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Decision No. 12,698

Appeal of JAMES ZATUKAL from action of the Board of Education of the City School District of the City of Peekskill regarding an employment contract.

Decision No. 12,698

(May 11, 1992)

O’Hara, O’Connell, Hrabchak & Gebo, P.C., attorneys for petitioner, Craig M. Atlas, Esq. of counsel

Peter B. Nickles, Esq. attorney for respondent

SOBOL, Commissioner.-—Petitioner appeals from respondent’s determination that he is not entitled to benefits under his employment contract. The appeal must be sustained.

Petitioner served as deputy superintendent of schools in the City School District of the City of Peekskill ("the district") from December 1984 until July 1991. His contract for the three-year period between July 1, 1987 and July 1, 1990 was extended for one additional year by order of the Commission of Education (Appeal of Zatlukal, 28 Ed Dept Rep 542). In pertinent part, paragraph 7 of petitioner’s contract (hereinafter "paragraph 7") provides:

The Deputy Superintendent shall be entitled to receive all benefits which now are, or which during the term of any extension of this Agreement may hereafter be received by any other District employee, including, but not limited to, vacation leaves, illness benefits and sick leaves; health, dental, life and other forms of insurance protections; personal leaves; retirement programs, sheltered annuities, and other employee benefits. Said employee benefits shall be received by the Deputy Superintendent to at least the same extent and amount as such benefits are provided to other District employees.

Article XXII(B)(9) of the contract between the district and the Peekskill Faculty Association, in effect during the 1990-91 school year (hereinafter "the PFA contract"), provides:

Unit members will receive in their last year of service prior to retirement and upon prior notice $25.00 for each day of unused sick leave up to 100 days. Any persons intending to retire at the end of the school year must notify the Superintendent of his/her intention to do so by January 1 of that school year, in order for this provision to become effective. Payment of this benefit will commence with the first paycheck issued in February of the year notification is given.

On December 18, 1990, petitioner informed respondent that he intended to retire from the district, as of July 1, 1991. The district paid petitioner for his accrued sick leave, pursuant to paragraph 7 and the PFA contract.

On June 17, 1991, the Legislature passed a retirement incentive bill for public employees (L 1991, ch 178). That bill (hereinafter "chapter 178") permitted school districts, by resolution, to offer a retirement incentive for eligible employees retiring within a "window period" to be determined by the district (L 1991, ch 178, " 3). By resolution dated July 2, 1991, respondent elected to offer this incentive to eligible district employees. Respondent’s resolution provided that district employees who were members of the New York State Teachers Retirement System and who retired between July 10, 1991 and August 9, 1991 would be eligible for incentive benefits under chapter 178. Respondent also permitted employees who had previously submitted notices of retirement, to change their retirement dates to take advantage of the incentive program.

In an undated letter, received by respondent on July 1, 1991, petitioner asked the district to change the effective date of his retirement from July 1, 1991 to July 15, 1991, and to certify him for participation in the chapter 178 retirement incentive program. Chapter 178 defines the term "active service," for purposes of the retirement incentive program, to include "the period of time subsequent to the June 1991 school term and on or before August 30, 1991" for eligible employees who otherwise were in active service on May 1, 1991 (L 1991, ch 178 " 1[m]). Although respondent paid petitioner through July 15, 1991 (as compensation for unused vacation accruals), the district informed him that it did not intend to change his retirement date to July 15, 1991, because it did not wish to extend his employment contract to that date. On July 22, 1991, respondent’s superintendent of schools wrote to petitioner informing him that, if he chose a retirement date occurring after the expiration of his contract, he would be deemed ineligible for any benefits accruing under that contract. Nonetheless, in accordance with petitioner’s request, the district later notified the New York State Teachers Retirement System that petitioner retired effective July 15, 1991 and that he was eligible for the retirement incentive.

On August 8, 1991, the district’s labor attorney informed petitioner that, since he retired on July 15, 1991, after the expiration of his contract, he would not be eligible for retiree health insurance. The attorney also demanded that petitioner return the monies which he had paid pursuant to paragraph 7 and the PFA contract. The district’s assistant superintendent for business wrote to petitioner on August 14, 1991, reiterating the attorney’s demands. Petitioner commenced this appeal on August 30, 1991.

I entertain this appeal pursuant to Education Law "310 and the jurisdiction of the Commissioner of Education to enforce the employment contracts of school superintendents (Matter of Lewiston-Porter Central School Dist. v. Sobol, 154 AD2d 777, 778, 546 NYS2d 227, _____). Respondent argues that petitioner is not entitled to retiree health insurance or to compensation for unused sick leave because the effective date of his retirement occurred after his employment contract expired. I disagree.

Paragraph 7 clearly states that petitioner is entitled to benefits to the same extent as other district employees. Petitioner invoked his right to continued health insurance coverage and sick leave benefits under the PFA contract by providing timely notice of his intent to retire. It is undisputed that petitioner properly exercised his right to these options during the term of his own employment contract. Respondent admits that other district employees covered under the PFA contract, who, like petitioner, were permitted to change their retirement dates to take advantage of chapter 178, were not required to return accrued sick leave payments and did not forfeit their right to retiree health insurance benefits. Respondent attempts to distinguish petitioner from these other employees by explaining that they were tenured, whereas petitioner served the district pursuant to an employment contract. I find, however, that neither petitioner’s employment contract, nor the PFA contract provide a basis for this distinction.

THE APPEAL IS SUSTAINED, and

IT IS ORDEDRED that respondent provide petitioner with retiree health insurance benefits, retroactive to August 31, 1991, in accordance with the PFA contract; and

IT IS FUTHER ORDERED that petitioner is not liable for the return of accrued sick leave payments made to him pursuant to paragraph 7 and the PFA contract, and that respondent immediately return to petitioner any such payments, in the event petitioner has returned same to the district.

END OF FILE