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Thursday, January 10, 2013

Richard Santer Wins His Free Speech Issue In The Appeals Court

Matter of Santer v Board of Educ. of E. Meadow Union Free Sch. Dist.
2012 NY Slip Op 08750
Decided on December 19, 2012
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 19, 2012 
(Index No. 1997/10) 

[*1]In the Matter of Richard Santer, appellant, 


Board of Education of East Meadow Union Free School District, respondent.

Richard E. Casagrande, New York, N.Y. (Melinda G. Gordon of 
counsel), for appellant. 
Littler Mendelson, P.C., New York, N.Y. (Craig R. Benson, 
George B. Pauta, and Ethan D. Balsam 
of counsel), for respondent. 

In a proceeding pursuant to CPLR article 75 to vacate an arbitration award dated January 8, 2010, made in connection with a compulsory arbitration pursuant to Education Law § 3020-a, which, after a hearing, sustained a charge of misconduct against the petitioner and imposed a fine against the petitioner in the sum of $500, the petitioner appeals from an order of the Supreme Court, Nassau County (Cozzens, Jr., J.), dated October 7, 2010, which denied the petition.
ORDERED that the order is reversed, on the law, with costs, the petition is granted, and the award is vacated.
During the 2006-2007 school year, the Board of Education of the East Meadow Union Free School District (hereinafter the District) and the District's teachers' union were engaged in negotiations on a new collective bargaining agreement. As negotiations continued without an agreement, teachers engaged in concerted actions, including weekly picketing in front of the Woodland Middle School (hereinafter Woodland) when students were being dropped off. Woodland encompasses the sixth through eighth grades, and its students generally are between 11 and 14 years old. On March 2, 2007, it was raining, so some of the teachers decided that, rather than stand outside of the building to picket, they would park their cars along nearby Wenwood Drive and display their signs in their car windows. Wenwood Drive, a two-way street, was one of several locations where parents would drop off their children. The petitioner, Richard Santer, the union's building president at Woodland, participated in this protest. Beginning at 7:25 A.M., approximately 8 teachers parked their cars, in legal parking spaces, along either side of Wenwood Drive, with 15 to 16 teachers participating in total. None of the teachers' cars blocked either of two curb cuts in front of the school. According to the school principal, the parking activity caused traffic to become extremely congested, and some children were dropped off in the street and had to cross traffic lanes to reach the sidewalk. No school official asked the teachers to move their cars during the protest, and no child was injured.
The District preferred a disciplinary charge pursuant to Education Law § 3020-a against Santer, a tenured teacher, alleging that he [*2]
"intentionally created a health and safety risk by purposely situating his vehicle alongside the curb of Wenwood Drive in front of the Woodland Middle School in order to preclude children from being dropped off at curbside. The action resulted in children being dropped off in the middle of the street which resulted in an otherwise avoidable and unnecessary health and safety hazard."
At the ensuing arbitration hearing, the petitioner argued, inter alia, that he had a constitutionally protected right to peacefully picket in a public area before the beginning of the school day. The arbitrator rejected this argument, found the petitioner to be culpable of the charge of creating a health and safety hazard, and directed that he pay a fine in the sum of $500. The petitioner commenced this proceeding challenging the arbitration award. The Supreme Court confirmed the finding of misconduct, and denied the petition. The petitioner appeals.
Where, as here, arbitration is statutorily required, "judicial review under CPLR article 75 is broad, requiring that the award be in accord with due process and supported by adequate evidence in the record" (Motor Veh. Mfrs. Assn. of U.S. v State of New York, 75 NY2d 175, 186). "Due process of law requires . . . that the [arbitrator's determination] under the power conferred by statute have a basis not only in his [or her] good faith, but in law and the record before him [or her]" (Mount St. Mary's Hosp. of Niagara Falls v Catherwood, 26 NY2d 493, 507). The award must be rational and not arbitrary and capricious (id.; see Matter of City of Buffalo v Rinaldo, 41 NY2d 764, 765-767). Here, evidence that children were dropped off in the middle of the street due to the arrangement of the cars provided a rational basis for the arbitrator's determination that Santer contributed to the creation of a health and safety hazard, and the award was not arbitrary and capricious, as we held in another matter concerning the same protest (see Matter of Trupiano v Board of Educ. of E. Meadow Union Free School Dist., 89 AD3d 1030).
The petitioner here, however, raises an argument that the petitioner in Trupiano did not raise in our Court, specifically, that the disciplinary proceeding commenced against him, and the discipline ultimately imposed, violated his right to free speech under the First Amendment to the United States Constitution. Like other public employees, teachers "do not leave their First Amendment rights at the schoolhouse door, even though it is plain that those rights are somewhat diminished in public employment" (Melzer v Board of Educ. of City School Dist. of City of New York, 336 F3d 185, 192, cert denied 540 US 1183). In determining whether a disciplinary measure taken against a public employee violates the employee's First Amendment rights, a court must first determine whether the speech that led to the discipline related to a matter of public concern. If so, the court must balance free-speech principles against the threat to effective government operation presented by that speech (see Pickering v Board of Educ. of Township High School Dist. 205, Will Cty., 391 US 563; Melzer v Board of Educ. of City School Dist. of City of New York, 336 F3d at 193; Rankin v McPherson, 483 US 378, 384-388). The government bears the burden of showing that the disciplinary measure is justified (see United States v Treasury Employees, 513 US 454, 466; Rankin v McPherson, 483 US at 388; Melzer v Board of Educ. of City School Dist. of City of New York, 336 F3d at 193).
Santer's "speech" regarding collective bargaining issues indisputably addressed matters of public concern (see Clue v Johnson, 179 F3d 57, 61; Boals v Gray, 775 F2d 686, 693). Moreover, despite the evidence establishing that the manner in which the protest was carried out interfered with the safe and effective drop-off of students (see Matter of Trupiano v Board of Educ. of E. Meadow Union Free School Dist., 89 AD3d 1030), we find that the District failed to meet its burden of demonstrating that Santer's exercise of his First Amendment rights so threatened the school's effective operation as to justify the imposition of discipline (see Rothschild v Board of Educ. of City of Buffalo, 778 F Supp 642, 656). Significantly, Santer did not violate any law or school policy. In parking his car on Wenwood Drive and moving it prior to 8:00 A.M., Santer fully complied with the applicable parking regulation. Had other members of the public parked their cars along Wenwood Drive in this manner, the District would have had no recourse, because such parking was entirely legal. If the municipality in which Woodland is located believed that it was unsafe for cars to park along Wenwood Drive during the time when parents dropped off their children at the school, it could have prohibited parking during the relevant time periods, but it did not do so.[*3]Moreover, no school official asked the teachers to move their cars during the protest, and no student was injured as a result of the protest. Consequently, the record establishes that the danger presented by the legally parking teachers could not have been substantial. Under these circumstances, we conclude that the District failed to demonstrate that Santer's legal speech so threatened the effective operation of the school that discipline of him was justified (cf. Melzer v Board of Educ. of City School Dist. of City of New York, 336 F3d at 198). 
The Supreme Court of the United States has stated that "[t]he vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools" (Shelton v Tucker, 364 US 479, 487). The disciplinary measures imposed on Santer would likely have the effect of chilling speech on an important matter of public concern—the negotiation of a collective bargaining agreement. 
Aprilanne Agostino
Clerk of the Court

Teacher's Contract Protest Protected by 1st Amendment Free Speech

 East Meadow school district fined Richard Santer $500 after he parked his car at the curb and placed his contract protest sign in the car window on a rainy day.  On other days the teachers protesting for a better contract walked on the sidewalk in front of the school.  East Meadow School District filed charges pursuant to Education Law Section 3020a.
The Second Department held that review under Section 75 is broad and requires: 1) the arbitrator's determination display good faith under the law and in the record and 2) the determination must not be arbitrary and capricious.
The arbitrator found that Santer "intentionally created a health and safety risk by purposely situating his vehicle alongside the curb of Westwood Drive prevented the school buses from dropping the kids off at curbside.  The arbitrator sided with the school district and found Santer culpable.  The Supreme Court, Nassau County confirmed the determination after Santer filed a CPLR Section 75 appeal.
The Appellate Division, Second Department reversed and held that Santer had a protected First Amendment right to protest because contract rights are a "matter of public concern."

Joint Committee of Investigation "Investigates" Workplace Harassment

Are you a person who buys a book because you like the cover?

Then you will believe that the Joint Committee of Investigation, making the UFT and DOE partners, will look into what is going on and resolve the issues.

I have a bridge to sell you.

I spoke today with a member who filed a harassment grievance, and he told me that the "Committee" members came to the school, pretended to listen to him for 3 minutes, and left. He said, "This was not an investigation into anything. What a joke!"

His claim was not substantiated. 

The UFT members should not rely on this fake group, they will still lose the grievance. Only now the Joint Committee must be nullified, and not just a single person, such as the so-called "investigator" from OSI, SCI or OEO.

Special complaints

What to do if you are being harassed by a supervisor

Unfortunate though it is, at times UFT members report being harassed or subjected to intimidation by their supervisors. These acts of intimidation may take many forms, which is why it is important that you contact the union for help.
You do not have to — nor should you — tolerate such harassment or acts of intimidation. A special complaint process was expanded in the 1990s to protect you from harassment or intimidation by your supervisors.
If you believe that you are the victim of supervisory harassment, tell your chapter leader immediately. You should also notify your UFT district representative. The first thing you will need to do is to keep an anecdotal log indicating the place, time, date and any witnesses who were present during each incident. It is important to make this log as factual as possible, simply a recitation of the events as they occurred.
Article 23 of the UFT Teachers’ Collective Bargaining Agreement and corresponding articles in other UFT agreements set out a procedure to follow in cases of special complaints. It was designed to set up an expedited process for speedy resolution of special complaints not covered by the grievance procedure.
A special complaint will be filed with the chancellor by the UFT. Within 24 hours after it is filed, the Department of Education will inform the union of its representative to the joint investigating committee.
The joint investigating committee will be set up, composed of both DOE and UFT representatives. Its purpose is to reach a prompt resolution of disputes without having to resort to formal procedures.
The joint investigating committee will use a private meeting space at your school to discuss the issue and should complete its investigation in no more than one school day. The joint investigating committee will meet with you, the alleged harasser and witnesses to the alleged harassment that you notify them of. The purpose of these interviews is for the committee to gather enough information to help resolve the matter.
If the complaint is not resolved by the joint investigating committee, the union will determine if the matter has sufficient merit to request a hearing before the chancellor or the chancellor’s representative.
At the chancellor’s level meeting, the chancellor’s representative is required to “make every effort to informally resolve” the complaint. The joint investigating committee will report its findings and all persons involved will have the opportunity to be heard. According to the contract, the chancellor or his/her representative will make a decision within 72 hours of the close of the hearing.
If the complaint is not resolved by the chancellor, the union will review the matter to determine if it should be submitted for a fact-finding hearing before an arbitrator. Once the hearing has been held, the fact finder is required to issue his or her recommendation within 72 hours.
The UFT went to arbitration to ensure that cases are completed in this expedited manner. The arbitrator agreed that the Department of Education must issue special complaint decisions within 72 hours of the close of the hearing.
If you have a special complaint, you should be prepared to answer questions that come up with the joint investigating committee and you should focus primarily on the big issues — your most serious concerns.
Always be respectful and listen to all parties. You should also have witnesses to the harassment who can speak about what they saw or heard. Be prepared to prioritize your witnesses in case time runs short.
Think of what you want the resolution of the problem to be. This can include being treated fairly and respectfully, or more specific remedies that address your particular situation.
You should be aware that the joint investigating committee has no authority to discipline the alleged harasser. The goal is to resolve the problem going forward.