The UFT Bargains Away 3020-a Procedural Due Process: The Cases of Helen Hickey and Rachel Cohn (Court of Appeals, 2011)

From Betsy Combier:

In light of the fact that teachers are now voting on a new contract, perhaps a review of the cases of Helen Hickey and Rachel Cohn is timely. The UFT bargained away important procedural due process rights available under Education Law 3020-a. See below, the Court of Appeals ruled that:

"...with respect to the placement of written materials in tenured teachers' files, that petitioners' union was well aware that, by adopting the CBA provision, it was agreeing to substitute that procedure for other due process procedures that had previously been in place. Therefore, there was ample basis to conclude that the union knowingly waived the procedural rights granted in section 3020-a in that limited arena."

Remember:

"Those who don't know history are doomed to repeat it."

-- Edmund Burke  

In the Matter of Helen Hickey, Appellant, v New York City Department of Education, Respondent. In the Matter of Rachel Cohn, Appellant, v Board of Education of the City School District of the City of New York et al., Respondents.

No. 101, No.102

COURT OF APPEALS OF NEW YORK

17 N.Y.3d 729; 952 N.E.2d 993; 929 N.Y.S.2d 1; 2011 N.Y. LEXIS 1339; 2011 NY Slip Op 4541

April 28, 2011, Argued 
June 2, 2011, Decided

PRIOR HISTORY: Appeal, in the first above-entitled proceeding, by permission of the Appellate Division of the Supreme Court in the First Judicial Department, from an order of that Court, entered June 3, 2010. The Appellate Division (1) reversed, on the law, a judgment of the Supreme Court, New York County (Sheila Abdus-Salaam, J.), entered in a proceeding pursuant to CPLR article 78, which had directed expungement of a letter from petitioner's personnel file, (2) denied the petition, and (3) dismissed the proceeding. The following question was certified by the Appellate Division: "Was the order of this Court, which reversed the [judgment] of the Supreme Court, properly made?"

Appeal, in the second above-entitled proceeding, by permission of the Appellate Division of the Supreme Court in the First Judicial Department, from an order of that Court, entered June 3, 2010. The Appellate Division (1) reversed, on the law, a judgment of the Supreme Court, New York County (Carol R. Edmead, J.; op 2009 N.Y. Misc. LEXIS 4104, 2009 NY Slip Op 30090[U]), entered in a proceeding pursuant to CPLR article 78, which had directed expungement of a disciplinary letter from petitioner's personnel file, (2) denied the petition, and (3) dismissed the proceeding. The following question was certified by the Appellate Division: "Was the order of this Court, which reversed the [judgment] of the Supreme Court, properly made?"

Matter of Hickey v New York City Dept. of Educ., 74 AD3d 458, 903 NYS2d 362, 2010 N.Y. App. Div. LEXIS 4619 (N.Y. App. Div. 1st Dep't, 2010), affirmed. 
Matter of Cohn v Board of Educ. of the City School Dist. of the City of N.Y., 74 AD3d 457, 901 NYS2d 640, 2010 N.Y. App. Div. LEXIS 4624 (N.Y. App. Div. 1st Dep't, 2010), affirmed. 

DISPOSITION: In Each Case: Order affirmed, with costs, and certified question not answered upon the ground that it is unnecessary, in a memorandum.

CORE TERMS: teacher, disciplinary, personnel files, collective bargaining agreement, written reprimands, tenured teachers', placement, waived, reprimand, written materials, significantly different, rights granted, school district, incompatible, discipline, negotiated, federation, alternate, knowingly, signature, expunged, agreeing, replace, purview, ample, arena

HEADNOTES

Schools -- Teachers -- Waiver of Statutory Dispute Resolution Procedure

Petitioner teachers were not entitled to have "letters of reprimand" expunged from their personnel files on the ground that respondent board of education failed to follow the disciplinary procedures set forth in Education Law § 3020-a, since petitioners' union waived those procedures and agreed to replace them with alternate disciplinary procedures contained in a collective bargaining agreement (CBA) as authorized by Education Law § 3020 (4) (a). The broad CBA provision clearly encompassed written reprimands, and the disciplinary letters at issue fell within its purview. Comparison of the statute and the CBA provision revealed that the procedure in the CBA was significantly different than, and incompatible with, the procedure in section 3020-a, meaning that the parties to the contract could not have intended both procedures to simultaneously apply. Their history of collective bargaining indicated, with respect to the placement of written materials in tenured teachers' files, that petitioners' union was well aware that, by adopting the CBA provision, it was agreeing to substitute that procedure for other due process procedures that had previously been in place. Therefore, there was ample basis to conclude that the union knowingly waived the procedural rights granted in section 3020-a in that limited arena.

COUNSEL: Richard M. Krinsky, Brooklyn, for appellant in the first above-entitled proceeding.

Sherry B. Bokser, New York City, Richard E. Casagrande, Ariana A. Gambella and Stroock & Stroock & Lavan, LLP, for appellant in the second above-entitled proceeding.

Michael A. Cardozo, Corporation Counsel, New York City (Dona B. Morris and Francis F. Caputo of counsel), for respondents in the first and second above-entitled proceedings.

JUDGES: Chief Judge Lippman and Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones concur.