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Election of remedies

Election of remedies
Matter of Coughlin, Comm. of Education Decision 14,751

When there two or more procedures available to an individual seeking redress for an alleged wrong, his or her selection of one particular remedy will generally foreclose seeking one of the alternative remedies otherwise available at a later date. The Section 310 appeal filed by Kathleen M. Coughlin with the Commissioner of Education challeng­ing an employment decision made by a school district illustrates, in part, the impact of such an "election of remedies."

The Webster Central School District announced that it was seeking applicants for a new ".5 Teacher on Special Assignment" position.

Two applicants applied for the vacancy, Coughlin, who had been employed by Webster for 18 years and Johanna Siebert, a teacher then employed by the Rochester City School District. Siebert was selected for the appointment.

After learning of Siebert's appointment, Coughlin filed a "non-contractual grievance" in accordance with the collective bargaining agreement then in place. This provision in the agreement permits an employee to, among other things, challenge an alleged violation, misinterpretation or inequitable application of rules and policies, or to express dissatisfac­tion with such an alleged action by the District.

This procedure, referred to as the "Fair Treatment Procedure," involves a three-stage process leading to a final decision by the school district.

When her Fair Treatment Procedure [FTP] grievance was dismissed by Webster, Cough­lin filed an appeal with the Commissioner of Education.

Coughlin alleged that:

While she possessed permanent certification as a school district administrator, Ms. Siebert lacked "appropriate certification" and thus by hiring Siebert the District violated Education Law Sections 3001, 3009(1) and 3010, and Section 80-5.10 of the Commis­sioner's Regulations; and because there were certain discrepancies and irregularities in the interview process, Coughlin concluded that "the entire posting and interview process were the only formali­ties."

Applying the doctrine of election of remedies, the Commissioner dismissed Coughlin's appeal alleging alleged unfairness, bias, or other irregularities in the interviewing/hiring process. Coughlin had conceded that her grievance concerning this element of her appeal had been processed through all stages of the FTP. Accordingly, said the Commissioner, "[i]t is contrary to the orderly administration of justice to have multiple tribunals making determinations concerning the same controversy."

The Commissioner also stated that "[t]he doctrine of res judicata also compels the dismissal of this portion of the appeal because the grievance process has been finally determined and the collective bargaining agreement cannot confer jurisdiction upon the Commissioner of Education to review that final grievance determination" [emphasis supplied].

The other branch of Coughlin's appeal involved allegations that Siebert was not qualified for appointment to the position. Coughlin contended that because Siebert only held an "internship certificate" issued pursuant to Section 80-5.9 of the Commissioner's Regula­tions, rather than a permanent administrative certificate issued pursuant to Section 80-2.4, she was an "uncertified teacher" within the meaning of Section 80-5.10(a)(1). The Commissioner said that he disagreed with Coughlin's conclusion.

The Commissioner noted that "internship certificates are, and have been for many years, issued by the Office of Teaching Initiatives of the State Education Department, not by institutions of higher learning [and] an internship certificate is recognized by the State Education Department as a valid credential authorizing the holder to act within the area of service for which the certificate is valid."

In addition, the Commissioner noted that:

To the extent that [Coughlin] suggests that the internship certificate was not properly issued, ... actions taken by members of the staff of the State Education Department cannot be reviewed in an appeal pursuant to Section 310.

Ruling that a person holding an internship certificate issued pursuant to Section 80-5.9 is not an "uncertified teacher" for purposes of Section 80-5.10, the Commissioner dismissed this aspect of Coughlin's appeal.

Full post as published by New York Public Personnel Law on June 11, 2008 (boomark / email).