| Matter of Hampton Bays Union Free School Dist. v Public Empl.Relations Bd. |
| 2009 NY Slip Op 03656 [62 AD3d 1066] |
| May 7, 2009 |
| Appellate Division, Third Department |
| In the Matter of Hampton Bays Union Free School District,Petitioner, v Public Employment Relations Board et al.,Respondents. |
—[*1] David P. Quinn, New York State Public Employment Relations Board, Albany, for PublicEmployment Relations Board, respondent. James R. Sandner, Latham (Marilyn Raskin-Ortiz of counsel), for Hampton Bays Teachers'Association, respondent.
McCarthy, J. Proceeding pursuant to CPLR article 78 (transferred to this Court by order ofthe Supreme Court, entered in Albany County) to review a determination of respondent PublicEmployment Relations Board which found that petitioner had committed an improper employerpractice.
Respondent Hampton Bays Teachers' Association, NYSUT, AFT, AFL-CIO (hereinafterAssociation) filed an improper practice charge against petitioner pursuant to Civil Service Law§ 209-a (1) (a) and (d) after petitioner refused to furnish documentation underlying itstermination of a probationary physical education teacher before her probationary period expired.The purpose for the requested documents was to ascertain if petitioner acted in an arbitrary,capricious or discriminatory manner in terminating the teacher in violation of the collectivebargaining agreement between them. Following a hearing, an Administrative Law Judge foundthat petitioner did commit an improper practice when it failed to provide the requested material[*2]and directed it to do so. On administrative appeal, respondentPublic Employment Relations Board (hereinafter PERB) agreed, prompting this CPLR article 78proceeding which has been transferred to this Court (see CPLR 7804 [g]).
We begin by noting that "[o]ur review power is limited to whether PERB's decision issupported by substantial evidence, which turns on whether there exists a rational basis in therecord to support the findings upon which the agency's determination is predicated" (Matter of Syracuse Police BenevolentAssn. v New York State Pub. Empl. Relations Bd., 24 AD3d 913, 914-915 [2005][internal quotation marks and citations omitted]; see Matter of Sliker v New York State Pub. Empl. Relations Bd., 42AD3d 653, 653 [2007]; Matter of Hoey v New York State Pub. Empl. Relations Bd.,284 AD2d 633, 634 [2001]). Upon our review of the record, we are satisfied that PERB'sdetermination is so supported. The record reveals that the teacher was hired effective September1, 2004 for a probationary period ending on October 31, 2006 and that she received positiveevaluations throughout 2004 and 2005. On April 5, 2006, however, she was advised that she wasbeing suspended without pay for accompanying an underage student to a bar where the studentconsumed alcohol in her presence. She was separately notified on the same day that she was alsobeing recommended for termination. The Association's grievance chairperson immediatelyintervened on the teacher's behalf at which time he discovered that two of the teacher'scolleagues had recently been interviewed "by administration" and were asked about the teacher'ssexual orientation. He further discovered that the subject underage student denied the statedgrounds for the teacher's suspension and recommended termination, that is, the student deniedthat the teacher accompanied her to a bar or observed her drinking.[FN1]
These circumstances raised concerns that the suspension and recommended termination werefor discriminatory reasons (i.e., the teacher's sexual orientation) thus prompting requests forinformation underlying the recommendation and a request for "written accounts" about theteacher that might reasonably be construed as negative. The grievance chairperson made clearthat these materials were being sought to permit the Association to investigate a potentialgrievance under the collective bargaining agreement. The requests were denied and, ultimately,the teacher's probationary appointment was terminated effective June 8, 2006.
Article XII (A) (1) of the parties' collective bargaining agreement pertains to probationaryteachers and sets forth general guidelines concerning the period of employment, annualevaluations and tenure decisions. The provisions of article XII (A) (1) "are not subject to theGrievance or Arbitration Procedure, except if the [Association] feels that [petitioner] actedcapriciously, arbitrarily, or discriminatorily; and in such event, the [Association's] rightsshall be limited only to the Grievance Procedure" (Professional Negotiations Agreement art XII[A] [2] [emphasis added]). Here, in requesting documentation concerning the teacher'stermination, the Association was clearly invoking this exception. Thus, and contrary topetitioner's claim, the Association had a legitimate contractual basis for theinformation.[FN2][*3]
This being the case, we note that the failure to provide anemployee organization with information relevant and material to the investigation or prosecutionof a potential grievance constitutes an improper practice (see Matter of Civil Serv. Empls. Assn. v New York State Pub. Empl.Relations Bd., 46 AD3d 1037, 1038 [2007]; Matter of County of Erie v State of New York, 14 AD3d 14, 18[2004]; Matter of Schuyler-Chemung-Tioga Educ. Assn. [Schuyler-Chemung-Tioga Bd. ofCoop. Educ. Servs.], 34 PERB ¶ 3019 [2001]; Matter of Greenburgh No. 11 Fedn.of Teachers [Greenburgh No. 11 Union Free School Dist.], 33 PERB ¶ 3059 [2000];Matter of Rochester Police Locust Club, Inc. [City of Rochester], 29 PERB ¶ 3070[1996]; Matter of New York State Pub. Empls. Fedn., AFL-CIO [State of New York (Dept.of Health & Roswell Mem. Inst.)], 26 PERB ¶ 3072 [1993]). Under the circumstanceshere, substantial evidence supports PERB's finding that the Association's requests werereasonable, relevant and necessary to its investigation of a potential grievance on behalf of theteacher and that petitioner violated Civil Service Law § 209-a (1) (a) and (d) by refusingto comply with the requests.
Petitioner argues that it took action against the teacher under Education Law § 3031and therefore it had no statutory obligation to produce information concerning her termination,citing Emma v Schenectady City School Dist. (28 F Supp 2d 711 [1998], affd199 F3d 1322 [1999]), Matter of Orangetown Policemen's Benevolent Assn. (Town ofOrangetown) (39 PERB ¶ 3012 [2006]) and Matter of Ulster County Sheriff'sEmpls. Assn. (County of Ulster) (26 PERB ¶ 3008 [1993]). This argument misses themark. The Association is not asserting rights under Education Law § 3031; rather, it isasserting rights under the collective bargaining agreement which, as outlined, prohibits petitionerfrom conducting itself in an arbitrary, capricious or discriminatory manner with respect toprobationary teachers and which permits a grievance on that basis. Significantly, the Court ofAppeals has clearly held that a school district, through collective bargaining, "may legally agree. . . to limit or to forego its right to discharge a probationary teacher during theperiod of probation" (Matter of Cohoes City School Dist. v Cohoes Teachers Assn., 40NY2d 774, 777 [1976]; accord Matterof Vestal Cent. School Dist. [Vestal Teachers Assn.], 2 AD3d 1190, 1192 n 3 [2003],lv denied 2 NY3d 708 [2004]; Matter of Averback v Board of Educ. of New PaltzCent. School Dist., 147 AD2d 152, 153-154 [1989], lv denied 74 NY2d 611 [1989];Matter of Board of Educ., Carle Place Union Free School Dist. [Carle Place TeachersAssn.], 63 AD2d 714 [1978]). Here, there is indeed a contractual limitation on petitioner'sevaluation and termination of a probationary teacher during the period of probation.
Petitioner's remaining contentions have been reviewed and found to be without merit,particularly its claim that federal law prohibited disclosure here. With respect to this latter issue,PERB rationally concluded that the documents at issue were not "education records" prohibitedfrom release within the meaning of the Family Educational Rights and Privacy Act of 1974 (20USC § 1232g). In our view, teacher disciplinary records and/or records pertainingto allegations of teacher misconduct cannot be equated with student disciplinary records(compare United States v Miami Univ., 294 F3d 797, 812 [2002]) and do not contain"information directly related to a student" (20 USC § 1232g [a] [4] [A] [i]) such thatdisclosure is proscribed under this statutory scheme (see [*4]e.g. Klein Ind. School Dist. v Mattox, 830 F2d 576, 578-580[1987], cert denied 485 US 1008 [1988]; Ellis v Cleveland Mun. School Dist.,309 F Supp 2d 1019, 1022-1023 [2004]; School Comm. of Boston v Boston TeachersUnion, 71 Mass App Ct 1121, 885 NE2d 173 [2008] [lv denied 451 Mass 1109, 889NE2d 435 (2008)], affg 2006 WL 4125023, 2006 Mass Super LEXIS 634 [Super Ct,Suffolk County, Nov. 30, 2006, Brassard, J.]; Brouillet v Cowles Pub. Co., 114 Wash 2d788, 800-801, 791 P2d 526, 533 [1990]; see generally Staub v East Greenbush School Dist.No. 1, 128 Misc 2d 935, 935-936 [1985]).
Finally, we conclude that PERB's counterclaim for enforcement of its remedial order isproper (see Civil Service Law § 213 [a]).
Cardona, P.J., Peters, Lahtinen and Kane, JJ., concur. Adjudged that the determination isconfirmed, without costs, petition dismissed and the application for enforcement granted.
Footnote 1: The record contains an affidavitfrom this student denying the central allegations outlined in the April 5, 2006 letter and averringthat the allegations of wrongdoing against the teacher were "untrue."
Footnote 2: In its determination, PERBagreed with an unsolicited finding of the Administrative Law Judge that article XII (A) (1)contains a typographical error. PERB, however, did not rely on this alleged error in ruling thatthe Association was entitled to relief. Thus, petitioner's extended arguments surrounding PERB'sstated agreement about this alleged error are unpersuasive.