Appeal of GLORIA J. PARKER from action of the Board of Education of the City School District of the City of Rochester, the Rochester Teachers Association, and New York State United Teachers regarding a personnel matter.

Decision No. 17,054

(February 28, 2017)

Rochester City School District Department of Law, attorneys for respondent Board of Education of the City School District of the City of Rochester, Diane M. Cecero, Esq., of counsel

Richard E. Casagrande, Esq., attorney for respondents Rochester Teachers Association and New York State United Teachers, Jacquelyn Hadam, Esq., of counsel

ELIA, Commissioner.--Petitioner challenges action of the Board of Education of the City School District of the City of Rochester (“district”), the Rochester Teachers Association (“RTA”), and New York State United Teachers (“NYSUT”) (collectively “respondents”) in removing her from the classroom and placing her on paid administrative leave.  The appeal must be sustained in part.

Petitioner is a teacher employed by the district and has been a member of the RTA for approximately 30 years.  The record indicates that, by letter from respondent district’s Human Capital Initiatives Director, Mr. Snipe, dated December 10, 2015, petitioner was placed on administrative leave and instructed not to be on school grounds.[1]  Petitioner contacted representatives at the RTA and NYSUT regarding her paid administrative leave and was advised that such leave was not in violation of her collective bargaining agreement (“CBA”).  Thereafter, the record indicates that, on more than one occasion, petitioner attempted to report to work and was on school grounds in violation of the district’s directive.

On December 16, 2015, petitioner attended a meeting with Mr. Snipe with two representatives from the RTA present as petitioner’s union representatives.  At that meeting, petitioner was advised that an investigation was going to be conducted and she was advised of her rights as a tenured employee with regard to any discipline imposed by the district, although I note that, at that time, charges had not been preferred by the district.

By letters dated March 23, 2016 and March 30, 2016, Mr. Snipe requested that petitioner submit to an independent medical examination prior to returning to work and requested a Health Insurance Portability and Accountability Act (“HIPAA”) release to obtain her medical records.  By letter to petitioner dated April 25, 2016, NYSUT indicated that petitioner had been advised by the RTA that a medical examination is permissible and that a release for medical records is routine in such circumstances.  It appears, however, that petitioner has not submitted a release and that no medical examination has occurred.  This appeal ensued.  Petitioner’s request for interim relief was denied on August 5, 2016.

Although the petition is not entirely clear, petitioner appears to contend that the district violated her substantive due process rights as well as the Education Law by failing to prefer charges against her in a timely manner and imposing excessive disciplinary measures.  Petitioner also alleges that the district failed to follow the employment contract and violated direct deposit regulations and business law with regard to her merit pay.  Petitioner further contends that RTA and NYSUT failed to provide her with adequate representation.

Respondents generally deny petitioners allegations and contend that the petition is untimely and petitioner fails to state a claim upon which relief may be granted.  Respondents RTA and NYSUT further contend that petitioner failed to properly serve the RTA and NYSUT and, thus, the petition should be dismissed for lack of jurisdiction.  Additionally, RTA and NYSUT contend that each is an unincorporated association over which the Commissioner of Education has no direct jurisdiction.

I must address several procedural issues.  Petitioner submitted a 6-page document entitled “Verified Answer Rssponse” (sic) which was received by my Office of Counsel on August 15, 2016.  The submission appears to be in the nature of a reply as it states that it is submitted in response to the district’s arguments.  Although it purports to be a reply, the document is not verified and petitioner does not submit affidavits of service indicating that it was properly served on respondents.  Additionally, there is no indication in the record that respondents received the document.   Absent evidence of service of a copy of a reply in the manner prescribed in 8 NYCRR §275.8, the contents of the reply will not be considered (see Appeal of Hitchen, 55 Ed Dept Rep, Decision No. 16,916; Appeal of J.H. and T.H., 54 id., Decision No. 16,687; Matter of the Parents of Two Handicapped Children, 19 id. 361, Decision No. 10,167).

On September 8, 2016, my Office of Counsel received another submission from petitioner, dated September 1, 2016, entitled “Petitioner’s Response to Respondents RTA/NYSUT Verified Answers; Affidavits of Charlotte Ferguson, Affidavit of Thomas Gillet and Affidavit of Martha Keating.”  The submission again appears to be in the nature of a reply as it states that it is submitted in response to the RTA and NYSUT’s verified answer.  However, petitioner attaches various materials, including two Notice of Petition forms, copies of several W-2s and paystubs, a direct deposit payroll authorization form from September 2015, as well as copies of her APPR Composite Scores, that do not appear to respond to anything in respondents’ answer.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No. 15,901).  Additionally, §275.5 of the Commissioner’s regulations requires that all pleadings in an appeal to the Commissioner be verified.  Petitioner’s second reply submits new evidence to support the allegations in her petition.  Moreover, the reply submitted was not verified in violation of §275.5.  Therefore, I have not considered petitioner’s second reply (Appeal of a Student Suspected of Having a Disability, 46 Ed Dept Rep 453, Decision No. 15,562; Appeal of a Student with a Disability, 46 id. 102, Decision No. 15,454; Appeal of Nocerino, 40 id. 244, Decision No. 14,472).

Respondents RTA and NYSUT contend that the Commissioner of Education lacks jurisdiction over an employee organization or a labor organization. I agree. Education Law §310 provides that any person considering himself aggrieved by an action taken at a school district meeting, by the trustees of a school district or library, or by any other official act or decision of a school officer or authority may seek review of such action or decision in an appeal to the Commissioner of Education. Education Law §310 does not authorize the Commissioner to review actions taken by an organization such as the teachers' association (Appeal of Perry, et al., 36 Ed Dept Rep 141, Decision No. 13,682; Appeal of Kane, 31 id. 322, Decision No. 12,653; Matter of Seidenberg, 15 id. 291, Decision No. 9,179). Thus, petitioners' claims regarding RTA and NYSUT must be dismissed for lack of jurisdiction.[2]

Respondent district contends that the petition is untimely as it was not filed within 30 days of petitioner being placed on administrative leave.  I disagree.  Petitioner’s challenge to respondent district’s action on December 10, 2015 placing her on paid administrative leave will not be dismissed as untimely, as such action, if proven, would constitute a continuing wrong.  The continuing wrong doctrine applies when the ongoing action is itself an unlawful action, such as the unlawful employment of an unqualified individual (Appeal of Kippen, 48 Ed Dept Rep 469, Decision No. 15,919), unlawful appointments to a district’s shared decision-making team (Appeal of Sadue-Sokolow, 39 Ed Dept Rep 6, Decision No. 14,155), an improperly constituted professional development team (Appeal of Copenhagen Teachers’ Association, et al., 45 Ed Dept Rep 459, Decision No. 15,381) or certain ongoing expenditures under an austerity budget that did not comply with the law (Appeal of Aarseth, 32 Ed Dept Rep 506, Decision No. 12,901).  The doctrine does not apply where the specific action being challenged is a single action, inaction or decision and the resulting effects are not intrinsically unlawful (Application of Ayers, 48 Ed Dept Rep 350, Decision No. 15,883; Appeal of a Student with a Disability, 48 id. 146, Decision No. 15,821, judgment granted dismissing petition to review, April 8, 2009, Sup.Ct., Albany Co. [Zwack, J.]).

Petitioner appears to allege that she was unlawfully placed on administrative leave with pay without any charges preferred against her under Education Law §3020-a and in violation of her due process rights.  Suspension of a tenured teacher requires a board of education to file written charges with the clerk or secretary of the board (Education Law §3020-a).  Suspension of a tenured teacher without the filing of such charges within a reasonable time is ultra vires and, thus, constitutes a continuing wrong (see Appeal of Kavanaugh, 55 Ed Dept Rep, Decision No. 16,897; Appeal of McCall, 33 id. 148, Decision No. 13,005).  Consequently, I decline to dismiss as untimely that part of petitioner’s appeal challenging respondent district’s December 10, 2015 actions.

Turning to the merits, by letter dated December 10, 2015, petitioner was advised that she was being placed on “paid administrative leave” but there is no evidence in the record as to the reason provided for such leave beyond the initial two days.  Petitioner remained on leave for more than seven months at the time of the filing of this appeal.  The only reasoning provided by the district for the continuation of petitioner’s leave is her failure to submit a HIPAA-compliant release and submit to an independent medical examination as requested in March 2016, more than three months after she was placed on administrative leave.  However, there is no indication that the district has preferred charges against her at any time for insubordination due to petitioner’s failure to comply with the district’s directive to submit to a medical examination, as it is clearly empowered to do (see Matter of Bd. Of Educ. of Valhalla Union Free School Dist., 19 Ed Dept Rep 259, Decision No. 10,122, aff’d 80 AD2d 660).  In this case, petitioner has been suspended for more than a year without any charges being preferred against her.  During that time, she has been prohibited from coming on school property.  While a board of education has the right to place an employee on administrative leave pending an investigation and/or pending disciplinary charges being filed against the employee (Appeal of Kavanaugh, 55 Ed Dept Rep, Decision No. 16,897), and the district correctly states that it has the right to require a teacher to submit to a medical examination, on this record, I find that respondent district’s actions constitute an unlawful suspension in the absence of the timely filing of disciplinary charges.  Respondent has provided no evidence that it was conducting an active investigation during the period of administrative leave and has not established that it took action to file charges within a reasonable time or, as discussed below, in compliance with Education Law §2566(6).  The district has provided no viable explanation for its delay in bringing disciplinary charges against petitioner – petitioner’s suspension predated her refusal to submit to a medical examination by several months and the district does not explain why it has failed to bring an insubordination charge.

Moreover, under Education Law §2566(6), the superintendent of schools of a large city school district, such as the Rochester City School District, has the authority to suspend a teacher until the next regular board meeting.  Petitioner’s suspension should have been reported to the board of education for action no later than the next regular board meeting.  Since petitioner’s suspension was not acted upon in a timely manner, it must be deemed null and void (Appeals of Williams, 37 Ed Dept Rep 643, Decision No. 13,947).

However, as noted above, respondent board does have the right to order petitioner to submit to a medical examination pursuant to Education Law §913.  It appears from the record that, since approximately April 2016, petitioner has refused to complete the paperwork necessary to submit to a medical examination.  In response, respondent may bring insubordination charges pursuant to Education Laws §3020-a or may place petitioner on involuntary sick leave pursuant to Education Law §913 until she submits to such an examination (Appeal of McCall, 33 Ed Dept Rep 148, Decision No. 13,005; Appeal of El-Araby, 28 id. 524, Decision No. 12,188).  Accordingly, while I will direct that all references to the December 10, 2015 suspension be expunged from petitioner’s record, I will also order that petitioner be deemed to be on involuntary sick leave, which may have the same effect as a suspension without pay (see Kurzius v. Bd. of Educ., 81 AD2d 827).

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that, any and all references to the December 10, 2015 suspension be stricken from petitioner’s records and personnel files; and

IT IS FURTHER ORDERED that petitioner be deemed to be on involuntary sick leave pursuant to Education Law §913 until she submits to a medical examination, provided that nothing in this decision precludes respondent board from filing charges in accordance with Education Law §3020-a within the period of limitation prescribed in Education Law §3020-a(1).

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