| Matter of New York State Off. of Children & Family Servs.(Lanterman) |
| 2009 NY Slip Op 03808 [62 AD3d 1109] |
| May 14, 2009 |
| Appellate Division, Third Department |
| In the Matter of the Arbitration between New York State Office ofChildren and Family Services et al., Appellants, and Lauren Lanterman et al.,Respondents. |
—[*1] William P. Seamon, New York State Public Employees Federation, Albany (Edward J.Aluck of counsel), for respondents.
Kavanagh, J. Appeal from an order of the Supreme Court (Egan, Jr., J.), entered November30, 2007 in Albany County, which, among other things, denied petitioners' application pursuantto CPLR 7503 to stay arbitration between the parties.
Respondent Lauren Lanterman held a position of Teacher II with petitioner Office ofChildren and Family Services (hereinafter OCFS) and was a member of the New York StatePublic Employees Federation (hereinafter PEF). PEF was a party to a collective bargainingagreement (hereinafter CBA) with the state. As an employee of OCFS in a Teacher II position,the State Education Department (hereinafter SED) requires that teachers who provideeducational services and programs to children in OCFS facilities have appropriate professionalcertification (see Education Law § 112 [1]; § 3001; 8 NYCRR 116.3 [b]).Lanterman lost her certification on August 31, 2006 and was informed that her failure toreestablish same by November 30, 2006 would result in her termination. When she was unable toobtain her certification, she was terminated. Believing that the CBA entitled Lanterman toarbitrate the applicability of the disciplinary process under the CBA to her termination for failureto maintain her teaching certification—a minimum qualification for herposition—Lanterman, represented by PEF, [*2]submitted acontract grievance to her employer pursuant to article 34 of the CBA[FN1]and asserted that her termination was in violation of articles 33[FN2]and 39[FN3]of the CBA. When OCFS, and subsequently petitioner Governor's Office of Employee Relations,took the position that the CBA's grievance process was not applicable to Lanterman's terminationbecause her failure to maintain her teaching certification automatically disqualified her fromretaining her employment, respondents served a notice of intention to arbitrate pursuant to CPLR7503 (c). Petitioners then commenced this proceeding pursuant to CPLR 7503 seeking apermanent stay of arbitration and respondents cross-moved to compel arbitration. Supreme Courtdenied the petition to permanently stay arbitration and granted respondents' cross motion tocompel arbitration, prompting this appeal by petitioners.
We reverse. Initially, we disagree with respondents' contention that the CBA provides for thearbitration of any issue dealing with teacher certification, including what must occur if a teacheris not properly certified (see Matter ofCounty of Chautauqua v Civil Serv. Empls. Assn., Local 1000, AFSCME, AFL-CIO, County ofChautauqua Unit 6300, Chautauqua County Local 807, 8 NY3d 513, 518 [2007];Matter of Board of Educ. of Watertown City School Dist. [Watertown Educ. Assn.], 93NY2d 132, 137-138 [1999]; Matter ofCity of Binghamton [Binghamton Firefighters, Local 729, AFL-CIO], 20 AD3d 859,860 [2005]). We are also of the view that to allow the CBA to be used as respondents urge wouldserve to circumvent a state law that has a clear and well-defined public purpose—thatbeing to require that teachers employed in our public school system are properly certified(see Matter of City of New York v Uniformed Fire Officers Assn., Local 854, IAFF,AFL-CIO, 95 NY2d 273, 281-282 [2000]; Matter of Board of Educ. of Watertown CitySchool Dist. [Watertown Educ. Assn.], 93 NY2d at 138). As such, even if an agreement toarbitrate such a dispute did exist, it would constitute a substantial violation of public policy and,as such, would be unenforceable.
Without question, it is in the public interest and a matter of sound public policy that anyindividual who is employed as a teacher in the public school system be competent. To meet thatneed, the Legislature mandated that an individual, to be eligible for employment as ateacher in [*3]our public school system, must possess certainqualifications, including a teacher's certificate issued by SED or a diploma from a state teacher'scollege (see Education Law § 3001; 8 NYCRR 116.3 [b]; see generally 8NYCRR part 80).[FN4]These qualifications are essential prerequisites that must be satisfied for one to qualify foremployment as a teacher in the public school system, and certification, in particular, has beenfound to be a requirement that "as a matter of law" must be met before an individual can beeligible for such employment (Matter of Smith v Board of Educ. of Wallkill Cent. SchoolDist., 102 AD2d 655, 657 [1984], affd 65 NY2d 797 [1985]; see 8 NYCRR116.3 [b]; part 80).
SED has a statutory obligation to "establish and enforce standards of instruction,personnel qualifications and other requirements for education services or programs" in NewYork and teacher certification is an integral part of that process (Education Law § 112 [1][emphasis added]; see 8 NYCRR 80-1.1, 80-2.12). Given that certification of all teachersin the public school system is explicitly required by "a well-defined law," the public policyimplications that flow from SED's role in this process are obvious and, for that reason,disqualification of an individual from a teaching position because they have not been able to gainproper certification is not subject to negotiation under the CBA (Matter of United Fedn. of Teachers, Local2, AFT, AFL-CIO v Board of Educ. of City School Dist. of City of N.Y., 1 NY3d 72,81 [2003]; see Honeoye Falls-Lima Cent. School Dist. v Honeoye Falls-Lima Educ.Assn., 49 NY2d 732, 734 [1980]; see also Matter of County of Chautauqua v Civil Serv.Empls. Assn., Local 1000, AFSCME, AFL-CIO, County of Chautauqua Unit 6300, ChautauquaCounty Local 807, 8 NY3d at 519; Matter of City of New York v Uniformed FireOfficers Assn., Local 854, IAFF, AFL-CIO, 95 NY2d at 284).
We also find that provisions contained in the CBA do not establish that the parties intendedto submit this issue to arbitration. While article 34 of the CBA provides for the arbitration ofissues dealing with the discipline of teachers, whether a teacher has the statutorily requiredqualifications for the position is not a disciplinary matter subject to that provision. Instead,certification is a statutory prerequisite that an individual is required to have to qualify for ateaching position in the public school system; it has nothing to do with discipline and, as such, isnot an issue that is subject to arbitration under this provision of the CBA (see Matter ofCounty of Chautauqua v Civil Serv. Empls. Assn., Local 1000, AFSCME, AFL-CIO, County ofChautauqua Unit 6300, Chautauqua County Local 807, 8 NY3d at 519; Matter of City ofNew York v Uniformed Fire Officers Assn., Local 854, IAFF, AFL-CIO, 95 NY2d at282-283).
Certification, depending upon an individual teacher's specialty, involves an amalgam ofrequirements that have been established by SED in its regulations (see 8 NYCRR 116.3[b]; part 80; see also Education Law § 3001). As a general rule, candidates forcertification must have a baccalaureate degree and have successfully completed a certain level ofcollege credits in pursuit of a postgraduate degree (see 8 NYCRR 80-1.1 [b] [7]; seealso 8 NYCRR 80-2.3, 80-2.4). They also must have actual teaching experience and pass anexamination administered by SED. A provisional certificate of limited duration can be given bySED so that an individual can teach with supervision while working towards achieving fullcertification. However, the requirement for full certification can never be waived, and teachersemployed pursuant to a provisional certification must obtain full certification within a definiteperiod of time to remain [*4]qualified for their position.Certification is not, as the dissent suggests, a term or condition of employment governed by theCBA—it is a nonnegotiable requirement established by state law that must be met for anindividual to hold a teaching position in a public school in this state.
Lanterman had been employed as a mathematics teacher in an OCFS facility since 1999 and,at the time of her termination, held that position pursuant to a provisional certification issued bySED.[FN5]Throughout her employment, Lanterman was repeatedly advised of the need to obtaincertification so that she could continue her employment as a teacher with OCFS and wasprovided with numerous opportunities to do so. She took the certification exam on more than oneoccasion, was unable to achieve a passing grade and, in one instance, chose not to take the examwhen it was offered. When the term of her provisional certification expired by law on August 31,2006, she was given another opportunity to obtain certification; yet, once again, was unable to doso.[FN6]
No claim has been made in this proceeding that the process involved in obtainingcertification is too onerous or unfair—or that, as designed, it does not aid SED in itsefforts to insure that teachers in the public school system have achieved a minimum level ofcompetence. In fact, respondents do not appear to take issue with the need for certification orthat it is an integral part of SED's efforts to fulfill its statutory mandate to ensure that publicschool students receive a quality education. Instead, respondents—and our dissentingcolleagues—argue that other options short of termination, "such as a suspension withoutpay or demotion to another open position for which a teaching certification was not required,"should have been explored through arbitration before Lanterman was removed from her teachingposition. Following this proposal to its logical conclusion, there are only two options availableother than termination—either Lanterman would be continued in her teaching position,even though not properly certified, or placed in a nonteaching position within the OCFS facility.
First and foremost, allowing Lanterman to teach without proper certification would serve tocompletely ignore state law and applicable SED regulations which clearly and unequivocallyrequire that all instructors at OCFS facilities be properly certified (see Education Law§ 112 [1]; § 3001; 8 NYCRR 116.3 [b]). Even if employing a teacher withoutcertification did not constitute such a clear violation of state law, it is a practice that, if repeated,would inevitably have an adverse impact on the quality of those individuals employed asteachers in the public school system. At the very minimum, it would necessarily result inindividuals being employed as teachers who, for whatever reason, cannot obtain certification. Ifcertification is, as SED maintains, a valid tool against which an individual's competence to teachcan be measured, then it follows that individuals who obtain certification are likely to be morecompetent teachers [*5]than individuals who have not been socertified. By approving a process that would allow an arbitrator to place an individual in ateaching position who is not properly certified would not only serve to marginalize the entirecertification process, but would promote a policy that is clearly not in the public interest.
As for the remaining option—the placement of Lanterman in a nonteaching positionwithin an OCFS facility—it is not clear that such a position even exists or, if so, whatposition might qualify for such consideration (i.e., an administrative aide, secretary, lunch roomaide, etc.). We also note that respondents do not appear to advance such an argument or contendthat the CBA would permit placement of Lanterman in a nonteaching position. Moreover, thereis nothing in the record that establishes that either the CBA or the Civil Service Law wouldauthorize such a transfer.
As for the suggestion that Lanterman be suspended without pay, or, if "suspended," beretained in the position of a Teacher II (albeit without compensation), such action is nothingmore than an extension of Lanterman's provisional certification status. SED regulations place astrict time limit during which an individual can teach with a provisional certification, and thatperiod had clearly expired at the time of Lanterman's termination (see 8 NYCRR 80-1.6[a], [c]). Simply stated, the net effect of the options proposed as alternatives to termination notonly are clear violations of state law, but, if implemented through arbitration, would result in aremedy that, despite the dissent's contention to the contrary, would serve to compromise our"public policy in favor of assuring the qualification of teachers."
In addition, Lanterman's failure to obtain certification and the decision to terminate herbecause she did not possess the qualifications required for her to be eligible for a teachingposition are not matters "concerning the interpretation, application or claimed violation" ofarticle 34 of the CBA. Instead, certification is a legal condition precedent that Lanterman wasobligated to satisfy to be eligible to retain her position (see Matter of Felix v New York City Dept. of Citywide Admin. Servs.,3 NY3d 498 [2004]). Her failure to obtain certification within the time allotted by state lawserved to automatically disqualify her from holding that position, and the decision to terminateher was based upon her failure to meet all of the eligibility requirements as mandated by statelaw and SED regulations. As such, that decision did not implicate any activity that would haveotherwise involved provisions of the CBA and is, therefore, not subject to arbitration.
Finally, Lanterman claims that article 39 of the CBA, which applies to " 'credentialing'established by [other] department[s], agenc[ies] or institution[s]," requires arbitration. However,to the extent that such a provision can be interpreted as being at odds with state law and SEDregulations requiring certification of teachers, it is against public policy and not enforceable(see Matter of Cohoes City School Dist. v Cohoes Teachers Assn., 40 NY2d 774,777-778 [1976]).
Cardona, P.J., concurs.
Kane, J. (concurring). I agree with the portion of Justice Kavanagh's decision holding thatarbitration should be stayed based upon public policy. Teacher certification is a nonnegotiablequalification for teaching positions—it cannot be bargained away in a collectivebargaining agreement. Requiring [*6]a public entity to arbitrateregarding the termination of a teacher who failed to obtain or maintain statutorily-mandatedteacher certification violates public policy. For that reason alone, I concur.
Stein, J. (dissenting). Because we are of the opinion that respondent Lauren Lanterman isentitled to arbitrate whether the disciplinary process under the collective bargaining agreement(hereinafter CBA) applies to her termination for failure to maintain her teaching certification, werespectfully dissent.
The Court of Appeals has articulated that "the public policy exception to an arbitrator'spower to resolve disputes is extremely narrow" (Matter of United Fedn. of Teachers, Local 2, AFT, AFL-CIO v Board ofEduc. of City School Dist. of City of N.Y., 1 NY3d 72, 80 [2003]). Likewise, a stay ofarbitration is an extreme remedy which should only be granted where there is no possibility thatthe arbitrator could fashion any remedy not in violation of public policy (see Matter ofCommittee of Interns & Residents [Dinkins], 86 NY2d 478, 484 [1995]). Moreover,preemptive intervention—to prevent the possibility that a particular remedy might beimposed that would violate public policy—is improper (see id. at 484).
While it is unquestionably in the public interest to ensure the competence of teachers in thepublic school system, we disagree with the majority's conclusion that allowing an arbitrator todetermine the remedy for Lanterman's failure to maintain the necessary certification for herposition would constitute an improper delegation of the authority of the State EducationDepartment (hereinafter SED) to establish and enforce the qualifications for teachers in facilitiesof petitioner Office of Children and Family Services (hereinafter OCFS) and of OCFS's duty toensure that teachers are properly certified. We do not suggest that Lanterman—or anyother employee—should be permitted to serve in a position for which she does not meetthe minimum qualifications.[FN1]However, inasmuch as an arbitrator could, after considering all relevant factors, potentiallyfashion a remedy other than termination—including, as respondents suggest, a suspensionwithout pay[FN2]or demotion to another open position for which a teaching certificate was not required or someother possible remedy—that would not violate either the CBA or the public policy in favorof assuring the qualification of teachers (see Matter of State of N.Y., N.Y. State Dept. ofAgric. & Mkts. [Public Empls. Fedn.], 277 AD2d 564, 566 [2000]; see generally Matterof United Fedn. of Teachers, Local 2, AFT, AFL-CIO v Board of Educ. of City School Dist. ofCity of N.Y., 1 NY3d at 81), the public policy exception should not apply.
Contrary to the implied concern of petitioners and the majority, permission to arbitratewould not require the arbitrator to impose an alternative remedy—it would onlypermit the [*7]arbitrator to do so if, under all the factsand circumstances, the arbitrator deemed it appropriate.[FN3]Nor would permission to arbitrate confer upon the arbitrator the authority to allow Lanterman toteach without proper certification or to fashion a remedy which would otherwise violate SEDregulations or state law (see generally Matter of United Fedn. of Teachers, Local 2, AFT,AFL-CIO v Board of Educ. of City School Dist. of City of N.Y., 1 NY3d at 81). We are ofthe view that this is not a case where the granting of any relief would violate publicpolicy (cf. Matter of County ofChautauqua v Civil Serv. Empls. Assn., Local 1000, AFSCME, AFL-CIO, County ofChautauqua Unit 6300, Chautauqua County Local 807, 8 NY3d 513, 519, 521 [2007];Matter of City of New York v Uniformed Fire Officers Assn., Local 854, IAFF,AFL-CIO, 95 NY2d 273, 282-283 [2000]) and that the majority here simply overlooks thepossibility that an alternative remedy exists which would not be violative of public policy,statutes or regulations. Thus, in our opinion, a stay of arbitration is an inappropriate exercise ofpreemptive intervention.
Turning next to the question of whether the parties agreed to arbitrate this particular disputeand bearing in mind the broad public policy in favor of arbitrating public sector employmentdisputes (see Matter of New York City Tr. Auth. v Transport Workers Union of Am., Local100, AFL-CIO, 99 NY2d 1, 7 [2002]), we must only ascertain "whether there is a reasonablerelationship between the subject matter of the dispute and the general subject matter of the CBA"(Matter of Board of Educ. of Watertown City School Dist. [Watertown Educ. Assn.], 93NY2d 132, 143 [1999]). Furthermore, as noted above, there is an important distinction between adetermination regarding the merits of respondents' grievance and the threshold question ofwhether the authority to decide the merits resides with the court or with an arbitrator (seeCPLR 7501). The sole issue for our determination herein is the latter, i.e., whether SupremeCourt properly concluded that the issues raised in respondents' grievance are reviewable underthe contract arbitration clause set forth in article 34 of the CBA.
In our view, the dispute here concerns the interpretation, application or a claimed violationof article 33 of the CBA—specifically, whether it applies to the termination of anemployee for failure to maintain required certification—and unequivocally falls within thebroad provisions of article 34. It is, therefore, the province of an arbitrator to determine whetherarticle 33 was intended to "modify, supplement, or replace the more traditional forms ofprotection afforded public employees . . . in section[ ] 75 . . . of theCivil Service Law" (Dye v New York City [*8]Tr. Auth.,88 AD2d 899, 899 [1982], affd 57 NY2d 917 [1982]) so as to encompass within thedefinition of "discipline" action taken against an employee due to the loss of requiredcertification—thus, triggering the procedures of article 33 (see Matter of Board ofEduc. of Watertown City School Dist. [Watertown Educ. Assn.], 93 NY2d at142-143).[FN4]
Inasmuch as we agree with Supreme Court's determination that no constitutional, statutory orpublic policy prohibition exists to arbitrating the issue of whether the disciplinary procedures setforth in article 33 of the CBA apply to Lanterman's termination for lack of appropriatecertification and with the court's conclusion that such arbitration is authorized by the CBA, wewould affirm.
Rose, J., concurs. Ordered that the order is reversed, on the law, without costs, petitioners'application to permanently stay arbitration granted, and respondents' cross application denied.
Footnote 1: Article 34 defines a contractgrievance as "a dispute concerning the interpretation, application or claimed violation of aspecific term or provision of [the] [a]greement." That article also establishes a process for theresolution of contract grievances, which culminates in arbitration.
Footnote 2: Article 33 is entitled"Discipline." It is expressly acknowledged to be in lieu of Civil Service Law § 75 andprovides a "procedure for the imposition of discipline for just cause." It also sets forth agrievance process that, if necessary, concludes with arbitration.
Footnote 3: Article 39 is entitled "ClinicalPrivileges and Credentialing." It provides that "[n]o plan for 'clinical privileging' or'credentialing' established by any department, agency or institution shall contain any provisionthat conflicts with any [a]rticle or [s]ection of this [a]greement." Respondents contend that article39 is applicable because OCFS used credentialing in a manner that violates article 33.
Footnote 4: Other mandated qualificationsare that the individual be at least 18 years of age and a citizen.
Footnote 5: It appears, although it is notentirely clear from the record, that Lanterman was always employed by OCFS as a teacher on aprovisional basis and did not achieve certification until after she was terminated from herposition.
Footnote 6: Lanterman also claimed, whenshe filed her first grievance regarding her termination, that she was terminated from her positionwhile on maternity leave in violation of the Family and Medical Leave Act of 1993. She has notpursued that particular claim on this appeal.
Footnote 1: Indeed, there is no question thatLanterman possessed the necessary provisional certification when she was hired or that, after hertermination, she obtained her full certification.
Footnote 2: Notably, Lanterman was onmaternity leave from the date her certification expired to the date of her termination. Thus, shewas not actively teaching during that time.
Footnote 3: The majority's suggestion thatanything other than termination would be inappropriate begs the question of whether thatdetermination should be made by the court or by an arbitrator. In fact, as the majority notes, itappears from the record that OCFS did not deem it to be a violation of public policy to giveLanterman at least one opportunity to obtain her certification after her provisional certificationexpired and to continue her employment for a period of time beyond such expiration. In ourview, it is not for this Court to speculate, as the majority does, regarding whether anotherposition exists for which Lanterman is qualified. The question before us—which we wouldanswer in the affirmative—is simply whether an arbitrator should be permitted todetermine when and if other remedies are no longer suitable and termination is appropriate.
Footnote 4: Matter of Felix v New York City Dept. ofCitywide Admin. Servs. (3 NY3d 498 [2004]) is clearly distinguishable. In that case,there was no collective bargaining agreement. More importantly, it involved a statutoryresidency requirement—with which the subject employee admittedly failed toadhere—which explicitly provided for an automatic forfeiture of employment in the eventthe residency requirement was not met.