescription drug coverage into retirement.
As unemployment numbers continue to drop and wages continue to increase, it is critical to remember that it is the benefits, pension, and work day/year that attract people to public service. SAANYS has recently conducted several seminars on negotiations at which members asked many questions about health insurance. As a result, we decided to write this article to provide important information about health insurance benefits to enable you to successfully negotiate improvements to your health insurance benefits.
In the public education sector, health insurance benefits typically cover (1) active employee health insurance coverage; (2) active employee prescription drug coverage; (3) retirement health insurance coverage; (4) the interplay of employer provided health insurance in retirement with enrollment in the federal Medicare program upon reaching 65 years old; and (5) retirement prescription drug coverage. However, in the western part of the state, retirement health insurance benefits are significantly less than found in other parts of the state. Also, it is important to understand that over the past 30 years, the cost of health insurance benefits has dramatically increased and now health insurance has become a much larger portion of each worker’s total income.
Consider this, is it better to contribute more toward the premium cost of health insurance during active employment (when you can use pre-tax dollars to pay for those premium costs) or pay less in retirement when the administrator is on a fixed income?
Health Insurance During Active Employment
The first consideration is the type(s) of health insurance plans the community college, school district, or BOCES is offering as its primary plan to its administrative personnel. The industry trend has been to reduce the quality of the health insurance plans being offered. In public education today, there are only a few indemnity plans still being offered by employers. More common are PPO plans (which have an in-network and out-of-network structure), HMO plans, or EPO plans. However, due to sharply increased costs in HMO plans, these plans are being phased out as plan options. There has also been a recent push to introduce high deductible plans into the public education sector. These plans require the individual employee to absorb a large deductible before getting fully paid coverage. Insurers believe that high deductable plans save money because the covered employee, through their deductible, covers the typical average plan usage. Public employers, seeking to entice their employees to enroll in high deductable plans, have offered to cover the full cost of the deductible and/or to have employees contribute a much lower amount toward the premium cost of such plans compared to other available plans. Generally speaking, these types of plans appear fine for younger employees without families, but prove too costly for families or people with pre-existing medical conditions.
Also, remember that all health insurance plans are rated under the Affordable Care Act (ACA). The rating system uses metals to describe the quality of the plan, platinum being the best, followed by gold, silver, and bronze. In 2022, the employer excise tax is scheduled to be implemented. However, the rollout of the excise tax has been delayed for almost eight years now, with the expectation that it will be postponed again.
In the collective bargaining agreement, make sure to identify the primary plan offered to unit members. Also, do not tie your insurance to other units. There are several contracts that SAANYS has worked on recently that allowed the teachers to negotiate changes in their primary health insurance plan, that would automatically change the health insurance plan available to members in the administrative bargaining unit. Attempt to negotiate all your health insurance benefits into your own contract, do not allow mandatory terms and conditions of employment to be subject to what other bargaining units negotiate.
Finally, understand that employers will realize the largest cost savings when they change health insurance plans. Correspondingly, when employers switch health plans, the employees will bear the brunt of the switch in the form of receiving inferior quality plans, with the employees bearing a larger proportion of the costs associated with the new plans. On average, switching health plans will save the employer an estimated average of $3,000 per member.
As important as identifying the primary health insurance plan in the contract, is spelling out the employee’s responsibilities for deductibles, out-of-pocket expenses, and co-payments. Without setting forth in writing what those additional costs are, an employer may attempt to maintain its premium costs by increasing those amounts. Remember, any changes to these components of health insurance should be negotiated. Spelling these terms out in the contract makes it more difficult for the employer to unilaterally change those health insurance benefits. If your unit has sustained increased costs to any aspect of health insurance, please contact SAANYS.
The final aspect of active employee health insurance coverage to consider and try to keep control of is the health insurance premium cost sharing. Very few administrative bargaining units today do not contribute any amount toward the cost of health insurance. The state-wide average is around 15 percent with greater employee contributions in suburban areas, where the cost can be anywhere from 15 percent to 25 percent. In the private sector, the average employee cost sharing for health insurance is 33 percent. Also, understand that governing boards of community colleges, school districts, and BOCES are seemingly obsessed with demanding their employees contribute more and more toward the rising cost of health insurance. However, it does not make sense to keep increasing administrators’ contribution percentages when other unions in the employer organization do not contribute the same amount. If confronted with this situation, politely advise the employer’s negotiating team that we have carefully considered the proposal, reject it, and will no longer entertain it.
Active Employees Prescription Drug Plans
Like the health insurance plan itself, the employer’s prescription drug plan should be identified in the contract with specification of the number of applicable tiers and the co-payments for each tier. Thirty years ago, public education prescription drug plans usually carried only one co-payment figure. However, over time, as the cost of prescription drugs has increased, so has the employer passing the rising costs onto their employees in the form of creating tiers with increased co-payments. Today, health insurance plans frequently offer two-tier (generic and brand) or three-tier (generic, brand, and formulary/specialty) with different negotiated co-payment levels.
Employers also provide their employees with a mail order option for maintenance drugs. The standard type of mail order drug plan involves a three-month supply for the cost of a two-month supply if purchased at the pharmacy. Recently, an employer compelled its employees to use mail order for all maintenance drugs, as a cost-saving measure.
A more recent trend in health insurance is Step Therapy and Prior Authorization medication plans. Step Therapy plans apply to prescription drugs. Such plans require an enrollee to try less expensive, usually generic brand, medications for a period of time before they can be authorized to use more expensive, name brand medications. There is generally a mandatory “testing” period of between fifteen and thirty days in which the enrollee must try the cheaper, generic drug. During that period, they are monitored by a physician. If the physician determines that the generic medication was effective, then that is the only drug the plan will cover. If the physician determines that the drug was ineffective however, they are permitted to authorize (i.e. Prior Authorization) a more expensive, name brand medication. Notably, if an enrollee insists on using a name brand, higher tiered medication after a physician has already determined that the generic drug was effective, the enrollee generally must pay the difference in the cost between the generic and the name brand medication. It should be noted that in general, generic medications are much more effective and better quality than they were in the past. Step Therapy plans can, and often do, result in significant savings for enrollees — between five and ten percent savings on prescriptions can be expected. Issues can arise however, for people who trust and rely on a specific name brand medication — perhaps having used a particular name brand drug for many years. If prior authorization is not gained for the name brand prescription drug, it can result in an enrollee being forced to choose between having to switch to the generic medication, or spending the money to cover the difference between the price of the generic and the name brand prescription drugs.
A significant downside to being a school administrator is that it oftentimes puts you in the crosshairs of angry parents, even when circumstances are beyond your control. Two recent pieces of legislation have caused a flurry of concern over what protections there may be for any actions that are taken to enforce the laws. Several building principals throughout the state have already been served with lawsuits by parents who are angry about the new immunization requirements. Similarly, there has been quite a bit of concern about the potential liability that may come from petitioning the court for the removal of firearms under the Red Flag Law. While these are two of the newest situations to arise on administrators’ radars, the principles are seen in other situations. What kind of protections and guarantees do you have if you are the subject of a lawsuit, be it one of the above situations, or because you disciplined a student or a staff member accuses you of harassment?
The good news is that two different statutes, the Public Officers Law and Education Law, mandate that school districts and BOCES provide what’s known as a defense and indemnification to its employees under certain circumstances. Generally speaking, the defense portion means that your employer must provide you with an attorney it pays for so long as you cooperate in the defense. Depending on the specific facts and circumstances, you may have the same lawyer as other employees and the district as a whole. It is the obligation of the district to advise you if there is the potential for a conflict of interest in joint representation with other defendants. In such cases, the district will still be obligated to pay for your attorney, as well as for any other attorneys that are potentially utilized for other defendants in the action.
Indemnification means that, except in limited circumstances, which we will discuss momentarily, the employer bears the financial burden of any resolution. This means that it will pay any settlements or if there is a jury verdict, that award. Unfortunately, because the district is providing your defense and indemnification, it means that you do not have a say in how the matter is resolved. Oftentimes cases are settled because it is fiscally cheaper to pay a nominal sum then to go through the process of litigation. While it may seem like paying a plaintiff is distasteful because you have not done anything wrong, the settlement is not an indication of the district’s belief of your innocence or guilt, but is purely a financial determination. Once an employer agrees to provide a defense and indemnification, the only time you may have a financial consequence is if a jury finds that you intentionally acted illegally for a discriminatory reason.
In the experience of the SAANYS Legal Department, the providing of a defense and indemnification is rarely an issue; however, there are certain exceptions. Initially, it must be noted that in order to receive a defense and indemnification, you are to deliver a copy of whatever pleading you were served within five days after receipt to the board of education via its clerk, along with a request for defense and indemnification. The request may be as simple as, “I am hereby requesting a defense and indemnification in the attached matter.” Failing to timely make the request is rarely the issue, as the district/BOCES is almost always a named party as well. Where issues arise is when the papers allege intentional conduct that is outside the scope of your employment. If you made a bad decision or were negligent, your employer is still obligated to provide a defense and indemnification, even if it ultimately pursues discipline or termination for the conduct. However, if you are accused of something that was not part of your duties such as sexual assault of a subordinate, employers and, more importantly, the insurance carriers may attempt to deny the defense and indemnification. In these cases, litigation will need to be commenced against the employer and insurance company for the defense and indemnification; however, while the case is pending you will need to hire your own attorney at your own expense which will hopefully be reimbursed.
In the vast majority of situations, you can rest assured that, aside from the anxiety that comes with litigation, your employer will provide you with the proper legal protection should you be named in a lawsuit. It is important to contact the SAANYS Legal Department in the event you are served with legal papers so that you can be guided through the process, including potential representation when you initially meet with your employer provided attorney if the matter could lead to discipline.
Finding yourself getting busy at work is a daily occurrence. Maybe a surprise meeting springs up, or maybe someone calls in and their tasks are transferred to you. These things happen. Sometimes, in the hustle and bustle of the workday, things are forgotten, or mistakes made. It’s not carelessness, but rather human nature.
While mistakes can sometimes have consequences, it is always the attempt to hide the mistake that causes the SAANYS Legal Department much more serious concern. The SAANYS Legal Department tends to see this issue arise most often in the context of documents that were not completed within a particular deadline and members either ask subordinates to backdate documents or are asked by central administration to backdate something. This is known as offering a false instrument for filing. In New York, offering a false instrument for filing in the second degree is a class A misdemeanor.
To be found guilty of offering a false instrument in the second degree, one must:
1. Have knowledge or belief that a written instrument contained false information, and
2. Register or record the document in the records of a public office or public servant.
Offering a false instrument for filing in the first degree is a class E felony and contains an additional element of “intent to defraud the state.” This is usually reserved for severe cases, such as attempting to get the state to pay large sums of money in fraudulent reimbursements.
What types of documents should you worry about? A “written instrument” includes just about anything that can convey information—including computer data or programs. This means that nearly everything that’s signed and gets filed with the school, state, or municipality is pertinent, from travel reimbursement forms to annual performance reviews.
What is “knowledge or belief”? Maybe you made a mistake initially; perhaps the incorrect date was put down for an annual performance review. Later that week, your memory refreshes and you realize you’ve documented an inaccuracy. If a correction isn’t made prior to filing, then this could be an offering of a false instrument for filing. Another example is when an individual certifies that coaches have received the appropriate mandated CPR and first aid trainings, knowing that some people may have left the program early. Moreover, you don’t have to personally file the document to be guilty of offering a false instrument for filing, you merely need to have knowledge that the document will be filed. Finally, be aware that if another employee, the superintendent, a teacher, etc., drafts a document with incorrect information on it and asks you to sign it, you can still be implicated as a party to the crime.
New York courts have held that knowingly submitting an application for employment to a school district containing incorrect information would constitute offering a false instrument in the second degree. This means that it’s important to be honest at all times, even at the inception of employment.
Finally, and this is extremely important, the three-year statute of limitations for 3020-a charges aren’t applicable when the charges are predicated on a crime. This means that a falsely filed document can lay dormant for years, only to be resurrected as evidence against a teacher or administrator in 3020-a proceedings.
Some of the most common errors are ones that relate to paperwork. Maybe you put down the wrong date on an APPR, or maybe you stretched the truth on mileage on a travel expenses reimbursement document. Any of these filings could become tools of the district in 3020-a hearings, even many years from the date of filing. To protect yourself, it is important to be as meticulous as possible when drafting documents that ultimately go to a governmental agency, including your employing district. If an error does occur, it is always better to face it head on, rather than try to hide it through inaccurate documentation. The SAANYS Legal Department encourages you to be proactive and contact us should you ever have a concern about paperwork you will file or are being asked to sign.
From time-to-time, management will request meetings with their employees regarding a variety of different topics. Some of these meetings will be regularly-scheduled one-on-ones, while others will be about updates on workplace rules. And while communication between management and subordinates is, of course, both necessary and healthy in any organization, some meetings will be inquiries into alleged misconduct in the workplace. When an employer conducts investigative inquiries that could result in disciplinary action, it is important for employees to know their rights and, importantly, how to avail themselves of them. Here, we discuss the well-known rights commonly known as Weingarten rights.
What are Weingarten rights? Weingarten Rights are federal rights, secured after a 1975 Supreme Court decision, NLRB v. Weingarten, that entitles union employees to representation during investigative inquiries that the employee reasonably believes can result in disciplinary action. This representative is there to facilitate discussion between management and the employee. New York State has similar rights under the Civil Service Law, designed to provide state and municipal employees with the same protections.
Who chooses the representative? Rulings by the Public Employment Relations Board (PERB) have indicated that it is the bargaining unit and not the employer or the individual who chooses the representative. Typically, the unit will defer to the employee’s choice as to who he/she wants to be the representative, be it a particular unit member or someone from SAANYS. The chosen representative must be a unit member or from the recognized representative. This means that an employee cannot choose to be represented by private counsel unless he/she is formally brought up on disciplinary charges, which then implicates constitutional rights.
There are situations where representation is not warranted because the meeting will not result in discipline. If you are denied requested representation, it is recommended that you contact the SAANYS Legal Department and also confirm in writing that the district will not permit representation. If you are denied representation and the information from the meeting is later used as the basis for discipline, it can be thrown out because your rights were violated. An employer may also lawfully deny a request for a representative for a variety of reasons, including: the requested representative is unavailable, has a history of being uncooperative, or is somehow involved with the misconduct being investigated. Additionally, if the employee requests multiple representatives, the employer can instruct the employee to select only one representative.
It is important, however, for an employee to know when she should invoke the right to representation. Such rights are only invoked at the time the employee requests representation during an investigative interview. This means that if a manager or supervisor asks to speak with an employee about anything that the employee reasonably believes can result in disciplinary action, the employee should request a representative and politely decline to participate until such representation is present. Under New York law, an employer must give a “reasonable” amount of time to secure adequate representation. This is typically at least 24 hours’ notice. The SAANYS Legal Department frequently gets calls from members who are being called into meetings with a few hours or less notice. While we do everything possible to accommodate such a request, the meetings usually have to be rescheduled. The employer does not however, have to reschedule for more than a few days later and does not have to reschedule at all if the reason for the lack of representation was the employee’s failure to timely request it after being provided ample notice.
Moreover, the employer has no mandate to inform the employee of his/her right to representation, so if an employee participates in a meeting and does not request representation, his/her rights may have been unintentionally waived and the information collected in the interview may be used by the employer in disciplinary proceedings. To ensure that you do not waive your rights, please consult the SAANYS Legal Department any time you believe that you may be subject to disciplinary action.
In these trying economic times where school districts and BOCES find themselves looking for ways to trim their budgets, retiree health insurance has become a popular avenue to attack. Understanding Medicare and how it can and will affect you in the future is as important as understanding any other retirement benefit or pension plan.
So what is Medicare? In general, Medicare is health insurance that is available to individuals who are 65 years old or older. If an individual chooses to enroll, the program will provide 80 percent health insurance coverage for hospitalization (Part A) and physicians (Part B). Because Medicare only provides 80 percent coverage, an individual will typically obtain secondary coverage to cover the remaining 20 percent. Secondary coverage is typically purchased on the open market (this is commonly referred to as Medicare Supplemental Insurance), covered by a former employer, or is offered through Medicare (Part C). Medicare Part B was never a mandatory program, but in the 1990s, health insurance companies began encouraging the school districts and BOCES they were insuring to instruct their eligible employees and retirees to enroll in Medicare. Some insurance policies require enrollment in Medicare Part B prior to paying any claims once you turn 65. It is important to read the fine print of your current insurance policy to determine this.
In order to encourage enrollment, many school districts and BOCES provide the Medicare Reimbursement Expense Benefit (MREB), which is much less expensive than paying the full cost of health insurance for retirees for the rest of their lives. All Medicare recipients paid a standard premium amount which varied over the years. The current standard premium is $134 dollars per month and is deducted from the retirees social security check monthly. In 2007, as part of the Affordable Care Act, Congress enacted the Income-Related Monthly Adjustment Amount (IRMAA), which imposes an additional Medicare Part B premium on Medicare enrolled retirees whose income exceeds $80,000 annually. This was passed with the goal of having high-income retirees pay more into the Medicare system.
What does all of this mean for SAANYS members? Once a member turns 65, their district will ask that they switch from using the district insurance as their primary insurance, to Medicare as their primary insurance and using the district insurance as their secondary insurance. While this is a reasonable option for both the district and the member, it is important that before making any changes members should ensure that the contract language is clear and concise so as to ensure the reimbursement of the costs of Medicare Part B. More importantly, a trend SAANYS is seeing relates to employers only reimbursing the baseline Part B rate and not the entire amount potentially billed to a retiree under IRMAA. Should a retiree obtain a job for supplemental income or the household has a second pension, the IRMAA could be a significant added monthly increase.
Members should be aware that districts may attempt to negotiate the removal of the Medicare Reimbursement Expense Benefit or reduce it. If the district is successful in removal or reduction of MREB, that would put the burden of payment for Medicare Part B on the member. As an aside, the district is strictly forbidden by the Retiree Health Insurance Moratorium Law from reducing retiree benefits without effecting a corresponding reduction in benefits for active employees. Be careful during negotiations that you do not fall into this trap as it could impact every retired member of your association and ultimately it will affect you in retirement. This is why the SAANYS Legal Department has continuously issued reminders over the years concerning the importance of language unconditionally fixing retiree health benefits as of the date of retirement “for life.”
If members have any questions about switching to Medicare or about reimbursements, please contact the SAANYS Legal Department for advice on the matter. Additionally, if you are a member who is already on Medicare and getting reimbursement from the district, if they try to diminish that reimbursement in any way, call SAANYS immediately so that we may take the necessary steps to prevent it. Lastly, if you believe you may fall within the IRMAA category, be sure to check your statements to be sure that you are being properly reimbursed. If you think there is an issue, call the attorneys at SAANYS and there may be something we can do. That being said, much of that will depend on the collective bargaining agreement, and thus will have to be assessed on a case by case basis.
As of October 9, 2018, new minimum standards are in effect in New York State for sexual harassment prevention training in the workplace. Each employee must now receive training on an annual basis. This training is pursuant to Section 201-g of the Labor Law, and guidance has been set by the State Department of Labor (DOL) and the Division of Human Rights (DHR). These agencies have issued model trainings that can be utilized by employers. If the employer wishes to create its own training, the state has created guidelines, such as the fact that it must be an interactive presentation that not only describes sexual harassment in definitions, but also through examples. The SAANYS Legal Department has always been an advocate of districts providing trainings on this topic and applauds the annual nature of the instruction. Notwithstanding the mandatory nature of this training, it is an apt time to provide a brief explanation of sexual harassment and your rights and responsibilities.
At the outset, is important to note that sexual harassment can occur between any combinations of genders and can come in many forms. The first type of sexual harassment is what is referred to as a “hostile work environment.” This type of sexual harassment consists of words, signs, jokes, pranks, intimidation, or physical violence that are of a sexual nature, or which are directed at an individual because of that individual’s sex.
On a more practical level, sexual harassment is any unwanted verbal or physical advances, sexually explicit derogatory statements, or sexually discriminatory remarks that the recipient objects to and causes him/her discomfort, humiliation, or interferes with their job performance. Sexual harassment can also be in the form of quid pro quo, wherein a person in a position of power tries to trade job benefits for sexual favors.
When looking at the above definitions, it can be easy to become confused as to what actually constitutes sexual harassment. Some examples of physical assaults of a sexual nature include rape, molestation, and intentional or unintentional physical conduct that is sexual in nature. Unwanted sexual advances, propositions, or other sexual comments can include subtle or obvious pressure for unwelcome sexual activities, requests for sexual favors accompanied by implied or overt threats concerning the victim’s job performance evaluation, a promotion, or other job benefits or detriments. Lastly, some examples of sexual or discriminatory displays or publications in the workplace (something that employees often don’t think about as harassment) include displaying pictures, posters, calendars, or other materials that are sexually demeaning or pornographic. Where the SAANYS Legal Department tends to encounter this type of harassment is through jokes made to colleagues and off-color emails.
It is important to note that every district has a sexual harassment policy, which details the processes and procedures that are supposed to be used when a complaint is lodged. Oftentimes this procedure will spell out the rights of both the victim and the accused. If you are the victim, it should be noted that you are not technically entitled to representation during the investigation because you are not the subject of potential discipline. This being said, most districts recognize the delicate nature of the situation and will permit a representative to be present, which SAANYS oftentimes provides. Additionally, there are laws that prohibit retaliation against the victim or any witnesses who speak out in a sexual harassment investigation. If you are accused of sexual harassment, it is imperative that you contact the SAANYS Legal Department as soon as you are put on notice to ensure that we provide you with the representation and guidance you are entitled to under the law. Remember, if you are tenured, you have the absolute right to remain silent and this right should be exercised with a representative to act as an advocate and witness during the meeting.
As always, if members have any questions regarding the new guidelines or if they are either the victim or alleged harasser, they can call the SAANYS attorneys for guidance.
The attorneys here at SAANYS have found that members will frequently call for assistance on an issue, but the legal department is barred from being able to do anything to help because the statute of limitations for the issue has run out. In other words, there is a timeframe in which each claim must be brought, and if that time lapses, the claim can no longer be adjudicated. For example, many times members will be in continuing good faith talks with the district on different issues, so they feel as though they don’t have to take any formal action. However, sometimes the good faith talks do not go anywhere, and by the time a member decides to take formal action, it is too late to do so. The attorneys at SAANYS recommend that while you can continue those good faith talks, you should also call the legal department about the issue so they may advise you on how to move forward in each situation. First and foremost, you should call as soon as you think there may have been a violation of any sort. From possible grievances to possible appeals to the commissioner of education, the attorneys need to know as soon as possible so that there are no restrictions on actions that can be taken due to time running out. Below are concrete timelines for each action that you may come across.
If you believe there has been a contract violation and you are considering filing a grievance, you should notify your unit representative immediately so that they can call SAANYS as soon as possible about the issue. For example, if your contract has an established work day, and your superintendent directs you to work beyond that work day, you should notify your unit president on the day that the superintendent gives that directive. With grievances, the time constraints are set out in your collective bargaining agreements (CBAs), so each unit will have a different timeline to go by. The general rule is that the time starts running from when you knew or should have known that there was a violation of the contract. That is why it is imperative that you act quickly so that if a grievance can be filed on your behalf, it maybe done before time runs out.
If you have gone through the grievance process and it ends in a review by the board of education, then the moment its decision is made, the time starts ticking to file an Article 78. Therefore, if there is a denial (either verbally or in writing) you should call SAANYS immediately. From the denial, you have 90 days to file a Notice of Claim. From the receipt of notice, you must wait 30 days before you can file a petition, but that petition must be filed within four months. Therefore, it is important that SAANYS tries to file a Notice of Claim as soon as possible so that if the petition needs to be amended later on there is plenty of time to do so. It is a quick turn around, and thus it is imperative that you call the day of the denial.
Similar to the grievance procedure, the timeline for an APPR appeal is specific to each individual CBA. Therefore, if you get a bad evaluation and you want to challenge your APPR or are being placed on an improvement plan, you must look to your collective bargaining agreement to determine what your timeline is. In any case, you should call the SAANYS Legal Department so that we may assist you moving forward.
If you believe that the district has unilaterally changed a term and condition of employment without first negotiating with the unit, the unit has four months from the time that the decision or act was put into place in order to challenge it via an improper practice charge at PERB. For example, if a bargaining unit member retires, and the district takes that work and disperses it throughout the district instead of within your unit, that is a transfer of bargaining unit work and the statute of limitations begins running the minute that work is dispersed. Another example of a matter that would go before PERB is if your contract is silent on a work day and the district directs your unit to stay until set times and/or start attending certain events after school.
Lastly, if you would like to appeal a decision to the commissioner, you have 30 days from the time the decision was made to do so. This is an extremely quick timeline, and thus the moment the adverse decision is made, you must call the attorneys at SAANYS. For example, if you are on a preferred eligibility list (PEL) and a position is created in your tenure area and you do not get it, or your position is abolished and a new position in your tenure area is created, you should call so that SAANYS can further advise you on the situation.
Overall, It is important that you let your unit know of such occurrences and they, in turn, let SAANYS know as soon as possible. Even if you personally do not want to rock the boat, your silence could have a lasting negative impact on your unit for years to come. It is best for you to call as soon as possible so that SAANYS may assess your situation and take the necessary steps in the timeframe that is required by each statute of limitations. That being said, if for some reason you do not call the day of the adverse decision or act that does not mean you should not call at all. It is possible there is still time, but the SAANYS attorneys want their members to be aware of when the clock is ticking.
For most administrators, one of the most important aspects of employment is obtaining tenure. Despite the importance of this achievement, the SAANYS Legal Department receives dozens of calls every year from members who cannot answer the question “What is your tenure area?” Perhaps even more surprising are the number of situations where the employing school districts either do not know what the tenure areas are for their administrators or never assigned tenure areas in the first place.
At the outset, tenure areas are the “subdivisions within the organizational structure of a school district in which a professional educator is deemed to serve.” 8 NYCRR §30-1.1(h). At the start of your employment, the controlling school board must appoint you to a probationary period within a tenure area. Upon the completion of your probationary appointment (four years for anyone appointed after July 1, 2015), you must then be granted the status of being tenured within the same tenure area by the board of education upon the superintendent’s recommendation.
Unlike teachers, the state does not regulate administrator tenure areas. This means that tenure area structures are inconsistent from one district to the next. A district could have a single administrative tenure area for all administrators, regardless of title, could be position specific, or could be somewhere in between (ie. principals, assistant principals, directors). There are pros and cons to each variation. For example, a single tenure area would allow for internal promotions as administrators without having to start a new probationary period. However, it also allows for the district to involuntarily transfer employees into other administrative positions, sometimes even resulting in a demotion (although, not a loss in salary). Perhaps more importantly, it would be the person with the least seniority in the tenure area and not necessarily the person in the position being eliminated who will be let go and placed on the preferred eligibility list. Conversely, in districts with narrower tenure areas, it is entirely possible that when a position is abolished, the most senior administrator in the bargaining unit is then gone.
Tenure areas are not only important for purposes of layoffs, but also for recall. A certificated educator who has been laid off due to a position abolishment will be placed on a Preferred Eligibility List (PEL) for a period of seven years. Every time there is an opening in the tenure area, the employer must offer it to the most senior individual on the PEL, even if they previously declined recall. In districts where the tenure areas are broader, recall does not have to be for the exact position that was abolished, but can be for any position within the tenure area, so long and the person seeking recall has the appropriate certifications. For example, an elementary principal who was placed on the PEL within the tenure area of principal is entitled to recall as the high school principal.
As you can see, knowing your appointed tenure area and those used for other administrators is important for your individual rights. It is also important for your bargaining unit as a whole. School districts have the initial ability to set tenure areas. However, any deviation from the previously established tenure areas is a mandatory topic of bargaining and must be negotiated with the unit. This typically occurs either when a new superintendent is looking for greater control or flexibility in assignments or when a district’s practice has been so inconsistent that it wants to reset. It is of vital importance that you contact SAANYS should this topic be broached by the district, as it could have negative consequences on existing unit members or prospective ones. As part of negotiations, it is possible to retroactively change the tenure areas of existing administrators. However, there are due process property interests involved and anyone who could possibly be negatively impacted must personally agree to the change. For example, if a district has title specific tenure areas and wishes to change to a single tenure area for all administrators, it will require the signatures of every person because the least senior person within an assistant principal tenure area could possibly have more seniority than the most senior within a principal tenure area, possibly creating inequities should an assistant principal position be cut. Thus, a single person who could be impacted by a change in tenure area refusing to agree will kill the entire potential agreement.
This article only gives the briefest of glances at a complicated and important issue. It is very important that any issues relating to tenure areas, potentially including promotions, be brought to the attention of the SAANYS Legal Department promptly, as some potential actions have very narrow statutes of limitations.
When planning for retirement, many things are on our minds including our health care. Some SAANYS members participate in the New York State Health Insurance Program (NYSHIP). This particular insurance program is offered to all personnel employed by the State of New York, many municipal employees, and many school district employees. For members who participate in NYSHIP, there are some things you should look out for such as the eligibility requirements to continue NYSHIP coverage after retirement.
Three criteria must be met in order to continue NYSHIP coverage as a retiree. First, you must complete the minimum benefits eligible service requirement that is determined by the date on which you first enrolled. Benefits eligible service is defined as a period of employment during which you were eligible for NYSHIP coverage by paying only the employee share of the premium. If you were last hired on or after April 1, 1975, you must have had at least ten years of NYSHIP benefits eligible service, or at least ten years of combined NYSHIP benefits eligible service with your employer and one or more participating employers. If you were hired before April 1, 1975, you must have had at least five years of NYSHIP benefits eligible service or at least five years of combined NYSHIP benefits eligible service with your employer and one or more participating employers and/or participating agencies. This is what is commonly referred to as vesting for purposes of retirement.
Periods of employment in which you did not meet the eligibility requirements for coverage will not be counted. For example, periods when you were paying both the employer share and the employee share of the NYSHIP premium while on leave without pay do not count toward the minimum service requirement. Benefits eligible service with public employers other than your current employer may count toward the minimum service requirement if that employer participates in NYSHIP now or participated at the time the service was earned. Contact your business official if you have prior service with another public employer to determine if this service counts towards the minimum service requirement. Documentation of this service is required. If these records are unavailable, you may be able to substitute records from the retirement system to which you belong. You must have a minimum of one year of service in a benefits eligible position from the employer you are retiring from.
Second, you must qualify for retirement as a member of the New York State Teachers’ Retirement System or Employees Retirement System.
Third, you must be enrolled in NYSHIP as an enrollee or dependent at the time of your retirement. For example, if you were on leave and canceled your coverage, and then retired, you may not qualify for insurance in retirement.
If you are eligible for NYSHIP as a retiree and subsequently are hired in a benefits eligible position with another employer that participates in NYSHIP, you will need to make certain decisions about your coverage. If you are eligible for NYSHIP through both your current and former employer, you must choose one to provide your NYSHIP coverage as you cannot enroll through both. Carefully discuss the options with both employers as the cost of coverage may be different at each employer. Provided that the collective bargaining agreement you retire under does not require you to collect a pension in order to receive retiree benefits, it is your option whether to take the coverage provided pursuant to your collective bargaining agreement or to take the coverage provided by your new employer depending upon the contribution rate.
Not all school districts agree with SAANYS on this issue. In fact, some districts have gone so far as to pass board resolutions indicating that employees will not be able to take advantage of benefits if they are offered elsewhere as an active employee. More specifically, a certain board of education passed a resolution indicating that anyone who is constructively employed may not avail themselves of the contribution rate provided for in their collective bargaining agreement if they retired from the district but chose to work for another employer who provided NYSHIP.
The Department of Civil Service does not agree with this either. Pursuant to a letter issued by the department to a district requesting the adoption of such a resolution the Insurance Law does not provide for this distinction. The department was clear when indicating that a district could not differentiate between classes of retirees as they do classes of active employees. This is why the requirement under the NYSHIP rules is that an employee be eligible to retire under the applicable system and does not require the actual collection of a pension in order to receive retiree health insurance. The requested resolution was not approved by the Department and SAANYS is currently in litigation over this issue.
Please contact the SAANYS Legal Department with any questions you may have regarding your retirement benefits.
Your health is not just of great importance to you, but it is also a concern for your district. From time to time, a school district has occasion to question an employee’s physical and/or mental health and whether any conditions impact the ability to safely and successfully perform the assigned duties. Oftentimes this comes after an injury or illness, but sometimes a district’s desire to evaluate an employee’s capabilities comes as a complete surprise. In either case, there are specific statutory processes in place that must be followed for examinations of both Civil Service and certificated administrators.
While the processes differ for Civil Service and certificated administrators, there are some global principles that should be followed. First and foremost, you need to contact the SAANYS Legal Department and keep in contact throughout the entire process. Districts oftentimes send releases and utilize processes that are broader than necessary. Although you have no say in whether the process occurs, it is still your private medical information at stake and you do not want more people knowing your business than is absolutely necessary. As an example, SAANYS has seen members sign medical releases that provide all medical records directly to a superintendent and members of the board of education, who then have shared private issues with colleagues. SAANYS has specific narrowly tailored medical releases that provide the examining physician only with the medical records and only for a brief duration, after which the records are returned to your doctors. Additionally, you have the right to representation at the examinations. It is strongly recommended that you have SAANYS send someone with you, as we have unfortunately seen individuals who have gone into examinations alone, only to be told that they are not fit to work based upon information that was never discussed in the examination. SAANYS will ensure that any representative we send will know what to look for and what questions to ask.
Further, as a practical matter, some prefer to “agree” to an examination so as to avoid the stigma of having one voted upon (under an employee identification number, not name) by the Board of Education. The problem with such consent is that it typically means that you will then use your leave accruals for a process that could take months and you do not believe is even necessary. If the examination is ordered, then you would be placed on a paid administrative leave, during which you are still being paid full salary and benefits and continue to accrue time in the retirement system, all without touching your sick leave. By involving SAANYS from the outset, a happy middle ground is typically reached.
If you are a certificated employee, your examination is governed by Education Law §913. This is a district driven process. Strangely, the employee does not even need to know the underlying basis for why the examination is being required going into it. The examining physician is chosen by the district without a say by the employee. While we would like to believe in the integrity of these physicians, our research often uncovers that they are frequently hired by the same school lawyers to handle situations in other districts, often with negative recommendations about fitness for duty. Representation during the examination is crucial. Should the recommendation state that the employee is unfit for duty, SAANYS always recommends a second opinion that hopefully counters the initial recommendation. In such cases, the result is oftentimes a §3020-a hearing with all medical experts being examined on the processes and procedures used to reach their recommendations. During the pendency of the case, the employee remains on paid administrative leave and suffers no loss of salary, benefits, or leave accruals. A finding that an individual is unfit for duty could ultimately lead to termination, which is why early involvement by SAANYS is crucial.
Examinations of Civil Service employees are governed by Civil Service Law §72. This is a much more transparent, yet structured, process. Under this procedure, the employing district places the employee on paid administrative leave and notifies the applicable county department of Civil Service that it requests an examination be conducted. Subsequently, the district must send a letter to the employee and Civil Service, detailing the specific reasons why such an examination is being requested. Once that is submitted, Civil Service (not the district) selects the examining physician and schedules the exam. Should the assigned physician determine that the employee is not fit for duty, a demand for a hearing must be made within ten (10) days or else the determination is deemed to have been accepted. If a hearing is demanded, Civil Service assigns the hearing officer unless the parties mutually select someone. The hearing is usually expedited in nature, boiling down to a battle of the medical experts. While the hearing is pending, the employee is placed on sick leave and must use his/her accruals or else be unpaid. If the employee is ultimately returned to work, part of the remedy is to restore the utilized leave accruals.
Again, getting SAANYS involved early on is crucial to prevent any unnecessary disclosures and in providing you with the best representation and defense possible.
It feels like the new school year has just gotten underway, but already the January Regents exams are just around the corner. At this time of the school year, it is critical that administrators turn their attention towards planning for the administration of those standardized tests, which includes training personnel. Failing to strictly comply with New York State’s stringent testing protocols can, and often does, become the basis for 3020-a disciplinary charges and/or license revocation proceedings. This happens all too often. In fact, SAANYS’ legal team has had to defend several members over the past year due to violations of state testing protocol. The Board of Regents takes violations very seriously – that means proctors must be properly trained, testing locations must be vetted and secured, testing accommodations must be in order, and planning for proper distribution, collection, and safekeeping of the testing booklets must be established. The following are some practical tips to consider in planning for administering state standardized tests.
First, securing trustworthy and qualified exam proctors should be done sooner rather than later. This includes having alternates available in the event of unexpected absences on testing days. All proctors must read and fully understand the Directions for Administering Regents Examinations (available online at: http://www.p12.nysed.gov/assessment/hsgen/2018/541-118.pdf) and be familiar with the School Administrator’s Manual, Secondary Level Examinations (information available online at: http://www.p12.nysed.gov/assessment/ and http://www.p12.nysed.gov/assessment/sam/secondary/hssam-update.html). The failure of a proctor to follow proper testing protocol will be imputed onto the school district and the administrators in charge of administering the tests, opening the district and individual administrators up to potential liability. Administrators are encouraged to work with their local BOCES to ensure that all personnel are adequately trained in advance of test days.
Second, all personnel must know and understand that photocopying of tests is prohibited. Despite the bold lettered warnings on the testing booklets, year after year SAANYS is contacted by members who have found themselves in legal trouble for failing to comply with the Board of Regents’ strict “no photocopying” policy. All teachers, administrators, or other personnel that may have access to the testing booklets before, during, or after the exams are administered need to understand that the testing booklets (or any part thereof) may not, under any circumstances whatsoever, be photographed, photocopied, or reproduced. In an age of cell phone cameras, this is particularly important and must be reinforced to prevent the integrity of the test from being undermined. Furthermore, administrators must ensure that secure safes are available after the exam is conducted for the safekeeping of all the completed testing booklets. Access to the safe should be limited to as few personnel as is necessary, and administrators should consider using security devices such as cameras and alarms to ensure that no one gains access to the testing booklets. Another important thing to note is that the Board of Regents posts prior exams online, which can be used to get students familiar with the questions and exam structure (available at: http://www.nysedregents.org/). Although it should not need to be stated, providing answers or assistance to students in answering exam questions is strictly forbidden. Additionally, scrubbing of students’ grades on exams is absolutely prohibited.
Another critical step that must be performed is the identification of all students who are entitled to special testing accommodations. This often requires a full review of all Individual Education Plans (IEPs) and Section 504 Plans. In addition to identifying which students will receive accommodations, separate testing locations must also be secured to ensure that all students will be properly accommodated. Further, qualified personnel must be available for any accommodations that require special training, skills, or certification.
It is of the utmost importance that if you are involved in a situation where something deviates from protocol, that you call the SAANYS Legal Department right away. Depending on your employment status, you may have the right not to answer questions by either the district or the state and you are always entitled to representation during investigations. The lawyers at SAANYS have extensive experience in these situations that can benefit you if there is even the potential for discipline.
If you have any questions or legal concerns related to the planning and administering of standardized tests, contact the SAANYS Legal Department.
Part II: Your Responsibility When Faced With Child Abuse in the Educational Setting
As discussed in last month’s article, child abuse is an unfortunate reality in our society. The only thing more distressing than making a hotline call on a parent or caregiver of a child is reporting child abuse that occurs in the educational setting. The New York State Legislature has explicitly outlined the conduct required once you obtain knowledge of the alleged abuse and there is a reasonable suspicion that abuse has occurred.
Section 1126 of the New York State Education Law explicitly states that whenever an oral or written allegation is made that a child has been subjected to child abuse by an employee or volunteer in an educational setting, the person receiving the complaint must promptly complete a written report. This report shall contain the full name of the child, the name of the child’s parent(s), the identity of the person making the allegation and their relationship to the child, the name of the alleged abuser and their relationship to the child, and a listing of the allegations. The report must be on a specific form contained in Education Law §1132. As a matter of course, employing districts should have these forms readily available and provide training on this topic.
Once you receive a written report, or you have completed the report based on an oral allegation, and there is a reasonable suspicion to believe the abuse occurred, what you must do next is virtually the same. Whether the allegation is made by the child, the parent, or a third party, you must: (a) promptly notify the parent that an allegation of child abuse in an educational setting has been made and promptly provide the parent with a written statement setting forth parental rights, responsibilities, and procedures; (b) promptly provide a copy of such report to the superintendent; AND (c) promptly forward such report to appropriate law enforcement authorities. In no event shall reporting to law enforcement be delayed by reason of an inability to contact the superintendent. In situations where the allegation is raised by a third party, you must also take the intermediary step of ascertaining from the person making such report the source and basis for such allegations.
Any school administrator and or superintendent who reasonably and in good faith makes a report of allegations of child abuse in an educational setting or transmits such a report to a person or agency as required by law shall have immunity from civil liability. Remember the report must be done in good faith and you must have a reasonable suspicion that something happened. This does not mean that every report submitted must result in a finding of fault, but there must be a reasonable suspicion after a timely investigation and the form required by Education Law §1126(1)(a) must be filled out.
While procedures for what to do is a fairly standard matter, what constitutes “timely” or “reasonably and in good faith” is less clear. Luckily, the commissioner of education has issued decisions in cases on these topics to provide guidance. When in doubt call the SAANYS Legal Department for guidance on these gray areas.
In Appeal of a Student with a Disability, Dec. No. 15.967, (August 2009), an allegation of abuse of a student placed in an offsite agency was not appropriately documented or addressed for a period of approximately eight months. While the school district avoided liability based upon the parents’ failure to raise the issue within the statute of limitations, it was clearly established that an initial investigation must occur and all of the steps illustrated above must be completed within hours or days after the complaint is made, not weeks or months.
An example of the reasonable suspicion standard was addressed in the Appeal of S.S. on behalf of her son T.K., Dec. No. 14,852, (March 2003). In that matter, the superintendent conducted a thorough investigation into an improper restraint of a student and filled out the statutory form within a matter of days, but the police were not informed based upon the statements of eyewitnesses. Further discussions between the parent and the district, including a meeting with the board of education, occurred and an official finding that no abuse occurred was issued by the superintendent within several weeks. It was at that time that the parent asked that the report be forwarded to the police, which it was. The parent filed an appeal with the commissioner alleging the district’s failure to provide her with a copy of the report and a written statement of her parental rights, responsibilities, and procedures. The district indicated that they did not need to supply her with the above as after an investigation there was no reasonable suspicion to believe that an act of child abuse had occurred. The commissioner agreed with the district, citing its compliance with filling out the report required by statute and the prompt investigation that followed. The commissioner went further to indicate that the district was not required to supply law enforcement with the report or a written statement of parental rights, responsibilities, and procedures to the parent as no reasonable suspicion existed. When in doubt call the SAANYS Legal Department for guidance on this additional gray area.
Penalties for failure to comply with Education Law §1128 are quite severe and could potentially involve a sentence of incarceration. Pursuant to Education Law §1129, willful failure of an employee to prepare and submit a written report of an allegation of child abuse as required by statute shall be a class A misdemeanor. Willful failure of a school administrator or superintendent to submit a written report of child abuse to an appropriate law enforcement authority shall be a class A misdemeanor. Further, any failure to submit a written report of child abuse to an appropriate law enforcement authority as required by law shall be punishable by a civil penalty not to exceed five thousand dollars upon an administrative determination by the commissioner. A class A misdemeanor could carry a sentence of one year if convicted.
The penalty for a district superintendent or school administrator are even more severe if they attempt to have an employee resign quietly in lieu of reporting the alleged abuse. Pursuant to Education Law §1133, a school administrator or superintendent shall not make any agreement to withhold from law enforcement authorities, the superintendent or the commissioner, where appropriate, the fact that an allegation of child abuse in an educational setting on the part of any employee or volunteer as required by law in return for their resignation or voluntary suspension. Any violation of this Section shall constitute a class E felony, and shall also be punishable by a civil penalty up to $20,000.
Be very careful in these situations, always fill out the initial report and always notify the superintendent immediately. Always cover yourself and insulate yourself from any potential liability. And as always, contact the SAANYS Legal Department if in doubt.
Part I: How and When to Make the Hotline Call
Unfortunately in today’s society, administrators find themselves in the awkward position of having to make hotline reports to Child Protective Services (CPS) more often these days. As mandated reporters under Article 6 Section 413 of the Social Services Law of New York State, it is your legal duty to make these hotline reports. Failure to do so can expose you not only to discipline by your employing district, but also personal liability for failing to do so. As such, knowing when to make the calls and how to make the calls are critical.
Pursuant to Social Services Law Section 420(2), a mandated reporter may be held liable criminally and civilly if he or she fails to report suspected child abuse. Pursuant to the statute, anyone who willfully fails to make a report of suspected child abuse or maltreatment shall be guilty of a Class A Misdemeanor. The statute goes further to indicate that anyone who willfully and knowingly fails to report suspected child abuse or maltreatment can be held civilly liable by the victim and/or his or her guardians for the damages caused by the failure to report. The courts in New York State have held school officials liable for this in specific situations. For example in the case of Kimberly v. Bradford, 226 AD2d 85 (4th Dept. 1996), the court held a teacher responsible for not reporting the suspected sexual abuse of a child by her uncle while she was on summer vacation with him in another state. The court concluded that a mandated reporter is obligated to report suspected cases of child sexual abuse based upon facts and circumstances within the knowledge of the reporter at the time the abuse is suspected and may be held liable for a breach of that duty, even though it might ultimately be determined that the abuse was not committed or allowed to have been committed by a “person legally responsible” for the child.
Section 413 of the Social Services Law requires that any part-time or full-time employee of a public school district report or cause a report to be made when: (1) they have reasonable cause to suspect that a child coming before them in their professional or official capacity is an abused or maltreated child; (2) they have reasonable cause to suspect that a child is an abused or maltreated child where the parent, guardian, custodian or other person legally responsible for such child comes before them and states from personal knowledge facts, conditions or circumstances which, if correct, would render the child an abused or maltreated child; or (3) they have reasonable cause to suspect that a child less than eighteen years of age whose parent or other person legally responsible for his care … commits, or allows to be committed, a sex offense against such child, as defined in the penal law. Subdivision (g) of that section provides that a “person legally responsible” “includes the child’s custodian, guardian, [or] any other person responsible for the child’s care at the relevant time.” A custodian may include any person continually or at regular intervals found in the same household as the child when the conduct of such person causes or contributes to the abuse or neglect of the child. Section 419 of the Social Services Law provides immunity to those who make a hotline call, so long as the report is made in good faith, without malice, and with a reasonable basis.
There are many situations where a hotline call to CPS is warranted. Some examples include if the child is excessively absent and the parents/caregivers are not responding to communications from the school; the child comes to school on a regular and continuous basis dirty and hungry; the child comes to school on a continuous basis with bruises or in obvious pain and is withdrawn; or if a child confides to an employee of the district that they are afraid to go home and discloses why on more than one occasion. Once a hotline call is received, CPS has 24 hours to lay eyes on the child and then an investigation will be conducted.
This is a very important judgment call that will need to be made very quickly but must have a reasonable basis. If a child comes to your office and you see something concerning, don’t be too quick to make the hotline call. Remember, you must have a reasonable basis for calling the hotline. The courts in New York have held school districts liable for hotlines that were made without any attempt to determine the facts and circumstances surrounding the situation. In Vacchio v. St. Pauls United Methodist Nursery School, New York Law Journal, July 21, 1995 p. 32 col.2, a nursery school teacher noticed a child with a black eye and immediately made a hotline call to the State Central Registry in Albany. The district was not allowed to avail itself of the immunity provided in Section 419, as no attempt was made to find out how the child got the black eye. In discussing the immunity afforded the defendants pursuant to Section 419, the judge acknowledged that for the purposes of any criminal or civil proceeding, the good faith of any person or official required to report cases of child abuse or maltreatment shall be presumed, provided such person, official or institution was acting in the discharge or their duties and within the scope of their employment, and that such liability did not result from the willful misconduct or gross negligence of such person. The court then went on to write that it is at least arguable that the failure to conduct a preliminary inquiry or investigation prior to the rendering of a report may support a finding of gross negligence.
So what would constitute a preliminary investigation into a matter? The very first thing that should be done is a call to the teacher, guidance counselor, school social worker, and the school nurse. Schedule a meeting post haste with everyone. Ask questions, such as has the child come to school bruised or complained of feeling ill before? If so, how often and is there any documentation in the nurse’s office to back this up? Document the meeting, then make the determination whether a call needs to be made. Whatever you do, make certain you do not take photos of the child or question the child extensively regarding the matter. And most importantly do not do a physical examination of the child. These calls are anonymous so the parents or caregiver will not be made aware of who made the call.
It is always a good idea to notify the superintendent of the need to make the call and the totality of the circumstances of why the call was made. When an angry parent calls the district because they have been paid a visit by CPS, the superintendent will already know the circumstances. Even though your call will be anonymous, parents may have suspicions as to who made the call. This will be especially obvious if you are making a call due to excessive absences from school.
The appropriate way to make a hotline call is as important as knowing when to make t such a call. All hotline reports must be made to the State Central Registry in Albany. The telephone number is 1-800-342-3720. Do not call your local department of social services. All calls must go through the main office in Albany. There may be times that the registry decides the information provided by you does not warrant an investigation. As long as you have made the call and you document this, you cannot be held liable should the matter develop in the future. Always document who you spoke with and the time and date you spoke with them. And always inform the superintendent or their designee of any and all hotline calls made.
The SAANYS Legal Department understands the difficulty of determining if a reasonable basis exists for making these calls. Please contact us with any questions you may have regarding this should a situation arise. Please make sure to read next month’s article regarding child abuse in the educational setting and the legal responsibilities of administrators regarding such situations.
The use of physical force or restraints on students, can lead to undesirable legal issues for the teachers and administrators involved. Anytime that physical force gets used on a student, there is a possibility that the school district employees involved in the incident may find themselves defending against claims of abuse, assault, battery, and even false imprisonment. Even when the claims are meritless, it can be costly and stressful.
Physical force and physical restraints should only be used in rare and extreme situations, and when it is required, it must be handled with the utmost care. Administrators and teachers are encouraged to avoid the use of physical force and restraints whenever possible. However, when the use of force cannot be avoided, it is critical that the amount of force used, and the manner in which the force is applied, not be excessive or abusive. The following is some guidance on the use of physical force in schools.
To avoid, or at least minimize, the legal risks associated with the use of force and physical restraints, school districts should put procedures in place to ensure that every reasonable effort gets made to avoid the use of physical force. When physical force cannot be avoided, the behavioral interventions that get implemented must be “consistent with the child’s rights to be treated with dignity and to be free from abuse.” Physical force should only be used “in situations where a child’s behavior poses imminent danger of serious physical harm to self or others and not as a routine strategy implemented to address instructional problems or inappropriate behavior.” Excessive force, beyond that which was “reasonable under the circumstances then existing and apparent,” can subject you and the school district to liability – in other words, even where a “reasonable” degree of physical force would have been justified, the use of force beyond what is perceived to be necessary to deescalate a particular situation could constitute abuse, or even rise to the level of battery or assault. Excessive or inappropriate use of force can, and often does, lead to legal liability such as discipline, termination, and even criminal charges.
Understanding the fine line between what is “reasonable” under the circumstances, and what is “excessive,” requires specialized training. The SAANYS Legal Department never ceases to be amazed by the lack of training administrators receive in this area and strongly recommends that bargaining units take the initiative and lobby for such training to be provided and regularly updated. This is especially important for those individuals who are most frequently expected to deescalate student behavioral incidents, such as principals, assistant principals, and deans. Training should be conducted so that school district employees know and understand what degree of force to use under what circumstances. It is also critical that employees also understand when a behavioral incident justifies the use of physical force or restraints.
If you find yourself in a situation where you have had to use physical force or restraints on a student, you should not wait – contact a SAANYS attorney immediately. Courts will often look to see if the physical contact was “reasonable under the circumstances then existing and apparent,” meaning that the minimal amount of force necessary to address the situation should be used. You may also be required to report the incident to law enforcement, NYSED, and/ or other federal, state, or local authorities. SAANYS attorneys can help ensure that all reporting requirements have been met, and can help minimize the legal risks involved.
As all administrators know, Spring is traditionally the best time of year to find new employment in other districts. Unfortunately, this is not always by choice, as it is also the time of year when school districts decide to reorganize as part of the budgetary process. While leaving a position under this condition is certainly stressful, some comfort should be taken in the fact that these are common occurrences all over the state and the vast majority of administrators land on their feet in short order. If you are ever in this situation, you should call the SAANYS Legal Department to know your rights and options, but the following is a brief overview of rights potentially available to you.
Once a district decides to abolish a position, it is extremely difficult to stop the process without significant political pressure from the community. The courts give great deference to a school district’s decision to reorganize, even if the reason for cutting the position is not financial. To legally challenge such a cut, it would have to be proven that the reason being offered by the district for the cut is merely pretext for a discriminatory reason, which is no easy feat.
For certificated administrators, once a position is abolished, it is the least senior person in the position’s tenure area that is laid off. Depending on how your district organizes its tenure areas, this may or may not be the person encumbering the title that is going to be abolished. The person being let go is then placed on a preferred eligibility list for a period of seven years. During this period, if the position is recreated or if there is an opening in the tenure area, the position must first be offered to the person on the list before it is posted and filled with either an internal or external candidate. If the recall is declined, then the person remains on the list for the remainder of the seven-year period and must be offered any qualifying opening during that period. It is very important that if your position is going to be cut that you do not resign or else you will lose your recall rights.
Civil service members whose positions are abolished are placed on a preferred eligibility list for a period of four years. Districts must offer any qualifying openings to the person on the list prior to posting the position. Unlike with certificated members, if a civil service person refuses a recall, he/she is considered to have waived the right and will no longer be entitled to recall, even if there are further openings during the four-year period.
Once the position is abolished, it is important for the unit to examine where the work is going. Bargaining units should look at the scope of the extra duties being absorbed by its members to determine whether impact bargaining for additional supports and/or money is warranted. If duties are being given to non-unit positions, the exclusivity of the duties must be analyzed to determine whether there is a viable transfer of bargaining unit work claim. Finally, if a new position is created, it should be determined whether it belongs in the unit and whether the person let go has some entitlement to it. SAANYS is here to help units and impacted members determine rights and responsibilities on a case-by-case basis.
Periodically, the SAANYS Legal Department likes to update our members on important changes, or upcoming ones, to the labor laws. We have identified three updates that you should know about.
The first one you may have already noticed on your pay stub. Starting January 1, 2018, New York State implemented its Paid Family Leave law (PFL), not to be confused with the Federal Family Medical Leave Act (FMLA). PFL provides up to eight weeks of leave to eligible employees at 50 percent of the employee’s average weekly wage, capped at 50 percent of the New York State Average Weekly Wage, which is $652.96. PFL may be used to: 1) bond with a newly born, adopted or fostered child; 2) care for a family member with a serious health condition; or, 3) assist loved ones when a family member is deployed abroad on active military service. PFL is taken concurrently with FMLA when the necessitating factors for the leave are applicable under both laws. With respect to vacation/sick days and PFL, the status of those days will vary by employer. PFL is paid through payroll taxes on all New York employees at a rate of 0.126 percent of an employee’s weekly wage and is capped at an annual maximum of $85.56 (for 2018). Despite public employees, including most SAANYS members, being required to pay the tax, PFL only applies automatically to employees in the private sector. Public employers may opt into PFL at their discretion, or negotiate the benefits of the law into their contracts with labor organizations. So far the general trend has been for school districts not to offer this benefit unilaterally. In some cases this could be because there is already a provision for child care or extended sick leave in the applicable contract.
The second update is a result of a recent New York State Court of Appeals case, Froman v. Henkin decided on February 13, 2018. Previously in New York, posts on Facebook set to the private setting were not subject to discovery (being revealed during litigation) unless one party planned to use those posts in the trial or hearing. In Froman, the Court of Appeals found that social media settings of private or non-public do not require a “heightened standard for discovery” and that any relevant material likely to be found on Facebook should be made accessible via the discovery process during litigation. This ruling does not mean that one’s entire Facebook is subject to being revealed, only portions that could be relevant for litigation at hand, i.e. private posts made during a certain time frame. The judgment of what information is relevant will be at the discretion of the presiding judge or hearing officer. Previously, while information posted as private could still be made public as a result of Facebook friends with access to an individual’s account, the caveat now is that a judge can make private posts public if they believe the information is relevant. As always SAANYS’ recommendation is to think before you post anything on social media.
The last item that we must make you aware of is proposed Department of Labor (DOL) rule changes. These rules are posted on DOL’s website in a list format. While the majority of the current proposed changes do not apply to members, the following proposed change to “tipping” nationwide could be the subject of a student question. Under regulations enacted in 2011, restaurant tips are considered the sole property of service-facing employees (waiters, bussers, and bartenders). This is to take into account that employers are allowed to pay these employees less than minimum wage, because they get tips. Under the DOL’s new proposed rules restaurants will be permitted to pool tips and distribute them to employees as they see fit, or to keep tips for the business as a whole. How this proposed change could play into minimum wage laws is yet to be seen.
SAANYS takes pride in keeping our members up- to-date of any changes that could affect their employment. If you have any questions or comments regarding the above article or legal questions in general do not hesitate to contact the SAANYS Legal Department.
A frequent question that we field here in the SAANYS Legal Department from new and existing members alike, is who gets to approve a new Collective Bargaining Agreement (CBA) or add-ons to already existing terms and conditions of employment, such as Memorandums of Agreement or Understanding (MOA/MOU). These agreements and past practice collectively govern employee/employer labor relationships.
If you are a SAANYS individual contract member, the answer is that you do. You are the sole negotiator between yourself and the district, with respect to terms and conditions of employment. Many times in an individual contract situation, the employer will adopt a take it or leave it approach to the contract. While this may work for the new employee it is always a good bet that once you have achieved some staying power in the position you should move for an increase in benefits to your contract.
In the case of most other SAANYS members, terms and conditions of employment are governed by your CBA encompassing the position and those other positions that share a community of interest with yours. Most often this community of interest is based upon similar supervisory roles at the employer (whether over programs/people) or shared certification/hiring requirements. Roles sharing a community of interest combine to form the membership titles of an employee organization, commonly referred to as the “association” or “unit,” to which you are a member and which negotiates the group CBA.
The New York State agency, the Public Employment Relations Board (PERB), that governs employee organizations under the Civil Service Law, has taken the approach that the negotiation, approval, or modification (MOU/MOA), of CBAs is an internal organization matter. This means that apart from a few structural requirements, the individual group determines the content and approval process of the CBA. The internal requirements for the approval of CBAs and modifications to such are contained in a group’s by-laws or constitution, a governing document. Every group upon formation must have a governing document regulating the internal workings of the group, such as election of officers and approval of terms and conditions of employment (sample governing documents are available upon request from SAANYS). The base rule for this governing document is that it must not be deliberately discriminatory, arbitrary, or founded in bad faith.
The governing document will control how group officers and a negotiating team are selected. In most SAANYS’ units, this process is done by election, though there are cases where a group of positions will have a guaranteed seat at the table, i.e. the governing document will state that one of the elementary principals must be an officer of the group. In most cases, the officers or negotiating group will be given the power to independently deal with the employer over terms and conditions of employment. The legal requirement for this “dealing” with the employer being once again that it must not be deliberately discriminatory, arbitrary, or founded in bad faith, against any members.
With respect to complete CBAs, before a new one or extension of one is approved or ratified, the officers are required to disclose the terms of the agreement to the group membership. Ratification of the agreement does not require a vote and may be done by another process, so long as the process is fair. Further, courts have held that non-members of the group governed by the group contract, i.e. agency fee payers, have no affirmative right to participate in a ratification vote if there is one. The presumption being that the group has already worked for the best interests of all titles during negotiations. While there is no legal requirement for a subsequent ratification vote, this is the best practice for units to avoid allegations of improper conduct. In the case of contract modifications, such as MOAs or MOUs that may settle a PERB charge, grievance, or address a new situation that may come up, there is no affirmative duty to present the agreement to the unit membership. In practice, the leadership of the group will approve and negotiate the agreement, especially when it only affects one individual, or a sub-component of the group.
The caveat to this whole process is that at all times the officers of the group may not act purposefully deceptive, in that a member may request a copy of the governing documents, or existing CBA or modification to such at any time. Further, members are allowed to request other pertinent employment information from the officers at any time and receive a reasonable and timely response. The exception to this being that the officers are under no obligation to disclose information relating to course or conduct during collective negotiations or individual employment matters, most often relating to discipline. In fact, disclosure may be legally prevented in some cases.
As always, if there are any questions regarding the process of approving a CBA and its modifications please do not hesitate to contact the SAANYS Legal Department. Further, it is common for governing documents to be lost or misplaced over time. If this is the case, and the individual group cannot produce the documents, please contact SAANYS for further guidance.
On December 14, 2017, SAANYS hosted a workshop for all of its negotiators throughout the state, to provide continuing training on the negotiations process and statewide trends. As we consistently stress when speaking with bargaining units, there is no one “right” way to conduct negotiations. Some units prefer to try to conduct negotiations on their own, whereas others want SAANYS negotiators and/or attorneys to conduct the negotiations. SAANYS is here to assist your unit in any capacity you wish, but we urge you to at least consult with us, so that you may be fully prepared to conduct negotiations. The following is a brief summary of what should be done to prepare for negotiations.
SAANYS typically recommends that the process of preparing for negotiations start approximately one year before the Collective Bargaining Agreement (CBA) expires. This helps to ensure that you have a successor agreement timely in place and do not have to worry about retroactivity. It is recommended that the first meeting include your entire unit to brainstorm ideas as to what your unit would like changed. In addition to financial considerations, labor relations issues that arose during the previous contract should be reviewed for potential changes and the overall contract should be reviewed by SAANYS to find areas of unfavorable or unclear language to be corrected. During this meeting, the negotiations team should also be determined. Our recommendation is to always keep the negotiations team in small, odd numbered, groups of tenured unit members. Should you choose to use SAANYS at the table, we do not count the person assigned as part of this recommended composition, as SAANYS can provide advice on proposals, but the ultimate decision is in the unit’s hands. Once the team is set, there should be defined roles for the members, including the lead spokesperson and the ever-important note taker. It is vital that detailed notes of the positions be taken and saved (Feel free to give them to SAANYS for posterity!) to be used in the event that they are needed for a grievance years later.
As part of the preparation, SAANYS will prepare for you a detailed financial analysis of the district, as well as provide any contracts and data from neighboring districts. This analysis in advance will help the team determine whether the district is financially able to pay for the proposals, as well as whether the demands are consistent with area trends. As part of this analysis, the contract of the central office administrators and other district bargaining units will be requested, oftentimes along with the district salary report to New York State Teacher’s Retirement System. The Taylor Law entitles the team to information from the district necessary to assist the unit in negotiations. This right to information is in addition to that conferred by the freedom of information law (FOIL).
The team should meet as often as necessary prior to actual negotiation sessions with the district to formulate proposals in light of the data that SAANYS can provide. The team should then prioritize these proposals to ensure that the proposals are reasonable in number and content. Credibility can be lost at the negotiation table and the process stalled if the proposals are so unreasonable that they could not be realistically entertained by the district. To facilitate this process, it is recommended that the proposals are costed out to understand how it impacts the district’s finances. Costing out both your own and the district’s proposals is an ongoing process that should occur both before and during the course of negotiations (as the parties exchange counter-proposals). It is essential to cost out proposals and counter-proposals so that the team has a strong understanding of what each proposal represents in dollars and cents. The team is then better able to assess the reasonableness of the proposal under consideration. The cost of a proposal can then also be represented as a percentage for comparison purposes. Costing out proposals will help the team make logical arguments in support of or opposition to proposals that have economic impact.
Once the proposals are determined, it is important to have SAANYS review anything that contains changes to language to ensure that it accurately conveys what your team wishes. When the proposals are drafted, the next step is to schedule dates with the district and ensure that both sides will come prepared to exchange proposals at the same time.
Again, how your unit decides to utilize SAANYS is entirely up to you; however, we urge you to at least allow us to consult with you during the preparation phase and use our services to help with the data analysis. Knowledge is power and SAANYS has the resources to allow you to enter into negotiations fully armed.
Around the holidays, many of us have the opportunity to spend more time with family and loved ones. In the case of SAANYS members, these opportunities frequently lead to thoughts of retirement and spending even more time with those we care about. It is in this atmosphere that we frequently receive a host of questions regarding the retirement process.
In addition to any private retirement savings, SAANYS members, as public employees, are generally part of either the New York State Teachers Retirement System (TRS) or New York State Employee Retirement System (ERS). Most often, instructional titles will be in TRS while all others, such as Civil Service titles, will be in ERS.
To be eligible for retirement depends upon the system you are in. Both systems use tiers, based on date of hire, to govern when a member is eligible to retire without penalty. For ERS members in Tier 1, individuals may retire at age 55 or older without penalty. ERS Tiers 2-4 members who retire between the ages of 55-62 with 30 or more years of service credit may also retire without penalty. In addition, those members in Tiers 2-4 may retire at age 62 or older without penalty regardless of years of service. For those members in Tier 5, to retire without penalty a member must be age 62 or older and 63 for Tier 6.
For TRS Tier 1 members employed prior to July 1, 1973, to retire without penalty, members may retire at any age with 35 years in the system, or at age 55 or older with 5 or more years of service. TRS members in Tier 2-4 may retire either at age 62 or older with any amount of service, or at age 55 or older with at least 30 years of service. For TRS members in Tier 5 retiring without penalty involves retirement at age 62 or older, or at age 57 with 30 years of service. Finally, to avoid penalty, Tier 6 members must retire at age 63 or older, with 30 years of service. To find out your individual tier you can ask your employer’s personnel department, your applicable retirement system, or the SAANYS Legal Department.
After finding out if you are eligible to retire in either system, the next step when contemplating your retirement decision is to look at your individual or unit contract and see if there are any retirement incentives or due dates for when to give notice of retirement. Many contracts have incentives or penalties for giving notice at a certain date.
How the retirement systems calculate your pension is then calculated off of a general formula using your final average salary. For ERS Tiers 1-5 this final average salary is based upon average wages for the past three years of employment. For Tier 6, it is based off of average wages from the past five years of employment. The following types of wages count as final average salary in the eyes of ERS: contractual salary, holiday pay, longevity, overtime, and vacation pay up to 30 days. Note, Tier 6 members are not permitted to count vacation days as wages. With sick days, they may be counted as salary if your employer has chosen to offer the optional sick leave benefit as provided by Section 41 (j) of the New York Retirement and Social Security law. All other forms of compensation do not count for retirement purposes. This includes retirement bonuses, health insurance buybacks, and salary raises of more than 10 percent during the final average salary time period.
For TRS members, a similar system exists for calculating final average salary. For members in Tiers 1-5, hired prior to April 1, 2012, the final average salary will be based on average wages from your highest three consecutive years of employment, which may or may not be your last three years of employment. For Tier 6 members, the average is based upon the last 5 years of employment. Similarly, wages include: contractual salary, holiday pay, longevity, and overtime. Other applicable monies in TRS are wages from instructional time, including: coaching, the excellence in teaching program, forms of compensatory time, and tutoring. Generally, all instructional time will count for purposes of retirement. The 41(j) rule also applies to TRS, allowing employees of participating employers to count accrued sick days towards retirement. However, vacation days are not eligible for retirement purposes, nor are the topics of retirement bonuses, health insurance buybacks, or most 10 percent increases to salary during the final average salary period.
In addition, members in the system have the right to request an accounting from their applicable retirement system. This accounting will give the member data on their estimated state pension during retirement and the sources of such money. It is highly recommended that members request this accounting a few years before they decide to retire so that they may plan accordingly. Further, if there are any discrepancies in the accounting then the member may be able to rectify them proactively. Therefore, it is important to consult the applicable retirement system, SAANYS, and the district before submitting one’s retirement paperwork. Happy Retirement Planning!
The role of the unit president is a very important position to hold and with the title comes a varying range of responsibilities. The one that causes the biggest concern for unit presidents and their members involves dealing with members whom the district or BOCES may be looking to counsel and/or discipline. Thankfully some unit presidents serve their term without the need to represent another member at a meeting with human resources or the superintendent. However, for some this situation will crop up and there are some very important things to note while going through this process.
First and foremost, call the SAANYS legal department. We will be able to assist you with any questions and the situation may call for representation by someone not in the unit. SAANYS is always happy to provide representation; however, as much notice as possible is very helpful. The law provides that an employer must give “a reasonable amount of time” to secure representation. This isn’t defined, but an email at noon that there’s going to be a meeting at three might not be reasonable. Conversely, if you and/or the impacted member is notified on Monday of a meeting first thing on Friday, but they do not notify their unit or SAANYS until Thursday at 5:00 pm, the argument about reasonable notice will be weak.
Next, you will need to determine whether the employee is a civil service employee, a certificated probationary employee, or a certificated tenured employee. Each of these comes with different due process protections and procedures that must be followed according to statute. The member in question may not know what their rights are according to the statute and you may need to explain to them what their rights are. Then you will need to assist them in protecting those rights until the SAANYS legal team steps in. The SAANYS legal team is accessible seven days per week, however, sometimes there is no time to contact us prior to a situation.
If you are contacted by a member or the district/ BOCES, and notified of a mandatory meeting whereby the member may have unit representation, there are several initial steps you should take: If you have the time, you should ask the member what they think the meeting is about and gather any details they can give you surrounding the situation. Then, you should counsel them on the importance of not speaking to anyone about this matter. The importance of remaining silent is critical at this point. If you have time, you should contact someone from the SAANYS legal team immediately. If you are called to the meeting and had no prior knowledge or opportunity to meet with the member, ask that the meeting be adjourned briefly so that you may talk to the member. If you are denied the opportunity to do this, then the instruction will vary depending on their employment status, as indicated in this article. If they are in a category that must answer questions, they should keep their answers as vanilla as possible.
No employee is required to answer questions in a matter that involves criminal activity. In that situation the employee may plead the Fifth Amendment, and in our opinion, should. You and the member should be doing more listening and note taking during this meeting than talking. The purpose of this tactic is to get a feel for the direction the district/ BOCES is headed with the issue(s). Will this be a counseling memo or a warning, or will they be placing the employee on leave pending charges? It is also critical to contact the SAANYS legal team as soon as is possible. At this point the legal team will be assisting you throughout the remainder of the process.
With the exception of potential criminal liability, Civil Service employees have no rights to refuse to answer questions. Should a Civil Service employee be brought in for a meeting with the employer and he/she refuses to answer, the result may be an insubordination charge. Civil Service employees fall under the protection of Article 75 of the Civil Service Law. Pursuant to this statute, employees are entitled to a hearing. An employee may be placed on leave without pay for up to thirty days. If the matter is not resolved in thirty days, then the member must either be put back to work or placed on paid administrative leave. Typically, a school district will place the employee on unpaid leave and conduct the hearing within that thirty day timeframe. While the employee is entitled to a hearing, the district and/or BOCES may choose anyone to be the hearing officer. Both sides will have the opportunity to present their case through witnesses and exhibits. Once the hearing is concluded, the opinion is only advisory and the district and/or BOCES may ignore the decision and proceed as they wish. While an employee may appeal via an action in New York State Supreme Court, they will remain unemployed during this appeal time.
Certificated probationary employees fall under the protection of section 3031 of the Education Law. Like Civil Service employees, they must answer questions, except in instances of criminal liability, or else face possible insubordination charges. Pursuant to the statute, if an employee is going to be either terminated or denied tenure during their probationary term, the district and/or BOCES must put them on notice prior. The statute provides for thirty days notice prior to the Board of Education meeting where the superintendent will be recommending either termination or denial of tenure to the Board of Education. This is commonly referred to as a 3031 letter. The employee then has no later than twenty one days prior to the meeting to request, in writing, the reasons for denial or termination. The district and/or BOCES then has no later than seven days after the written request is made to provide those reasons. The employee may then represent their position to the Board of Education no later than seven days prior to the Board of Education meeting where the issue will be decided. If the Board of Education decides to terminate or deny tenure, then the employee will receive notice of the decision and will be given thirty days from the date of decision to remain on the payroll and will continue to receive benefits if applicable. It is important to note that a Board of Education cannot grant tenure if the superintendent does not make a recommendation. However they can vote to deny tenure even if the superintendent does make the recommendation. If you are contacted by a member who receives such a letter or if you are notified by the district and/or BOCES that they will be denying tenure, you may need to explain these rights to the employee. Then contact the SAANYS legal team immediately as there are very tight time limits that must be adhered to.
Tenure certificated employees are provided with due process rights under section 3020-a of the Education Law. In addition, they are provided with the right to remain silent during an interrogation. The district and/or BOCES may not use this silence against them during any future proceedings. If you are approached by a tenured employee, who has been called to the superintendent’s office, and told to bring union representation, you should follow the same procedure as that of the civil service employee with one exception. Attend the meeting and listen to everything they have to say. Again, attempt to get a clear picture of what direction the district and/or BOCES will be headed with regard to the issue. However, instruct the member to decline to comment until they have spoken with counsel. Make an appointment to meet again and contact the SAANYS legal team immediately.
On Tuesday, September 5, 2017, the Justice Department announced plans to terminate the Deferred Action for Childhood Arrivals (DACA), creating confusion and concern regarding the future of thousands of immigrant students and creating questions about what school officials should do if contacted by federal immigration officers. DACA, which was established in 2012, allows certain individuals who entered the U.S. illegally as minors, to remain in the U.S. and receive a public education, without the risk of deportation.
In February 2017, in response to President Trump’s travel ban announcement, Attorney General Eric T. Schneiderman and Commissioner of Education MaryEllen Elia, circulated a letter wherein they assured New Yorkers that all children, regardless of citizenship, have a right to attend public schools so long as the state’s age and residency requirements are met. They urged school officials to contact their superintendents and school district attorneys immediately if confronted by federal immigration officers who may be seeking private information on students and their families, or who may attempt to remove students from school grounds. On September 6, 2017, Mr. Schneiderman, along with 15 other attorney generals, took bold steps in opposition to the termination of DACA by filing a lawsuit against the Trump administration.
School officials may have to walk a fine line if confronted by immigration officers. School officials may be required by law to cooperate with federal agents, at least to some degree, while simultaneously being required to remain compliant with their legal duty to keep student records confidential, resulting in a conflict of interest. Since every situation that may arise will present its own unique circumstances, it is imperative to have an attorney review each occurrence separately and independently so that an appropriate, individualized plan can be determined, rather than simply relying on a generalized approach or policy.
If you have been contacted by an immigration officer regarding a student, or if you have any questions or concerns related to the DACA announcement, please contact the SAANYS Legal Department at (518) 782-0600.
Now that the happy chaos that comes from having students in your building is in full swing, the SAANYS Legal Department would like to take this moment to remind everyone that issues affecting your terms and conditions of employment deserve immediate attention. Oftentimes, SAANYS members call the Legal Department because they know that the terms and conditions of their employment are being impacted, if not outright violated, but they are not sure what to do to protect themselves. All too often these calls are not made for several months after the violation occurred and legal action is limited due to strict statutes of limitations governing various types of action.
The first step when you are concerned that your rights are being violated is to look at your Collective Bargaining Agreement (CBA) to see whether it is a topic that has been negotiated. If there is a provision in the contract that has been violated, then the remedy is to go through the negotiated grievance procedure. Oftentimes there is a very short period of time in which a grievance can be started, or else it is waived, so it is very important to look at the contract and the grievance procedure as soon as a violation is suspected. How grievances are processed vary from bargaining unit to bargaining unit, so it is important not to assume that because grievances are processed in a certain way for teachers that the process will be the same for the administrators in the same district. Additionally, it is important to look at the actual grievance procedure to see what can be grieved. Some clauses are very narrow, whereas others are so broad that topics not within the CBA could potentially be grieved.
If the perceived violation is not something that is covered within the CBA, then it must be determined whether the issue is something that could be brought for review before the Public Employees’ Relations Board (PERB). The most typical types of cases that are brought before PERB are:
(1) Transfers of Bargaining Unit Work: This typically occurs when a district either creates a new position or distributes the duties of an abolished position. In such events, it is important to look at the duties to see if they have been previously performed exclusively by the bargaining unit.
(2) Mandatory Subjects of Bargaining: These are topics that directly impact wages, hours, or working conditions. Any subject that impacts these three areas cannot be changed from the status quo without first being negotiated. An example that has repeatedly been brought to our attention this summer is when a superintendent unilaterally declares that administrators must work specific hours. Sometimes a mandatory subject of bargaining is also covered in the CBA. In such situations, we will file both a grievance and an Improper Practice Charge with PERB, which will typically wait to see how the grievance is resolved before taking action.
(3) Past Practices: Past practices are often confusing to people because sometimes what is in the CBA is not adhered to by the unit and district for a number of years. If the subject matter of a past practice is covered by the contract, then either party has the right revert back to the negotiated terms at any time. For example, if there is a clause in a CBA that specifically spells out the number of days unit members are to work every year and it turns out that the unit has been working more days for a number of years because no one ever bothered to count the days, the unit can put the district on notice that it is reverting back to the contractual work year. In such cases, the district cannot do anything about this reverter as long as the CBA’s language is clear.
In situations where the CBA is silent on a topic area, the past practice will control so long as it has been consistently applied for an extended period of time, measured in years. In such cases, the past practice cannot be changed without negotiations. If the past practice has been sporadically applied, then a past practice does not exist.
For PERB actions, there is a 90 day window from when you discovered the violation in which to file a Notice of Claim with the school district. This puts the district on notice of the dispute and gives an opportunity for it to be remedied before a formal Improper Practice Charge is filed with PERB, which must be done within four months of discovering the alleged violation. Case law indicates that a Notice of Claim is not a prerequisite to commencing an action with PERB, but we often recommend doing so in order to foster settlement discussions with the district.
The third primary avenue for dealing with terms and conditions of employment comes when additional duties are added on to an administrator’s already busy schedule. When this occurs, the remedy is for the unit to demand impact bargaining. An individual may not engage in impact bargaining directly with the district. The remedies in impact bargaining can be anything from further distribution of the additional duties, to more support services, or additional monetary compensation. There isn’t a statute of limitations for demanding impacting bargaining. It is typically recommended that enough time passes so the impacted individual can gather data to quantify the number of hours the additional duties have added, but that impact bargaining is demanded within one year of the duties being added in order to avoid claims that the individual has lived with the duties without complaint.
These are just the three primary ways your terms and conditions of employment can be safeguarded. As always, the SAANYS Legal Department is here to answer any questions, guide you in the right direction and vigorously enforce your rights. Due to potentially tight statutes of limitations, it is always best to contact us right away if you suspect a violation so we can address it promptly.
Every year, SAANYS assists members in collective bargaining between 60 to 100 contracts. This article addresses some of the critical steps needed to ensure you receive an excellent contract that you well-deserve. Also, SAANYS provides some important information about negotiations that will help local units during the process.
Preparation is critical to negotiating an excellent deal. Each spring, bargaining units which have their contracts expire a year out, should start preparing for negotiations. We recognize it may be hectic after the spring break to organize a negotiating team for the following year, however, it is important to select the negotiating team then. Generally speaking, select members to serve on the negotiating team who are respected and/or well-liked by district administration. SAANYS recommends an odd number to serve on the negotiating team, most typically three people serve, because these members must vote eventually to take an offer back to the rest of the unit. If there is an equal number of negotiating team members who split evenly on this issue, negotiations will stale. It is also important to select particular types of people for the negotiating team. One type of person is a long-tenured administrator who is conversant with the history of the bargaining unit. Another type of person to select is a “numbers” person, though understand SAANYS provides those services, which include costing out each party’s proposal, analyzing and interpreting comparable salaries, and determining the district’s ability to pay. Another type of person is the note taker who will clearly record the events of every bargaining session.
Once the negotiating team is set, the team should notify SAANYS requesting assistance with collective bargaining. The negotiating team also should send out a survey to unit members seeking information on proposals.
Over the summer, a SAANYS attorney and/or labor relations specialist will meet with the negotiating team and review the relevant data noted above. For example, SAANYS can perform an intra-district analysis that carefully reviews the salary and other benefits provided to central office administrators, teachers, and other school employers to determine district trends in salary raises over the past few years and what, if any givebacks employees/units have made. One argument we often hear is that teacher step/increment is not considered “new money.” Don’t be fooled! Each step is indeed new money as is shown by the increase each year in the district’s budget line for teachers’ salaries. In addition, SAANYS can perform an inter-district analysis of the compensation and other terms and conditions for similarly situated administrators working in comparable school districts, usually in the same county. Recently, SAANYS has enhanced its data bases to include quicker access to SED’s database regarding BEDS data and TRS’s pension reports, the latter of which reveals how many teachers earn less than, the same, or more than administrators in the same district. This type of data provides compelling arguments to justify substantial raises at the bargaining table. Finally, SAANYS keeps abreast of the United States Department of Labor economic reports, such as Personal Consumption Expenditure Price Index and the Consumer Price Index, to reasonably predict economic forecasts.
Once all the data is analyzed and discussed, the bargaining team should formulate proposals aided by the survey information. Again, SAANYS can assist by drafting the proposals in proper form. Prioritize your proposals. The most important aspect of preparing proposals is costing them out. Note if the unit’s proposals will cost a school district an unrealistic amount of money, like seven percent, the unit will lose legitimacy at the bargaining table. Costing out the proposals is critically important.
At the bargaining table, the negotiating team must have a complete financial picture of the employer and a good awareness of the contracts of similarly situated administrative units in the area. The team must be prepared to explain the rationale for each of its proposals. During negotiations, remember there will be give/take moments and the proposals may change during actual bargaining. An important tip is that the unit does not have to accept any or all of the proposals presented by management. The unit negotiating team may accept or reject in whole or in part each of the district’s proposals. As a result, it is critical that the designated note taker for the negotiating team meticulously record the events and statements/beliefs related to the parties’ proposals and the subsequently agreed upon terms. These notes become critical years later, when disputes arise over the meaning of specific contract language. Unfortunately, by that time, the negotiating team members are long retired. In fact, SAANYS is currently prosecuting a number of arbitrations where contract negotiation notes will play a significant role. To avoid problems with retrieval of collective bargaining notes, SAANYS has started to electronically store negotiations notes. To that end, when you have completed negotiations for a successor contract, please provide SAANYS a copy of your new contract and the official notes recorded during collective bargaining. In this way, we can better serve the union in the years to come.
A final point about negotiations relates to the applicability of retroactivity of salary increases. Over the past year, several contract settlements were temporarily delayed because of misunderstandings over who is entitled to retroactive salary increases. By law, retroactive salary increases are a mandatory topic. SAANYS takes the negotiating position that we will not negotiate any new/successor collective bargaining agreement that does not include retroactive increases for members who were already hired and working for the District prior to the contract expiring or for those members who retired after the contract expired but before the new contract was settled. However, problems arise with members who were hired after the contract expired but before the new contract was negotiated as to their rights, if any to salary increases. Issues also occur with former union members who leave the school district for employment elsewhere before the new contract is negotiated and demand salary increases for the period of time they worked in district before leaving.
As in the former group, the law is that newly hired unit members negotiate their starting salary with management without the unit input. Accordingly, if the contract expired on June 30, 2015, a person was hired on July 1, 2015 and subsequently a new contract was negotiated granting union members a 2.5 percent raise on July 1, 2015 for the 2015-16 school year, the new person is not legally entitled to a raise since their salary was set by their own individual negotiations. In one school district recently, a business official verbally told new hirees that they may receive an additional raise depending on collective bargaining. Unfortunately, without a written agreement to substantiate the business official’s oral promise, such alleged representation is unenforceable. However, if the new contract continued to be unsettled until January 2017, then that same new hiree would be entitled to the negotiated raise for following school year, the 2016-17 school year, but not the 2015-16 school year, his/her first year of employment in the district.
As to the group of unit members who leave the school district for employment elsewhere, school districts almost always resist giving retroactive salary increases for these members. The often heard rationale from school districts is why would we give money to individuals who have left our district for employment elsewhere. However, although rare, a Long Island negotiating team was successful in negotiating retroactive annual salary increases (but not sizable longevity increases) for members who left the district for work in other school districts. Their efforts in gaining this increase reinforces a SAANYS’ guiding principle that you will never get anything you do not ask for. As a general rule, school districts will agree to give retroactive salary increases for unit members who retire before the completion of negotiations for a new contract.
We hope this article provides sound advice as you begin to prepare for negotiations. Additional information was provided to you about the vast resources of SAANYS to assist you in collective bargaining. Please take advantage of them. Finally, we hoped that the article educated you on a few bargaining concepts.
While some collective bargaining agreements do contain a provision covering maternity/child rearing leave, some do not. If that is the case, employees have options such as the Family and Medical Leave Act, better known as FMLA.
Expectant mothers are entitled to FMLA leave for incapacity due to pregnancy, for prenatal care, or for her own serious health condition following the birth of the child. In addition, both parents are entitled to twelve weeks of FMLA leave to bond with their healthy newborn child. Both parents are entitled to twelve weeks of leave in a twelve month period of time so long as they do not work for the same employer. If both parents work for the same school district or BOCES they are only entitled to a combined twelve weeks of leave.
More specifically, FMLA will provide for up to twelve weeks off in a twelve month period of time starting from the day of birth. The law does not indicate that twelve weeks must be taken consecutively. If you would like to use your time intermittently you will need permission from your employer. For example, if you wish to return to work after six weeks but would like to return part time, your employer would need to approve that. Be very careful and always contact the legal team at SAANYS if you would like to negotiate something such as this. Employers can require you to temporarily transfer to an alternate position to accommodate you. This could affect tenure and should only be done with the advice of counsel.
Many employers will require the parent to utilize all sick and vacation time during this twelve week period of time. This requirement is consistent with the law and can be implemented by employers. For example, if you have six weeks of combined vacation and sick time then you will be required to utilize all of your time during your leave. You may also have the luxury of working for a district that has a sick bank and may utilize this for the remainder of your leave. Every Collective Bargaining Agreement and/or district has different rules when it comes to sick banks.
Be very careful of your calculations when taking leave as you are only required to charge days that you would have been required to report to work. For example, if you are a ten month employee and take your leave from June 1 through September 1, and your work year ends on June 30 and begins on August 15, then you will only be charging six weeks of time. Your FMLA will also have six weeks of remaining time come September 1 should you need to take it later in the year for any complications due to pregnancy or if your child becomes ill. Another example of time extension could occur if you are not required to report to work during school breaks and your leave spans over that time frame. For example, you take leave on December 1 to return on March 1. That would include the winter break and the Christmas break. Those two weeks would not be considered part of the calculation, therefore you would not need to charge time and you would still have two weeks of FMLA time remaining on March 1.
Another leave calculation that should be carefully analyzed would be leave taken during a probationary period. Say for example you began your probationary period on September 1, 2016 with an expected expiration of September 1, 2020. You are an eleven month employee whose work year runs from August 1 until June 30 every year. You take FMLA leave from June 1 through September 1. Upon your return, you will still have four weeks of FMLA time remaining, and you should not have charged any sick or vacation time in the month of July. However, what is most important to consider at this point in your career, is the extension of your probationary period due to this leave. The district can extend your time a total of the amount of days you were required to report to work and did not. They may not count the weekends, holidays, or any time you are not required to report to work. When they apply this standard, they must apply a work-day-to-calendar-day formula when adding your time on the end of your probationary period. It is important to note, they may just simply send you a letter indicating the extension, they may request that you sign an agreement, or they may simply say nothing. Any employee would be precluded from claiming tenure by estoppel prior to the expiration of the additional time pursuant to a leave.
Please contact the SAANYS legal team anytime that you will be taking advantage of leave time, whether it’s for maternity reasons or any other reason for that matter. Calculations of time, and availability of sick bank time will vary depending on your particular collective bargaining, so it is always important to ask.
Some SAANYS clients have faced losing their position due to abolishment or excessing, only to learn that the district is creating a new position that looks similar to their position. These individuals have asked SAANYS to analyze and determine what, if any rights, they have to the new position. Recently, SAANYS received three decisions from the commissioner each upholding a narrow interpretation of the applicable law. This article addresses what the law is and what factors must be analyzed to determine a certified administrator’s rights to a newly created position after their position has been abolished.
Depending on the configuration of the school district under the Education Law (See Education Law Sections 2510, 2573, and 3013), an administrator whose position is abolished may be entitled to a newly created position provided the new and abolished positions share over fifty percent similar duties. However, the commissioner and New York courts have subsequently required additional elements be met before awarding the administrator the job. Foremost, the two positions must be in the same tenure. If they are not, the incumbent administrator will have no rights to the new position and will be placed on a preferred eligibility list for seven years. Critical to this analysis is to determine the existing tenure structure in the school district. For example, does the district maintain only a broad general tenure for all administrators or narrower tenure areas depending on building and/or district-wide responsibilities?
The next required element is whether the majority of the duties of the new position are similar to those of the administrator’s former position. This requirement is found in the statutory language.
Lastly, the commissioner has introduced a third element into this analysis that is related to the second one. Specifically, the commissioner considers in comparing the similarity of the two positions, the degree of comparable skill and experience required to carry out the duties and responsibilities for each position. With this last element, the commissioner will find against the incumbent administrator if the certification requirements for the two positions are different.
It is critical to understand that school districts do not blindly abolish and create positions. The superintendent and board of education sit down with counsel and analyze how to create new positions, often times so that incumbent administrators do not have any legal right to the new position. SAANYS would be remiss in not pointing out that school district counsel frequently recommends courses of action that adversely affect incumbent administrators’ tenure rights under the guise of reorganization. Hence, it is critical to alert SAANYS immediately when there is a discussion of a possible abolishment or excessing.
SAANYS will need to review the school district’s current tenure configuration, this will require analysis of the effected administrator(s)’ appointment letter, board resolution appointing them to a probationary tenure and the relevant board minutes, their tenure letter, board resolution granting them tenure with the related board minutes, and any additional documents establishing the tenure areas in the school district and of the positions involved. SAANYS will also need to review the effected administrator’s job description and interview that person to determine exactly the actual duties he/she performs and what percentage of time is devoted to executing them. Next, SAANYS will need to analyze the job description for the newly created position, and interview individuals who had previously performed those duties and what percentage of a normal administrator’s work day was devoted performing those responsibilities.
What these decisions demonstrate:
These cases demonstrate that the “more than fifty percent similar” test under Education Law §§ 2510 and 3013 can be a difficult standard to overcome. Two recent decisions issued by the commissioner in December 2016 involved the same Central New York administrator. In the first appeal, the administrator served as the director of professional development until the district decided to abolish her position and create a new director position called director of educator effectiveness, training, and library media. The commissioner denied the appeal determining that the new director position was substantially different from the petitioner’s former position. The commissioner found that the new position required a majority of the work-time be devoted to tasks related to the new state APPR mandates, which the abolished position did not. Note, this particular appeal was commenced in 2012. The commissioner further held that the new director position involved broader, district-wide responsibilities, and functions originating from other positions other than the petitioner’s former job. As an example, the commissioner noted that the former position did not require certification in mathematics instruction, while the newly created position did. Under these circumstances, the commissioner of education found that petitioner failed to meet her burden of establishing that the two positions were similar.
Approximately one year later, the same board of education met and abolished the position of director of educator effectiveness, training, and library media (the previously new director position) and replaced it now with the new position entitled director of educator effectiveness and math. The original petitioner again contended under the education law that she should be entitled to this new position in that it was more than fifty percent similar to her former job as director of professional development. The commissioner dismissed the petitioner’s second appeal, concluding that her former director position and the newly created director of educator effectiveness, training, and library media shared duties that were less than fifty percent similar. The commissioner noted that many of the same duties of the director of educator effectiveness, training, and library media were simply transferred to this newest director position, including the duties associated with the library media, the mathematics instruction, and the district-wide responsibilities relating to the APPR mandates. The commissioner held it was well within the board of education’s authority to abolish and redistribute administrative responsibilities.
In the final case decided by the commissioner at the end of 2016, she denied that the former director of pupil personnel services had rights to the newly created position of director of special education. In this particular case, the petitioner, the former director of pupil personnel services, contended not only that she was entitled by law to the new position on the grounds that the two positions encompassed more than fifty percent of the same job responsibilities, but also that the school district improperly abolished her position in order to circumvent her tenure rights. The commissioner rejected these arguments and held that the petitioner failed to establish that the two positions were in the same tenure area. The commissioner also noted that the position of director of pupil personnel services required various supervisory responsibilities with substantially broader experience, while the director of special education focused solely on special education needs within the district.
These three recent commissioner decisions illustrate that school districts have the advantage in abolishing and then re-creating positions. The impacted administrator has the burden of establishing the three required elements to prove that the majority of the duties of the two positions are similar. The petitioner is up against a school district which also understands the law and, often deliberately designs a new position to ensure that it is in a different tenure area than the abolished position, that they do not share the majority of the same duties, or require different certifications, skills, or experience. Nonetheless, SAANYS will review and analyze such cases and advocate before the commissioner and in New York supreme court any case which merits litigation.
This month’s article is related to the bargaining unit specific topic of the Duty of Fair Representation (DFR). There are many benefits to being a member of a SAANYS bargaining unit, including the ability to negotiate a contract with the employer and control the terms and conditions of employment for all employees in the unit. This is meant to ensure that the employer cannot play favorites with basic terms of employment including pay and leave.
However, with the power to negotiate a contract for all employees in the unit comes certain responsibility. The responsibility is on the unit to represent all of its members fairly in all manners of unit representation including, disciplinary matters, grievances/improper labor practice claims, and contract negotiation. If the unit fails to do this then it may be subject to violations of the DFR law. Most frequently these issues arise when the relationship between the unit and an individual member deteriorate.
The DFR law is enforceable by the State Public Employment Relations Board (“PERB”) and through that the state court system. Simply put, the DFR is a requirement on the part of units to treat all members of the unit fairly and equally in decisions relating to the unit as a whole. To prove a DFR, the aggrieved individual must show that the claimed offensive activity, or lack thereof, which forms the basis of the charge is deliberately unfair, arbitrary, or made in bad faith. This definition is intentionally left vague to enable PERB to judge cases based on the individual circumstances associated with each case. However, PERB has ruled that incompetence, even if pervasive, is not enough to justify a DFR claim if not motivated by bad faith. Therefore, this has limited successful DFR claims to situations where the unit has not acted neutrally toward the effected member, but actively against them. Note, there are no grounds for a DFR if you testify truthfully against another unit member in a court of law or disciplinary matter.
As a unit the safest way to avoid a DFR is to treat every member of the unit with respect and fairness when it comes to the contract. Threats of DFRs typically occur when an individual disagrees with the unit as to whether action should be taken against the employing district. It is important to check your unit’s constitution and bylaws to ascertain what review processes need to take place before deciding if a matter should proceed, either through the grievance procedure or some other manner. Some units have special committees to determine whether cases should be brought, whereas others require the vote of the entire unit. If your unit’s constitution and bylaws are silent on how to decide whether to go through with potential legal claims, it is best to err on the side of caution and have more than one person make the determination, as opposed to just the unit president. As long as it can be demonstrated that there was a rational reason why the decision was made that was not motived by bad faith, then there is no violation of the duty, even if people may disagree with the decision.
It is important to note that the DFR only applies to individuals in their capacities as a unit leader or the unit as a whole, not to individuals in their personal or professional capacities. Therefore, issues unrelated to the unit are not subject to the DFR law. For example, if you perform a criminal or civil act upon another unit member you are liable in criminal and civil court.
If this issue even begins to arise it is best to immediately call the SAANYS Legal Department and have either a SAANYS attorney or negotiator step in to head off any potential issues. As always, if you have any concerns or questions about this article please email or call the SAANYS Legal Department.
Leaving our loved ones behind when we die is not a topic any of us like to ponder, but it is important to ensure that we financially protect them to the extent possible. The Teacher’s Retirement System (TRS) does provide an option to designate a beneficiary in the event of your death. As the owner of the account, you have the option to designate whether your beneficiaries receive the death benefits in a lump sum or in periodic payments. It is up to you to consult with your beneficiaries and financial advisors to determine which option best suits their needs.
The payment option you choose will remain in place unless you send in an “Election of Retirement Benefit” form that changes the option within 30 days of your effective date of retirement. But what happens if you sign the form, but you die before TRS receives the form?
While the situation does not often occur, it has on several occasions and the courts have ruled on this issue. When a change of benefits election does not reach the TRS board until after the retiree’s date of death even though it’s within the 30-day period allowable for changes, the change is not honored. This is because TRS regulations requires any election to reach the board in order to be effective. If it does not reach the board until after the date of death, it’s considered to be an invalid election because the communication to the board did not happen within the retiree’s lifetime. Applications that reach the board on the date of death are honored. The courts have upheld this interpretation.
Surprisingly, this information is not contained within the materials that TRS distributes. In fact, SAANYS recently dealt with a situation on this topic where the notice to the retiree did not indicate that a change in election of benefits needed to reach TRS before the member’s death. On the TRS website, there is a section called “Making the Right Choice” that discusses what you should consider doing “If you are critically ill and your life expectancy is less than one year.” Strangely, that section also fails to indicate that an election to retire or for benefits or change of benefits must reach TRS during the member’s lifetime.
At the risk of being morbid, this quirk in the law illustrates a little known, but important point. If you decide to elect to retire or change a benefits election, do not delay in sending the paperwork to TRS. Send it out as soon as possible and make sure that it goes via overnight mail to avoid unwanted consequences. As always, SAANYS is here to assist you through the retirement process and in the event that there is a problem with the retirement system.
SAANYS has been receiving a number of calls about the status of the Department of Civil Service’s rule that employers who offer health insurance through the New York State Health Insurance Plan (NYSHIP) are no longer allowed to offer a financial incentive to employees in exchange for not taking employer offered health insurance if the alternate coverage also comes from a NYSHIP plan. Such a financial incentive is commonly referred to as a buyout and is a commonly negotiated benefit in collective bargaining agreements. Both SAANYS and NYSUT were involved in active litigation on the matter on behalf of bargaining units. The SAANYS case was dismissed on a procedural violation, namely the concept that the statute of limitations commences once the rule was issued and not when the employer admittedly first notified the administrators’ association of the rule. SAANYS appealed this unfair determination that associations have constructive notice of changes to regulations without having actual knowledge of the changes. The Appellate Division, Third Department, disagreed with SAANYS’ interpretation that the commencement of a statute of limitations should be when the association has actual knowledge of the change in regulation. SAANYS then attempted to bring the issue to the state’s highest court, the Court of Appeals, which declined to hear the issue.
Procedurally, the issue was not dead, however. NYSUT’s cases were heard by a different judge, who ruled that the prohibition on the buyback was impermissible as a matter of law. The state appealed this decision and oral arguments were heard in October 2015. The Appellate Division, Third Department, overturned this decision and the prohibition was once again legal in the spring of 2016. In an interesting turn of fate, NYSUT requested reconsideration of the matter from the Third Department, which overturned itself and buyouts were once again legal as of June 2016.
Complicating an already convoluted scenario, the state then requested that the Third Department review the matter yet again and allow the matter to head to the state’s highest court, the Court of Appeals. The Third Department denied this attempt at a subsequent appeal this past September. Unfortunately, the state has the ability to plead its case directly to the Court of Appeals. Should the Court of Appeals deny the appeal, the prohibition on buyouts will be officially illegal and people may be reimbursed for the buyout payments denied for the past few years, depending on their collective bargaining agreements. If the Court of Appeals decides to hear the case, papers will be submitted and it will be approximately another year before the issue is finalized. Throughout this matter, SAANYS has been working closely with NYSUT, providing insight and support. Should this matter proceed to the Court of Appeals, the SAANYS Legal Department will submit its own brief in opposition to the buyout.
In the meantime, buyouts are legal as a matter of law. Many districts have decided to pay out the money held in escrow while these cases are pending. Other districts are telling their employees that the money will not be paid out until the Court of Appeals has made a determination and the case is finally concluded without possible reversal. Both stances are technically legal and SAANYS cannot determine the reason why certain districts are paying, while others are waiting. A word of caution needs to be expressed to bargaining units that SAANYS has received reports that some districts are claiming an inability to give fair salary increases during negotiations because they have paid out years’ worth of buyouts at once. This is clearly an excuse that needs to be challenged. Districts should have been budgeting for this event and holding the money in escrow. Any employer who claims that this issue is impacting finances is either attempting a trick or did not do a proper budgeting job. In either event, it is strongly recommended that proof of the budgeting be provided if this is claimed.
Also on the horizon is legislation pending the governor’s signature that will prevent the Department of Civil Service from interfering with collective bargaining through shady rulemaking like this in the future. When this legislation becomes law, it will only address the issue going forward and not the years of lost buyback payments. Thus, both the legislation and the pending litigation are of the utmost importance to our members. SAANYS is closely monitoring this issue and will continue to provide updates as it progresses.
Recently, a probationary administrator’s claims were enforced in an arbitration award against a district. A Long Island administrator was hired under a collective bargaining agreement (CBA) that required specific steps to be taken when evaluating probationary employees. The district chose to ignore these steps. This resulted in a grievance arbitration litigated by SAANYS General Counsel Arthur Scheuermann.
In New York it is extremely rare for probationary administrators to successfully challenge a denial of tenure. The last successful challenge to the denial of tenure happened in February 2016 in Glen Cove Educational Administrators Association v. Glen Cove City School District, in Nassau County Supreme Court. Previously, the last incidence of a successful challenge was in 2003.
In this case, SAANYS grieved the district’s termination decision because the district had failed to follow the CBA evaluation procedure. The CBA required the evaluation of administrators to follow the following procedures: (1) to jointly develop goals by October 15; (2) to provide continuous formative evaluation and feedback throughout the school year in the form of one-on-one evaluation meetings; (3) to document by written memo any serious performance issues that could result in a negative evaluation; (4) to issue a final evaluation on or about June 30th: and (5) to notify an administrator if they would not be receiving tenure no later than April 1 of the year of tenure or four months prior to the effective date of the tenure if the tenure date is other than July 1st (April 11 in this member’s case).
For the first year in the district, 2012-2013, none of the administrators’ contract procedures were followed. The district was involved in a criminal/ State Education Department cheating scandal that precipitated the termination/departure of several district employees, as well as a change in district superintendents. As a result the administrator, an assistant principal, had no choice but to run her school herself for much of the year, as her building principal was one of the implicated employees and had abruptly left the district. That year, she was provided no feedback, no goal setting, and no evaluation for the year.
In the administrator’s second year she had a new superintendent and building principal. However, she did not receive continuous formal feedback, nor did she develop goals with them by October 15. Of note, the administrator was verbally praised by her supervisors and while she did not receive the contractual provisions above, she was told that she was on the tenure track and given an end-of-the-year evaluation that rated her as highly effective. Importantly, this end of the year evaluation noted the administrator’s attendance at the school and its events. In addition, that year, her supervisors recommended her for a doctor of education program.
In the administrator’s third year, the tenure year, while she again did not receive continuous documented feedback, or set goals by October 15, she was verbally praised by her supervisors. That February she received a formal recommendation for tenure from her supervisor. She was notified in a March superintendent’s conference that she would be one of the employees to be receiving tenure that year.
However, sometime after March, district politics came into play and certain individuals on the district’s board of education and teacher’s union decided that they did not want the member. On the eve of the administrator receiving tenure, they removed her name from the board agenda. The administrator was not notified of this fact until April 21, 2015 when she was told by the superintendent that she would not be receiving tenure. This notification was past the contractually mandated April 11, 2015 deadline for telling the member she would not be receiving tenure. The reason for not receiving tenure, as told to the administrator by the superintendent, was ostensibly that she had not been attending enough district events and was tardy. The superintendent further informed the administrator that in order for her to keep her position she would need to sign a JUUL agreement giving her another probationary year and circumscribing all her rights under the CBA. During the subsequent negotiations over the JUUL, the member was terminated by the board.
In the resulting arbitration, General Counsel Arthur Scheuermann demonstrated to the arbitrator how the administror’s contract had not been followed by the sheer lack of evaluative documentation relating to her performance. Tellingly, much of the case centered on what evidence the district lacked, including documentation of evaluations, goal setting, feedback on issues that could result in the denial of tenure, and the timely notification of tenure denial.
The district’s sole defense was that they did not do any of these contractually mandated items because there was no need, the administrator was so good at her job that she needed no evaluations, and the board’s denial of tenure was a freak unforeseeable event that did not violate the CBA.
The arbitrator’s decision and order came down on the side of the administrator and her association. The arbitrator found that that the district had violated its contractual responsibilities to the administrator stating that, “the [district’s] inaction as well as the board’s late denial of tenure resulted in the violations found above.” Further, “The district’s violations of [the contract] were serious. It deprived the administrator of reasonable notice of her [alleged] shortcomings and an opportunity to improve.”
Reprinted from April 2013
Between the generally poor economic climate and the restrictions placed upon districts due to the 2 percent tax cap, districts are constantly looking for ways to save money. Unfortunately, one of the most common ways is through the downsizing of administrative staff, both at the certificated and civil service levels. When a position is abolished or merely left unfilled, the restructuring typically means more work for unit members. With the increase in mandatory duties, such as APPR and reporting under the Dignity for all Students Act, the ability to take on additional duties has become increasingly difficult. Most districts are cognizant of this fact and have been looking for ways to spread out duties due to lost positions while saving money. More and more frequently, it is being brought to SAANYS’ attention that districts are attempting to solve workload problems through either outsourcing work to independent contractors or by distributing the work outside of the recognized bargaining unit. Unless such distributions of unit work are negotiated between the district and the unit, they may very well constitute an illegal transfer of bargaining unit work.
In the event that the district transfers bargaining unit work, there is a limited window in which the unit can challenge the transfer. Specifically, the unit will need to serve a Notice of Claim upon the district within ninety (90) days of the transfer and an improper practice charge before PERB must be filed within one hundred twenty (120) days of the transfer. SAANYS is always prepared to prepare the documents on a unit’s behalf, even with short notice; however, it behooves units to be vigilant when it knows that a position is either being eliminated or that a retirement is taking place. When preparing documents on a unit’s behalf, we will be asking the unit for specific information regarding the transferred bargaining unit work. Significantly, we will need to know precisely what duties were performed by a bargaining unit member, when and to whom the duties were transferred, and whether the duties in question were performed exclusively by bargaining unit members prior to the transfer. Without details on the duties and the transfer, SAANYS cannot effectively put the district and/or PERB on notice of the challenged work in order to obtain a successful outcome. All too often, when an illegal transfer of bargaining unit work comes from the abolition or vacancy of a unit position, the unit doesn’t become aware of the transfer until well after the position is vacated by the former unit member. This places the unit in the difficult position of trying to ascertain the extent of the transfer of bargaining unit work without the benefit of first-hand knowledge of the duties associated with the vacant position.
Looking toward budget time, if you know or have a suspicion that a position within your unit is either going to be abolished or vacated and left unfilled, it may benefit your unit to be proactive in obtaining information SAANYS may need to challenge an illegal transfer of bargaining unit work. While official job descriptions are ideal, many districts either do not have official job descriptions or the ones they do have are inaccurate due to the piling on of additional duties over the years. If either of these situations is present in your district, the outgoing unit member should try to create a list of duties he or she exclusively performed. Such a list will not only assist the unit in transfer of bargaining unit cases, but could also assist SAANYS in determining whether people placed upon a preferred eligibility list are entitled to a recall to a different or newly created position containing their former duties.
As always, cases involving the abolishment and/or transfer of bargaining unit work are very fact specific and have very limited timeframes in which action can be taken on the unit’s behalf. It is important to contact the SAANYS legal department as soon as you know of a transfer of bargaining unit work issue and provide us with as much information as possible so we may timely evaluate and take any and all necessary action on your unit’s behalf.
There may come a time when you or someone you know may inadvertently engage in an action that is perceived by the district to warrant discipline. While this is something that no one wants to contemplate, you may need to do so at some point in your career.
It is important to understand that administrators, organized under a collective bargaining agreement, have the right to the representation of their choice in any meeting where discipline is either going to be imposed or where they may be asked questions that could result in discipline. As a general rule, if you are advised that you have the right to bring representation, then you should probably do so, if for no other reason than to have a witness to the meeting. If you are called into such a meeting, it is a good idea to call SAANYS or have your representation call our office in order to know your rights. Typically, the representation is someone from within the unit; however, SAANYS has attorneys and labor relations specialists who are available to represent an administrator in such situations. If representation is not available at the appointed time of the meeting, it can be rescheduled within a reasonable period of time.
By law, the only forms of discipline that a district can unilaterally implement against an administrator are an oral warning or a written counseling memorandum to the administrator’s personnel file. Any other forms of discipline, including a written reprimand, fine, suspension, or termination, must be either negotiated with the administrator or rendered by a hearing officer at the conclusion of a 3020-a hearing. A collective bargaining unit may negotiate alternate procedures for imposing and/or disputing more severe forms of discipline, but such contractual clauses are rare.
A counseling memo should not be thought of as discipline so much as guidance or counseling on a perceived problem and the district’s expectations of how similar matters should be handled in the future. Depending on whether any procedures outlined in your contract have been violated, there may be an opportunity to grieve the memo. However, the most typical way to address a counseling memo is to write a written rebuttal.
A written rebuttal is a letter addressing the alleged conduct in the counseling memorandum that is attached to the memo and becomes a part of the personnel file. Since receiving a counseling memorandum is often a stressful and emotional experience, we often recommend that the administrator either waits until he or she has had time to digest the situation or to write everything out, including how he or she feels, and then rip it up and start on the actual rebuttal. A rebuttal should never attack a supervisor or others on a personal level. It should be informative and candid while resisting the temptation to let anger or hurt take priority over professionalism.
The rebuttal should be short, concise, and always professional. Open the rebuttal with some word of acknowledgment or thanks regarding the advice that was rendered and how it will he applied to future situations. Then, taking the counseling memorandum point by point, it should directly quote the counseling memorandum whenever possible. The response should be logical and briefly factually addressing each point. We usually recommend that the responses be written in bullet points in order to prevent straying from the salient points.
If some of the accusations are correct, but may require an explanation, take ownership of the errors. If an explanation is warranted, provide the reason, but do not make multiple excuses. It should be stressed that any mistake was a single error in an otherwise strong career that will not be repeated. The rebuttal should ultimately end with a reiteration that you will take the advice and counseling to heart and will apply it in the future.
The SAANYS Legal Department is here to help you evaluate any counseling memos you may receive and assist with the rebuttal. It is highly recommended that you run any rebuttals by SAANYS in order to assure that you are putting your best foot forward, both for your short term relationship with your supervisors and with any others who may see the counseling memorandum and the rebuttal in the future.
Many times while having a meeting in a classroom or during an investigation, you might feel the need to record someone or feel that you are being recorded by someone. In light of this, the SAANYS Legal Department would like to lay out a few of the basic rules regarding audio recording in New York State and the school setting. In case of any actual controversy regarding audio recording, please be sure to consult the SAANYS Legal Department as soon as possible.
Generally, recording a conversation in New York is permissible. New York is a one party consent state, meaning that only one participant in the conversation must consent to, or even know about, the audio recording, and that participant may be you. This can be a benefit or a hindrance to SAANYS members because while you may record a conversation that you are in without the other party’s consent or knowledge; other school actors such as teachers, students, and community members may record a conversation that they are privy to without your knowledge. Moreover, when making an audio recording of a conversation on school property, be aware if the board in your educational institution has a blanket policy against audio recording on school premises.
In instances where you know you are being recorded, it is important to have a copy of the full recording in the event that a segment of the conversation is used against you out of context. It is recommended that, if you know that you are being recorded, you either ask for a copy of the full recording or make a recording simultaneously.
If you are not a participant in a conversation you may not record it, this would be akin to wiretapping. However, a number of exceptions exist to this rule including: a) public meetings, such as school board meetings are recordable due to New York’s open meetings law; b) recordings made by law enforcement personnel engaged in the conduct of their authorized duties; c) security system recordings where a written notice is posted on the premises stating that a video surveillance system has been installed for the purpose of security; and; d) video surveillance devices installed in such a manner that their presence is clearly and immediately obvious.
The rules regarding audio recordings further diverge in the collective bargaining and unit settings. In these areas, audio recording is generally not permissible during collective bargaining negotiations and when an employer is conducting an employee investigation.
During contract negotiations, if the parties do not mutually agree to a audio recorder being present, then the presence of one constitutes a failure to bargain in good faith. This is because contract negotiations by their very nature involve a tumultuous process with a continuous back and forth between the parties. In this type of setting, heated words may be exchanged and often times there are various tradeoffs.
In the context of an employer/employee investigation that could result in discipline, the terms and conditions of discipline are a mandatory subject of negotiation, meaning the association can always negotiate or demand to bargain regarding the parameters for discipline. This encompasses the issue of recording investigative meetings between employer/employee. More importantly, this means that the current investigation procedures are in place unless they are negotiated or mutually changed. In these cases members should look to the past practice of the employer or a negotiated policy regarding audio recording. If the past practice has never involved recording during employee investigations for the unit, it may not start unilaterally for an individual member. It is an employer violation of a past practice if an employer uses audio recording technology during an employee investigation, when never having done it previously.
As one can gather, the rules for audio recording in the school setting are complicated. Therefore, please be aware that when dealing with any audio recording issue it is advisable to consult a SAANYS attorney or labor relations representative before making any type of decision.
Taking an extended period of time off in order to deal with a health issue is often a scary and confusing time. To take some of the worry out of the process, employees are entitled to up to twelve weeks of unpaid leave per year pursuant to the Family Medical Leave Act (FMLA). While FMLA leave is unpaid, it does require that all group health insurance benefits be maintained during the leave. Unfortunately, the promise of job security can also result in additional stress for those who are not familiar with the process.
FMLA is for individuals who either directly suffer or must care for a family member suffering from a “serious health condition.” This may either be something joyous, like the birth or adoption of a child, or an illness, injury, impairment, or physical or mental condition that involves inpatient care and subsequent treatment for the inpatient care or continuing treatment by a health care provider. If it is an injury or illness, there are legal requirements as to the frequency and nature of the continuing treatment in order for an illness or injury to qualify for FMLA. An employer has the right to request medical certification to prove that an employee qualifies for FMLA. Additionally, if FMLA is used for a personal illness or injury, the employer has a right to request a medical certification that the employee is fit to return to work.
FMLA leave may either be requested by an employee or designated by an employer for a long term absence. If the employer designates a leave to be under FMLA, the twelve weeks does not commence until the employee is put on notice of such designation. For example, if an employee is out using sick leave for three weeks with no return in sight when the employer designates the leave to be under FMLA, the twelve weeks would start on week four and not on the date of the first absence.
One of the biggest points of confusion with FMLA is the concept that it is unpaid. If an employee has accrued leave time or there is another provision within the applicable CBA providing for paid leave, an administrator may be paid through these methods while on FMLA leave at the designation of either the employer or the employee. This being said, the employer is the only party who may decide whether accrued time runs separately or concurrently with the unpaid FMLA leave. In other words, if an employee has eight weeks’ worth of accrued time, he or she does not automatically have twenty weeks available to take off. Only the employer may decide whether there will be twenty weeks (eight paid and twelve unpaid) or only twelve weeks (eight paid and four unpaid).
FMLA frequently arises in situations of maternity/paternity leave. Both the birth parent and the spouse are eligible to take FMLA to care for a newborn. However, in situations where spouses are employed by the same employer, the amount of leave that may be taken due to the birth is limited to a combined total of twelve weeks. Further, in situations relating to childcare leave for the non-birth parent, whether an administrator may utilize sick leave will be limited to what has been negotiated within the applicable collective bargaining agreement (CBA). Some CBAs provide for unlimited use of sick leave in order to care for family members, while others limit the use to a certain number of days per year. Should you fall under the latter, then any additional paid time off will have to come through the use of accrued vacation or personal time.
Upon return from FMLA leave, an employee must be restored to his or her original job, or to an equivalent job with equivalent pay, benefits, and other terms and conditions of employment. An employee’s use of FMLA leave cannot result in the loss of any employment benefit that the employee earned or was entitled to before using FMLA leave, nor be counted against the employee under an attendance policy.
There are many additional intricacies involved in FMLA leave, which the employer is obligated to notify the employee of at the time the leave is being applied for. The employer’s human resources department is the best area to address any initial questions; however, SAANYS is happy to discuss any further questions that may arise.
Social networking is everywhere. It is common to find parents, children, coworkers, and even the elderly on the networks across the social media world, on sites such as Twitter, MySpace, Facebook, YouTube, and LinkedIn. With social networks, people across the world have access to tools and options that were previously non-existent. However, there are just as many new opportunities to get into potential danger as there are to connect.
Trouble from your use of social media comes in two forms: (1) usage and (2) content.
Usage related problems stem from an administrator’s improper use of employer-owned equipment. If you are using a desktop, laptop, tablet, cellphone, email address, or other technology that is purchased and/or paid for by the district, then you have NO expectation of privacy. This means that your employer may go through its property to see your browsing history, etc. If your employer has an acceptable use policy that prohibits personal use of the technology or that you cannot use the technology for personal reasons during the workday, using social media on the equipment may result in discipline. It is important to check your district’s acceptable use policy to see what you can and cannot do with district equipment and/or during the workday. Even if there is a very liberal policy in place, it may be wise to limit your social networking activities to personally owned pieces of equipment in order to best protect your personal privacy.
As for content related problems, one thing we often forget while having fun on social networks is that almost anybody can see what we are doing. While we are tagging photos of what we did on the weekends or using social networks on company time, it can be easy to forget that someone at work may see this and the result could cost you your job. Checking your privacy settings and acceptable contacts to make sure they are people you actually want to view the content you are posting on your personal social media accounts are good ways to limit potential damage.
It is also important to remember that there are some very good hackers out there. What student or angry parent would not love to get a photo of the school principal, or any other administrator, dancing on a table with a red solo cup in their hand? No one is saying that you cannot behave in that manner in private if you wish, however, being discreet and avoiding posting such activities on social media will prevent a whole host of problems down the line.
Another concern is the controversy with Facebook and their sharing your private information with third party companies. This is why you are shown a privacy statement when you install an application. The providers of these applications are third party companies and websites who could be able to access your private information such as your address or phone number. If they can get to it so can other individuals. Does this mean you should not have a Facebook or other social media account? Absolutely not, it means don’t put anything on social media that you would not mind the general public having access to. There is no harm in declining to post your home address or placing a false address in your profile to throw people off.
While social media has good opportunities for networking, job-seekers should be careful about what they say or reveal on any social network. Many studies have shown that a significant percentage of employers use social media to conduct their own “background” checks. If a job-seeker applies for a serious job, certain information, conversations, or even flippant comments could compromise hiring status.
The Washington Post recently released an article about background checking services that now exclusively run social media background checks for corporations and companies around the country. Casual drug references, various photos, or jokes posted as a profiles status – could all be things that could and do prevent job-seekers from being hired.
There are documented cases that take this even beyond looking for a job, to being fired from a job for what is on a social media profile. A teacher in a Pennsylvania high school was fired for a photo she posted of herself dressed as a pirate, holding a plastic cup, and labeled “drunken pirate.” She was fired for promoting underage drinking.
In New York, the state’s highest court, the Court of Appeals, has held that the off-duty conduct of a tenured educator may be the basis of formal discipline if it (1) directly affects the performance of professional duties, or (2) without contribution by school officials, becomes the subject of such public notoriety that the educator cannot discharge his or her duties. If you are tenured, you have certain protections before you can be disciplined for your conduct on social media, but people in probationary capacities must be extra diligent or risk potentially being let go for being a poor role model.
Regardless of whether the charges were fair, the fact is, social media is public. It’s something anyone can check, including employers who may have hired the unlucky, unsuspecting applicant who did not consider taking down a similar photo of herself out with friends. It may be a harmless, fun photo to the social media user, but to an employer it could be grounds for being scratched off the list of potential hires, or even grounds for discipline or even being fired. So, how do you get around this?
Be careful about what you do, how you behave, and what you say in a public, social forum – especially when job-hunting. Don’t leave yourself open to professional scrutiny with possibly questionable photos, comments, or other content. Go the extra mile and create a dazzling social media presence. Ensure that you appear within a context of social media, the same way you would like to appear to an employer. Participate in industry groups. Post intelligent information, discussions, or recent goals that have been accomplished. Don’t feel as though you need to isolate yourself, just protect yourself and your career at the same time. And, as always, if you ever encounter problems, contact the SAANYS Legal Department.
Recovers Back Pay and Benefits
Mike Tweed, a probationary Long Island administrator and SAANYS member, exposed a cheating scandal in his school district. Instead of being granted tenure based on his exemplary service, Tweed was retaliated against for reporting the criminal conduct by being denied tenure. During this time period, Tweed’s administrative unit was not affiliated with SAANYS, however, Tweed fortunately was an individual member and sought out SAANYS General Counsel Art Scheuermann, a former Suffolk County prosecutor, to defend him against the illegal action taken.
In New York, it is extremely rare for probationary administrators to successfully challenge a denial of tenure. In the last known case, in 2003, SAANYS successfully tried such a case entitled, Kunjbehari v. Wyandanch Union Free School District, in Suffolk County Supreme Court, in which a building principal was wrongfully denied tenure after a fourth year of probation. It was proven at trial that the superintendent and board of education had discriminated against him because of his union activities. In that case, the principal received almost one half million dollars in back pay and benefits.
In the current case, several litigations were employed. First, SAANYS grieved the district’s termination decision because the school district had failed to follow the collective bargaining agreement’s (CBA) evaluation procedure. This litigation culminated in the recent arbitration award that is the basis of this article. And, second, SAANYS filed a federal constitutional lawsuit against the school district and individually sued the superintendent and every member of the board of education for their egregious conduct. The lawsuit is scheduled for trial in June of 2016.
Concerning the arbitration case, the administrators’ CBA required the evaluation of non-principal administrators to follow the following procedures: (1) to jointly developed goals by October 15; (2) to provide continuous formative evaluation and feedback throughout the school year in the form of one-on-one evaluation meetings; (3) to document by written memo any serious performance issues that could result in a negative evaluation; and, (4) to issue a final annual evaluation. In conjunction with these specific contract provisions, Scheuermann also relied on past practice and relevant board policies to show that the school district treated Tweed like a pariah in following the established evaluation procedure for administrators.
For example, both the superintendent and Tweed’s direct supervisor, an assistant superintendent, failed to meet and jointly agree on mutual goals by the contractual deadline, as had been done in Tweed’s two prior probationary years of employment. From the start of his tenure-bearing year, Tweed noticed a difference in his evaluators and how the evaluation process was being largely ignored. Tweed’s direct supervisor failed to schedule the goals-setting meetings over the summer as was done in his prior two years of employment. Unlike prior years, Tweed’s goals were not finalized by the end of the summer. Instead, Tweed’s jointly developed goals were late by over two months and were only completed on December 20, 2014. The two month delay was a clear violation of the contract.
Due to the lateness of the goal setting, the evaluative period was abbreviated. However, neither the superintendent nor assistant superintendent ever held any evaluative meetings with Tweed. When confronted about this glaring violation of the CBA’s evaluation procedure, both the superintendent and assistant superintendent claimed that they had evaluation meetings with Tweed, but they were in the form of group meetings, emails, and phone calls. The absence of any documented evaluative meetings constituted a second violation of the CBA.
The CBA also required that Tweed receive a written memo if a serious problem in performance should ever arise that could cause a negative final evaluation. In this case the superintendent and assistant superintendent never documented any issue with Tweed’s performance. In fact, the assistant superintendent of human resources, who oversaw all aspects of personnel, testified that he was certain Tweed would be awarded tenure because of his outstanding work and the absence of any complaints or criticisms about his performance.
Despite the lack of documented performance issues, the superintendent denied tenure based on five trumped-up performance deficiencies. The arbitrator, Robert Simmelkjaer, saw through the baseless reasons for the denial of tenure and found that Tweed’s supervisors’ lack of calendar entries and documentation demonstrated different intentions. As the arbitrator wrote:
[I am] . . . not persuaded the administer could have amassed five (5) performance issues ostensibly unrelated to his jointly developed goals that did not rise to the level that “could cause a negative final evaluation,” yet collectively warranted a negative tenure recommendation. Inconceivably they failed to document anything.
Accordingly, Arbitrator Simmekjaer found the district failed to document Tweed’s alleged performance concerns and found a third violation of the CBA’s evaluation procedure. Given the clear and convincing evidence that Tweed’s evaluators failed to comply with the CBA, past practice, and pertinent board policy, Arbitrator Simmelkjaer ordered Tweed be reinstated to a fourth year of probation, be awarded back pay and benefits, and directed to be made whole because of the school district’s violations of the CBA.
Tweed’s administrative bargaining unit, the Glen Cove Educational Administrators Association, has since joined SAANYS.
As supervisors and leaders, SAANYS members are oftentimes forced to make hard decisions and/or call people to task for not doing their jobs. Acting in this responsible manner sometimes results in administrators being blindsided by false accusations that could lead to a school district investigation. Many find it understandably frustrating that districts investigate complaints that seemingly lack merit and/or come from people who are known to be chronic problems. It is important to understand that districts have an obligation to investigate complaints in order to prevent future liability should the person making the complaint decide to sue. If you find that you are the subject of an investigation, remember the best thing to do in these situations is to contact the SAANYS Legal Department at the earliest possible time. The following is a brief guide to help you understand what actions may be needed.
Initially, you need to be aware that if you are the target of an investigation, you are entitled to representation of your choosing. Districts often respect this fact, but occasionally we will hear of situations where members are told that they can only bring their unit president. This is simply not the case. If you are ever the subject of an investigation, you may bring someone from your local bargaining unit if you are comfortable, or SAANYS can arrange to send a labor relations specialist or attorney. If you receive pressure from the district to proceed with representation that is less than what you are comfortable with, contact the SAANYS Legal Department and we will intervene. Should you choose to go to an investigatory interview with just someone from your unit, you always have the right to stop the interview and request that it be resumed at a date and time when someone from SAANYS can accompany you.
The second part of being able to have the representation of your choosing is that the district must provide you with reasonable notice on any interview with you. All too often, SAANYS will receive panicked calls from members who are being directed to report to an interview in a very short period of time. If you would like someone from SAANYS present, we will make every effort to accommodate the requested time, however if we cannot get someone for the appointment, the district is under an obligation to reschedule the meeting for a mutually convenient date and time.
Once in the interview, it is important to know your rights. Members will often ask whether they are entitled to a copy of the allegations. The answer to that will depend on what your district’s harassment policy states, but we always recommend that you press to at least hear the allegations before the interview in order to prepare any supporting documentation you may have. It is extremely important to note that tenured certificated administrators have the right not to answer any questions and the district may not use such refusal against the administrator. Probationary certificated administrators and Civil Service administrators do not enjoy this protection and may be found insubordinate if they refuse to answer questions. There is one extremely important exception to this fact, if the allegations could have criminal implications, you do not need to (and should not without the guidance of a criminal attorney) answer the questions.
Typically, you will know that you are the target of an investigation and the general subject matter (teacher complaint, specific incident with a parent, etc.) before the interview. When that occurs, the first thing to do is to take a deep breath and calm down, being frantic has never helped anyone. The next is to begin to collect documentation on the issue: emails, notes from meetings, and any other evidence are all helpful. Not only might this information help the district to exonerate you, but it may also assist you in writing a rebuttal should anything come of the investigation.
In the event that the person making the complaint decides to sue you and/or the district, you are entitled to a defense and indemnification. This means that the district must provide you with an attorney, who often is the same attorney who will represent the district, and pay any potential settlements or verdicts, with limited exceptions. If you ever are served papers in a lawsuit, you must specifically request a defense and indemnification. Call the SAANYS Legal Department and we will happily walk you through the process.
Being the subject of a complaint and investigation is a stressful thing. Always call the SAANYS Legal Department at the earliest possible point so we may ease some of the stress and provide you with specific advice and representation.
There are currently several active lawsuits that may potentially impact SAANYS members. The SAANYS Legal Department is either actively involved in or monitoring these important legal matters. The following is a brief summary of several litigations that are of interest to SAANYS members.
SAANYS has reported in the past about the Department of Civil Service’s rule that employers who offer health insurance through the New York State Health Insurance Plan (NYSHIP) are no longer allowed to offer a financial incentive to employees in exchange for not taking employer offered health insurance if the alternate coverage also comes from a NYSHIP plan. Such a financial incentive is commonly referred to as a buyout and is a commonly negotiated benefit in collective bargaining agreements. Both SAANYS and NYSUT were involved in active litigation on the matter on behalf of bargaining units. The SAANYS case was dismissed on a procedural violation, namely the concept that the statute of limitations commences once the rule was issued and not when the employer admittedly first notified the administrators’ association of the rule. SAANYS appealed this unfair determination that associations have constructive notice of changes to regulations without having actual knowledge of the changes. The Appellate Division, Third Department, disagreed with SAANYS’ interpretation that the commencement of a statute of limitations should be when the association has actual knowledge of the change in regulation. SAANYS then attempted to bring the issue to the state’s highest court, the Court of Appeals, which declined to hear the issue.
But hope is not lost on the buyout issue. NYSUT’s cases were heard by a different judge, who ruled that the prohibition on the buyback was impermissible as a matter of law. The state appealed this decision and oral arguments were heard in October 2015. A decision is anticipated in the next few months and SAANYS will keep its members advised on this issue that impacts many members.
As SAANYS has reported in the past, there is a group of parents from New York City, Albany, and Rochester who have brought a lawsuit on behalf of their children in Supreme Court, Richmond County, alleging that the statutes concerning tenure, layoff and recall rights, APPR, and 3020-a due process rights are denying their children to the constitutional right to a “sound basic education.” The theory behind this lawsuit is that these challenged statutes are making it too easy for ineffective educators to receive tenure and making it too difficult for school districts to get rid of ineffective older educators, sometimes to the detriment of effective newer educators.
SAANYS, on behalf of two principals, was the only administrative group to intervene as a defendant in this litigation and become a party in order to protect the rights of administrators. Last January, oral arguments were heard on the defendants’ motions to dismiss the case for failure to state a cause of action. In March 2015, the court determined that the plaintiffs sufficiently stated a cause of action and that the case should continue.
Subsequent to that decision, the laws were radically changed by the legislature, including issuing the new APPR system. In response, the defendants, including SAANYS, filed a new motion, seeking to have the case dismissed on the basis that the new versions of the challenged statutes made the case moot. The court recently issued a decision that the changes in the laws were minimal and the matter should proceed. It did recognize that the defendants are going to appeal both decisions in this case and have put a hold on the case until the Appellate Division issues a decision.
SAANYS and the other defendants are currently preparing their appeals for submission to the Appellate Division by the end of December. SAANYS will continue to keep members apprised of any developments in this important matter.
Educational Funding Litigation
SAANYS is also closely monitoring the pending case of New Yorkers for Students’ Educational Rights (NYSER) v. State of New York. In that matter, NYSER, a group of parents from throughout New York State, are alleging that New York State has failed to implement the educational funding reforms it adopted in 2008. Plaintiffs in this case have filed a motion for summary judgment, seeking a judicial declaration that the state’s continuing failure to apply its own funding reforms is denying the students of this state to their constitutionally guaranteed right to a sound basic education and that such non-compliance must be fully corrected by the 2016-2017 school year, either through implementation of the statutory funding formulas or through the development of a new educational finance system. Oral arguments on this motion took place on November 4, 2015. SAANYS is eagerly awaiting the decision on this matter and will inform everyone promptly of the developments.
If you have questions on these, or any other, cases, please contact the SAANYS legal department and we will be happy to discuss these matters.
Oftentimes, SAANYS members call the legal department because they know that the terms and conditions of their employment are being impacted, if not outright violated, but they are not sure what to do to protect themselves. If you are ever in such a situation, the simple answer is to call the legal department, but the following is a brief guide to help you understand what actions may be needed.
The first step when you are concerned that your rights are being violated is to look at your Collective Bargaining Agreement (CBA) to see whether it is a topic that has been negotiated. If there is a provision in the contract that has been violated, then the remedy is to go through the negotiated grievance procedure. Oftentimes there is a very short period of time in which a grievance can be started, or else it is waived, so it is very important to look at the contract and the grievance procedure as soon as a violation is suspected. How grievances are processed vary from bargaining unit to bargaining unit, it is important not to assume that because grievances are processed in a certain way for teachers that the process will be the same for the administrators in the same district.
If the perceived violation is not something that is covered within the CBA, then it must be determined whether the issue is something that could be brought for review before the Public Employees’ Relations Board (PERB). The most typical types of cases that are brought before PERB are:
(1) Transfers of bargaining unit work: This typically occurs when a district either creates a new position or distributes the duties of an abolished position. In such events, it is important to look at the duties to see if they have been previously performed exclusively by the bargaining unit.
(2) Mandatory subjects of bargaining: These are topics that directly impact wages, hours, or working conditions. Any subject that impacts these three areas cannot be changed from the status quo without first being negotiated. An example that commonly arises is when a district unilaterally announces that employees may not take time off during certain days, particularly when students are not in session. (Often, the last two weeks of August.) Sometimes a mandatory subject of bargaining is also covered in the CBA. In such situations, SAANYS will file both a grievance and an Improper Practice Charge with PERB, which will typically wait to see how the grievance is resolved before taking action.
(3) Past practices: Past practices are often confusing to people because sometimes what is in the CBA is not adhered to by the unit and district for a number of years. If the subject matter of a past practice is covered by the contract, then either party has the right to revert back to the negotiated terms at any time. For example, if there is a clause in a CBA that administrators do not need to report to work on snow days, yet your unit members had done so in the past, the unit can put the district on notice at any time that its members will cease the past practice of reporting to work on snow days and there isn’t anything the district can do about it as long as the CBA’s language is clear.
In situations where the CBA is silent on a topic area, the past practice will control so long as it has been consistently applied for an extended period of time, measured in years. In such cases, the past practice cannot be changed without negotiations. If the past practice has been sporadically applied, then a past practice does not exist. Taking the example of snow days again, if the CBA is silent as to whether you need to report on such days and the consistent practice for a number of years is that administrators did not have to report and did not have to use leave accruals, then the district cannot require you to report without negotiating the change in the past practice with the bargaining unit. If sometimes administrators are required to report on snow days and sometimes are permitted to stay home without loss of leave accruals, then there is no past practice. (However, you may still have a work day/year violation as a mandatory subject of bargaining.)
For PERB actions, there is a 90 day window from when you discovered the violation in which to file a Notice of Claim with the school district. This puts the district on notice of the dispute and gives an opportunity for it to be remedied before a formal Improper Practice Charge is filed with PERB, which must be done within four months of discovering the alleged violation. Case law indicates that a Notice of Claim is not a prerequisite to commencing an action with PERB, but we often recommend doing so in order to foster settlement discussions with the district.
The third primary avenue for dealing with terms and conditions of employment comes when additional duties are added on to an administrator’s already busy schedule. When this occurs, the remedy is for the bargaining unit to demand impact bargaining. (An individual may not engage in impact bargaining directly with the district.) The remedies in impact bargaining can be anything from further distribution of the additional duties, to more support services, or additional monetary compensation. There isn’t a statute of limitations for demanding impacting bargaining. It is typically recommended that enough time passes so the impacted individual can gather data to quantify the number of hours the additional duties have added, but that impact bargaining is demanded within one year of the duties being added in order to avoid claims that the individual has lived with the duties without complaint.
These are the three primary ways your terms and conditions of employment can be safeguarded. As always, the SAANYS Legal
Department is here to answer any questions, guide you in the right direction, and vigorously enforce your rights. Due to potentially tight statutes of limitations, it is always best to contact SAANYS if you suspect a violation so it can be addressed promptly.
The issue of whether a district may impose a dress code on its employees has been a question that has been raised for several districts this past summer. It is important that you understand your rights and are aware of what a district can and cannot impose on you.
If you are in a bargaining unit, a dress code may not be unilaterally imposed on you by your school district. The requirement of a specific dress code for faculty is a mandatory subject of collective bargaining. However, there are some exceptions to this. According to PERB, a school district may require its staff to wear photo identification cards without first negotiating the issue with the union when the intent of such identification cards relate to the employer’s mission to promote safety and accountability.
Another exception to dress code being a mandatory subject of bargaining – school boards may, “within reason…regulate the speech of teachers in the classroom for legitimate pedagogical reasons.” In one case, the district banned wearing political campaign buttons and pins while on duty because they claimed its actions were triggered by concerns that “displays of political partisanship in the schools” were inconsistent with its educational mission. The district successfully argued that the ban was necessary to avoid improperly influencing students and impinging on their “rights…to learn in an environment free of partisan political influence.” In order to limit political statements in a dress code, an employer must do so equally – a dress code cannot state that employees are not allowed to wear shirts supporting a specific candidate but then permit shirts supporting a different political candidate. However, there is a way around that insofar as an employer cannot prohibit employees from wearing union related paraphernalia.
If employees are not within a bargaining unit, according to New York State Department of Labor, an employer may pose a dress code that prohibits the wearing of certain items of clothing, visible tattoos, or piercings. However, it is illegal for an employer to set different dress codes based on gender. There are also exceptions for religious items of clothing. The rationale behind allowing the employer to set dress code restrictions is that employers have a right to set a certain professional tone through the appearance of its employees. For example, the U.S. Court of Appeals for the Second Circuit, which rules upon federal cases within New York State, has found that a dress code that requires a teacher to wear a neck tie is not only appropriate, but also does not infringe on first amendment rights to free expression or the right to privacy.
If your district is attempting to impose a dress code on your unit or you have any questions, please contact SAANYS and we would be happy to assist.
Email is a wonderful thing. We can quickly and inexpensively communicate with colleagues, friends, and loved ones. In real time as they say. A byproduct of this fast, efficient, and convenient method of communication is that it has made us, most of us I suppose, more productive. Are we less busy? No. History has shown us that a natural consequence of technological advancement is that more is expected of us. Regardless, today the ability to email is ubiquitous. We write email in the grip of quiet convenience, scribed often in the solitude of our offices, homes, cars, and pretty much anywhere with iPhones and smartphones providing email services. It may be easy in such circumstances to allow ourselves to lose sight of the fact that email is written correspondence to which we must be held accountable.
There are several legal cases that have arisen where the confidentiality of email correspondence between a person and their attorney has been waived because the individual used the email service provided by their employer. New York statutes are clear that communications between a client and an attorney do not lose their privileged character just because they are transmitted by electronic means. The purpose is to recognize the wide spread use of commercial email. The question becomes who owns the electronic means and what is its purpose.
For those readers who use school district email, it is critical that you read and understand your district’s acceptable use policy. You are often required to sign one either annually or when you are first employed. Even if your acceptable use policy allows you to send personal emails using the district’s address or on the district’s server, or even if your district has no policy at all, I recommend you do not use school email to send sensitive personal material. Quite simply, you cannot expect to have confidential communications with your attorney using school email.
The courts have nonetheless set up a four-part test when considering whether attorney client privilege applied in a given dispute over use of employer email. The first was whether the employer maintained a policy banning personal use or other objectionable use. Second, whether the employer reserved the right to monitor computer or email use. Third whether the employees were notified of this right to monitor and finally whether a third party, such as your technical person, had the right to access your computer or email. It is conceivable then that in a dispute, someone asserting a privilege may convince a court that the employer failed to meet such a test.
But as I noted above, even if your employer does not have a policy or has failed to notify you of the policy and the procedures in it, out of an abundance of caution you should not expect to communicate confidentially with your attorney using school email. The reason is that the school district owns the email. The courts have recognized the school district’s right to access your email. It is as if the district is looking over your shoulder as you write the email.
Everything noted above applies to private employers. Given that the school districts are public employers, public policy and transparency are added considerations for the courts in privilege disputes. This should inform users of school email that they should be doubly cautious. An employee should take every precaution to make sure their correspondence with their attorney remains privileged. It includes taking steps that evince the employee’s intention that the communication was confidential such as password protecting documents, using one’s own personal device and web-based email addresses. The courts consider attorney client privilege waived when one party’s conduct is so careless that it suggests they are unconcerned with privilege or it otherwise increases the likelihood that their opponent will discover the material. The privacy notice at the end of an email is insufficient to protect your communication as privileged. So do not be surprised if your attorney asks you to correspond using web-based email in lieu of work email.
As the school year winds down and you have a chance to catch your breath, summer is a good time to review your APPR and determine if changes are needed. Is the scoring working out as you expected? Are you satisfied with who is designated as your lead evaluator? Are your scores tied to those of your teachers? Does that work for you? The deadline for submitting changes to APPR plans for the 2014-2015 school year with SED was March 1, 2015 so there cannot be changes for the current year, but 2015-2016 will be another matter entirely. SAANYS attorneys and negotiators are highly trained in the latest APPR developments and are here to help you find what works best for your unit and negotiate any changes with your employing district.
It is also a good time to make sure that your district has adhered to the negotiated deadlines within your APPR. Failure to meet deadlines is part and parcel of an appeal for an ineffective rating, and depending on what was negotiated, developing ratings. It may also be the basis for a contractual grievance. SAANYS has several arbitrations pending across the state seeking to hold districts accountable to the integrity of process, even if the principals were ultimately deemed to be effective or highly effective. We will keep you apprised of these matters as they are decided.
As the fall approaches, there are also two important deadlines to keep in mind. First, by statute, composite scores must be provided to all teachers and principals no later than September 1. The importance of this deadline is a subject for debate. In the past year, we have seen the failure to meet this deadline result in 3020-a charges and have also seen an audit report calling the same failure by a district a “ministerial error.” Since the significance of this statutory deadline seems to vary between districts, make sure to provide scores to teachers by September 1 to avoid any potential disciplinary issues. If you don’t get your composite score by this statutory deadline, it may be used in a grievance or an appeal.
The second important deadline to keep in mind this fall is for PIPs and TIPs, that must be in place within ten school days from the opening of classes, which in most cases is mid-September. During the 2013-2014 school year, the governor negotiated what was commonly referred to as the “Safety Net” legislation, which would have protected teachers and administrators from harm stemming from new Common Core testing. A number of districts assumed that this would be signed into law, and calculated and submitted composite scores to SED using the Safety Net calculations. However, after he was reelected, the governor declared that he would not sign the legislation, leaving a number of school districts in a situation where they were forced to resubmit composite scores without the safety net calculation. As of February 2015, there were a number of districts who failed to meet the statutory PIP or TIP deadlines for the 2013-2014 school year due to this mistaken reliance on unadopted legislation. SAANYS has been proactive in addressing the untimely issuance of PIPs, either avoiding PIPs being issued at all or promptly filing appeals for failure to comply with the statute and the individual district’s negotiated agreement.
As there are typically very short time periods in which to file either an appeal or a contractual grievance, if any deadline is missed by the district on your APPR, so it is imperative that you contact the SAANYS legal department promptly. If a negotiated deadline to challenge something APPR related is missed, an individual may be stuck with an inappropriate rating or PIP. SAANYS is here to help you with any issues you may have relating to APPR. If you would like to discuss questions or concerns relating to your APPR feel free to reach out to the SAANYS legal department and we would be happy to assist you.
As SAANYS members know, the legal department considers retiree health insurance a significant priority for bargaining units and has had several victories in this area within the past few years. On January 26, 2015, the United States Supreme Court issued a decision potentially impacting how long retiree health insurance benefits remain at a fixed rate under collective bargaining agreements.
Under traditional principles of contract law, if there is a dispute surrounding a term or condition contained within a collective bargaining agreement, the first step a court must take is to look at the contract and determine if the language is clear and unambiguous. This is why SAANYS has repeatedly emphasized the importance of clear contract language, particularly when it comes to stating that the level of retiree health insurance contributions are fixed for the life of the retiree. If the language is unclear, contract law requires that the courts look to outside evidence, such as bargaining history and testimony from the parties involved, to determine what the intent was at the time the provision was negotiated. Thus, careful notes should be taken during negotiations and kept by the unit for posterity.
These rules have not changed with the recent decision. What has changed is a longstanding presumption that, unless clearly specified in the collective bargaining agreement, retiree health insurance contributions towards premiums are fixed for life at the rate contained within the collective bargaining agreement at the time of retirement. The theory applied by the courts used to be that the parties to a collective bargaining agreement intended for retiree benefits to remain at a fixed rate for life in consideration for giving up other benefits, such as higher salaries, while serving as active employees. According to the supreme court, such an intention will have to be demonstrated through outside evidence if it is not clearly spelled out in the language of the agreement.
According to the Supreme Court’s decision, the federal rule is now that if the duration of retiree benefits is not clearly spelled out within a contract and the intent of the parties to have the contribution levels remain fixed cannot be proven to a court’s satisfaction, retirees may be subjected to negotiated changes in contribution amounts contained in collective bargaining agreements that are negotiated by active members of the bargaining unit after their effective dates of retirement. In other words, if you retired in 2005 and the collective bargaining agreement at the time provided for 100 percent coverage by the district, but didn’t set forth that this level would be maintained for life, and your former bargaining unit negotiated a decrease in the district’s contribution to 90 percent starting in the 2015/2016 school year, you may be suddenly paying 10 percent towards your health insurance.
Before anyone panics, it is not entirely clear how this decision will impact collective bargaining in New York. SAANYS has always applied the traditional contract law in victories on the retiree health insurance front, so an analysis on any future cases will not significantly change. The supreme court also held that, if the contract language is unclear, a piece of outside evidence the courts should consider is the industry standard on the topic. In New York public sector education, the standard is that retiree health insurance contributions are fixed for life at the rate specified in the collective bargaining agreement at the time of retirement. Finally, it is unclear whether New York’s courts will even adopt the supreme court’s ruling that current bargaining unit members can negotiate changes that will impact retirees because the law in this state is very clear that retirees are not considered bargaining unit members and have no power during negotiations.
SAANYS will keep a close watch on this topic and will update you on this important area of law as it develops. In the meantime, there are several things you can do to prevent or minimize the impact of this ruling on your unit’s current and future retirees:
1.) Make sure your collective bargaining agreement’s provisions concerning retiree health insurance are clear and unambiguous, especially concerning the duration of the benefit. If it is not, or if you have any questions, SAANYS lawyers and negotiators are here to help interpret and negotiate any clarifications during future negotiations.
2.) Keep detailed notes during negotiations. It is always suggested that someone be designated the official note taker during negotiations. These notes should be maintained by the unit leadership, passed down through the years, and not destroyed. SAANYS has encountered many times where such notes would have cleared up an issue from a historical perspective, both in collective bargaining and in contract grievances on a wide variety of issues.
3.) If your employing district either threatens or actually makes a change to retiree health insurance contributions, it is imperative that you notify the SAANYS Legal Department immediately. There are very limited timeframes in which to commence an action against a school district and nobody wants to see someone negatively impacted for the rest of his or her life because the issue wasn’t raised in a timely manner.
As always, the SAANYS Legal Department is here to provide clarification and guidance if there are any questions or concerns.
The new year ushers in a series of meetings for some of the twelve SAANYS regional organizations. Members of SAANYS counsel’s office will be attending those meetings in part to update the regions on changes that could affect upcoming local bargaining unit negotiations with their various employers. However, much of the information discussed will invariably be relevant to those units and their members who are not expected to be involved in collective negotiations this year.
Much of the discussions will involve such imperatives as effective preparation for collective negotiations, the importance of planning ahead in anticipation of potential occurrences at the negotiating table, and setting firm rules of conduct and protocol so as to facilitate as smooth a negotiating process as possible. A byproduct of these general topics is often some detail about changes in the law that effect particular items in negotiations.
For example, acknowledgment of the current economic and political climate at these meetings will lead to discussion about how to meet the goals of unit negotiators in terms of financial gains for their current active members. The conversation will turn to creative methods being employed on certain topics such as taxable and non-taxable fringe benefits. Of interest to most units are those related to paying for health care above and beyond basic insurance coverage, including flex spending accounts, health reimbursement arrangements, health savings accounts, and medical savings accounts, all of which share much of the same traits but have nuanced differences to meet differing financial needs. From there, the discussion will likely touch on the effect of Obamacare, also known as the Affordable Care Act (ACA), on these items. In some instances for 2015, the ACA places new limits on employer contributions and changes the tax implications on these negotiated benefits.
Inasmuch questions arise about the tax implications of both non-health care and health care related fringe benefits. Separate from the health care related items mentioned above, non-health care related items may include reimbursements for personal cell phone use on work-related matters, use of one’s car, or payment of life insurance premiums. It is best in negotiations to follow the general rule that if an item was not expressly created by the legislature to have tax free benefits, it likely does not. Thereafter, you can get specific as to which items need to be precisely delineated as taxable or non-taxable benefits. Critical to remember is that what was considered of value in the previous agreement, which may have been taken away by a legislative act like the ACA, can and should be negotiated back into your contract in one form or another. Don’t settle for the fact that it is gone. Demand something in return.
Similarly, the discussion of the current political and economic climate will raise particular questions from those preparing to retire or merely looking down the road toward retirement. Their interests may involve the pensionability of particular benefits provided in their collective bargaining agreements. Members in the Teacher Retirement System (TRS) currently occupy six tiers with those joining the system after April 1, 2012 labeled as Tier 6 members. The TRS has recently issued clarification on certain particular negotiated benefits that retirees believed were added to their pension calculations but found that they were not.
The general rule that has been applied to the tiers 3 through 6 had always been that to be included in a pension, the payments had to be reasonably incidental to the work necessary to complete the job of the title, was cumulative and continuous year after year, and was not in the mode of a bonus design to augment a final average salary. Questions have arisen about negotiating tenure stipends, merit pay, longevity bonuses, and the like, as to how they figure in to a member’s final average salary, if at all. Each provision or proposal in your negotiation involving such an item must be scrutinized and made clear. Often, bargaining units have proceeded on the presumption that its interpretation is the same as that of the district, that a particular item is part of base salary and thus added to a pension calculation. That is always a dangerous presumption but in this case is also an irrelevant presumption. Even if the parties agree on an interpretation of a contract, such agreement does not bind the TRS. So, as noted above, if you believed something had pensionable value that it turns out may not, do not despair, it merely presents an opportunity to negotiate its lost value back to your members in another form.
Looking positively, SAANYS will impart at these regional meetings the good things that can come from the changes that come with a new year. We hope to see you there.
Prior to the administration of a state examination, it is important that administrators fully understand the state testing procedures that must be followed and the consequences that may be imposed for not following such procedures. Each district receives testing materials from the Department of Education/Board of Regents that includes examination day instructions and exam material. Thoroughly reading the materials that are provided will help ensure that proper procedure is followed. With the abundance of materials received along with the amount of substance within the material, it is often hard to fully understand what procedures must be followed. Some of the major issues that continue to arise during testing procedures include fraud. It may not seem like fraud is being committed, but those involved in testing procedures need to be careful to ensure that they are not unintentionally doing so. The consequences can lead to termination and revocation of licenses. It is the responsibility of the principal for all aspects of the school’s administration of state exams, and principals are required to take appropriate measures to prevent, as much as possible, and to investigate all irregularities, in association with the administration and scoring of these exams.
According to the rules of the Board of Regents, fraud includes: the use of unfair means in taking an exam; giving aid to or obtaining aid from another person during an exam; alteration of any Regents credential; and intentional misrepresentation in connection with exams or credentials. Fraud also includes mishandling of testing materials by allowing them to be released prior to the date of the scheduled exam, and also by retaining possession of any exam material after scoring has been completed and material returned to SED. Further, Section 225 of the education law makes fraud in exams a misdemeanor, whether perpetrated by a student, by a teacher, by an administrator, or by any other person.
The commissioner’s regulation puts into practice Section 225 of the education law. The regulation expressly lists what would constitute misconduct when handling state examinations. It includes, but is not limited to, duplicating or keeping any exams without written approval from SED. This presents a danger area for some administrators. For example, your district may have instituted a program for test preparation at the various grade levels. If you are involved in such a program and set aside some unused exams because you wish to review them to get an idea of where or how your curriculum matches up with the test materials, you are at risk of being accused of cheating.
So much more can go wrong. In the bustle of the daily environment, those unused materials can be misplaced or lost, and you will be immediately, almost inex-cusably, or as we say in the law, strictly liable.
Testing improprieties by administrators are handled by the SED’s security unit or “TSU.” School officials and personnel are required to report any testing misconduct by an educator or other person involved in testing. Some examples of improper testing conduct that must be reported are: suspected or confirmed cases of a school official giving aid to students during a state exam or altering student responses on an exam paper; cases in which a school official alters or otherwise misrepresents a student’s earned exam score during scoring, recording, or reporting; and any instance of an administrator instructing another administrator to alter or interfere with a student’s exam score.
Proctors, teachers, and administrators who do not follow the policies and procedures of SED may face disci-pline. Teachers and administrators who are involved in inappropriate conduct in regards to administering and scoring state exams may be subject to disciplinary actions in accordance with Sections 3020 and 3020-a of education law, or they may face disciplinary actions against their certification pursuant to Part 83 of the regulations of the commissioner of education.
If you have been accused of committing fraud during the course of state testing or have questions relating to testing administration, contact a SAANYS attorney immediately and we will be more than happy to assist.
The concepts of tenure and seniority-based layoffs (commonly referred to as “last-in, first out” or “LIFO” statutes) have always been controversial, and critics often voice their concerns loudly, but to little avail. Then the landscape seemingly changed this past summer, when a trial court in California determined that its state tenure and seniority-based layoff statutes were unconstitutional as they negatively impacted students in lower income districts, often heavily populated by minorities, at a greater rate than students in affluent areas. This case, Vergara v. State of California, is currently on appeal, but has started a wildfire of attacks against tenure and seniority that quickly reached New York.
In the wake of Vergara, two cases, backed by public interest groups, were filed in New York challenging the state tenure and seniority laws. Davids v. State of New York was commenced in Richmond County Supreme Court and Wright v. State of New York was brought in Albany County Supreme Court. The two cases were consolidated into a single action in Richmond County Supreme Court. Both cases challenge the constitutionality of New York’s various statutes dealing with tenure, seniority, and APPR, on the basis that they allow for the retention of “ineffective teachers,” thereby denying students the “sound basic education” provided under the New York State Constitution.
These actions only named the State Education Department, Commissioner King, and the Board of Regents as defendants, leaving the very individuals protected under the statutes without a voice. Accordingly, NYSUT, UFT, the City of New York, and several individual teachers, petitioned the court to become defendants and are now named parties. Interestingly, neither of the lawsuits mentioned the fact that school administrators are also bound by the same laws that are being challenged. A finding that teacher tenure and/or the seniority and recall statutes are unconstitutional would mean that school administrators would also lose the rights to tenure and seniority-based layoffs. Therefore, on behalf of representative members, SAANYS has also intervened in this important litigation and is actively defending the rights of all admin-istrators to earn the due process protections afforded under these statutes. SAANYS and all of the other defendants have filed motions to dismiss the litigations and, under the current scheduling order, will have oral argument as to why the cases need to be dismissed in mid-January 2015.
Prior to the decision in Vergara, changes to tenure and seniority systems throughout the United States came primarily through legislative action within each individual state. Given the complexity of public education, courts throughout the country have recognized that such matters remain best left to the people’s elected representatives. This is because the courts are ill-equipped to resolve the social, political and economic issues, and resulting controversies surrounding public education. The legal term for concepts such as this is “political question” and it is one of the basis used by SAANYS in its motion to defeat these meritless lawsuits. As any faithful reader of News & Notes over the years has learned, New York’s legislature is continuously revising the education law surrounding the retention of qualified teachers and administrators. In the past five years, SAANYS has provided its members with continuous updates on changes made by the legislature on topics such as the APPR system and Section 3020-a hearings.
Additionally, the lawsuits fail to connect the state to the implementation of the statutes, as ultimately it is the local school boards who have the power to grant or deny tenure, bring about disciplinary hearings to tenured educators, and implement layoffs. In the past twelve years, the New York State Court of Appeals has rejected other attempts to strike down these and other education law statutes on constitutional grounds, because of the very same defects in the pleadings.
Furthermore, the plaintiffs have no standing to bring the lawsuits. With the exception of one plaintiff in Wright, no other plaintiff in either action even alleges their child has been instructed by an ineffective teacher, thereby precluding any alleged injury. Additionally, not one plaintiff is in the “zone of interest” of the challenged statutes. Specifically, the legislative history and case law surrounding each of the challenged statutes clearly states that the purpose of the statutes in question is to protect educators, not students or their parents.
SAANYS supports the concept of tenure and the current system of managing layoffs for all educators, not just administrators, and will continue to vigorously defend these rights. Without these rights, educators will be subject to the political whims of their employing districts and will be forced to make the difficult choice between self-preservation and what is educationally correct. While SAANYS is confident that our members will continue to put the needs of students above their own, SAANYS has no intention of having its members placed in such a position without a fight. Keep an eye on upcoming issues of News & Notes for updates on this important litigation as they arise, and feel free to contact the SAANYS Legal Department if you have any questions.
SAANYS recently represented a bargaining unit in a dispute that contained many of the varied elements of litigation that SAANYS handles. It should interest a wide spectrum of bargaining units and individual members. The affected bargaining unit was a small unit of less than ten members. They have a collective bargaining agreement [CBA] with a grievance procedure that ends with a review by the board of education. SAANYS recommends that a grievance procedure always end with binding arbitration. The premise is that a final independent trier of fact will provide a fairer, if not more just, award. But in this case, the fact that the grievance procedure ended with the board, opened the door to a tangle of litigation that needed to be carefully thought through.
The initial issue started as a “pension-ability” question that was raised when a unit member discovered that her base salary had been reduced by a corresponding amount that was carved out and put into a separate line item on her pay stub. Pension-ability is a term often used in this industry meaning money that can be calculated into your final average salary for purposes of determining your pension benefit. Those near retirement would have their interest piqued by this because such a change in base salary could result in a reduction in the calculation of a final average salary and therefore negatively affect a pension payment. As a pension-ability dispute, the affected members could have sought relief in court. But since it was also a general change in salary that was negotiated into the CBA, the grievance procedure in the CBA was implicated. The unit prepared a grievance for all similarly affected unit members. Only two members were affected. While the unit was preparing that grievance, the district completely removed the amount in the line item from both members’ pay. So now in addition to the grievance, the unilateral change in a term and condition of employment, which was the reduction in negotiated salary, was an improper practice (IP), that simultaneously had to be commenced at the Public Employee Relations Board (PERB). The grievance had to be amended because it was both a pension-ability question and a salary grievance.
There’s more. This unit stood with three sources of remedy, which meant three statutes of limitations had to be met. First was the grievance, which had to be commenced within 20 school days of the district’s actions. The second was the IP at PERB that had to be brought within four months of the district’s actions. The third was the breach of contract action that typically would have a six year statute of limitations. However, there is an interesting nuance that could have dramatically shortened the statute of limitations to four months. The reason was that the pension-ability question was subsumed by the subsequent reduction in salary, temporarily taking the question out of a court proceeding and putting it squarely back into the grievance procedure.
Temporarily because, as noted above, the grievance procedure ended with the board of education. So that meant that the same entity that was being pursued in the grievance had the final say under the contracted grievance procedure. But fear not, there was still hope. The law provides what is called an Article 78 proceeding where the actions of a political subdivision of the state, like a town, county or, as here, a board of education, can be challenged in the supreme court as arbitrary, capricious, irrational, or contrary to law. In this case, the board’s decision on the grievance could raise that action. Therefore, if the board decided the grievance in its own favor, the unit could bring an action under Article 78 with a statute of limitations of four months from the date of the board’s decision.
The grievance proceeded and SAANYS presented the unit’s position to the board of education. What happened next was not unusual but added to the complexity of the situation. The board did not give a formal decision but instructed its counsel to negotiate a settlement that essentially provided the grieving employees’ the remedy they sought. But during the course of the “back and forth” of the wording of the settlement, the question lingered as to the four-month statute of limitations on the potential hybrid Article 78/Breach of Contract proceeding. The answer is that the board had not yet acted on ratifying the settlement agreement. Had the board rejected the negotiated settlement agreement, a new four-month statute of limitations would have commenced from the date of its formal refusal to ratify. Fortunately, the board did ratify the agreement – bringing the drama to a conclusion. This situation reminds us of the comical image of the frog who is being eaten by a bird, but reaches out of the bird’s mouth and chokes the bird so that he cannot be swallowed. Never give up – often SAANYS can help members find options that are not readily apparent at the time.
SAANYS successfully litigated a case for the Elmira Schools Supervisory and Administrative Council (ESSAC) against the City School District of Elmira (the district) for violating the terms of a May 2012 Memorandum of Agreement (MOA). During the 2011–12 budget process, the district eliminated four ESSAC positions as part of budget cuts. With the assistance of SAANYS, ESSAC negotiated an anti-abolishment clause to protect the remaining 32 ESSAC member’s jobs. Specifically, SAANYS negotiated the following contractual provision: “In exchange for the association waiving the aforementioned contractual rights during the 2012-2013 school year, the district agrees that no positions contained within the association shall be abolished or positions unfilled during the 2012-2013 school year only.”
ESSAC bargained away guaranteed compensation to maintain unit jobs. Specifically, ESSAC agreed to waive 5/6th of its member’s 3.9 percent salary increase for the 2012–13 school year, and limit the number of unused vacation days members could cash in that school year from seven days to one day. These compensatory sacrifices were made on the district’s promise that the 32 positions within ESSAC as of May 2012 would remain filled during the entire upcoming school year.
This MOA was a short-term job security provision. However, shortly after reaching this agreement, the superintendent negotiated with an ESSAC member a separate employment contract for the member, a director, without the knowledge of ESSAC. The superintendent and the director reached an agreement in July 2012 that removed the director position from ESSAC, thereby reducing the number of positions below 32 and breaching the MOA. ESSAC was unaware of the secretly negotiated individual employment contract with the director until late November, when ESSAC leadership demanded the director pay his ESSAC dues. Upon learning that the director refused to pay unit dues because he was no longer a member of ESSAC, ESSAC filed a grievance in December 2012. With the assistance of SAANYS, the case progressed to the arbitration stage before Arbitrator Nancy Eischen in the summer of 2014.
SAANYS prosecuted the grievance at the arbitration stage for ESSAC. Arbitrator Eischen held that the district violated the MOA by reducing the agreed upon number of positions below 32 when the district unilaterally negotiated an individual employment contract with an ESSAC member, which also constituted an improper practice of “self-dealing.” Arbitrator Eischen considered the breach and fashioned the remedy to make ESSAC members whole again. Arbitrator Eischen ordered the district to pay ESSAC members the 5/6 salary increase and the ability to cash in 6 more vacation days this year, both items were forfeited as part of the original MOA. The remedy SAANYS was able to achieve for ESSAC shall result in a $180,000 award for the ESSAC members.
School districts are constantly facing budgetary constraints living within the property tax cap, and units may be involved in negotiating agreements to preserve the positions of its members. It is important to understand what elements should be included in anti-abolishment provisions and what rights you have if such clauses have been violated. When negotiating an anti-abolishment clause, such provisions must be explicit, unambiguous, comprehensive, and of relative brief duration. Further, the agreement should be clear on how any disputes will be resolved. We recommend such matters be processed through the grievance procedure, which ultimately ends in binding arbitration. Having a detailed grievance procedure in a CBA is very important to protect the unit’s rights when a violation has occurred.
Please contact SAANYS if your unit is considering negotiating an anti-abolishment clause. SAANYS attorneys will be happy to provide you with guidance in this process.
Terms and conditions of employment are controlled by collective bargaining agreements (CBAs). Violations, misapplications, or misinterpretations of such contracts are handled through the CBA’s grievance procedure, if there is one. Otherwise, such breaches are litigated in court as a breach of contract action. This article focuses on the arbitral process found in many contracts, and whether individual unit members or only the unit can prosecute contract grievances.
Questions often arise about when an alleged contract grievance may proceed to the arbitration stage and who decides that it will be so prosecuted. The source of right involving contract grievances is the CBA, and particularly, whether the CBA has a negotiated grievance procedure.
Some CBAs do not provide for arbitration for settlement of contract disputes at all. The only way to challenge breaches of those CBAs is to sue in court. Other CBAs contain grievance procedures that do not culminate in arbitration. In those cases, either the superintendent of schools or board of education is the final decision-maker as to whether the grievance has merit or not. Similarly, some CBAs have arbitration, but it is only advisory, meaning that the decision of the arbitrator is not binding on the parties. Any grievance procedure that does not result in binding arbitration is viewed less favorably by SAANYS in litigating contract violations.
Moreover, there are many considerations involved in CBAs that contain binding arbitration provisions. Paramount with any grievance procedure is ensuring any grievance is timely advanced to arbitration within the grievance time frame. Also critically important, is who can prosecute a grievance at arbitration. The answer may not be as easy as one would think. First, check the CBA to see if it is stated as to who has the right to advance a grievance to the next level, particularly when it only impacts one member of the bargaining unit. Some CBAs are silent as to who has the right to file a demand for arbitration or otherwise advance a grievance. Other CBAs grant the right exclusively to advance a grievance to arbitration to the unit alone, to each member individually, or to either/both to prosecute. In the first instance, SAANYS recommends review of the CBA to determine who has the right to file a demand for arbitration.
Since the CBA is negotiated and enforced by the unit, SAANYS recommends that the unit have control of grievances at the arbitration/litigation phase in order to avoid questionable grievances going to arbitration. If an individual member were allowed to advance a meritless grievance to arbitration, it could be dangerous for the unit if the grievance is lost, creating an unfavorable precedent, especially if the unit was against the individual member filing for arbitration in the first place.
Surprisingly, some CBAs are silent as to grievance ownership at the arbitration stage, or any stage for that matter. Therefore, the unit leadership would also be wise to check its constitution and by-laws to see if there is a process set forth for processing grievances. For example, some constitutions and by-laws call for a “grievance committee” to process all grievances. Others call for a majority vote of the unit to proceed beyond any step involving the board of education. If the constitution and by-laws are silent, look at what has been the past practice associated with contract grievances. If the unit has not filed grievances before, and hence, has no past practice, we recommend that the unit set up an internal process in its constitution and by-laws. Then in the next round of collective bargaining, negotiate a clear procedure regarding ownership of grievances, especially at the arbitra-tion stage. Without explicit guidelines for who decides when to arbitrate a grievance, many units could potentially arbitrate grievances that lack merit. An arbitration on average costs around $10,000 in fees and attorney time. Hence, the decision to proceed to arbitrate also has financial consequences.
It is always recommended that a unit promptly call the SAANYS legal team if there is a suspected grievance, for an analysis of the merits and who may advance the grievance. Additionally, should your unit wish to set up an internal process for grievance adjudication, SAANYS would be happy to assist, including providing a sample constitution and by-laws for your reference.
As technology surges forward through the seemingly daily innovation of smart phones, so has the ability of school district employees, students, and parents to document the world around them through video and audio recording. As these recording capabilities have improved, so has the frequency with which SAANYS members are confronted by legal issues relating to the recording of conversations (or video recording with audio). While the SAANYS legal department would never advise a member to surreptitiously record conversations with another, it is important that individuals understand both the federal and New York statutes that make recording in certain situations illegal.
Both the federal and New York “wire-tapping” statutes are referred to as “one-party consent” laws (see 18 U.S.C. 2511(2)(d); N.Y. Penal Law § 250.00.) Each permits the recording of a phone call or face-to-face conversation by an individual only if they are an actual party to the conversation. Generally speaking, regardless of the state, it is almost always illegal for individuals to record a conversation (1) to which they are not a party, (2) have not obtained consent to record, and (3) that they could not overhear without the assistance of some technology.
New York Penal Law § 250.00 clearly defines various terms related to the topic (“wiretapping,” “mechanical overhearing of a conversation,” “electronic communi-cation,” etc.), clearly encompassing the various ways in which information can be stored and sent (N.Y. Penal Law § 250.00). Given the definitions supplied by New York’s statute, consent is equally required to disclose the contents of text messages.
People v. Clark, a 2008 criminal case originating in Kings County, illustrates exactly how these issues might come to light within the context of the public school system. In September of 2005, an eight-year-old boy with autism, unable to speak and known to inflict bodily harm upon himself, required special bus transportation and the services of a personal bus aid (the criminal defendant in the case). Upon seeing her son return from school with “bruises and abnormal redness on his body, she put an audio recording device” in his backpack before placing him on the bus one morning. The defendant later moved to suppress the recorded conversation at trial, claiming that (1) she hadn’t consented to the recording, and that (2) the child was incapable of consent. Instead, borrowing from a federal court decision, the court held that “when a parent or guardian can demonstrate a ‘good faith, objectively reasonable basis to believe that it was necessary for the welfare of the child to record a conversation,’ a parent may consent to the recording on the child’s behalf and be exempt from liability under the federal wiretap statute.” (People v. Clark, 19 Misc. 3d 6, 8 (App. Term 2008)) .
Another example of the use of secret recording involved two different Long Island principals and the parents of a student who moved between two separate school districts. The student had significant disciplinary issues. The parents demanded a meeting with the respective principals. At the meeting with the middle school principal of one district and the high school principal of the other district, the parents surreptitiously recorded the conversations.The recordings were subsequently edited by the parents, their goal being to portray each principal in a negative light, and posted on Youtube.com. Twice, SAANYS demanded and facilitated the removal of the edited recordings from public access.
In light of the situations referenced above, administrators should be especially mindful of the potential that conversations with students, parents, teachers, and other staff can, and are more often, being recorded. If ever confronted with a question regarding “wiretapping,” please contact the SAANYS Legal Department for assistance at (518) 782-0600.
SAANYS is continuing the battle against the New York State Civil Service Department’s policy directive prohibiting locally negotiated collectively bargaining agreements from providing a cash payment for school employees who opt out of the New York State Health Insurance Plan (NYSHIP) if their spouse or domestic partner has health insurance coverage through NYSHIP. The cases are now pending before the appeals court. SAANYS is joined by NYSUT in these appeals. SAANYS’ argument is that the state, through the Civil Service Department, failed to properly promulgate a regulation relating to buyouts and instead tried to impose an edict upon school districts and their unions denying them the right to collectively bargaining a health insurance buyout. Stay tuned, we expect the appeals court to issue a decision by the end of the year.
Medicare Part B
Recently, an appeals court has ruled on the contractual rights of retired teachers and their spouses to receive reimbursement for Medicare Part B payments (a form of deferred compensation) involving the Northeastern Clinton Central School District. Because the contract language was ambiguous, the appeals court remanded the case to the trial court to consider extrinsic evidence to determine what the parties intended the language to mean. What
is commonly misunder-stood is that, although Medicare and its subparts provide health insurance coverage, it is not automatically considered a health insurance benefit under a collective bargaining agreement.
This case again reinforces the point that the language in the contract must be clear and unequivocal. In the Northeastern Clinton case, the vague language was that an “employee who retires on or after July 1, 1996 with 15 or more years of service to the district shall be entitled to district-provided individual or family health insurance coverage, as applicable, at no cost to the retiree.” There are two ambiguities within that provision. First, did the parties intend to cover Medicare reimbursements within the phrase “at no cost to the retiree?” The appellate court said there were two equally plausible interpretations so the trial court, on remand would have to look at other evidence, such as past practice to figure out what the parties meant. And second, the contractual language is also ambiguous as to the duration of the reimbursement benefit. Again, the appellate court found there were two reasonable interpretations of the phrase, (i.e., that the benefit lasts only until the end of that particular contract or that the reimbursement benefit continued for the life of the employee). The point of the Northeastern Clinton case is that SAANYS always recommends spelling out the exact benefit and including language involving retirement health insurance provisions such as “in retirement for the life of the retiree.” Please consult with your SAANYS negotiating team whenever you collectively bargain your contract.
As we approach the finalization of school budgets, we revisit an issue that was discussed in this column over four years ago – the questions that arise when administrative positions are abolished or left unfilled as a result of terminations, retirements and resignations. Those questions most often include the subsequent transfer of unit work to remaining administrators or the transfer of unit work to personnel outside the administrative bargaining unit.
It is important to note that bargaining unit rights, sourced most often from the Taylor Law, are intended to protect public employees from the political vicissitudes of public employment. They are intended also to provide certainty in budget and planning for both the employer and employees. Therefore, certain aspects of the work must be negotiated through the bargaining unit to ensure that certainty and security. When an employer or employee organization takes action that cannot be taken until properly negotiated with the other party, an improper practice may occur. The Public Employee Relations Board [PERB] is the state agency that adjudicates these initial disputes.
A body of law has developed, defining when and how these transgressions occur. The abolition of positions and the resulting transfer of work is the focus of this article. Given the recent efforts of districts to trim administrative staffing and get more done with less, districts have taken to abolishing administrative positions. In some circumstances, it has been of genuine financial exigencies. In other circumstances, it has been a method of circumventing employee’s tenure rights without having to follow the statutory due process requirements under Education Law §3020a. Put bluntly, the district may find a way to isolate a highly paid administrator that happens to occupy a single tenure area or civil service position, abolish the position knowing there is no less senior person in the tenure area or civil service category, and thereafter fire the administrator and spread the work around the unit or transfer the work out of the unit.
When the aforementioned scenario occurs, two divergent legal bases are implicated. On the one hand, you have the tenure or permanent status rights of the individual whose position is abolished. On the other hand, you have the bargaining unit’s rights to protect its work by keeping it in the unit, and its right to demand impact bargaining regarding the effect on the terms and conditions of employment of the unit members who take on the duties. As noted above, PERB would adjudicate the actions related to the bargaining unit protecting the work and demanding what is called “impact bargaining.” The tenure rights of the individual are primarily adjudicated in appeals to the commissioner of education.
In an action before PERB related to the protection of bargaining unit work, the bargaining unit may challenge a district’s transfer of its work to a non-unit employee. In such an action, the bargaining unit would need to prove three elements. First, the unit would need to establish what is called a “discernible boundary” around the work. A discernible boundary would be found in the nature and frequency of the work the unit performed and, among other factors, a showing that the district saw the work as distinct to the unit. Second, the unit would need to establish the extent to which the work was exclusively performed by its members. Typically it is not enough to obviate the exclusivity of the unit’s work for a non-unit member to intermittently perform some of the work. Third, there are specifically enumerated non-instructional duties that are statutorily allowed to be transferred out of the unit. For example, Education Law 1950 lists technology related duties that can be transferred to a BOCES.
If the unit can establish the elements above, or the district merely abolishes the position and distributes the work amongst the unit members, then the unit must look at how the additional duties impact the terms and conditions of employment of its members. That means determining the effect on such things as work hours, work days, vacation availability, and effects on evaluation procedures to name a few. It can then demand impact bargaining and the district is required to negotiate.
The tenure area and civil service status issues raised by position abolishment by contrast are personal to the employee. The Supreme Court has held that a public employee can have a property interest in his position. Specifically, tenure or civil service permanence has property value to the employee that can be bartered or sold. They are constitutionally protected in that they cannot be taken without due process. Therefore, a position abolishment for a tenured or permanent employee must be scrutinized. It must be for reasons of efficiency or economy. Once that is established, the tenure area or permanent status of the effected employee must be examined to determine seniority and return rights under Preferred Eligibility List requirements in the education and civil service statutes. Note that the tenure area and civil service status questions apply to employees even if they are not in a bargaining unit. So it is important that even if you are not in a bargaining unit, that you maintain your SAANYS membership to have a more detailed expert analysis of your personal scenario only a phone call away.
Over the past few years, you have repeatedly heard from the SAANYS Legal Department that retiree health insurance is at the forefront of collective bargaining and negotiations. It cannot be stressed highly enough that a bargaining unit’s contract should explicitly set forth the benefits members will receive in retirement. Another recent example of unambiguous contract language helping a retiree comes from the Arlington Central School District in Dutchess County.
The collective bargaining agreement (CBA) between administrators and the district provides several different health insurance options administrators can choose between, including HMOs, and coverage under the New York State Health Insurance Plan (NYSHIP). The CBA also explicitly provides that the district is to offer health insurance in retirement to the administrators. Unlike many CBAs, the one at issue does not contain any restrictions or conditions precedent upon receiving health insurance in retirement. Specifically, there is not a service requirement of a set number of years to the district before being able to retire and receive health insurance.
NYSHIP itself contains a requirement that an individual subscribe for five continuous years in order to vest with the plan and receive retiree health insurance. Due to unforeseen circumstances, an administrator within the unit, who received health insurance through NYSHIP, needed to retire before vesting with the plan. The district approved the retirement and did not indicate that it would not provide the administrator with health insurance in retirement until shortly before her date of retirement.
With the assistance of SAANYS negotiator Bill Morrison and attorney Jennifer Carlson, the unit pushed the denial of health insurance through the contractual grievance procedure. At no point in time during the local level grievances did the district explain the reason why the administrator, who was paying full COBRA premiums for her health insurance upon retirement, was denied health insurance. An arbitration of the issue took place before Arbitrator Richard Curreri in November 2013. It was at that time that the district explained for the first time that retiree health insurance was denied partially because the administrator had not vested with NYSHIP and partially because of an unwritten, unadopted district policy requiring five years of service to the district prior to receiving health insurance in retirement, regardless of what was written in any of the CBAs in the district.
Arbitrator Curreri issued a written decision stating that, while the plain language of the CBA could not override NYSHIP’s vesting requirements, that the district breached the contract when it failed to offer the administrator health insurance through one of the contractually provided HMOs. The decision further went on to state that the unofficial policy of the district did not control, because it was not officially adopted by the board of education and also because of a clause in the contract explicitly stating that the terms and conditions of the CBA supersedes any other policy or regulation of the district. The administrator is now entitled to retiree health insurance and payment for the COBRA premiums made to date.
This victory once again serves to reinforce the importance of specific language about which benefits will be afforded to retirees and under what conditions. It also serves as an important reminder that everyone should make themselves aware of any requirements that may exist in order to receive health insurance in retirement, both under the contract and under the health insurance plan itself, when first joining a district.
Should you find yourself in a situation where you are unsure of whether you are entitled to health insurance benefits in retirement or your benefits are denied or otherwise changed, it is important that you contact the SAANYS legal department as soon as you learn of the issue so we may provide timely advice and support.
As those of you who regularly read News & Notes might recall, in 2012, civil service issued a series of policy memoranda limiting, and ultimately abolishing, the right of employers who participate in the New York State Health Insurance Plan (NYSHIP) to offer buyout payments to employees who elect not to receive health insurance due to dual coverage.
One impacted school district was the Brentwood Union Free School District, which provided for such a health insurance buyout to its administrators as a part of the collective bargaining agreement with its administrators. As a result of civil service’s policy memoranda, the district refused to continue the negotiated buyout in fear that the state would discontinue coverage. SAANYS commenced an improper practice charge with PERB on behalf of the administrators, which is currently pending, as well as a court action in Supreme Court, Albany County against the district and the state, challenging the legality of the policy. The court action was dismissed under the four month statute of limitations, under the theory that the statute of limitations began when the memoranda were first issued by civil service and not when the impacted administrators first became aware of the policy. SAANYS has been pursuing the appeal of this decision.
At the same time as SAANYS’ litigation on the legality of the policy, NYSUT also commenced litigation in Supreme Court, Albany County, before a different judge on behalf of the Roslyn Teachers’ Association. On January 10, 2014, Hon. Michael C. Lynch issued a decision and order in favor of the teachers. In his twelve page decision, Judge Lynch states that the lawsuit, which was filed within days of SAANYS’ lawsuit, was timely, as the standard used in determining the start of the statute of limitations is when the state’s determination is first “readily ascertainable to the petitioners.” In this particular situation, the court held that civil service’s policy memoranda was not first readily ascertainable to the association on the May 15, 2012 date it was to take effect, but rather when the district sent a memorandum to the employees on the topic on November 14, 2012. Thus, the case was not deemed to be procedurally defective.
Turning to the merits of the case, the court determined that the policy prohibiting buybacks is invalid as a matter of law. While civil service has the authority to offer health benefits within the plans and implement controls to ensure the sustainability of the plans, the court clarified that a buyback offer between an employer and employee is not a health benefit contained within the plan that the state has the authority to control. Specifically, it was held, “…a participating employer must provide the NYSHIP benefits developed by the state pursuant to Article 11 of the Civil Service Law but a participating employer continues to have the ability to choose, as the state did, to negotiate changes to the buyout benefit with its employees.” Simply put, the state has the ability to dictate “health benefits” like preferred providers, but is not a party to a collective bargaining agreement and has no authority to determine what negotiated incentives are offered for declining employer provided coverage.
Of further interest to SAANYS members is the court’s holding, or lack thereof, surrounding the district’s liability for unilaterally implementing civil service’s policy. According to the court, it could not decide the breach of contract cause of action against the district because the relevant collective bargaining agreement contained a grievance procedure, which the association did not use, and dismissed this cause of action for failure to exhaust administrative remedies. Similarly, the court declined to rule on the causes of action based upon the district’s violation of the Taylor law because there is not a ruling on an improper practice charge before PERB.
SAANYS will be using this ruling as a part of its appeal for the dismissed litigation. What this means for impacted members is that districts cannot refuse to pay negotiated health insurance buyouts based upon the civil service memoranda. If your district uses NYSHIP as a health insurance provider and refuses to pay a buyout based upon the policy, it is important that SAANYS’ legal department is contacted as soon as possible to start the necessary legal processes for challenging the lack of buyout. If your unit is currently in negotiations and the district states that it can no longer offer a buyout due to the policy, this statement is incorrect and we will be happy to provide copies of the decision to anyone upon request. Even without this determination by the court, it is important to understand that policies like the one at hand do not mean that districts are not obligated to negotiate around the change in policy. SAANYS had, and continues to recommend that any agreements surrounding health insurance buyouts under NYSHIP plans include a clause that the buyout would be reinstated in the event that a court deemed the state’s policy invalid. Those districts that negotiated such clauses should see the return of the health insurance buyout, although the district may hold off on reinstating buyouts until it is clear that the state is not appealing this decision.
SAANYS will continue to keep its members apprised of the various aspects of this important matter as they occur. As always, please do not hesitate to call the SAANYS legal department should you have any questions.
This article updates members on certain litigation that SAANYS is involved in and also offers several important negotiating strategies as public employers continue to attempt to erode members’ hard earned benefits.
Holding Public Office
SAANYS is currently reviewing a Suffolk County local law that appears to prohibit public school administrators from holding elected office in Suffolk County. Recently, an assistant principal in Brentwood, Monica Martinez, was elected to the Suffolk County Legislature for a term starting in January 2014. Martinez is understandably concerned about being sworn into office as a county legislator since the local law carries a possible punishment of one-year imprisonment for violating the law. SAANYS is currently seeking an opinion from Suffolk County whether the law applies to Martinez. If the law does apply to Martinez, SAANYS is prepared to challenge the law as unconstitutional.
Nine years ago, SAANYS successfully challenged a City of Rochester local law that prohibited Rochester school employees from holding elected office in that city. The United States District Court held that the local law violated school employees’ rights to political free speech and association by effectively denying them the right to be a candidate.
SAANYS believes that the Suffolk County law is likewise unconstitutional. SAANYS estimates that in Suffolk County there are currently over 1,400 school administrators who work in Suffolk County public schools alone. There are also about 500 additional school administrators who live in Suffolk County but work in Nassau County, Westchester County, or other counties within or outside New York City. Together, approximately 2,000 administrators would be denied the right to hold elected office in Suffolk County. Stay tuned for updates on the case.
IRS Retirement Benefits
SAANYS also represents clients before both the New York State Teachers Retirement System (TRS) and the New York State and Local Employees’ Retirement System (ERS). While some representation results in court litigation, SAANYS has developed a good professional working relationship with both agencies that enables the association to resolve potential litigation without the necessity of fighting in court. Recently, without resort to litigation, TRS reversed its preliminary determination to exclude a contractually negotiated retirement incentive and principal stipend from a Long Island Tier 1 member’s final average salary (FAS) calculation through the compelling proof presented by SAANYS.
In its initial decision, TRS had wrongly concluded that the retirement incentive was designed solely for the benefit of the retiring member to artificially inflate the principal’s FAS. SAANYS presented affidavits from individuals involved in contract negotiations for the administrators’ unit, including SAANYS labor relations specialist John Cassese, that overwhelmingly demonstrated that the retirement incentive was a long-standing benefit available to all unit members based on achieving certain number of years of service in the district. Based on the evidence presented, TRS concluded that the incentive was available to all eligible retiring unit members, and hence includable as non-regular compensation in the member’s five-year FAS calculation.
TRS also preliminarily argued that the principal stipend paid to the SAANYS member for the 2008-09 school year for services rendered that year could not be included in the retiring member’s five-year FAS calculation. It reasoned that in the successor contract that was negotiated in June 2009, the stipend was eliminated and the stipend work became part of administrators’ basic professional responsibilities. Based on the new contract language, TRS initially viewed the $3,000 stipend as a payment outside the contract and refused to include it for pension purposes.
SAANYS successfully argued that during the 2008-09 school year, the school district was required by law (Civil Service Law Section 209-a(1)(e) – Triborough Law) to pay the stipend, although the district subsequently negotiated the stipend out of the contract in June 2009. However, while the stipend was prospectively eliminated, the $3,000 stipend was still required to be includible as non-regular compensation for the retiring member for the 2008-09 school year. In the end, through SAANYS’ efforts, the member will receive an additional $3,725 each year in her/his pension, projected to be over $90,000 during her/his lifetime.
Health insurance benefits continue to be the most aggressively attacked benefit in collective bargaining for public colleges and schools. Employers are changing to cheaper plans that require active employees to pay more in out-of-pocket costs, deductibles and co-payments. In addition, employers are expecting their employees to contribute more toward the health insurance premium cost. Employers are seeking further concessions on retirement health insurance coverage by requiring that their retiring employees work longer to procure health insurance in retirement and contribute more toward the cost of the retirement health plan. Employers may also be purchasing inferior health insurance plans for retired employees that cost the retirees more to participate in and discontinuing reimbursement for Medicare Part B payments.
Last year, the governor weighed in on public sector health insurance through his Commissioner of Civil Service, issuing a policy directing public schools, which subscribe to the New York State Health Insurance Plan (NYSHIP), to discontinue locally negotiated health insurance buyouts for its employees whose spouses are covered in NYSHIP. As was reported months ago, SAANYS is engaged in litigation, along with NYSUT, to determine whether the state can interfere with contracts negotiated at the local level between school districts and unions. As of press time, a final substantive determination has not yet been reached in those litigations.
Relying on that civil service policy directive, some school districts have unilaterally stopped paying the health insurance buyout. On Long Island this fall, the Brentwood Union Free School District summarily stopped paying the buyout to its administrators contrary to the long-established practice in the district. SAANYS is representing the Brentwood Principals and Supervisors Organization (BPSO) in an improper practice charge based on discontinuation of the buyout. A hearing is scheduled for January 2014 before the Public Employment Relations Board.
Within NYSHIP, there are approximately 70 different health insurance products. The NYSHIP plan is managed by the Civil Service Department. In representing clients in matters involving the NYSHIP plan, an important feature of the plan is its continued coverage into retirement, provided certain conditions are met. Under the current rules of NYSHIP, any covered member may receive the state minimum health insurance coverage in retirement (individual coverage with the retiree paying 50 percent of the premium cost or family coverage with the retiree paying 65 percent of the premium cost) provided that the retiring administrator has vested with at least one NYSHIP participating school district for purposes of retirement health insurance and has been continuously enrolled in NYSHIP since vesting.
Thus, if an administrator does not qualify for retirement health insurance with the NYSHIP participating school district they retire from (typically now there is a 10 year service requirement for NYSHIP participating school districts), the administrator may nevertheless still receive NYSHIP health insurance in retirement, albeit at the state minimum coverage rates if s/he had vested for NYSHIP retirement health insurance from a prior employing school district AND s/he has since been enrolled in a NYSHIP participating school district. Any break in coverage from NYSHIP will disqualify the retiring member. If the retiree has been covered under NYSHIP since vesting, the state will charge the school district where the retiring administrator had vested the remaining premium cost for the administrator’s retirement health insurance.
For example, Administrator A had worked in Northport school district as a teacher for 20 years and had vested for purposes of retirement health insurance in the NYSHIP plan. Administrator A then worked as an assistant principal in Wantagh school district, another NYSHIP participating district, for eight years but did not vest for retirement health insurance there. Subsequently, Administrator A worked as a principal in the Islip school district, which also participates in NYSHIP, for another eight years before retiring. Under the Islip administrator association contract, an administrator had to work ten years to receive retirement health insurance paid by Islip. Since Administrator A would not receive NYSHIP health insurance in retirement under the Islip contract, Administrator A would be still be covered under the NYSHIP plan, but it would be from Northport since she vested for retirement health insurance in Northport and had been continuously enrolled in a NYSHIP plan ever since. The retiree would pay for health insurance in retirement at the state minimum rate with Northport picking up the rest of the premium costs. This fact is important for administrators who consider jobs in other school districts, especially on Long Island where a large majority of school districts participate in the NYSHIP plan.
Medicare Part B
A hot negotiating item involves Medicare Part B reimbursement. Some school districts reimburse retired administrators for their (and in some cases their spouse’s) Medicare Part B payments. Over the past ten years, school districts have attempted to stop reimbursing retirees for the cost of their Medicare Part B payments. SAANYS is sensitive to the importance of safeguarding this deferred compensation benefit and has litigated to preserve this benefit for its members.
As background, a retired administrator’s primary health insurance plan is the plan they received from the school district upon retirement. However, at age 65, the retired administrator must enroll in Medicare, at which time Medicare will become their primary health insurance plan and their health insurance coverage from the school district will become secondary.
Medicare Part B covers physician services on an 80-20 split. Payments for Medicare Part B are deducted directly from a Medicare recipient’s Social Security check. Some municipalities, including school districts, reimburse their retired employees for the cost of their Medicare Part B payments, pursuant to a CBA provision or past practice. However, with life expectancy rates increasing (for women to 84 years old and for men around 83 years old) these municipalities have tried to curtail or discontinue this benefit entirely.
In 2013, the situation is worse because the federal government now is increasing the cost of Medicare Part B payments based on the Medicare recipient’s income. For 2013, higher income earners (based on your tax return), will pay higher Medicare Part B premiums. For example, a person filing an individual return who has an annual income of $85,000 (jointly $170,000) or less, will pay the Medicare Part B basic rate of $104.90/month. However, the rate increases to $146/month if the person’s income is between $85,000 and $107,000 ($170,000 and $214,000 if filing jointly) and to $209.80/month if the person’s annual income is between $107,000 and $160,000 ($214,000 and $320,000 if filing jointly). It is therefore realistic that retired administrators in the lower Hudson Valley and on Long Island will have annual income (pension and other income) that will cause them to pay an increased Medicare Part B premium rate. Hence, it is important for active employees to understand this valuable form of deferred compensation when negotiating new contracts and seek continued reimbursement from the school district at whatever their applicable Medicare Part B rate is.
SAANYS is constantly reviewing changes in the law and how any revisions may impact members. As New York’s leading organization representing administrators in public education, SAANYS is always on the alert to protect members’ rights and ensure that they receive the highest salaries and best benefits available.
The SAANYS legal office handles many issues relating from the transfer of services by component school districts to the pertinent Boards of Cooperative Educational Services [BOCES]. These transfers commonly arise by district’s requesting shared services with the BOCES. For many reasons, chief among them the strains and uncertainty of the financial status of certain school districts, there has been an increase in the amount of administrative services being transferred to the BOCES’. As a result, lay-off, tenure, and seniority rights become implicated for individual member administrators. As for collective bargaining units, the transfer of exclusive bargaining unit work is also implicated.
Three different education law statutes are at play in these instances. They are Education Law 1950, 3014-a or b, and 2510. One civil service law statute [the Taylor Law CSL 209.a-1] is implicated when the decision by the district to transfer work to a BOCES is made. The creation and powers of the BOCES are set forth in Education Law 1950, including the mechanics of requesting, contracting, and approving shared services. A district must submit to BOCES its requests for services by February 1. Districts are not committed to transfer the work to BOCES by merely making this request. Nonetheless, the BOCES must request approval for its operating plan to the State Education Department [SED] by February 15. So it seems the operating plan relies much on the non-binding requests for services from the districts. A BOCES then must notify all of its component school districts which services have been approved by the commissioner of education by March 10. The district then must notify the BOCES by May 1 whether it will participate in shared services and specify which services are to be shared. The BOCES then must submit its final budget plan to SED by May 15.
Education Law 3014-b provides that “in any case” where a district “takes over” a BOCES program, the affected employee is considered a district employee from then on with all tenure or civil service status remaining the same. If the district requires less employees to perform the service than the BOCES did, then the BOCES employee with the least seniority is terminated and placed on a preferred eligibility list. Similarly, Education Law 3014-a provides that “in any case” where a BOCES “takes over” a component district program, the affected employee is considered a BOCES employee from then on with all tenure or civil service status remaining the same. If the BOCES requires less employees to perform the service than the district did, then the district employee with the least seniority is terminated and placed on a preferred eligibility list.
This portion of the law is what causes the difficult issue. For example, the question that needs to be answered up front is whether a “take over” under Education 3014-a is synonymous with “shared services” under Education Law 1950. If so, the dilemma becomes, if services are shared under 1950 and it requires less employees to perform the work as denoted in 3014-a, which employees are terminated and how? Seniority is gained and determined strictly within the employer based on Education Law 2510 and civil service law. It appears the way provisions 3014-a and 3014-b are written that if a program, or work, is moving away from the employer, then retention of employees favors the employer the work is moving toward.
In most situations with members, the movement of work is one position for one position or even one position going to half-time with the BOCES taking on one-half of the position. And often this is perceived as the employer seeking to find ways to rid itself of an administrator by circumventing tenure and employment rights. But it is within the legal rights of the district under the statute without clear expressed evidence that the actions were taken to damage the employee.
It may also be perceived as an attempt to weaken the administrative bargaining unit that represents the affected employee or employees. The Taylor Law provides that bargaining unit work cannot be transferred outside the unit without negotiation with the unit. Each situation is unique and requires that an in-depth review of the facts be addressed in a discussion with a SAANYS representative. Certain parts of the discussion will include how much of the work is being transferred, what “discernible boundaries” exist that would make that work unique or exclusive to the bargaining unit in the district or the BOCES, and what seniority status the affected employees have. As always, do not hesitate to contact SAANYS if you have any questions.
With the recent rollout of programs under the Affordable Care Act (ACA), many SAANYS members may be wondering what changes to expect within their own employer-based health insurance coverage and what new options are now available. While many may not see any glaring changes to their coverage options in the near- term, it is important to understand the major and universal changes to our nation’s health insurance landscape resulting from this legislation.
Individuals currently covered under an employer-based plan may continue coverage under that same plan. Any job-based health insurance plan one currently has qualifies as “minimum essential coverage” for purposes of avoiding future fees. Starting in 2014, individuals without minimum essential coverage will be required to pay a penalty of $95 per adult and $47.50 per child (up to $285 per family) or 1.0 percent of family income, whichever is greater. By 2016, the penalty for an adult will be increased to $695, or 2.5 percent of family income. For those without employment-based coverage, the ACA has created what is called the Health Insurance Marketplace. The Marketplace, accessible online at https://www.healthcare.gov/marketplace/individual, allows individuals to compare health insurance plan offerings from private companies. This offering could certainly be relevant for current members with family in need of insurance or for those without retiree medical insurance looking to bridge the gap to Medicare eligibility. Open enrollment began October 1, 2013 for coverage to take effect as early as January 1, 2014.
For those currently covered under an employer-based plan, it is important to determine if your plan is considered “grandfathered.” Grandfathered plans are exempt from many of the new protections and requirements created under the ACA. This classification applies to plans that existed on March 23, 2010 and have stayed “basically the same.” Currently the federal government has not released any set guidelines as to what qualifies as “basically the same.” The status specifically depends on when the plan was created as opposed to when an individual joined it. So, in theory, one could enroll in a grandfathered plan today as long as the plan itself qualifies under ACA requirements. To find out if your plan is grandfathered, participants should check with their employer or the health plan’s benefits administrator. Additionally, health plans must disclose whether or not they are grandfathered in all materials describing plan benefits.
New protection for individuals with pre-existing conditions is now applicable to all individuals seeking to purchase health insurance, whether through an employer- based plan or the Marketplace. For plan years beginning in 2014, insurers cannot charge more from, or deny coverage to, individuals because of a pre-existing condition. The legislation also makes it illegal for insurers to charge women more than men for coverage under the same insurance plan. Only grandfathered plans are exempt from this new protection.
The ACA also requires health insurance providers and group health plans to provide consumers with (1) a Summary of Benefits and Coverage (SBC), and (2) a Uniform Glossary of terms used in health coverage and medical care. These documents allow consumers to make apples to apples comparisons of their options when deciding on coverage. Individuals are entitled to these documents upon request from the provider when shopping for a policy through the Marketplace or through an employer plan. It should be noted that grandfathered plans are subject to this requirement.
Prior to this new legislation, insurance companies could arbitrarily cancel an individual’s coverage based simply on minor mistakes made by the insured during the application process. Under the ACA, it is now illegal for insurers to cancel coverage based on an applicant’s honest mistake or failure to disclose information where the mistake or missing information has little bearing on the person’s health. This protection applies to all plans, including those classified as grandfathered. However, coverage may still be cancelled where the applicant intentionally provides false or incomplete information, or fails to pay a premium on time.
Another change resulting from the ACA affecting most plans deals with choice of doctors and access to emergency rooms. All insured’s have the right to select any doctor from within their health plan’s network to serve as their primary care physician. Furthermore, insurance companies cannot charge a higher copayment or coinsurance for emergency room care received in an out-of-network hospital. Grandfathered plans are exempt from this restriction.
With only one temporary exception, individuals under the age of 26 can join, remain, or return to a parent’s plan even if married, attending school, financially independent, or eligible to enroll in their own employer’s plan. These coverage rights apply to all health plans, whether job-based or purchased through the Marketplace, that offer dependent coverage. However, until 2014, grandfathered group plans are exempt from this requirement if the young adult in need of coverage is eligible for their own job-based coverage.
The ACA also makes it illegal for insurance companies to set lifetime and yearly limits for coverage of “essential health benefits” on any plan or policy starting January 1, 2014. These essential benefits include (1) ambulatory patient services, (2) emergency services, (3) hospitalization, (4) maternity and newborn care, (5) mental health and substance use disorder services, including behavioral health treatment, (6) prescription drugs, (7) rehabilitative and habilitative services and devices, (8) laboratory services, (9) preventive and wellness services and chronic disease management, and (10) pediatric services. All plan offerings on the Health Insurance Marketplace offer these minimum essential health benefits.
A hallmark of the legislation is its emphasis on providing preventive care. With the exception of grandfathered plans, many health plans, including all Marketplace offerings, are now required to cover certain preventive care services at no cost to the insured if delivered by a network provider. A few of the major services from this list include (1) alcohol misuse screening and counseling, (2) aspirin use to prevent
cardiovascular disease for men and women of certain ages, (2) blood pressure screening for all adults, (3) cholesterol screening for adults of certain ages or at higher risk, (4) colorectal cancer screening for adults over age 50, (5) depression screening for adults, (6) diabetes (Type 2) screening for adults with high blood pressure, (7) diet counseling for adults at higher risk for chronic disease, and (8) immunization vaccines for adults for diseases such as influenza, measles, mumps, meningococcal, and so forth.
Lastly, those covered by private insurance plans now have the right to appeal coverage decisions made by the insurer. The insurer must tell the plan participant why a particular claim has been denied and provide information on how to dispute the decision. This appeals process breaks down into two major steps. An insured who is denied payment for a service or treatment by the insurer can first ask the insurer to reconsider its decision internally. If the insurer upholds its decision to deny payment, the ACA provides the right to an external review of the coverage decision by an independent organization. Rights of the insured may vary depending on their state of residence. Step-by-step directions for filing an appeal are available on https://www.healthcare.gov.
The Affordable Care Act, whatever one’s feeling about it, will undoubtedly impact your health insurance coverage in both the short and long term. While many members will see little or no immediate impact on their health insurance options or coverage, it is important to understand the potential impact of this legislation as the health insurance industry adapts and changes. Again, members should contact their employer or health plan’s benefits administrator to learn more about their specific plan options and feel free to contact the SAANYS Legal Department with further questions.
The lawmakers of New York State have bestowed broad power and discretion upon a board of education with respect to hiring and firing teachers and school administrators. Prior to the enactment of today’s tenure statutes, the board exercised this power using employment contracts between the board and individual employees. These contracts were reviewed and renewed by the board annually, if ever. The tenure statutes were enacted to create a shift in the administrator employment system, from the prior system of annual review to one of permanence and away from the sphere of political influence. The legislation’s main purpose was to provide job security to competent educators and administrators holding positions to which they were appointed.
Generally speaking, tenure is the permanent employment status earned by administrators who complete a probationary period of satisfactory service with a district. All principals, administrators, and other members of the supervisory staff of school districts and board of cooperative educational services (BOCES) must be appointed by the school board to a probationary term of three years. Probationary appointments are required when filling any vacant, unencumbered, full-time position. Unlike the tenure system for teachers, administrators who have received tenure in another school district in the state are not entitled to a shortened two-year probationary period. These credits, available only to teachers, are referred to as “Jarema credits.” However, a board of education may take it upon itself to reduce the term of probation for an administrator and typically do when the individual has been tenured in another position in the district.
Once probation is completed, tenure is granted by the school board upon recommendation from the district superintendent. If the superintendent does not recommend an administrator for tenure, a board of education cannot grant tenure itself. The tenure process requires both the affirmative recommendation of the superintendent and the positive vote of the board. Without both, the administrator will be terminated at the end of his/her probationary term, provided the school district does not acquiesce to his/her continued employment which would result in tenure by estoppel.
An employee who is granted tenure has essentially earned the right to remain employed free from dismissal or discipline unless just cause can be shown. Within the tenure framework, the distinction between “tenure” and a “tenure area” is especially noteworthy. As mentioned previously, tenure is a general designation or status, whereas “tenure areas” are the specific subject areas of administrative positions. The applicable law requires that school districts establish at least one specific administrative tenure area, with the state giving broad discretion to school districts to define them. Conversely, tenure areas for teachers are specifically defined by regulations promulgated by the commissioner of education. Furthermore, an administrator’s tenure area may be broad, such as “district administrator” or narrow, such as “elementary principal.” Some districts go even further, creating administrative tenure areas specific to the building in which the person works.
Another area in which the tenure system for teachers and administrators differs is the ability of the employee to attain tenure in two separate areas simultaneously. Teachers may attain tenure in more than one tenure area at a time if spending at least 40 percent of their time on each of the two areas. For administrators, a different set of rules apply. An administrator must devote more than 50 percent of his/her time to duties in the administrative tenure area to which he/she is appointed.
However, an administrator can be deemed to serve simultaneously in both administrative and teacher tenure area, and thus receive seniority credit and tenure in both areas. This law was established as a result of Appeal of Pearce, a 2010 case SAANYS successfully argued before the commissioner of education. In Pearce, an administrator had been appointed to a probationary position in which she spent 60 percent of her time as dean of students and the remaining 40 percent as a foreign language teacher. The decision concluded that this administrator was able to obtain tenure and seniority in both the administrative and teaching tenure areas because she performed more than 50 percent of her duties in the administrative tenure area and at least 40 percent within the teacher tenure area. Given this system, an administrator cannot attain tenure in two administrative tenure areas simultaneously, nor do they retain prior administrative tenure after they accept a new administrative position in a different tenure area.
Very often, confusion arises amongst administrators about the particular tenure area to which they belong. Critical attention must be paid to the evidence surrounding their appointment, not granting of tenure. Evidence must be gathered including his/her appointment letters. In addition, one must look at other documents such as the board meeting minutes, the board agenda and board resolutions relating to the person’s initial appointment. This evidence will be used to determine the tenure area to which the administrator was first appointed. In such cases, any ambiguity or discrepancy is construed against the hiring school district. This determination is of particular importance as it directly impacts seniority rights.
Seniority rights are those rights to job security and priority within a school district based on length of actual paid service in a particular tenure area. Specifically, the first and main factor in calculating seniority is an administrator’s full-time service within a tenure area. Unlike tenure rights, seniority rights apply to both tenured and probationary administrators. In the event a position is eliminated, seniority is the sole factor used to determine the order in which an administrator would be excessed. Because of the “more than 50 percent rule,” it is impossible to hold administrative tenure in two or more areas.
Once a position is abolished, the laid off certificated administrator previously filling that position must be placed on a preferred eligibility list (PEL) of candidates for current or future job vacancies. Those on this list remain candidates for appointment to a similar position for a period of seven years after their previous position was abolished. The preferred eligibility list applies to both the position abolished and any similar position that may become available. A key distinction for those on the list is that seniority is determined by years of service within a district as opposed to a specific tenure area. However, if someone retires in lieu of being laid off, they forfeit their PEL rights.
A special set of complications arise for those working as a part-time administrator within a school district. Generally, part-time administrators are unable to receive probationary appointments and credit towards tenure status. Exceptions may be made for administrators only if a board decides to extend credit for tenure to a part-time employee through a board resolution or through a provision in a collective bargaining agreement. Those administrators who have already gained tenure status through service in a full-time position will not lose that status by taking a part-time position.
Part-time administrators are also ineligible for seniority credit. However, any part- time service performed after the completion of a full-time probationary appointment is included in the seniority calculation as long as the district requested the change. This is not the case where the administrator requests the reduction to part-time status him or herself. As was the case for tenure and part-time administrators, seniority credit may only be extended for part-time administrative work through a board policy or collective bargaining agreement.
An important limitation exists in that a collective bargaining agreement or policy purporting to extend seniority credit for part-time service cannot negatively impact bargaining unit members. To illustrate this situation, suppose an administrator works for ten years in a part-time role without any agreement or policy in place to extend seniority credit for these years. If the district attempts to layoff the part-time employee along with two full-time employees, each with less than ten years of service in the district, the board may not now reach an agreement retroactively extending seniority credit to the part-time employee as this action would negatively affect the two full-time employees. The board may still negotiate and extend seniority credit for future part-time service performed, but in this example, the two full-time employees must be recalled before the part-time employee with more years of service.
In summary, it becomes clear how fact-specific and complicated tenure and seniority rights can be. Anyone with questions regarding these topics should call the SAANYS Legal Department for assistance.
A BIG VICTORY FOR SAANYS RETIREES
After three years of litigation, SAANYS again successfully defended the rights of a group of retired Cobleskill-Richmondville Central School District (CRCS)administrators to continued health insurance at fixed premium rates for life. This attractive benefit was negotiated over 25 years ago, and was in each subsequent contract in exchange for lower salaries, and correspondingly lower pensions. The district honored its clear contractual obligation to provide health insurance in retirement at fixed rates for life until the recession. The district then breached its contract obligations and forced retirees to pay 16 percent of the premium cost of retirement health insurance, arguing that active administrators had negotiated that new rate of contribution for themselves and retirees. This article will review the appellate court’s decision upholding the retirees’ right to continued health insurance in retirement at fixed rates. It will also discuss trends in the erosion of retirement health insurance benefits caused by the recession and the enactment of the property tax cap, as well as the importance of consulting SAANYS when such battles start.
As far back as 1989, each CRCS collective-bargaining agreement (CBA) in effect provided certified administrators with the following retirement healthcare coverage:
“Individuals who retire during the term of the contract shall be covered at the rate of 100 percent of the charge for individual coverage and 75 percent of the charge for dependent coverage, as applicable. Employees hired after July 1, 1976, shall be required to satisfy 10 (10) years of service in order to be eligible to continue the health insurance program in retirement as offered by the district.”
In accordance with this clear and unambiguous language the school district provided retired administrators with free individual health insurance coverage or 75 percent district paid family coverage based on the difference in the cost of individual and family plans.
In June 2009, the administrators unit and district negotiated a new CBA that modified the terms of the retirement health insurance coverage provision prospectively to provide that employees who retired after June 30, 2010 would receive retirement health insurance coverage at only the rate of 84 percent of the charge for either individual or dependent coverage while those who retired before June 30, 2009, would continue to receive the rates of 100 percent individual coverage and 75 percent for dependent coverage. Shortly after it negotiated the successor CBA, the district notified all retirees that it was reducing the district’s share of the cost of their health insurance coverage and forcing all retirees to contribute 16 percent of the cost of their health insurance, like the active administrators.
SAANYS sued the district for breach of its contractual obligations to the retirees and for acting in an arbitrary, capricious, and unlawful manner in reducing its share of the cost of the retirees’ health insurance coverage. At the trial level, the supreme court upheld the retired administrators’ right to receive health insurance for life at the rate set forth in each successive CBA since 1989. The supreme court found that the plain language of the CBAs unambiguously obligated the district to provide lifetime health insurance coverage for those bargaining unit members who retired prior to 2010-2011 school year at a rate of 100 percent for individuals and 75 percent for dependents.
On appeal, the appellate court rejected the district’s argument that the retirees’ fixed rate of premium contribution was fixed only during the particular CBA they retired under, and that the rate could be altered subsequently. The court held there was nothing in the provisions at issue that suggested that the coverage was limited to the time period of the CBA in effect at the time of an individual’s retirement. The court concluded that each CBA at issue unambiguously provided lifetime health insurance coverage to the retired administrators pursuant to the terms of the CBA in effect at the time of their retirement.
While the Cobleskill-Richmondville CBA language was clear and unambiguous relating to retirement health insurance, many union contracts are not. As a result, school districts are aggressively attempting to erode this valuable benefit. Given the country’s slow economic recovery from the recession coupled with the property tax cap, school districts have declared war on raising health insurance costs, particularly retirement health plans.
Units must tenaciously fight back to protect their hard fought retirement health insurance benefit, especially recognizing that they sacrificed larger salaries over the years in obtaining and preserving retirement health insurance. Otherwise, they will lose this precious benefit forever. It is indeed very rare to see contracts negotiated today that provide for better retirement health insurance benefits.
In the past ten years, SAANYS has seen a number of attempts by school districts to change retirees’ health insurance coverage. One change observed is the district switching the actual health insurance plan itself, usually from a traditional indemnity plan (the Cadillac plan) to a PPO plan or from a PPO plan to a HMO plan. Such changes result in huge savings for the district. Another significant change implemented over the past several years by school districts is to change prescription drug plans. Prescription drug costs are the single most expensive component of health insurance. New prescription drug plans often result in high co-payment costs for the retirees.
Another change seen is school districts forcing retirees to pay more of the premium costs for retirement health insurance, as occurred in Cobleskill-Richmondville. Finally, many school districts have tried to stop reimbursing retirees and their spouses for the cost their Medicare Part B payments (usually a $100/month per person). This form of deferred compensation is valued at $50,000 for the retiree and his/her spouse over their lifetime, which explains why districts want to eliminate the benefit. While these changes have occurred more frequently to retirees, we have also seen districts unilaterally imposing them without negotiations on active administrators also. In either event, please immediately consult with SAANYS attorneys, labor relations specialists, or negotiators to discuss your options when your school district declares war on your retirees or active members in this area. Remember, the key to successful litigation in this area will be the clear and unambiguous language of the CBA.
In early April, SAANYS won a lawsuit against a member unit’s school district for nearly $60,000 in
leave credits owed to a resigning administrator.
SAANYS brought suit against the district last fall after it refused to pay leave credits to the member who had resigned to take an administrative position with another district. While the benefit was not provided for in the administrator’s contract, it was past practice for several other administrators who had resigned, and had been promised by the prior superintendent. The district had rejected SAANYS’ initial arguments, leaving no option other than to sue. Once that was done, the district ‘settled’ for the entire amount of leave credits.
This is just one of many such instances where contacting SAANYS to defend the rights of a member resulted in a successful outcome. Remember to contact the SAANYS Legal Department prior to making a decision that may cost you income security or set a precedent for future situations.
Between the generally poor economic climate and the restrictions placed upon districts due to the 2 percent tax cap, districts are constantly looking for ways to save money. Unfortunately, one of the most common ways is through the downsizing of administrative staff, both at the certificated and civil service levels. When a position is abolished or merely left unfilled, the restructuring typically means more work for unit members. With the increase in mandatory duties, such as APPR and reporting under the Dignity for All Students Act, the ability to take on additional duties has become increasingly difficult. Most districts are cognizant of this fact and have been looking for ways to spread out duties due to lost positions while saving money. More and more frequently, it is being brought to SAANYS’ attention that districts are attempting to solve workload problems through either outsourcing work to independent contractors or by distributing the work outside of the recognized bargaining unit. Unless such distributions of unit work are negotiated between the district and the unit, they may very well constitute an illegal transfer of bargaining unit work.
In the event that the district transfers bargaining unit work, there is a limited window in which the unit can challenge the transfer. Specifically, the unit will need to serve a Notice of Claim upon the district within ninety (90) days of the transfer and an improper practice charge before PERB must be filed within one hundred twenty (120) days of the transfer. SAANYS is always prepared to prepare the documents on a unit’s behalf, even with short notice; however, it behooves units to be vigilant when it knows that a position is either being eliminated or that a retirement is taking place. When preparing documents on a unit’s behalf, we will be asking the unit for specific information regarding the transferred bargaining unit work. Significantly, we will need to know precisely what duties were performed by a bargaining unit member, when and to whom the duties were transferred, and whether the duties in question were performed exclusively by bargaining unit members prior to the transfer. Without details on the duties and the transfer, SAANYS cannot effectively put the district and/or PERB on notice of the challenged work in order to obtain a successful outcome. All too often, when an illegal transfer of bargaining unit work comes from the abolition or vacancy of a unit position, the unit doesn’t become aware of the transfer until well after the position is vacated by the former unit member. This places the unit in the difficult position of trying to ascertain the extent of the transfer of bargaining unit work without the benefit of first-hand knowledge of the duties associated with the vacant position.
Looking toward budget time, if you know or have a suspicion that a position within your unit is either going to be abolished or vacated and left unfilled, it may benefit your unit to be proactive in obtaining information SAANYS may need to challenge an illegal transfer of bargaining unit work. While official job descriptions are ideal, many districts either do not have official job descriptions or the ones they do have are inaccurate due to the piling on of additional duties over the years. If either of these situations is present in your district, the outgoing unit member should try to create a list of duties he or she exclusively performed. Such a list will not only assist the unit in transfer of bargaining unit cases, but could also assist SAANYS in determining whether people placed upon a preferred eligibility list are entitled to a recall to a different or newly created position containing their former duties.
As always, cases involving the abolishment and/or transfer of bargaining unit work are very fact specific and have very limited timeframes in which action can be taken on the unit’s behalf. It is important to contact the SAANYS legal department as soon as you know of a transfer of bargaining unit work issue and provide us with as much information as possible so we may timely evaluate and take any and all necessary action on your unit’s behalf.
An ongoing issue amongst teachers and administrators in public education has been their movement, or transfer, from one position to another. We have already discussed that you cannot be transferred outside your tenure area without your expressed written consent. A separate question is whether you can be transferred within your tenure area but made to perform different duties without your express written consent. The short answer is you can.
There are two different scenarios in which this can occur that we at SAANYS have most experienced. The first is when a precipitating incident has required that an employee be removed to another location for disciplinary reasons. The second is partially a result of the increased financial struggles of the last half decade. A by-product of district’s seeking to reduce administrative staff has been transfer of individuals who cannot be otherwise terminated. Exigent circumstances like closing of a building, emergency budget cuts, and the like have made the work previously performed by the employee no longer necessary, but may include that other work needs to be done. The question then becomes what duties can, in a SAANYS member’s case, an administrator be made to perform.
Over the last 25 years, the law has been that such a transfer of assignment within your tenure area must bear a reasonable relationship to your competence and training and be consistent with the dignity of your profession. In challenges to such reassignments, the courts have held that the reasonable relationship and dignity of the profession concepts are very broad. The assignment can be outside your job description as long as it’s in an educational facility with a relationship to the district. If the work can be contemplated to be performed by someone in your tenure area, then it is valid assignment. For example, a principal cannot be made to clean restrooms. Not strictly for the dignity question, but that there exists a categorization, albeit Civil Service, that would normally perform this work. Therefore it would be out of your tenure area. However, a principal can be made to perform certain data entry work, chair certain meetings, and the like. The courts are loath to make a decision overturning such transfers when they do not involve damages or the loss of a property right such as job title, salary, or benefits. And as always, the commissioner of education has jurisdiction over questions that arise whether the job duties were within your tenure area. The ratio of related duties is considered and the rule is 51 percent or better constitutes “within your tenure area.”
When faced with such a situation, there are several steps to consider. The first is the name of the tenure area an administrator occupies. The name may indicate some intent of the district which may be important when defining the appropriateness of the reassignment. Similarly, the second item of review is whether the district has developed a scheme in regard to administrator tenure areas. Since the commissioner does not define tenure areas for administrators as he does for teachers, this would also help determine whether seniority issues are involved, and then whether the transfer was within or without the tenure area. In one challenge to such a transfer, a member in the “building administrator” tenure area was made to perform certain data entry work – but was made to do so in the central office kitchen and copier area where the member was subject to repeated interruptions, including individuals eating lunch while he worked. While the duties were arguably within the dignity of the profession, SAANYS asserted a challenge using the commissioner’s regulatory definition of a “building” and related it to his tenure area of “building administrator.” The district subsequently restored the member to an office in the school building.
The administrative tenure areas raise complicated questions. It is important to maintain your employment records, including board minutes of every job appointment you have and job descriptions. This will assist you in making the discussion with the SAANYS counsel’s office more fruitful.
This article might better be titled as ‘How Good People Get in Trouble,’ a topic that sometimes we think has endless examples. Do you remember signing a district equipment fair use agreement? Most districts employ some form of a fair use agreement as notice to all employees that district equipment may only be used for district purposes. Often this is one of the forms newly hired staff is asked to sign with other official papers during the first weeks of employment. Understandably, its existence and effect may fade into distant memory; the district, however, remembers when it wants to, usually at the expense of an employee’s job security.
The purpose of all such agreements is to ensure that public funds are spent exclusively as taxpayers expect, which is entirely on school business. For that reason, these agreements usually fail to provide for any exceptions. Unfortunately, such rigid restrictions conflict with our knowledge of what many employees are permitted in the private sector, and the distinction may result in discipline.
The two pieces of school equipment administrators sometimes fail to realize they may not use for any personal reasons are school computers and school phones. In fact, it is natural for most of us to believe that the intended restrictions are for what might be known as material misuse, such as for pornography or illegal activities. The reason we recognize those uses as wrong is probably because we implicitly believe those activities are wrong regardless of what equipment might be used to facilitate the activity. So, for example, we instinctively recognize using a school computer or phone to access child pornography or to buy illegal drugs is wrong, just as it would be wrong (and illegal) to do the activity regardless of whether or not we used the computer or phone to facilitate the activity.
But the agreements mean much more, and failure to recognize their full effect may result in discipline for otherwise legal or innocent activity. If your agreement provides that NO personal use is permitted, you MAY be held accountable for ANY personal use.
The issue usually arises in one of two ways. Either the district, usually in the body of a new superintendent, decides to issue the administrator a counseling letter for personal use of district equipment, or the district has decided to vote 3020-a charges. Then, our experience is that in either case, but particularly in the case of 3020-a charges, the district will add to the primary instance or issue as many other instances of alleged bad behavior as possible in order to strengthen its case. For 3020- charges, the additional instances serve to support the justification for greater discipline, even for termination.
Regardless of the district’s motivation, prohibited personal use of the equipment is a violation regardless of how reasonable the use is or whether it failed to incur the district any additional cost. For example, unless provided as an exception, personal emails to your spouse or child, or checking the weather before you start driving home in a snowstorm, is prohibited if all personal use is prohibited.
Silly? Unreasonable? Perhaps. But if all personal use is prohibited, such use is grounds for discipline. And remember, anything you do by computer can almost always be discovered by the computer gods … even years later. Deleting email messages does NOT preclude the message from being accessed by a technology expert years after the fact.
So how do you protect yourself? First (and always), never use district equipment for anything you wouldn’t want the superintendent or your best friend or spouse to know. Second, for innocuous or harmless activity of limited time and frequency, get a general permission exception by email from the superintendent. Send a request along the lines of: “Say Super … I remember signing a fair use agreement governing our use of school computers … but isn’t it OK to email my spouse a few short emails during most days as long as it doesn’t interfere with my work?” Then – and this is crucial – print out and save in your home based hard copy folder your inquiry and the response. And remember that because no expectation of privacy exists for anything you do at work, all your emails and phone conversations may someday be made public or used against you in discipline. So after the superintendent gives you written approval for such exceptions and you write that email to your significant other, make sure the contents would not embarrass you if they someday are made public.
In 2010, the Dignity for All Students Act (DASA) was created, taking effect July 1, 2012, which has a major impact on how administrators and other school staff will safeguard the students within their care. The following is a brief discussion on DASA, as well as the various amendments that have either been enacted or will go into effect July 1, 2013. Not all of the requirements within DASA are discussed within this article and members are encouraged to contact SAANYS with any questions or concerns.
DASA was created to teach self-respect and fight discrimination, harassment, and bullying towards students in public schools by staff and other students. It specifically prohibits discrimination based upon a student’s actual or perceived race, weight, national origin, ethnic group, religion, religious practices, disability, sexual orientation, or gender. This means that the district is obligated to investigate and address incidents of discrimination, even if the foundation for the alleged discrimination isn’t correct. (i.e.: a straight student is attacked for being homosexual, even though he is not.) The basis for a DASA investigation is apparently not limited to the traditional reasons in discrimination law, as a memorandum on DASA by the State Education Department cites issues such as incarcerated parents as a basis for conducting an investigation pursuant to DASA.
Based upon the initial legislation, the State Education Department created a series of regulations to implement DASA. Notably, in March 2012, a regulation was added requiring student instruction to include “instruction in civility, citizenship, and character education.” It also required that districts amend their codes of conduct to reflect DASA’s legislative intent. In May 2012, another regulation was added, reflecting the DASA requirements for training school employees.
As indicated above, under DASA, every school must update its code of conduct to reflect the prohibition of harassment and discrimination by students or staff. The district must also appoint at least one staff member in every school to investigate, report to the NYS Department of Education, and take any necessary actions for every bullying incident on school property. This includes any allegations of bullying in school buildings, on athletic fields, playgrounds, parking lots, on school busses, and during extracurricular or school sponsored events. The original legislation also provided for immunity from civil liability for reporting acts of discrimination/harassment and prohibition against retaliation.
A set of amendments were passed on July 9, 2012, most of which will take effect on July 1, 2013 and will greatly expand the scope of what must be addressed by school districts, as well as reporting requirements. Significantly, the definitions of “bullying” and “harassment” have been expanded to include the ever-prevalent problem of cyberbullying. In addition to requiring the investigation and addressing of cyberbullying, the amended definition now requires addressing any acts of harassment off school property that could foreseeably affect school related processes. In addition, the amendment adds a statutory requirement to prohibit any such conduct and, as detailed below take appropriate actions to address harassing behavior, up to criminal referrals.
There are also several actions districts now need to implement under the amendment, many of which have a direct impact upon school administrators. Notably, school districts are required to create and publish policies and procedures for reporting, investigating, and addressing allegations of harassment, bullying, and discrimination.
One of the policies and procedures required is that a school employee who either personally witnesses or receives a complaint of harassment, bullying, or discrimination, must orally notify the principal, superintendent, or his or her designee within one school day after the school employee is aware of the harassment, bullying, or discrimination. The employee will then be required to submit a written report within two school days after making the oral report.
The district policies and procedures also must include a regular report on data and trends related to harassment, bullying and discrimination to the superintendent by the building principal. District policies and procedures will also need to include a provision requiring administrators to notify law enforcement if there is a belief that any harassment, bullying, or discrimination rises to the level of criminal conduct. Not only are school employees, and particularly administrators, responsible for notifying the supervising administrator, superintendent, and police of potential acts of bullying, but there is also an annual reporting requirement to the State Education Department.
Not only do districts need to create policies and procedures for employees regarding harassment, bullying, and discrimination, but there must also be an expansion in instruction in character, civility, and citizenship to the students. The purpose of this expanded instruction is to discourage “acts of harassment, bullying, discrimination” and encourage “safe, responsible use of the internet and electronic communications.”
While we can all agree that the health, safety, and welfare of children is of the utmost importance, these new statutory rules and regulations will have an enormous impact on how administrators perform their day-to-day functions. The full extent of the legal implications under DASA are not yet fully clear; however, administrators should be aware of the new requirements in order to avoid any liability for failure to comply with the law. Notably, the common law civil cause of action of negligent supervision within a school setting is being expanded to include conduct occurring outside school property in the cyberworld. Another factor to consider is the impact these expansive new duties will have upon the work day. This article is merely a summary of some of the more significant changes in the law. SAANYS has been offering programs on DASA and is ready to answer any questions you may have.
Administrators always seek to better understand the practice of appropriate searches of students. This article will address the relationship of the school resource officer or school safety officer (SRO) and district personnel when a search of students is conducted. The federal and New York State constitutions are generally in accord that, while for private citizens the probable cause standard applies for searches, in school districts the standard is modified to reasonable suspicion. The reason for this has always been the unique requirements of public education and public policy. That’s fine when only school officials are involved in a search. But the open question arises when a criminal issue like drug search occurs and the SRO who is employed by the municipality and not the district becomes involved with school personnel.
You may recall that the reasonable suspicion standard is met by two elements: first, the search must be valid at its inception, meaning that the grounds to suspect a school rule or law was violated were unequivocal, reliable, and precise. And, second, that the scope of the search was reasonably related to the circumstances requiring it so that the search was not excessively intrusive.
There are several unique legal issues that arise that have no clear guidelines to govern validity of searches when the police are involved with school personnel when searching a student. New York courts seem to be in accord with federal courts in applying the reasonable suspicion standard when the SRO is involved if the school officials made the initial decision to conduct the search, the SRO merely assisted in the search at the direction of school officials, and the police did not use the search as a pretext to circumvent the probable cause requirements. And separately, one New York court applied the reasonable suspicion test when the SRO was explicitly assigned to the school district solely as school security and he alone conducted the search. But outside of New York, certain courts require the probable cause standard if the police authorize the search or act more than minimally in the search.
So it is clear that a building administrator, when asked to conduct a search, must make sure that it is at the direction of his superior in the school district and not at the direction of the SRO or police agency. Even if the administrator believes the SRO is exclusively assigned to his building or district, he or she should never act solely at the direction of the SRO because, for example, the administrator can never be certain if the search is a pretext to circumvent probable cause.
Moreover, strip searches are almost never justified. The general rule is that the school officials must have reasonable suspicion of danger or that evidence or contraband is hidden beneath underwear. However, federal courts have held that a “high level of suspicion” is required for this kind of search. This means that an administrator should almost never strip search a student down to or below underwear unless they believe they have the direction of a superior in the school district and that they can corroborate that the superior has highly credible information that the search would prevent danger or yield evidence. An administrator must make that decision when directed by a superior even when under threat of insubordination. Remember, along with these general guidelines communication is the key.
If you have ever received a counseling letter, you may have been reminded of the occasion President Reagan reported taking his budget director to the woodshed. Receiving one of these letters is usually an emotionally draining experience. Although by law letters of counseling are not discipline, it may feel like a reprimand, or worse. Used properly, however, their role is to guide the unlucky administrator toward better performance, an appropriate goal. Unfortunately, they often mark instead a dysfunctional relationship. In those cases, it’s best to use the permitted response to unilaterally rebuild the relationship to preclude actual discipline later.
There is a best way to respond to these letters, which I’ll turn to shortly. But first, it’s worth examining how they can be prevented. At SAANYS, we are often forwarded a counseling letter from a member seeking counsel in crafting an appropriate response. While we can help mitigate the potential for future damage, the letter’s issuance represents actual damage.
In our experience, often the underlying issues are long-standing and the letter’s issuance proof that the superintendent has come to feel his or her authority has been challenged. The result is a directive, threatening actual discipline if the behavior is repeated, but in a form posing as advice and counseling.
From the above description, you probably recognize that any time you sense the superintendent’s buttons being pushed it’s time to resort to your psychological skill set. Don’t let principle get in the way of your principal (or other position) comfort zone. He or she is the boss, wise or not, competent or incompetent. When disagreements surface or fester, always remember and remind him or her that you are a team member first, and will do what’s necessary to support the superintendent. Never let it become personal. And sound like you mean it. After all, isn’t that what you expect from the people you supervise? Accept authority and move on.
Sometimes a counseling letter occurs despite the member’s best cooperative efforts. Then, respond in the same team member manner. Remember, the rebuttal is useful for one reason only: should you someday be targeted for actual discipline (a fine, suspension, or termination), your past employment history, especially prior counseling letters, will be a factor in the recommended punishment. Then, you will want to have had a thoughtful, concise, and appropriate rebuttal to any prior counseling letters, ideally a response that looks a lot more rational and appropriate than the counseling letter.
Fortunately, in our experience it’s not too hard for the rebuttal to look more rational than the counseling letter. Often the letters are poorly worded and substantiated, and appear as angry diatribes. The goal is to convince a neutral observer reading both the letter and your response that you were by far the more insightful, responsible party – just the kind of person the neutral observer (such as a 3020-a hearing officer) would want to hire. So the most effective response accomplishes that. Start out thanking the issuer for their advice and counsel, then assure the person you are a team member seeking the best school performance. Then dispute factually, as appropriate, a carefully selected topic of the letter, and conclude by reaffirming your total support of his or her leadership. Resist any temptation to include proverbial kitchen sinks in your rebuttal.
Procedurally, you must sign the counseling letter as proof that you have been given a copy, not that you agree with it. Never make that an issue. However, you are always allowed to submit a written rebuttal, and you can indicate your intention to do so by hand writing that intent next to your signature, asking it be attached to all copies of the letter. Then do so timely, preferably at the same time you hand in your signed counseling letter.
Knowing you’ve written a professionally appropriate rebuttal will help you deal emotionally with the event regardless of how inappropriate or unfair you found the counseling letter.
Legal Briefs addressed the basics of position abolishment, impact bargaining, and transfers of unit work in the spring of 2010. The lingering economic weakness resulting from the financial turbulence in the fall of 2008 has brought further perspective to these issues requiring an update. Initially the discussion centered on the need for districts to cut back on spending, which has resulted invariably in staff cuts. These cuts, of course, raised the issues of bargaining unit rights and individual member rights and how each interrelated with the other.
The legal office at SAANYS has observed closely and worked intimately with units and districts in their attempts to deal with these changes. Sometimes the districts have tried to unilaterally make changes. Other times the districts have tried to work with unit leaders in attempts to craft solutions to the financial dilemma. These attempts over the last two and a half years have resulted in certain curious, creative, and sometimes diabolical solutions.
Occasionally, a district will find that certain employees occupying positions that the districts want to abolish are tenured and they cannot merely fire the individual. In such cases, our office has witnessed districts abolishing the position and recreating the position under another title. This poses certain challenges for the district and opens it up to a challenge for bad faith abolition and preferred eligibility list violations under the Education Law. Initially, a district would need to consider the tenure area of the position it was abolishing. (And if the position is a civil service position, it would need to consider the class and title of the position, but we will deal with that later.) The reason is that the tenure area determines seniority, not the title of the position. And, as you have read before in these columns, administrative tenure areas are not preset like teacher tenure areas, but are created at the discretion of the boards of education. This has led to messy entanglements over seniority which resulted in appeals to the commissioner of education.
For example, consider the scenario when two properly certified tenured administrators are in a general tenure area of “Administration.” One is the principal in that position for nine years, the other is the assistant principal/director of special education in that position for 10 years. The district abolishes the AP/director of special education position. Education Law 2510 and 3013 state that the least senior in the ‘tenure area’ is to be terminated. Under the statute, the AP/director of special education would bump the principal and take the principal’s job.
Most scenarios are not that easy. What if the board’s probationary appointments for these same two employees do not designate a tenure area or title but simply state each was hired as an “administrator.” This happens more often than we would anticipate. And it happens that the AP/director of special education has fallen into disfavor with the central office or the board and they seek to get rid of the person. How does the board protect the favored nine year principal from getting bumped? The district could simply follow through abolishing the AP/director of special education position, terminating that person and see if the employee will challenge it before the commissioner. The district may then fight a challenge using a “duty based” analysis stating that the principal position is significantly different than the AP/director of special education and that de facto each employee occupied a different tenure area. There is case law that can support this position. But is it right, fair, or just?
Another scenario can occur when an administrator is hired full-time to perform data analysis for the purposes of annual professional performance review (APPR) planning and other district needs. Recall that the district can create a tenure area for this administrator, particularly if the person is properly certified. The person is tenured but the district decides that it could save money by abolishing the certified administrator position and creating a lower paying civil service data entry position. The employee would be placed on a preferred eligibility list under the Education Law but may challenge the layoff and assert rights to the data entry position at no reduction in salary increment. The district can defend that the position is in a different tenure area and there is certain case law supporting either side.
Due to the variables involved, as well as the aforementioned discretion of the board to create its own tenure areas for administrators, there are myriad other scenarios that can arise. Rest assured, your SAANYS counsel has seen some form or other in the last several years. As always, when confronted with such issues we suggest you first call SAANYS. Typically you and your SAANYS representative would evaluate the unique elements of your issue and put together a plan of action.
Once an administrator obtains tenure, his or her employment is protected under the provisions of Education Law §3020-a, which affords the administrator the right to a hearing prior to the district imposing discipline ranging from a letter of reprimand to termination. Oftentimes, an administrator would be placed on paid administrative leave for over a year, sometimes multiple years, waiting for his or her hearing and the decision of the hearing officer. With the advent of APPR, principals could be subject to an expedited 3020-a hearing process for incompetency reasons after receiving two consecutive ineffective ratings on their annual evaluations.
This spring, the state took further action to speed up the process by amending Education Law §3020-a. Any 3020-a proceedings that are filed with the state after April 1, 2012 are subject to the amendments. Charges that were filed with the state before April 1, 2012 are not subject to the amendments; however, we have noticed that pre-amendment cases that have been assigned a hearing officer after April 1
are being treated by the State Education Department, and consequently the hearing officers, as being subject to the new procedures and timelines.
The amendments to Education Law §3020-a seek to streamline and speed up the disciplinary process from the earliest stages. In the past, after the administrator filed his or her demand for a hearing, the attorneys would receive a list of available hearing officers from the State Education Department by e-mail and would then attempt to mutually agree upon a hearing officer at their leisure. Depending on the schedules and the tactics of the parties, the selection of a hearing officer alone could have taken several months. If the parties couldn’t come to an agreement upon a hearing officer, they would then notify the state that an agreement couldn’t be reached and a hearing officer would be randomly picked from the list.
Under the amendments, the parties have fifteen (15) days from the receipt of the list of potential hearing officers to mutually agree upon who will hear the case. If the parties cannot come to an agreement or fail to notify the state by the close of business on the fifteenth day of the agreed upon arbitrator, the state will automatically assign a hearing officer from the list. This amendment puts significant pressure upon the parties to make a quick decision on one of the most important issues in any 3020-a proceeding.
Ten to fifteen days after the hearing officer accepts the appointment, a prehearing conference between the attorneys and the hearing officer is scheduled. At this conference, the hearing officer can issue subpoenas, as well as decide all motions and discovery requests. By statute, any motions or discovery requests must be made in writing to the hearing officer and the opposing party five days before the prehearing conference. These deadlines were actually in place prior to the recent amendments; however, they were routinely ignored, particularly the brief window for the prehearing conference to take place.
Since April 1, hearing officers have been strictly adhering to these timelines. When combined with the new fifteen-day limitation upon selecting a hearing officer, there is a potentially significantly reduced period in which the SAANYS Legal Department can perform a preliminary evaluation of the charges/allegations. Accordingly, it is imperative that any administrator who believes that he or she may be subject to disciplinary charges get in contact with SAANYS as soon as possible to evaluate the facts and evidence so we are able to ask for as much relevant evidence as possible from the district in the initial discovery demands.
The reason why it is so important to get the evidence in discovery immediately is because the amendments also now prohibit the introduction of any evidence more than 125 days after the filing of charges, unless there are “extraordinary circumstances” beyond control of the parties. It is unknown at this point how stringently the 125 day rule will be applied or what “extraordinary circumstances” are; however, based upon the strict adherence to the other deadlines, it is likely that extensions of this statutory deadline will be difficult to come by, at least initially.
According to the State Education Department, it will be closely monitoring any 3020-a cases that are filed after April 1, 2012 to ensure that these new deadlines are met. Failure to adhere to the amended deadline could carry penalties to the hearing officers, including being removed as candidates for future 3020-a proceedings. Further, the state has created an incentive to hearing officers to process these cases quickly by stating that it will pay the hearing officers for cases that were filed after April 1st prior to pre-existing cases.
There are many more amendments that apply to the financial aspects of the proceeding, but the provisions detailed above are the ones that most directly impact tenured administrators and SAANYS handling of 3020-a cases. Again, it is important that you contact SAANYS’ legal department promptly so that we may evaluate and prepare the best defense for you under these tighter timeframes.
Heard that lately? While it may be uttered for any number of reasons in the current political environment, sometimes a member will hear that or a similar phrase from the superintendent in a more personal and threatening manner. I refer to those situations in which the superintendent suggests the member consider retirement or resignation. The suggestion often is accompanied by a statement that the superintendent “may not be able to protect the member any longer.”
Should those words ever come your way and you believe the superintendent is holding the exit door open for you while he or she gives a little push, here are some words of advice.
While no law can protect your job status in every conceivable situation, a tenured administrator enjoys significant job security despite “uglies” and “nasties,” real or imagined. In fact, the “things may get ugly” routine is most likely an admission by the superintendent that the only way to terminate the administrator is by the administrator’s choice to resign or retire.
Tenured administrators may only be terminated by the 3020-a disciplinary process or by position abolishment; the latter would require the administrator to be the least senior person in the applicable tenure area. Further, position abolishment may not be substituted for appropriate disciplinary action. Hence, a district often finds the only way to eliminate particular staff is by threatening to make their professional life unbearable.
While a superintendent may take action that makes an administrator’s work more difficult, and may reassign an administrator at will to other duties within the tenure area, the superintendent cannot force a resignation or retirement. If you find yourself in this situation, do not be unnecessarily cowed. Often, once a superintendent realizes his or her technique was unsuccessful, the storm passes. If instead, you decide you would prefer to leave the district, use the superintendent’s desire to negotiate additional benefits to motivate you to leave. While your unit will need to agree to any special incentive, the district’s desire to reduce staff may be sufficient incentive for it to do what is necessary to obtain unit approval.
In other words, you should never leave just because someone else suggests – or threatens – that “things will get nasty” or “the board wants you out,” or any similar contractually and lawfully meaningless phrase. Instead, seek counsel from SAANYS and continue doing your job professionally. If you want to leave, then think about negotiating terms that would make it worth your while, but do not leave under duress without discussing it with SAANYS.
The Health Insurance Portability and Accountability Act of 1996 [HIPAA] was originated to facilitate the continuation of health insurance and care for individuals who moved from job to job. It was intended to accommodate our fast-moving society where people change jobs more often and more quickly. This required that health information be transmitted from employer to employer and subsequently raised questions of privacy as to sensitive health information being made available to employers and others. A “Privacy Rule” was therefore included in HIPAA. The goal of this Privacy Rule was to assure that a person’s health information was properly protected while allowing the flow of information between health care providers which, as stated, most often occurs on changes of employer.
The Privacy Rule particularly considers the proliferation of electronically transmitted information which, in the mid-nineties when HIPAA was passed, was with good reason viewed generally as less trustworthy than typical mail in terms of security. The rule nonetheless continues today despite great strides in electronic security. And school employees and members call us about HIPAA most often when they have catastrophic accidents that may put them on leave, have changes in behavior or performance that invoke the school’s demand that an individual be examined under Education Law 913, or have long standing illnesses chronic or otherwise that require significant use of leave time.
Every discussion and everyone’s situation is different. So when our office receives an inquiry about a school district’s demand for medical information, we tailor a response to the specific needs of the individual. There are, however, some general principles that apply. The “Privacy Rule” as it is called protects “all individually identifiable health information.” That is very broad, but it does not prohibit the school district from acquiring certain information when the request meets certain permitted uses or disclosures.
There are two incidents in which a health provider is required to disclose protected health information. The first is of course to the individual (or personal representative) upon request and the second is when the federal government (typically the erstwhile Health and Human Services Department) is conducting an investigation.
There are six not required but permitted uses and disclosures. They are: 1) to the individual upon request; 2) for treatment, payment, or operations of health care (i.e. your doctor); 3) where you have been given an opportunity to agree or object to the release of information; 4) incidental to any of these permitted uses or disclosures (the government provides a list of these ‘incidental uses’); 5) for a “Limited Data Set” in government research and public health (you must agree to this in writing); and the ever present catch-all, 6) Public Interest and Benefit activities (there are 12 national priority purposes, for example, military emergencies).
The single most prevalent disclosures involving SAANYS members are to the individual when they have been given the opportunity to agree or object. The Privacy Rule was intended to strike a balance between protecting your health information and the needs covered under the required and permitted disclosures. But as stated above, there are certain general principles you may want to employ when faced with a demand from your employer. You may recall an article here about the district’s right to have an employee examined by a physician or psychiatrist of its choice under Education Law 913. Typically, that is the scenario when this discussion becomes important. Most often the school district will provide an employee with a release form for the employee and his or her health care provider to sign authorizing the provider to release certain medical records. At that point an employee should contact SAANYS’ legal department. Most often we will discuss limiting disclosures to issues related to the concerns of the district. The Privacy Rule in HIPAA does not specifically require that an employee release any information to the district. But since Education Law mandates a right to the district that an employee be examined by a doctor of its choice, the district can request enough information for its physician to properly complete the examination of the employee. The obvious difference between physical and psychiatric examinations poses different considerations as to what will be provided. And for those reasons a serious discussion should take place with your SAANYS counsel.
There may come a time when you have to take an extended leave of absence from your position. This may be for a joyous reason such as the birth or adoption of a child, or due to an unfortunate injury or illness to you or an immediate family member. The meager amount of leave provided for in most contracts may not be enough to cover the need.
Many districts have policies or provisions within a collective bargaining agreement that provide for an opportunity to apply for either paid or unpaid leave that extends beyond any accruals you may have. If there is a concern at any time that you may need leave beyond your accruals, you should contact your human resources department, which will be able to provide you with all of your available options.
In addition to any district specific leave policies, you may be entitled by law to up to twelve weeks of unpaid job-protected leave per year under the Family Medical Leave Act (FMLA). While FMLA leave is unpaid, it does require that all group health insurance benefits be maintained during the leave.
Whether an employer is required to comply with FMLA is dependent on its size; however, SAANYS members should note that the law specifically applies to all public and private elementary and secondary schools, regardless of size. FMLA leave may be taken by any employee who has been employed for twelve months and has worked at least 1,250 hours during the last twelve month period. Ten month employees of a school district qualify for FMLA, provided they have been employed for at least twelve months, as the statutory hourly requirement is less than what would be worked during the school year.
An employer must grant a qualifying employee up to a total of twelve work weeks of unpaid leave during any twelve month period for the birth and care of a newborn child of the employee; placement with the employee of a son or daughter for adoption or foster care; to care for a spouse, son, daughter, or parent with a serious health condition; or to take medical leave when the employee is unable to work because of a serious health condition. There are also provisions in the law for caring for family members who are in the National Guard.
A serious health condition is defined as an illness, injury, impairment, or physical or mental condition that involves inpatient care and subsequent treatment for the inpatient care or continuing treatment by a health care provider. There are legal requirements as to the frequency and nature of the continuing treatment in order for an illness or injury to qualify for FMLA. An employer has the right to request medical certification to prove that an employee qualifies for FMLA. Additionally, if FMLA is used for a personal illness or injury, the employer has a right to request a medical certification that the employee is fit to return to work.
In situations where spouses are employed by the same employer, the amount of leave that may be taken due to the birth or adoption of a child, or to care for a parent with a serious medical condition, is limited to a combined total of twelve weeks. Any leave taken under FMLA for the birth or adoption of a child must end within twelve months of the birth or placement.
It should be noted that an employee is not necessarily entitled to twelve unpaid weeks of leave on top of any accrued leave. An employer has the right to choose to have the accrued paid leave run concurrently with the FMLA in order to cover some or all of the leave. If the district chooses this option, it must notify the employee that it is taking this option within two business days of the dual coverage taking effect. In other words, an employer cannot receive notice that an employee is going out on leave in September and inform the employee in November that it is applying the accrued leave or designating the paid leave as FMLA retroactive to September. Under the example given, the employer may designate the leave as FMLA or start the use of accrued leave upon giving notice to the employee in November, but not prior to serving such notice.
Upon return from FMLA leave, an employee must be restored to his or her original job, or to an equivalent job with equivalent pay, benefits, and other terms and conditions of employment. An employee’s use of FMLA leave cannot result in the loss of any employment benefit that the employee earned or was entitled to before using FMLA leave, nor be counted against the employee under an attendance policy.
There are many additional intricacies involved in FMLA leave, which the employer is obligated to notify the employee of at the time the leave is being applied for. The employer’s human resources department is the best area to address any initial questions; however, SAANYS is happy to discuss any further questions that may arise.
One of the more frustrating legal challenges any certificated member may face is a State Education Department moral character hearing. This is a proceeding available to certificate holders about whom the department believes there exists a substantial question as to the certificate holder’s moral character. This process is known as a Part 83 hearing (the formal legal designation is 8 NYCRR 83) and, because an adverse hearing outcome precludes both continued and future employment in any public school K-12 certificated capacity, the potential outcome is much more serious than that of 3020-a charges. Whereas 3020-a charges immediately affect only a person’s current employment, a Part 83 hearing outcome may result in revocation of all required professional certifications. While the person’s participation in the hearing is optional, failure to appear and successfully prove sufficient moral character may result in revocation of all education certifications. Absent certification, one’s public education career is over, immediately.
Current and prior professional competence is not a defense; it has no bearing on the moral character question. The sole issue is whether the certificate holder possesses sufficient moral character. Thus, a record of competent performance and inspired leadership is irrelevant to whether the administrator also has sufficient moral character.
Perhaps surprisingly, the regulation governing this process contains no definition or guidance as to what constitutes sufficient or insufficient moral character. Instead, after hearing the evidence, a hearing officer or three-person panel makes a recommendation as to whether the administrator possesses sufficient moral character to retain certification, and the recommendation is forwarded to the commissioner of education who may affirm, reject, or modify the penalty.
We in your SAANYS Legal Department believe the recommendation of sufficient or insufficient moral character is based primarily on the hearing officer or panel’s personal morality standards. And the question as to sufficient moral character was referred to hearing only because the department found certain acts morally suspect, again absent any legal definition in the applicable regulation.
So what actions might result in a Part 83 hearing? Some are obvious and generally fall into the category that all interested observers of public school education likely would agree should exclude such persons from continued employability in public school education, such as theft of district funds, engaging in sex with students, or providing drugs to students.
A question of moral character may result from many other acts that, although wrong or even criminal, may not initially appear to many observers as sufficiently related to the education profession to warrant certification revocation. For example, driving while intoxicated during non-school hours; engaging in an illicit sexual affair during a work, but off-premises overnight conference; or soliciting a prostitute while on an off-premises school errand. Other likely candidates for Part 83 action include those using a school issued computer to access pornography or to email graphic or other offensive content, regardless of whether the computer use was during the school day or during non-school time, such as from home. This includes emailing racially or sexually offensive material.
While many of us would agree that professional educators should not engage in any of the above behaviors, it is important to note that the punishment for any that are illegal may include not just the criminal sanction, if any, but also loss of one’s career.
From our perspective, there are two important lessons here. First, never let a record of competent leadership lull one into a false sense of security that one could engage in actions some might find morally inexcusable – such as driving while intoxicated, passing on an inappropriate email, or using a school issued computer to learn if pornography is as widely available on the web as rumor has it. Second, remember that the ‘delete’ key doesn’t actually hide the ‘deleted’ material from a computer forensic expert. Such material is a candidate for déjà vu your career can’t afford.
Are you being held to a higher standard? Probably so, but remember that certification – as is any license – is a privilege easily lost.
The manner in which a district can impose discipline upon its employees is a topic an administrator never likes to contemplate. Unfortunately, there may come a time when you or someone you know may inadvertently engage in an action that is perceived by the district to warrant discipline.
At the outset, it is important to understand that collectively organized administrators have the right to the representation of their choice in any meeting where discipline is either going to be imposed or where they may be asked questions that could result in discipline. As a general rule, if you are advised that you have the right to bring representation, then you should probably do so, if for no other reason than to have a witness to the meeting. If you are called into such a meeting, it is a good idea to call SAANYS or have your representation call our office in order to know your rights. Typically, the representation is someone from within the unit; however, SAANYS has attorneys and labor relations specialists who are available to represent an administrator in such situations. If representation is not available at the appointed time of the meeting, it can be rescheduled within a reasonable period of time.
By law, the only forms of discipline that a district can unilaterally implement against an administrator are an oral warning or a written counseling memorandum to the administrator’s personnel file. Any other forms of discipline, including a written reprimand, fine, suspension or termination, must be either negotiated with the administrator or rendered by a hearing officer at the conclusion of a 3020-a hearing. A collective bargaining unit may negotiate alternate procedures for imposing and/or disputing more severe forms of discipline, but such contractual clauses are rare.
A counseling memo should not be thought of as discipline so much as guidance or counseling on a perceived problem and the district’s expectations as to how similar matters should be handled in the future. Depending on whether any procedures are outlined in your contract that have been violated, there may be an opportunity to grieve the memo. However, the most typical way to address a counseling memo is to write a written rebuttal.
A written rebuttal is a letter addressing the alleged conduct in the counseling memorandum that is attached to the memo and becomes a part of the personnel file. Since receiving a counseling memorandum is often a stressful and emotional experience, we often recommend that the administrator either waits until he or she has had time to digest the situation or to write everything out, including how he or she feels, and then rip it up and start on the actual rebuttal. A rebuttal should never attack a supervisor or others on a personal level. It should be informative and candid while resisting the temptation to let anger or hurt take priority over professionalism.
The rebuttal should be short, concise, and always professional. Open the rebuttal with some word of acknowledgment or thanks regarding the advice that was rendered and how it will be applied to future situations. Then, taking the counseling memorandum point by point, it should directly quote the counseling memorandum whenever possible. The response should be logical and briefly factually addressing each point. We usually recommend that the responses be written in bullet points in order to prevent straying from the salient points.
If some of the accusations are correct, but may require an explanation, take ownership of the errors. If an explanation is warranted, provide the reason, but do not make multiple excuses. It should be stressed that any mistake was a single error in an otherwise strong career that will not be repeated. The rebuttal should ultimately be ended with a reiteration that you will take the advice and counseling to heart and will apply it in the future.
The SAANYS legal department is here to help you evaluate any counseling memos you may receive and assist with the rebuttal. It is highly recommended that you run any rebuttals by SAANYS in order to assure that you are putting your best foot forward, both for your short term relationship with your supervisors and with any others who may see the counseling memorandum and the rebuttal in the future.