* Subsequent History: Matter of Board of Educ. of Garden City Union Free School Dist. v King; Supreme Court, Albany County; Decision and Order granted petition, annulled Commissioner’s decision, and remanded for further proceedings; October 31, 2012; Education Law § 310 appeal withdrawn, January 28, 2013; No further proceedings. *

Appeal of DENISE ZACCARO from actions of the Board of Education of the Garden City Union Free School District and Robert Feirsen, superintendent, regarding a personnel matter.

Decision No. 16,336

(March 19, 2012)

Richard E. Casagrande, Esq., attorney for petitioner, Jennifer A. Hogan, Esq., of counsel

Guercio & Guercio, LLP, attorneys for respondents, John P. Sheahan, Esq., of counsel

KING, JR., Commissioner.--Petitioner appeals certain actions of the Board of Education of the Garden City Union Free School District (“board”) and Robert Feirsen, superintendent, (together “respondents”) with respect to calculating her salary.  The appeal must be sustained in part.

Petitioner is a teacher employed by the Garden City Union Free School District (“district”).  On or about February 23, 2009, she gave birth and was granted leave under the Family Medical Leave Act (“FMLA”) from February 23, 2009 through May 24, 2009 and a leave of absence from May 25, 2009 through June 30, 2009.  Petitioner was on paid leave at least through April 8, 2009.  Schools were closed from April 9-17, 2009 for spring recess, during which period teachers were not required to work, but received seven days pay.  Petitioner alleges that she was placed on unpaid leave on April 15, 2009.  Respondents allege that she was on unpaid leave after April 8, 2009.

On or about April 15, 2009, petitioner received a paycheck which included four days pay for the period April 9-14, 2009.  Petitioner did not receive a paycheck on April 30, 2009, the next scheduled payday, and was not paid for April 15-17, 2009.  On or about May 12, 2009, petitioner was notified that $1,731.12 would be deducted from her health insurance buyback check to recoup the four days pay she had received for April 9-14, 2009.  This appeal ensued.

Petitioner alleges that respondents violated Education Law §3101(3) by failing to pay her for three days from April 15-17, 2009 and by attempting to recoup four days pay for April 9-14, 2009.  Petitioner requests an order directing respondents to pay her for the additional three days and enjoining respondents from recouping four days pay.

Respondents allege that petitioner has failed to state a cause of action or demonstrate a clear legal right to the relief requested.  Respondents contend that petitioner was overpaid by the district in the amount of $1,731.12 - the equivalent of four days pay - and, therefore, is in possession of public funds erroneously paid to her in contravention of the New York State Constitution.  Respondents maintain that petitioner received the full amount of her health insurance buyback check and, therefore, her claim relating thereto is moot.  Respondents request that I order petitioner to return the overpayment of four days salary in the amount of $1,731.12.

I must first address several procedural issues.  Respondents submitted a late memorandum of law pursuant to §276.4 of the Commissioner’s regulations.  By letter dated August 26, 2009, petitioner consented to respondents’ submission.  The memorandum is therefore accepted for consideration.

However, in her August 26 letter, petitioner’s attorney acknowledged that a verified reply to respondents’ answer was not submitted.  On behalf of petitioner, the attorney generally denies the affirmative defenses set forth in respondents’ answer and requests that the letter be accepted as petitioner’s reply.  That submission is not verified by petitioner as required by §275.5 of the Commissioner’s regulations.  Therefore, I have not considered it.

On February 2, 2010, respondents submitted additional documents alleging that, subsequent to bringing this appeal, petitioner commenced a grievance proceeding pursuant to her collective bargaining agreement regarding this matter and seeking identical relief.  Respondents assert that, due to the pending grievance, petitioner has elected her remedy and should not be permitted to maintain this appeal.  Petitioner objects to respondents’ February 2, 2010 submission and also disagrees that the grievance and the appeal are similar.  Section 276.5(a) of the Commissioner’s regulations provides “[t]he commissioner may permit or require the service and filing of affidavits, exhibits and other supporting papers, in addition to those served in accordance with sections 275.8, 275.13 and 275.14 of this Title, upon good cause shown and such terms and conditions as the commissioner may specify.”  The record reflects that the petition in this appeal was served upon respondents on May 27, 2009 and that the grievance was filed by petitioner’s collective bargaining representative on May 28, 2009.  However, respondents served their answer herein on June 16, 2009 and failed to assert election of remedy as an affirmative defense.  Respondents indicate that they sought clarification of the nature of the grievance.  However, by letter dated September 30, 2009, respondents received a response to that request.  Moreover, respondents’ superintendent denied the grievance by letter dated October 13, 2009.  Yet respondents did not attempt to submit additional documentation regarding the grievance until February 2, 2010 - approximately four months later.  Respondents have not demonstrated good cause for the delay in submitting the additional documentation and it is not accepted for consideration.  However, in response to a directive by my Office of Counsel on November 15, 2010, petitioner submitted an affirmation by her attorney indicating that she was placed on unpaid leave on April 15, 2010 and that the grievance she filed disputing that action was still pending.

As a final procedural matter, petitioner asserts that, on or about May 12, 2009, the district informed her collective bargaining representative that it would deduct four days pay for the period April 9-14, 2009 from petitioner’s health insurance buy back check.  Respondents indicate that the deduction was not taken, and petitioner has not established otherwise.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836).  To the extent that petitioner challenges respondents’ withholding of money from her health insurance buy back check, that claim is moot.

Turning to the merits, Education Law §3101(3) sets forth the manner in which a teacher’s salary is to be prorated when the teacher does not render service during the full 10 months that public schools are required to be in session.  Specifically, the statute provides, “[f]or purposes of prorating the salary of a teacher not rendering all the service required of teachers during such period, the monthly rate for services rendered shall be at least one tenth of the salary and the daily rate at least one two-hundredth of the salary.”  At issue here is the calculation of petitioner’s salary for the month of April 2009 and, specifically, whether petitioner is entitled to be paid for seven days during spring recess.

In Matter of Swaim, et al. (9 Ed Dept Rep 23, Decision No. 8031), Education Law §3101(3) was interpreted as follows:

The ambiguity resulting from the statutory rate of one two-hundredths and the factual situation that some months have fewer or more than 20 working days can most reasonably be resolved by the following interpretation of the statute.  A teacher who does not perform all of the services required of teachers during a month should be reimbursed as follows:  If the teacher provides services for half or less of the working days in the month, he should be reimbursed at the rate of one two-hundredths of his annual salary for each day he works.  Similarly, if a teacher works more than half of the required working days in a given month but is absent without authority for the remainder of such working days, a deduction of one two-hundredths of his annual salary should be made for each of the days of unauthorized absence.

Where a teacher has missed working days during a course of a month, the formula set forth in Swaim is determinative in ascertaining the amount of pay to which the teacher is entitled.  Calculation using the Swaim method entails counting all of the “working days” during a given month (excluding days in which school is not in session) and dividing that number in half, then comparing that number with the amount of days the teacher worked (see e.g. Matter of Segall, 10 Ed Dept Rep 222, Decision No. 8285; Matter of Mattis, et al., 16 id. 323, Decision No. 9414).  If the number of days worked exceeds one-half of the “working days” in that month, the teacher would be entitled to one-tenth of his or her annual salary, minus one two-hundredths for each “working day” he or she did not work (see Matter of Bd. of Educ. of Clarkstown Central School Dist v. Ambach, et al., 97 AD2d 188).  On the other hand, if the number of days the teacher actually worked is equal to or less than half of the “working days” in that month, the teacher would be entitled to payment only for each of the individual days worked (or one two-hundredths of his or her salary for each day).

In the present appeal, there were 15 total working days in the month of April, 2009.  There were six working days prior to spring recess: April 1-8; and nine working days following spring recess: April 20-30.  Accordingly, teachers were required to render service to the district on each of those 15 working days during the month of April.

Petitioner was on paid leave through April 8, 2009 and, thus, must be deemed to have worked the six working days included in that period.  Applying Swaim, petitioner worked only six of the required 15 working days in April 2009 and, because she worked less than half the working days in the month of April, she is entitled to one two-hundredths of her salary for each “day worked.”  During the period of April 9-17, the spring recess, no other teacher was required to render service, yet received compensation, and respondents would not receive any more service from petitioner than from any other teacher (Matter of Lilley, 14 Ed Dept Rep 429, Decision No. 9048; Matter of Plant, 19 id. 175, Decision No. 10,084; Matter of Hilferty, 23 id. 53, Decision No. 11,133).  Accordingly, under the rationale of these prior decisions, which clearly resulted in teachers being compensated for days in which school was not in session, the days of spring recess should be counted as days worked, under ordinary circumstances.

In this case, however, it is undisputed that at some point, either immediately after April 8, 2009 or effective April 15, 2009, respondents placed petitioner on unpaid leave.  In fact, the pending grievance proceeding involves claims that respondents violated the collective bargaining agreement by placing petitioner on unpaid leave effective April 15, 2009.  The underlying purpose of the Swaim formula is to compute the salary a teacher is entitled to if he or she works less than the total number of working days in a month.  It would be anomalous to interpret that formula as requiring that a teacher be compensated for days on which the teacher could not serve because he or she was placed on unpaid leave under the district’s leave policy, even if those days are during a school recess.  Such a result would unduly constrain the ability of a board of education to place a teacher on unpaid leave and would unfairly compensate teachers for days on which other teachers on unpaid leave would have no right to compensation.

Therefore, for any day petitioner was not on unpaid leave during the period from April 9 to April 17, she was entitled to one two-hundredth of her salary.  If it was April 15, 2009, as petitioner contends, she would be entitled to four days compensation from April 9 to April 14.  If it was April 8, as respondents contend, petitioner would not be entitled to any additional compensation unless the unpaid leave was set aside in the grievance proceeding or otherwise.  The record before me is not adequate to make such determination, so I will remand the matter to respondents to determine if petitioner is entitled to additional compensation based on this decision.

Finally, to the extent that respondents interpose constitutional claims under the New York State Constitution, an appeal to the Commissioner is not the proper forum to adjudicate novel issues of constitutional law or to challenge the constitutionality of a statute or regulation (Appeal of C.S., 49 Ed Dept Rep 106, Decision No. 15,971; Appeal of J.A., 48 id. 118, Decision No. 15,810; Appeal of Keller, 47 id. 224, Decision No. 15,677).  A novel claim of constitutional dimension should properly be presented to a court of competent jurisdiction (Appeal of J.A., 48 Ed Dept Rep 118, Decision No. 15,810).

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

THE MATTER IS REMANDED to respondents, and

IT IS ORDERED that respondents compensate petitioner, to the extent they have not already done so, one two-hundredth of petitioner’s salary for any day during the period of April 9-17, 2009 on which petitioner was entitled to paid leave.

END OF FILE.