Appeal of JERICHO EDUCATIONAL ADMINISTRATORS ASSOCIATION and JOHN CATUOGNO from action of the Board of Education of the Jericho Union Free School District regarding a retirement incentive.

Decision No. 15,181

(February 25, 2005)

Robert Saperstein, Esq., attorney for petitioners

Ingerman Smith LLP, attorneys for respondent, Susan Fine, Esq., of counsel

MILLS, Commissioner.--Petitioners challenge the refusal of the Board of Education of the Jericho Union Free School District ("respondent") to provide petitioner Catuogno ("Catuogno") with a retirement incentive. The appeal must be dismissed.

Catuogno was employed as an assistant principal at Jericho High School until his retirement, effective June 30, 2003. In March 2003, respondent voted to offer certain eligible teachers a $25,000 incentive to retire effective June 30, 2003 or June 30, 2004. The incentive was announced by respondent' superintendent of schools in a March 14, 2003 letter that was apparently sent to district staff.

Shortly thereafter, petitioners consulted with district officials to determine whether Catuogno, whose employment was governed by an agreement between respondent and the Jericho Educational Administrators Association ("the Agreement"), would be eligible for the incentive pursuant to Part Two, Article V(A) ("Article V(A)") thereof, which provides, in part, that "[a]ll . . . fringe benefits provided for teachers shall also be provided for administrators . . . ." After being advised that Catuogno was not eligible for the incentive, petitioners filed a contract grievance. By memorandum dated October 10, 2003, respondent' superintendent notified the Association' president that the grievance had been denied. Petitioners then commenced this appeal, which constitutes the final step of the grievance process under the Agreement.

Petitioners contend that the retirement incentive offered to respondent' teachers is a "fringe benefit" to which petitioner Catuogno is entitled under Article V(A). Petitioners claim that respondent has previously interpreted this provision to include retirement incentives, but refused to do so here in retaliation for the Association's public endorsement and support of certain candidates for the board of education at the district's 2003 annual election. Petitioners request that I find that the district violated the Agreement and direct respondent to pay Catuogno the $25,000 retirement incentive, with interest.

Respondent denies that it previously paid administrators a retirement incentive pursuant to the parity provision (in Article V[A]) and asserts that historically, the provision has generally been limited to the benefits explicitly delineated therein, namely, health, disability, dental and life insurance.

The appeal must be dismissed. In an appeal to the Commissioner, petitioners have the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which they seek relief (8 NYCRR �275.10; Appeal of M.F. and J.F., 43 Ed Dept Rep 174, Decision No. 14,960; Appeal of Kessler, 43 id. 170, Decision No. 14,958). When construing contractual provisions, the appropriate standard is not whether a particular clause is susceptible of a different interpretation, but whether the school board's interpretation is unreasonable or otherwise arbitrary or capricious (Appeal of Caruana, 41 Ed Dept Rep 227, Decision No. 14,671; Appeal of Lilly, 39 id. 601, Decision No. 14,324; Appeals of Bodnar, et al., 29 id. 516, Decision No. 12,369). I find that petitioners have failed to establish that the administrators' parity provision entitles Catuogno to the retirement incentive offered to district teachers.

The contract provisions at issue provide, in pertinent part:

ARTICLE V – FRINGE BENEFITS

A. All (except the provision listed in Section B below) of the fringe benefits provided for teachers shall also be provided for administrators. This shall include such items as health; disability; dental and life insurances. The Jericho Educational Administrators Association shall be an equal party with the other staff organizations to all activities relative to the implementation of all fringe benefits.

B. The list of benefits does not include released time for Association officers. In addition, the per employee amount previously granted as an equivalent for the teacher welfare trust is excluded.

Petitioners argue that a retirement incentive constitutes a " fringe benefit" because Article V includes a provision addressing administrators' entitlement to a lump sum payment upon retirement. Petitioners further argue that because retirement incentives are not specifically excluded under section B, they constitute a fringe benefit to which administrators are entitled under section A. In further support of this interpretation, petitioners assert that respondent applied this parity provision to teacher retirement incentives offered during the 1992-1993 and 1998-1999 school years.

Respondent's assistant superintendent for educational operations and human resources ( "assistant superintendent") denies that the parity provision has ever been applied to an extra-contractual retirement incentive. He explains that although respondent previously provided certain administrators with a retirement incentive, on each occasion, the incentive was separately negotiated. To support this contention, respondent submits two agreements dated June 25, 1992 and February 11, 1999, each amending the Agreement in effect between the parties to include a retirement incentive for eligible administrators retiring at the end of the 1992-1993 and 1998-1999 school years, respectively. The assistant superintendent further explains that in this case, respondent did not want to offer administrators a retirement incentive because the district recently had difficulty filling vacant administrator positions.

On the record before me, I find that petitioners have failed to establish that the teacher's retirement incentive is a "fringe benefit" covered by Article V(A) of the Agreement or that respondent's interpretation was unreasonable. Preliminarily, I reject petitioners' contention that the retirement incentive is covered by Article V(A) simply because is it not specifically excluded under Article V(B). There is nothing in the Agreement that suggests that only those benefits that are specifically listed under Article V(B) may be excluded. Further, although Article V(A) refers to "[a]ll" fringe benefits, the provision also provides examples of the types of benefits covered: health, disability, dental and life insurances. Under the rule of ejusdemgeneris, the meaning of "[a]ll . . . fringe benefits" in this context is understood to cover only the type or kind of fringe benefits specifically enumerated (see, 22 N.Y. Jur.2d, Contracts, �255). While I need not decide the precise scope of benefits covered by Article V(A), I find that the lump sum payment offered to induce teachers to retire does not fall within the class of benefits intended for coverage under this provision. Thus, I cannot conclude that respondent's interpretation was unreasonable.

I further find that petitioners have failed to establish that respondent has previously applied the parity provision to a teacher retirement incentive. Neither the June 25, 1992 nor the February 11, 1999 agreements amending the parties' existing Agreement references the teachers' retirement incentive or the administrators' parity provision. In addition, the 1992 administrators' retirement incentive exceeded the incentive initially offered that year to the district's teachers. Moreover, as respondent correctly points out, if in fact, administrators were entitled to the 1992 and 1999 teacher retirement incentives by virtue of the Agreement's parity provision, the parties would not have needed to amend the Agreement to explicitly provide for such. Accordingly, petitioners have failed to demonstrate that the earlier administrator incentives were provided pursuant to the parity provision at issue here. Thus, I cannot conclude that respondent was arbitrary or capricious.

In light of this disposition, I need not address the parties' remaining contentions.

THE APPEAL IS DISMISSED.

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