Labor & Employment Law

NY PERB holds notices of claim are no longer required in improper practice cases against Boards of Education

NY PERB holds notices of claim are no longer required in improper practice cases against Boards of Education
Source: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/

Reproduced with permission. Copyright © 2008, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved.

Manhasset Educational Support Personnel Association, ____PERB____ (April 3, 2008), Download perb.pdf is an important New York Public Sector Labor Law decision. For several years, PERB required that Notices of Claim be filed pursuant to Education Law Section 3813. In this decision PERB makes two important holdings. First, PERB holds that the Notice of Claim was timely. Second, PERB holds that even if it were not timely, Notices of Claim are no longer required as a result of changes in the case law.

Specifically, PERB took note of Board of Education of Union Endicott v. PERB, 197 A.D. 2d 276 (3rd Dep't. 1994), court held that Notices of Claim were a condition of filing Improper Practices. However, PERB finds that ruling unsustainable in light of the Court of Appeals decision in Freudenthal v. Nassau County, 99 NY2d 285 (2003), which holds claims filed with the NY State Division of Human Rights, an administrative agency, do not require Notice of Claim. PERB also extensively analyzed the statutory and common law and concludes the Legislature did not intend notices of claim be required as a condition precedent to filing Improper Practice charges.

This is a critically important decision for attorneys who practice in this area.

Mitchell H. Rubinstein

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[Some other considerations concerning the impact of Section 3813 in litigation:

1. The Commissioner of Education has held that Section 3813 does not apply to appeals brought under Section 310 of the Education Law [Appeals of Bodnar and DeGiglio, 1990 Opinions of the Commissioner of Education, 12369]. In Mennella v Uniondale UFSD, 287 A.D.2d 636, the Appellate Division decided that a petition filed with the Commissioner of Education may constitute the functional equivalent of a Section 3813(1) notice of claim.

2. In CSEA v Lakeland Central School District, 230 A.D.2d 703, the Appellate Division rejected Lakeland?s theory that CSEA's action for damages "for breach of a collective bargaining agreement" should be dismissed because CSEA had not complied with the "notice of claim" requirements set out in Section 3813 of the Education Law. The Court said that "the collective bargaining agreement entered into by the parties contained detailed grievance procedures and this constituted a waiving compliance with that requirement" by CSEA.

3. In determining the applicability of the three-month notice of claim requirement of Education Law 3813(1) to statutory or nonjudicial proceedings involving school districts, school boards and boards of cooperative educational services, as well as parallel notice of claim requirements when such proceedings involve other municipal units of government, New York?s courts have distinguished between proceedings which concern an individual?s personal interest [see, for example, Doyle v. Board of Educ. of Deer Park Union Free School Dist., 230 A.D.2d 820, a case involving a claim of lost retirement benefits] and those involving an individual seeking to vindicate a public interest (see Union Free School Dist. No. 6 of Towns of Islip & Smithtown v New York State Div. of Human Rights Appeal Bd., 35 NY2d 371, 380, rearg denied 36 NY2d 807). The general rule: the provisions of subdivision 1 of section 3813 are applicable in actions involving ? only a personal interest? but not in actions involving an effort to vindicate a ?public interest.?

Harvey Randall]

Full post as published by New York Public Personnel Law on May 12, 2008 (boomark / email).