State of New York
Supreme Court : County of Monroe

for a Judgment under Article 78 of the CPLR

- against -

Index No. 98/7673

ANDREW V. SIRACUSE, J.

Anita Baird, the petitioner in this Article 78 proceeding, was a tenured elementary school principal who was removed to a position as vice principal as of July 1, 1998. Ms. Baird was granted tenure as a principal on June 30, 1988, and was principal of School 37 in Rochester until this action by the school district. She had previously held tenure as a vice principal, and the letter informing her of the district's decision stated that her "previously earned seniority in that tenure area will be reinstated."

A significant portion of the papers in this case is devoted to the circumstances of Ms. Baird's removal and the performance review provisions of the agreement between the district and the Association of Supervisors and Administrators of Rochester (ASAR), the union that represents Ms. Baird. Whether or not there was cause for. her discipline is not the issue presented at this point, however, and in any event would likely necessitate a review by the Appellate Division rather than by this court. The petitioner argues, instead, that her demotion was a removal from one tenure area to another, a move that affected her salary, her tenure rights, and her future retirement resources; as such, Education Law § 2573(5) required a hearing "as provided by section three thousand twenty-a" of the same statute. She received no such hearing.

The district contends that Ms. Baird was disciplined for cause: alleged poor work performance, unimproved after a year of participation in an "intervention program". It goes on to make two arguments: first, that the action was not a removal from one tenure area to another and thus not a discharge; second, that the collective bargaining agreement between the district and the ASAR requires arbitration of any discipline short of discharge; because Ms. Baird has not done this, her application must be dismissed for failure to exhaust administrative remedies.

Neither of the parties provides a contract provision that defines "tenure areas", but Ms. Baird notes that after she was promoted from tenured vice-principal she was required to serve a probationary term as principal before being granted full tenure rights as one. This would not have been necessary if she had simply received a transfer within an area. Appointment letters, such as the one naming Ms. Baird a vice-principal, speak of a permanent appointment to the named position, thus identifying tenure rights with the specific job rather than with a group of jobs. In addition, the language of the letter notifying her of the district's decision clearly suggests that the vice-principal position is in a separate tenure area.

Furthermore, the district's arguments that the positions are functionally identical are disingenuous. To hold that principal and vice-principal are the same positions because the latter is required to assume the former's duties in the event of absence would surprise both vice-presidential candidates and beauty pageant runners-up, among others.

The district cites and provides a copy of a 1975 administrative decision, Matter of Angelos (14 Ed Dept Rep 254), where a principal transferred to an administrator's position appealed what he saw as a transfer outside his tenure area. In that case the commissioner rejected the appeal because the petitioner's salary was unaffected and he maintained his seniority as a principal. Neither of these factors is present here. Ms. Baird's pay was cut by $8,000 a year, and the letter informing her that her seniority as a vice-principal would be restored is meaningless unless her seniority as a principal had been affected by the change. The court finds the district's argument on this point to be unpersuasive; Ms. Baird was removed from one tenure area to another. While the penalty was not as drastic as an outright firing, it invokes the same rights as a firing would.

The district's second argument -- that discipline short of complete discharge must be arbitrated instead of requiring a statutory fair hearing -- is also flawed. Thus, even if the two positions were in the same administrative unit and no tenure rights had been technically violated by Ms. Baird's demotion, the loss of salary and retirement benefits would still entitle her to a hearing.

The general statutory provision in Education Law § 2573 was cited above. It should be read in conjunction with section 3020, which states, in pertinent 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 or in accordance with alternate disciplinary procedures contained in a collective bargaining agreement covering his or her terms and conditions of employment that was effective on or before September first, nineteen hundred ninety-four and has been unaltered by renegotiation[.]

It is accepted that the agreement between ASAR and the district contains such an alternative disciplinary procedure.

That procedure is set out in Article 13 of the agreement, which states that no tenured "administrator *** shall be disciplined without good and sufficient cause." Disciplinary action includes reprimands both oral and written, suspension with or without pay, the withholding of salary and/or performance incentives, and discharge; and the agreement provides that "[e]xcept as provided elsewhere in this Section, any disciplinary action imposed upon any eligible administrator may be processed as a grievance through the regular grievance and arbitration procedure" (Art. 13 [2] [c], emphasis added). The exception to this procedure is found in section e of this article, which forbids suspension without pay or discharge "without good and sufficient cause." A written notice procedure is outlined for these cases, and the agreement invokes the provisions of Education Law § 3020-a. The employee is given the option of pursuing a panel hearing under 3020-a rules or arbitration under the contract provisions. The district argues that these sections, taken together, outline a "bifurcated" appeals process for disciplinary action. (Stated more accurately, it is a two-class system.) The district contends that suspension without pay and complete discharge from service give the aggrieved employee the option of a fair hearing under Education Law § 3020-a; all other discipline must be appealed through the ordinary grievance procedure.

The district's argument, however, rests on the language of Art. 13 (2) (c), which is permissive, not mandatory. The Education Law requires a hearing before discipline or removal or resort to an alternate disciplinary provision. The agreement here does provide such an alternative through the grievance procedure; but it uses "may" rather than "shall" or "must" in referring to that alternative. The choice is left to the employee. The court must be guided by the language the parties have agreed upon; and while a collective agreement may not be subject to the same linguistic scrutiny as a statute, something more than permissive language is necessary to oust a statutory right.

Nor does the court's construction of this section render the exception for discharge and suspension without pay meaningless. In these more serious cases the employee has the option of a fair hearing or immediate arbitration, bypassing the several steps of the grievance procedure. (These steps, which add several weeks to the decision-making process, are set out in Article 20 of the agreement.) This option allows an alternative to the time-consuming grievance procedure or the formality of a hearing. The district also argues that the Education Law requires a hearing only in cases of removal, citing section 2573 (5): tenured employees "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 of such law." But this narrow reading conflicts with the reference to discipline or removal in section 3020. Furthermore the district's action was a removal from a tenured position -- albeit to one in another tenured area. Section 2573 (5) appears to forbid the use of any alternative disciplinary procedures in cases of removal. By the rule that specific provisions govern over general ones, it limits the scope of section 3020 by giving more recourse to the disciplined employee rather than more disciplinary powers to the district. The Education Law clearly requires a hearing be granted Ms. Baird, and against its application the district has nothing to offer but a contractual provision that says employees may grieve discipline short of discharge.

This is not an issue of rationality or the imposition of an arbitrary or capricious standard to the agreement; indeed, except in cases of removal a clearly-defined alternative disciplinary procedure in a valid agreement would be enforceable even if it were arbitrary or capricious. It is, instead, a holding that rests upon the court's interpretation of the language of the agreement, in the light of the statutory rights to a fair hearing. Ms. Baird was removed from her position, and thus is entitled to a hearing. She received none. Her petition is granted, the decision overturned, and she is entitled to be reinstated as principal, with back pay. The court offers no opinion as to the substantive merits of the district's decision, and the district may, of course, proceed with the mandated hearing and with whatever subsequent decisions as may prove warranted.

This constitutes the decision of the court. Counsel for the petitioner should prepare the order, with costs.

DATED: Rochester, New York

November 18, 1998

Andrew V. Siracuse, J.S.C.

Design © 1997 Michael Steinberg. No copyright subsists in the decision texts, which are government documents.

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