Legal Resources

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Defense and Indemnification: Your Protections from Job Related Litigation - November 2019 News & Notes

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.

Offering a False Instrument for Filing - October 2019 News & Notes

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.

Understanding Your Right to Representation - September 2019 News & Notes

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.

Retiree Health Insurance and Medicare Part B - May 2019 News & Notes

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. 

State Mandated Sexual Harassment Training - April 2019 News & Notes

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 Clock is Ticking – March 2019 News & Notes

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. 

Know Your Tenure Areas – February 2019 News & Notes

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.

Health Insurance in Retirement Under NYSHIP – January 2019 News & Notes

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.

2018

When Your Employer Directs You to Undergo a Medical or Psychological Examination – December 2018 News & Notes

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. 

Preparing for Standardized Tests and the Importance of Complying with Protocol – November 2018 News & Notes

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 2: Legal Responsibilities of Administrators as Mandated Reporters - October 2018 News & Notes

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 1: Legal Responsibilities of Administrators as Mandated Reporters – September 2018 News & Notes

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. 

When and How Much Force Should be Used to Restrain a Student – May 2018 News & Notes

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.

The Layoff – April 2018 News & Notes

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. 

Recent Changes in Labor Law – March 2018 News & Notes

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. 

The Approval of Employment Terms – February 2018 News & Notes

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. 

Preparing for the Negotiation of Collective Bargaining Agreements – January 2018 News & Notes

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.

2017

Thinking About Retirement – December 2017 News & Notes

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 and the Responsibilities Regarding Disciplinary Matters – November 2017 News & Notes

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. 

The End of DACA and How It May Affect School Administrators – October 2017 News & Notes

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.

What to Do if Your Rights Are Violated – September 2017 News & Notes

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. 

Contract Negotiation Tips – May 2017 News & Notes

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. 

FMLA as Applied to Maternity Leave – April 2017 News & Notes

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.

Commissioner Continues to Narrowly Interpret Administrators’ Rights to Newly Created Positions – March 2017 News & Notes

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. 

You and the Duty of Fair Representation – February 2017 News & Notes

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.

Protecting Your Family – January 2017 News & Notes

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.

2016

Update on NYSHIP Litigation – December 2016 News & Notes

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. 

SAANYS Enforces an Employee’s Rights – November 2016 News & Notes

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.” 

Vigilance in Protecting Bargaining Unit Work – October 2016 News & Notes

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. 

The Dreaded and Unpopular Counseling Memo – September 2016 News & Notes

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. 

Audio Recording in the School House – May 2016 News & Notes

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.

FMLA: When and How it Can be Used – April 2016 News & Notes

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. 

The Dangers of the Social Network – March 2016 News & Notes

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. 

SAANYS Successfully Defends a Long Island Whistleblower – February 2016 News & Notes

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.

What to Do When You’re Under Investigation – January 2016 News & Notes

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.

2015

SAANYS Legal Department Update on Important Litigation – December 2015 News & Notes

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.

NYSHIP Buyout

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.

Anti-Tenure Litigation

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. 

Protecting Your Terms and Conditions of Employment – November 2015 News & Notes

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.

School Districts and Their Ability to Impose “Dress Codes” on Their Employees – October 2015 News & Notes

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. 

School Email and Confidentiality – September 2015 News & Notes

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. 

Friendly Reminder Concerning Deadlines Relating to APPR – April 2015 News & Notes

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.

US Supreme Court Weighs in on Duration of Retiree Health Insurance in Collective Bargaining Agreements – March 2015 News & Notes

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.

A New Year Has Prospects – February 2015 News & Notes

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. 

Testing Procedures – January 2015 News & Notes

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. 

2014

SAANYS Enters the Fight to Save Tenure – December 2014 News & Notes

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.

A Grievance, Improper Practice, and Court Action for Breach of Contract All in One – November 2014 News & Notes

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. 

Arbitrator Enforces Anti-Abolishment Provision – October 2014 News & Notes

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.

Contract Grievances: Who Controls a Grievance? – September 2014 News & Notes

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.

Surreptitious Surveillance in 2014 – May 2014 News & Notes

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.

Health Insurance Litigation Update – April 2014 News & Notes

NYSHIP Case

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.   

Position Abolishment and Its Consequences – April 2014 News & Notes

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.

Yet Another SAANYS Victory Concerning Retiree Health Insurance – March 2014 News & Notes

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.

Important Update to NYSHIP's Buyout Policy – February 2014 News & Notes

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.

SAANYS: Defender of Constitutional Rights and Protector of Your Benefits in Retirement – January 2014 News & Notes

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

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. 

2013

The Timing and Repercussions of Services Transferred to and from BOCES – December 2013 News & Notes

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.

Understanding the Basics of the Affordable Care Act – November 2013 News & Notes

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.

Seniority and Tenure Rights for Part-time Employees – October 2013 News & Notes

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.

Battleground: Retirement Health Insurance – September 2013 News & Notes

 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.    

SAANYS Protects Member’s Rights – May 2013 News & Notes

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.

Vigilance in Protecting Bargaining Unit Work – April 2013 News & Notes

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.

Transfers Within Tenure Area That Require Change in Duty – March 2013 News & Notes

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. 

School Computer and Phone Use – February 2013 News & Notes

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. 

Update on the Dignity for All Students Act – January 2013 News & Notes

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.

2012

Student Searches – December 2012 News & Notes

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.

Counseling Letters and Their Predicates – November 2012 News & Notes

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.

Position Abolishment and the Fallout Revisited – October 2012 News & Notes

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.

Important Amendments to the 3020-a Process That May Impact Your Rights – September 2012 News & Notes

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.

Things May Get Ugly – May 2012 News & Notes

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.

HIPAA’s Privacy Rule – April 2012 News & Notes

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.

Protection For Your Position When You Are On Leave – March 2012 News & Notes

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.

Moral Character – February 2012 News & Notes

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 Counseling Memorandum and Rebuttal – January 2012 News & Notes

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.