In the Matter of Roseann Kilduff, Respondent,v.Rochester City School District, et al., Appellants.BriefN.Y.October 16, 2014To Be Argued By: Anthony J. Brock, Esq. Time Requested: 15 Minutes Court of Appeals State of New York In the Matter of the Application of ROSEANN KILDUFF, Petitioner-Respondent, -vs- ROCHESTER CITY SCHOOL DISTRICT, THE BOARD OF EDUCATION OF THE ROCHESTER CITY SCHOOL DISTRICT and DR. B O L G E N V A R G A S , in his capacity as Acting Superintendent of the Rochester City School District, Respondents-Appellants, BRIEF OF PETITIONER-RESPONDENT ROSEANN KILDUFF RICHARD E. CASAGRANDE, ESQ. Attorney for Petitioner-Respondent Roseann Kilduff Office & P.O. Address 800 Troy Schenectady Road Latham, New York 12110-2455 Tel. No. (518)213-6000 Fax No. (518)213-6488 Court of Appeals No. APL-2013-00296 Appellate Division Docket No. C A 12-02040 Monroe County Index No. 2012-00584 A N T H O N Y J. BROCK, Of Counsel TABLE OF CONTENTS Pag T A B L E OF CASES A N D AUTHORITIES PRELIMINARY STATEMENT/PROCEDURAL HISTORY STATEMENT OF QUESTIONS INVOLVED STATEMENT OF FACTS A R G U M E N T POINT I THE APPELLATE DIVISION CORRECTLY R U L E D THAT RESPONDENT IS ENTITLED TO A HEARING PURSUANT TO EDUCATION L A W SECTIONS 2573(5), 3020 A N D 3020-a BECAUSE SHE IS A TENURED EDUCATOR SUBJECTED TO DISCIPLINARY ACTION . . POINT II EDUCATION L A W SECTION 3020 CONFERRED U P O N THE RESPONDENT THE RIGHT TO M A K E A N ELECTION BETWEEN THE A L T E R N A T E DISCIPLINARY PROCEDURES CONTAINED IN THE COLLECTIVE BARGAINING AGREEMENT, A N D THE DISCIPLINARY PROCEDURES IN EDUCATION L A W SECTION 3020-a . . CONCLUSION 1 T A B L E OF AUTHORITIES Pagets) CASES A.J. Temple Marble & Tile v. Union Carbide Marble Care, 87N.Y.2d574(1996) 13 Holt v. Board of Educ. of Webutuck Cent. School Dist., 52 N.Y.2d 625 (1981) .6 Kilduff v. Rochester City School Dist, 107 A.D.3d 1536 (4 th Dep't 2013) 2 Lynch v. Nyquist, 41 A.D.2d 363 (3d Dep't 1973), a f f d , 34 N.Y.2d 588 (1974) 5 Matter ofAbramovich v. Board ofEduc. of Cent. School Dist. No. 1 of Towns ofBrookhaven & Smithtown, 46 N.Y.2d 450 (1979) 8-9 Matter of American Broadcasting Cos. v. Roberts, 61 N.Y.2d 244 (1984) 10 Matter of Boyd v. Collins, 11 N.Y.2d 228 (1962) 8-9 Matter of Lambert v. Board ofEduc. of Middle Country Cent. School Dist., 11A Misc.2d 487 (Sup. Ct. Nassau Co. 1997) 9-10 Matter of Mannix v. Board of Educ. of City of New York, 21N.Y.2d455 (1968) 7-8 Ricca v. Board ofEduc. of City of New York, 47N.Y.2d385 (1979) 7 T A B L E OF AUTHORITIES Page(s) STATUTES CPLR Article 78 2 Education Law §2573(5) 1,4 Education Law §3020 1, 3-5, 9-10, 12-14 Education Law §3020-a 1-6, 9-15 - i i - STATE OF NEW Y O R K COURT OF APPEALS ROSEANN KILDUFF, Petitioner-Respondent, - against - ROCHESTER CITY SCHOOL DISTRICT, THE BOARD OF EDUCATION OF THE ROCHESTER CITY SCHOOL DISTRICT and DR. B O L G E N V A R G A S , in his capacity as acting Superintendent of the Rochester City School district, Respondents-Appellants. PRELIMINARY STATEMENT/PROCEDURAL HISTORY The respondent, Roseann Kilduff, commenced this Article 78 proceeding to annul and set aside discipline imposed by the appellants Rochester City School District, the Board of Education ofthe Rochester City School District, and Dr. Bolgen Vargas, Acting Superintendent ofthe Rochester City School District ("appellants" or "district") in violation of statutory disciplinary procedures. Specifically, the appellants imposed discipline - - a 30 day suspension without pay - - against respondent without providing her a hearing pursuant to Education Law §§2573(5), 3020 and 3020(a). Accordingly, appellants' actions were in violation of lawful procedures, arbitrary and capricious, an abuse of discretion, and affected by an error 1 of law. On January 13, 2012, the respondent commenced this proceeding pursuant to CPLR Article 78. The Honorable Evelyn Frazee, Supreme Court Justice, Monroe County, issued a written decision on May 18,2012 (R. 8-19),1 and an order dated July 20, 2012 (R. 6-7), denying the petition. Supreme Court found that the alternate disciplinary procedure contained in the collective bargaining agreement ("CBA") between the appellants and the respondent's collective bargaining representative, Rochester Teachers Association ("RTA"), was effective on or before September 1, 1994, and has since been unaltered by renegotiation (R. 18). Based on that finding, Supreme Court agreed with the district that because the discipline was less than termination, the respondent is not entitled to elect between the alternate C B A procedure and the procedures contained in Education Law §3020-a. On November 1, 2012, respondent perfected her appeal to the Appellate Division, Fourth Department. On June 14,2013, that court reversed Supreme Court's decision, ruling that the district "incorrectly denied petitioner's written request for a section 3020-a hearing." Kilduff v. Rochester City School Dist., 107 A.D.3d 1536 (4 th Dep't 2013). Appellants were granted permission by this Court to appeal the decision of the Appellate Division, Fourth Department. 1 Citations to the Record on Appeal are identified as "R. ". 2 STATEMENT OF QUESTIONS INVOLVED 1. Is respondent entitled to a hearing pursuant to Education Law §§ 3020 and 3020-a? A . Yes. The respondent is entitled to a hearing pursuant to Education Law §§ 3020 and 3020-a because she is a tenured educator in New York State and is entitled to such hearing prior to discipline being imposed against her. 2. Was the Appellate Division correct in its ruling that respondent was entitled to a choice between the alternate disciplinary procedure contained in the collective bargaining agreement, and the procedures in Section 3020-a? A. Yes. The Education Law requires that respondent be offered a choice between the procedures set forth in Education Law §3 020-a and the alternate disciplinary procedure contained in the collective bargaining agreement. STATEMENT OF FACTS In 2006, appellants appointed respondent to a three-year probationary term as the Coordinator of the Program for Homeless Students and Families in the school social worker tenure area (R. 30). Respondent successfully completed her 3 probationary term and appellants granted her tenure effective September 4,2009 (R. 36). At the time of her initial appointment, respondent became a member of the RTA, which is a party to a collective bargaining agreement with the appellants. The RTA and the district most recently renegotiated their C B A on July 1, 2006 (R. 31). On September 23, 2011, the district advised respondent that she would be suspended without pay for thirty days (R. 37). Respondent immediately requested a hearing pursuant to Education Law §3020-a. The district denied her request for a section 3020-a hearing, stating that it viewed the C B A as limiting the availability of the Education Law §3020-a process to discharge cases only (R. 38). ARGUMENT POINT I THE APPELLATE DIVISION CORRECTLY R U L E D THAT RESPONDENT IS ENTITLED TO A HEARING PURSUANT TO EDUCATION L A W SECTIONS 2573(5), 3020 A N D 3020-a BECAUSE SHE IS A TENURED EDUCATOR SUBJECTED TO DISCIPLINARY ACTION. The Legislature plainly and specifically established the exclusive procedures a school district must use when disciplining a tenured teacher in Education Law §§2573(5), 3020 and 3020-a. Education Law §2573(5), applicable to employees of the district and other large city school districts, states that educators who are granted tenure: 4 . . . shall hold their respective positions during good behavior and efficient and competent service, and shall not be removable except for cause after a hearing as provided by section three thousand twenty-a. [Emphasis supplied]. Education Law §3020 states in relevant part: No person enjoying the benefits of tenure shall be disciplined or removed during a term of employment except for just cause and in accordance with the procedures specified in section three thousand twenty-a of this article[.] [Emphasis supplied]. This Court has long held that 3020-a is the "exclusive" procedure under which a tenured teacher can be terminated. Lynch v. Nyquist, 34 N.Y.2d 588 (1974), affirming on the decision below at 41 A.D.2d 363 (3d Dep't 1973). Further, a suspension without pay is clearly a form of "discipline" (as the term is used in Section 3020) that cannot be imposed except pursuant to the procedures in Section 3020-a. In section 3020-a(4), the Legislature set forth the penalties available to be imposed upon conclusion of the Section 3020-a procedure, i.e., "a written reprimand, a fine, suspension for a fixed time without pay, or dismissal." Here, the appellant Board voted to grant respondent tenure in 2009 under New York's tenure laws (R. 36). When it came to her suspension without pay, however, the appellants simply ignored the very statutes under which respondent was appointed and held her tenured position. Appellants not only violated express statutory law, but 5 also violated well-established precedents of this Court. Those precedents conclusively show that Section 3020-a applies in this case. The tenure statutes reflect the intent and purpose of the Legislature to protect educators who have successfully completed a probationary period from being disciplined summarily without the safeguards of Education Law § 3020-a. As stated by this Court in Holt v. Board of Educ. of Webutuck Cent. School Dist., 52 N.Y.2d 625 (1981): At one time, teachers in this state had only so much job security as could be bargained for in their contract of employment. When that contract expired, the decision as to whether or not to continue the teacher's employment was completely within the discretion of the school district. The Legislature, recognizing a need for permanence and stability in the employment relationship between teachers and the school districts which employ them, enacted a comprehensive statutory tenure system, the purpose of which was to provide some measure of security for competent teachers who had rendered adequate service for a number of years. One of the bulwarks of that tenure system is section 3020-a of the Education Law which protects tenured teachers from arbitrary suspension or removal. The statute has been recognized by this court as a critical part of the system of contemporary protections that safeguard tenured teachers from official or bureaucratic caprice. Id., 52 N.Y.2d at 632 [Emphasis supplied; internal citations omitted]. This Court has instructed: (1) that the courts must vigilantly protect the tenure system against local school district actions, such as the one challenged in the instant 6 case, that attempt to circumvent the will of the Legislature; and (2) that the protections of the tenure statutes must be broadly construed in favor of teachers who have successfully completed their probationary periods. As to the latter point, this Court held in Ricca v. Board ofEduc. of City of New York, 47 N.Y.2d 385, 391 (1979), that: . . . it is a legislative expression of a firm public policy determination that the interests of the public in the education of our youth can best be served by a system designed to foster academic freedom in our schools and to protect competent teachers from the abuses they might be subjected to if they could be dismissed at the whim of their supervisors. In order to effectuate these convergent purposes, it is necessary to construe the tenure system broadly in favor of the teacher, and to strictly police procedures which might result in the corruption of that system by manipulation of the requirements for tenure. This is not to suggest that the school board in this instance acted with bad faith or from any improper motive. Even good faith violations of the tenure system must be forbidden, lest the entire edifice crumble from the cumulative effect of numerous well-intentioned exceptions. [Emphasis supplied]. In Matter of Mannix v. Board of Educ. of City of New York, 21 N.Y.2d 455 (1968), this Court ruled that a tenured teacher may not be removed, except for cause after a hearing on stated charges. The Mannix Court emphasized the undesirable consequence that would be visited upon the statewide system of teacher tenure if 7 local school boards were permitted to impose additional grounds for removing a tenured teacher beyond those listed in the statute: It is manifest that if conditions of one sort or another could be attached to a probationary appointment, which would survive into a permanent appointment, restrictions could readily be envisaged and imposed by the board which might destroy the basic protection of the teachers' tenure law. [Id. at 457]. In Matter of Boyd v. Collins, 11 N.Y.2d 228 (1962), this Court had annulled an agreement between a board of education and a teacher under which the teacher would resign after a stated period in lieu of charges. The Court plainly stated that the "statutory tenure terms can be changed by the Legislature but never by a board of education." Id. at 233. As summarized by the Court in Mannix, supra, "[i]t was made clear in [Boyd] that no act of a board of education could effect a method of bypassing the tenure statute." Mannix, 21 N.Y.2d at 459. Although Boyd was subsequently overruled in Matter of Abramovich v. Board of Educ. of Cent. School Dist. No. 1 of Towns ofBrookhaven & Smithtown, 46 N.Y.2d 450 (1979), it was overruled solely on the ground that the law does not absolutely forbid a tenured teacher from waiving the protections of the tenure statutes i f the record establishes a truly knowing, open and voluntary waiver. Id. at 455. In the instant case, respondent has never waived her tenure rights. Nothing in 8 Abramovich weakens the principle articulated in Boyd and Mannix that boards of education are not free to unilaterally ignore Section 3020-a. Thus, appellants' summary imposition of a thirty day suspension without pay is a clear violation of Education Law §§ 3020 and 3020-a, and of the well-established case law affirming that Education Law §3 020-a is the exclusive method of disciplining tenured teachers in New York State. By suspending respondent without pay and without providing her with the protections of Education Law §3020-a, the appellants deprived her of a number of statutory protections including: a board of education vote to determine probable cause; a written statement of the charges; suspension with pay while the hearing is pending; the right to have the charges resolved in a reasonable amount of time; and the right to seek attorneys fees for frivolous charges. (See, Education Law §§ 3020- a(2)(a), (2)(b), (3)(c)(vi) and (4)(c)). The appellants' position that the respondent is not entitled to a choice between the alternate procedure contained in the C B A and Education Law §3020-a is repugnant to these protections afforded by New York's teacher tenure statutes. A waiver of a teacher' s statutory tenure rights "will be permitted only 'to the extent that it can be ascertained that the legislative purpose is not contravened'." Matter of Lambert v. Board ofEduc. of Middle Country Cent. School Dist., 174 Misc. 2d 487 9 (Sup. Ct. Nassau County 1997), quoting, Matter of American Broadcasting Cos. Roberts, 61 N.Y. 2d 244, 249 (1984). POINT II EDUCATION L A W SECTION 3020 CONFERRED UPON THE RESPONDENT THE RIGHT TO M A K E A N ELECTION BETWEEN THE A L T E R N A T E DISCIPLINARY PROCEDURES CONTAINED IN THE COLLECTIVE BARGAINING AGREEMENT, A N D THE DISCIPLINARY PROCEDURES IN EDUCATION L A W SECTION 3020-a Education Law §3020(1) provides: No person enjoying the benefits of tenure shall be disciplined . . . . except for just cause and in accordance with the procedures specified in section three thousand twenty-a of this article, or in accordance with alternate disciplinary procedures contained in a collective bargaining agreement. . . that was effective on or before September first nineteen hundred ninety-four and has been unaltered by renegotiation or in accordance with alternate disciplinary procedures contained in a collective bargaining agreement... that becomes effective on or after September one, nineteen hundred ninety-four; provided, however, that any such alternate disciplinary procedures contained in a collective bargaining agreement that becomes effective on or after September first, nineteen hundred ninety-four, must provide for the written election by the employee of either the procedures specified in such section three thousand twenty- a or the alternate disciplinary procedures contained in the collective bargaining agreement and must result in a disposition of the disciplinary charge within the amount of time allowed therefor under such section three thousand twenty-a. [Emphasis supplied]. 10 Respondent respectfully submits that when the Legislature altered the provisions of Education Law § 3020-a in 1994 (Chapter 691, Laws of 1994), it plainly mandated that any C B A entered into after September 1, 1994, containing an alternative to Section 3020-a, must provide for the written election by the tenured educator of either the statutory disciplinary procedure, or the alternate disciplinary procedure. Because the C B A at issue here was renegotiated after 1994, the right to choose between the alternate procedure and Section 3020-a must be recognized. Such a right of election is required notwithstanding that the language in the alternate procedure has remained unchanged since 1994, because the statutory requirement that teachers be able to elect the statutory procedure plainly applies to all collective bargaining agreements that "become effective" after 1994. The C B A in this case "became effective" after 1994 (R. 31). The fact that the alternate disciplinary procedure contained in the C B A has existed in prior agreements does not alter the effective date of this contract. The district argues (Brief at pp. 7-12) that the Legislature intended to "grandfather" all pre-1994 alternate disciplinary procedures to the exclusion of the processes in Section 3020-a. This finding is in error as the plain language of the statute shows that the Legislature intended to preserve such alternate disciplinary procedures only until a successor collective bargaining agreement was reached. 11 Thereafter, all new collective bargaining agreements must provide a choice between 3020-a and any alternate procedure. The district misreads the plain language of the statute, and its interpretation is inconsistent with both the grammar of Section 3020(1) and legislative intent. Specifically, the language used in the statute shows that it is only where the entire collective bargaining agreement remains "unaltered by renegotiation" after 1994 that there is no requirement that Section 3020-a procedures remain an option. The statute refers to "alternate disciplinary procedures contained in a collective bargaining agreement.... that was effective on or before [September 1, 1994] and has been unaltered by renegotiation . . .." [Emphasis supplied]. The singular verb "was" and "has" must refer to the singular "collective bargaining agreement," not to the plural "alternate disciplinary procedures" in order for this provision to make sense. Further, had the legislature intended to grandfather all existing alternate procedures until they were renegotiated, it could have explictly legislated it. However, it did not. Further, as set forth by this Court, under ordinary rules of statutory construction, where "a descriptive or qualifying phrase follows a list of possible antecedents, the qualifying phrase generally refers to and modifies all of the preceding clauses." A.J. Temple Marble & Tile v. Union Carbide Marble Care, 87 N.Y.2d 574, 580 (1996) (further citations omitted). Here, the Legislature chose to 12 insert the qualifying phrase "unaltered by renegotiation" after the term "collective bargaining agreement," reflecting its intent that alternative procedures stay exclusively in place until the collective bargaining agreement is altered by renegotiation. According to the district's reading ofthe statute, the qualifying phrase would refer to the earlier antecedent - alternate disciplinary procedures - rather than to the antecedent placed immediately before the qualifier. This is contrary to "[o]rdinary rules of statutory construction." Id. at 580. Finally, appellants misinterpret the clear language in the CBA. Section 38(2)(c) ofthe CBA provides: Except as provided elsewhere in this Section, any disciplinary action imposed upon any eligible teacher may be processed as a grievance through the regular grievance and arbitration procedure (R. 34). [Emphasis supplied]. By choosing to use the word "may" in its collectively negotiated agreement, the parties clearly intended that the teacher has a choice between the statutory 3020-a procedure and the alternate procedure. When the appellants and the RTA negotiated their first C B A after Section 3020 and 3020-a were amended in 1994, this issue was discussed and the parties reached the understanding that a tenured employee would have a choice between the alternate procedure and Education Law § 3020-a in all disciplinary cases. As set forth in the Affidavit of Thomas Gillett, who negotiated 13 that contract, both sides clearly intended that tenured educators would have this choice (R. 88-90, 120). Indeed, as described above, no other interpretation is consistent with the law. Had the parties used the word "must" instead of the word "may," that portion of the agreement would be illegal because it would contravene Education Law §3020(1). The appellants' present interpretation that "may" actually means "must," is erroneous. Clearly, it was the intention ofthe Legislature in amending Sections 3020 and 3020-a, as well as the parties, that a tenured educator be given the choice between the alternate disciplinary procedure in the collective bargaining agreement and Education Law § 3020-a in all cases, regardless of whether the discipline sought was discharge or a lesser penalty, such as suspension without pay. 14 CONCLUSION For the foregoing reasons, the decision of the Appellate Division, Fourth Department, finding that the respondent is entitled to a hearing pursuant to Education Law §3020-a was proper and should be affirmed. Dated: February 6, 2014 Latham, New York By: Respectfully submitted, RICHARD E. C A S A G R A N D E Attorney for Petitioner-Appellant 800 Troy-Schenectady Road Latham, New York 12110-2455 Tel. No. (518)213-6000 111858/CWA1141 ANTHONY X Of Couns/e 15