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Decision No. 12,814

Appeal of OLGA CARLIN, JOHN FERGUSON, AL SCHWARTZ, ROBERT DEL ROSSO, THOMAS LATTIMER, VINCENT VIZZO, ELEANOR SMALL, DON FEAR, GARY EGGERS, DENIS HUTCHINSON, RUTH DOLAN, JOSEPH CUOZZO, MAT BERNSTEIN, FRANK NAPOLITANO, MICHAEL COLUMBIA, JOSEPH GRILLO, ELLIOT HYNES, EDWIN BROOKS, NORA BOURRUT, JOHN DEUS, and LARRY LUBIN from action of the Board of Education of the Three Village Central School District relating to the Excellence in Teaching Apportionments.

Decision No. 12,814

(September 25, 1992)

Paul J. Derkasch, Esq., attorney for petitioners

Gregory J. Guercio, Esq., attorney for respondent

SOBOL, Commissioner.--Petitioner Olga Carlin, as President of the Three Village School Administrators' Association (TVSAA), and 20 individual department chairpersons and directors appeal from respondent's action denying department chairpersons and directors salary increases from the district's Excellence in Teaching (EIT) apportionments for the 1989-90, 1990-91 and 1991-92 school years. The appeal must be sustained in part.

The TVSAA is the collective bargaining representative for administrators and supervisors, including department chairpersons and directors in respondent's school district (the "district"). In addition to their supervisory duties, at least some department chairpersons and directors in the district teach classes. Under Article XII of the collective bargaining agreement between the Three Village Central School District and the TVSAA covering July 1, 1989 to June 30, 1992 (the "agreement"), department chairpersons are limited to teaching a maximum of 3 regular teaching periods per day, and directors are limited to 2 periods per day. Department chairpersons are appointed to their supervisory positions annually.

Article XXII A of the agreement establishes the salaries of administrators and supervisors, generally by category, based on years of service as an administrator and prescribes for each category a percentage increase to be paid over the salary payable under the prior agreement. However, Article XXII B of the agreement, guarantees department chairpersons a minimum salary:

B. Minimum Guarantees

For the life of the contract, department chairpersons and directors will have the following minimums above their teachers' salaries guaranteed to them after having their new salaries calculated:

Small Dept. - $2,400

Large Dept.** - $3,000

Directors (10 mo.) - $3,500

** . . . .

Petitioners assert that for the 1989-90 school year, 13 of the 21 department chairpersons and directors represented by the TVSAA had their salaries computed under Article XXII B based on their teachers' salaries plus the minimum guarantee. Petitioners further allege that 17 of the 21 department chairpersons and directors had their salaries computed under Article XXII B for the 1990-91 school year, and the same number will have their salaries determined under Article XXII B for the 1991-92 school year. Respondent has offered no evidence to the contrary.

Petitioners contend that those department chairpersons and directors who are compensated under Article XXII B are being paid a teacher's salary for the teaching duties they perform and are therefore eligible to receive a proportionate share of the district's EIT funds as "eligible teachers" within the meaning of 8 NYCRR '175.35(e)(1)(i). Petitioners concede that any department chairpersons or directors compensated under Article XXII A are being paid under an administrative or supervisory salary schedule for any teaching duties they perform and are not eligible teachers. Petitioners argue that respondent violates 8 NYCRR '175.35(e)(1) and (e)(2) by refusing to allocate EIT funds to the TVSAA for the purpose of separate collective negotiations on the distribution of funds to increase the salaries of those department chairpersons and directors who qualify as eligible teachers.

Respondent contends that the appeal must be dismissed as untimely. An appeal to the Commissioner must be commenced within 30 days of the making of the decision or the act complained of, provided that the Commissioner, in his discretion, may excuse a delay for good cause shown (8 NYCRR '275.16). Respondent argues that it notified petitioners that they were ineligible to receive EIT funds in a September 19, 1990 letter to petitioner Carlin as President of the TVSAA. The letter states that members of the TVSAA bargaining unit with part-time teaching responsibilities are paid on an administrative salary schedule and are not eligible for any share of EIT funds. This was based on an opinion from the school attorney, and suggests that petitioners' attorney contact the school attorney if he has any questions. Respondent argues that because this appeal was not commenced until November 19, 1990, more than 30 days after the September 19 letter, the appeal is untimely.

Petitioners counter that the September 19, 1990 letter is ambiguous, does not amount to a final determination, and expressly invites further discussion. Petitioners argue that the time to commence the appeal did not begin to run until October 18, 1990, when their attorney was allegedly informed by the school attorney in a telephone conversation that respondent did not agree that TVSAA members compensated on the basis of their teacher salary plus minimum guarantee are eligible to receive EIT funds. Petitioners further argue that the appeal is timely since they actually delivered a copy of the petition to the district clerk on November 16, 1990, but had to serve again because it had been delivered by a party to this appeal, which is not valid service under 8 NYCRR '275.8(a). Alternatively, petitioners contend that denial of eligibility for an EIT salary increase is in the nature of a continuing wrong, subject to appeal at any time.

I find that this appeal is untimely with respect to the 1989-90 school year. Petitioners offer no excuse whatsoever for their delay in bringing an appeal regarding their eligibility for the 1989-90 EIT apportionments until November 19, 1990, approximately four and one-half months after the end of the 1989-90 school year. There is no evidence in the record that petitioners ever requested shares of the 1989-90 apportionments, and such a request may not be made for the first time several months after the EIT apportionments have been made to the district and distributed to eligible teachers.

However, I find that this appeal is timely with respect to the EIT apportionments for the 1990-91 and 1991-92 school years. In other contexts, claims involving the calculation of salary have been viewed as continuing wrongs subject to appeal at any time, with the appeal being timely with respect to the computation of salary for the future and for 30 days prior to commencement of the appeal (Matter of McClay and Traver, 22 Ed Dept Rep 560, aff'd Matter of Greenwich v. Ambach, 107 AD2d 910; Appeal of Aebli, et al., 26 id. 436; Appeal of Quinn, et. al, 31 id. 244). Thus, the time to appeal for an employee aggrieved by improper placement on a salary step runs anew upon issuance of each paycheck (Matter of McClay and Traver, supra; Appeal of Quinn, et al., supra), as does the time to appeal from the improper computation of years of service (Appeal of Aebli, supra). While this case does not involve a dispute over the continuous computation of salary, it does involve a decision concerning EIT eligibility that is in the nature of a continuing wrong and that does not become effective until the State has paid the EIT apportionments to the school district. The time for filing an appeal thus runs from the effective date of the action and not necessarily from the date the action was taken or the decision was made (Appeal of Quinn, et al, supra; Appeal of Bovi, 29 id. 352; Matter of Halayko, 23 id. 384).

The EIT apportionment statutes provide a limited amount of State funds to be used by school districts to increase the salaries of eligible teachers (Education Law '3602[27]). School districts that have submitted an application receive EIT funds as part of their regular State aid payments in accordance with the payment schedule established by Education Law '3609 (8 NYCRR '175.35 [d] [2]). Where there are eligible teachers in more than one bargaining unit, the district is required to allocate the EIT funds it receives among the bargaining units on a per capita full-time equivalent basis (8 NYCRR '175.35[e][2][i]). The funds allocated to each bargaining unit are then paid to eligible teachers in accordance with separately negotiated collective bargaining agreements (Id.).

The essence of petitioners' claim is that respondent has erroneously denied them eligibility for EIT funds to which they are entitled under the EIT statutes and regulations, and has violated 8 NYCRR '175.35(e)(2)(i) by failing to allocate EIT funds to their bargaining unit. Respondent's decision denying petitioners eligibility did not become effective until respondent received the EIT apportionments for the school year and was in a position to allocate EIT funds to the bargaining units representing eligible teachers. Pursuant to 8 NYCRR '276.6, I take notice from the records of the State Education Department that respondent filed an application for EIT funds for the 1990-91 school year on September 14, 1990 and an application for the 1991-92 school year on September 30, 1991. According to Department records, in the 1990-91 school year limited amounts of State aid were paid to respondent pursuant to Education Law '3609 on or before October 15 and November 15 and the remainder of the aid due the school district was paid in equal monthly installments (less certain reductions) on or before the fifteenth day of April, May and June. Accordingly, respondent received its first installment of a small proportion of its EIT funds on or about October 15, 1990, and continued to receive EIT funds with its scheduled aid payments throughout the school year. Each time respondent received an apportionment of 1990-91 EIT funds, petitioners' claim was renewed. Since neither 8 NYCRR '175.35 nor Education Law '3602(27) specify when a school district must allocate its EIT funds among bargaining units, petitioners' appeal would be timely if brought within 30 days of respondent's receipt of any payment of 1990-91 EIT funds, but only to the extent that such payment, combined with any future payments of EIT funds due the district for the school year, would be sufficient to pay the amount of petitioners' claim.

Petitioners commenced this appeal on November 19, 1990 within 30 days of respondent's receipt of the November 15, 1990 State aid payment. Therefore, the appeal is timely with respect to the 1990-91 EIT apportionments, and is certainly timely with respect to petitioners' eligibility for shares of the 1991-92 EIT apportionments. Since it appears from the records of the Department that only approximately four percent of the total aid due respondent was paid prior to the November 15, 1990 State aid payment, it is clear that at the time petitioners commenced this appeal, there were more than sufficient EIT funds available in the November 1990 and subsequent scheduled aid payments to make a full allocation to the TVSAA on behalf of petitioners.

Turning to the merits, 8 NYCRR '175.35(e)(1)(i) defines "eligible teacher" as a school employee who provides nonsupervisory educational services to pupils under a teacher's certificate or license listed in the regulation. The regulation excludes from eligibility those educators who are "compensated for such educational services under an administrative or supervisory salary schedule." Thus, an educator who performs both administrative duties and teaching duties under a teacher's certificate is not disqualified from eligibility for EIT salary increases simply by virtue of his or her inclusion in an administrative bargaining unit. If such an educator is compensated for teaching under a teacher's salary schedule, and receives a stipend or the equivalent for administrative duties performed, the educator would be eligible to receive EIT funds (8 NYCRR '175.35(e)(1)(i); Schneider v. Sobol, 76 NY 2d 309; Appeal of Paradise, 30 Ed Dept Rep 24).

In this case, those department chairpersons and directors who received the minimum guaranteed salary under Article XXII B of the agreement were actually paid a teacher's salary plus a fixed additional amount for performing administrative duties. While it is true that the minimum guarantee only comes into play when the difference between the salary of the department chairperson or director that would be payable under Article XXII A is less than the amounts specified in Article XXII B, the fact remains that those educators who receive the minimum guarantee are being compensated as teachers for the teaching duties they perform. It is immaterial that they perform more administrative duties than teaching duties or that their salaries are determined by the terms of an administrator's agreement or that the agreement does not use the term "stipend." By linking the compensation of these department chairpersons and directors directly to their salaries computed under a teacher's salary schedule, respondent has treated them as teachers for salary purposes. I find, therefore, that those department chairpersons and directors whose salaries were computed under Article XXII B of the agreement were not compensated under an administrator's salary or salary schedule for their teaching services and that any such educators who perform teaching duties under one of the teacher's certificates listed in 8 NYCRR '175.35(e)(1)(i) are eligible to receive EIT salary increases in proportion to their teaching duties.

Respondent contends that even if petitioners are eligible teachers, this appeal must be dismissed as academic because Article VI E of the collective bargaining agreement between respondent and the Three Village Teachers' Association provides that EIT funds are to be built into the teachers' salary schedules. Accordingly, respondent contends that petitioners have already received the EIT funds to which they are entitled and would be unjustly enriched by receipt of additional EIT funds.

By the terms of the teachers' collective bargaining agreement, respondent agreed to pay $30,000 from each year's EIT apportionment to the Teachers' Association Professional Development Fund and an additional $30,000 each year for a program involving release of teachers from duty periods. As respondent argues, the agreement provides that the balance of the EIT apportionments are to be used to improve the teachers' salary schedules.

The Commissioner will decide matters in actual controversy and will not render a determination on a state of facts which no longer exists or which subsequent events have laid to rest (Appeal of Watkins, 31 Ed Dept Rep 548; Appeal of Bahret, 30 id. 161; Appeal of Vachon, 28 id. 276). To the extent that respondent's 1990-91 and 1991-92 EIT funds were incorporated into the teachers' salary schedules used to compute petitioners' salaries, this appeal must be dismissed as moot, because petitioners have already received the benefit of the EIT funds and are not entitled to receive additional EIT salary increases.

However, petitioners have not received the benefit of the $60,000 in EIT funds earmarked each year for the Professional Development Fund and the release program. This appeal is not moot with respect to those funds. Accordingly, I direct respondent to compute the allocation that would be payable to the TVSAA in accordance with 8 NYCRR '175.35(e)(2)(i) out of $60,000 in 1990-91 and 1991-92 EIT funds and to negotiate collectively with the TVSAA concerning the payment of EIT salary increases to eligible teachers within the TVSAA bargaining unit. Such allocation must be made on a per capita full-time basis in accordance with the number of eligible teachers in each bargaining unit on October first of each school year. I note that the record before me does not contain sufficient data to make such computation.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

END OF FILE