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Decision No. 13,682

Appeal of DONALD A. PERRY and ALFRED WROBLEWSKI from action of the Board of Education of the Royalton-Hartland Central School District and the Royalton-Hartland Teachers' Association regarding a teacher contract.

Decision No. 13,682

(September 28, 1996)

Randall P. Sinatra and Vincent Agnello, Esqs., attorneys for petitioners

Norton/Radin/Hoover/Freedman, Esqs., attorneys for respondent Board of Education, Bernard B. Freedman, Esq., of counsel

James R. Sandner, Esq., attorney for respondent Teachers' Association, Kevin H. Harren, Sr., Esq., of counsel

MILLS, Commissioner.--Petitioners challenge the extension of the teachers' contract by the Board of Education of the Royalton-Hartland Central School District ("respondent board") and the Royalton-Hartland Teachers' Association ("respondent association"). The appeal must be dismissed.

Petitioners are taxpayers and residents of respondent board's district. In November 1994, respondent board and respondent association entered into a collective bargaining agreement covering the period from July 1, 1992 until June 30, 1996. On March 11, 1996, respondent board voted 4 to 3 to extend that agreement until June 30, 1999 and provide a salary increase of 1.4% for each of three years for teachers in Steps A-S and a 2.5% increase for each of three years for Step T teachers. The district's school superintendent and respondent association executed a memorandum of agreement memorializing the new salary terms and the contract extension on March 26, 1996. On that same date, the superintendent and respondent association entered into a second agreement which increased the teacher's work year to 184 days during the 1996-97 school year. This appeal was commenced on April 25, 1996. Petitioners request for interim relief pending a determination on the merits was denied on May 13, 1996. Petitioners subsequently commenced an action in Albany County Supreme Court to compel the Commissioner to grant interim relief. On September 6, 1996, Judge Bradley dismissed the petition without renewal pending exhaustion of petitioners' administrative remedies.

Petitioners allege that the superintendent was without authority to negotiate a contract and that no negotiating process took place between respondent board and respondent association. Petitioners seek an order annulling the agreements entered into between the superintendent and the association. Respondent board contends that it formally approved the agreements in question and that its actions regarding those agreements were in all respects proper. Respondent association contends that the Commissioner of Education has no jurisdiction over an employee organization and that the extension of the collective bargaining agreement between the board and the association constitutes a valid and legally enforceable agreement under Article 14 of the Civil Service Law, commonly known as the Taylor Law.

Before reaching the merits, I will address the procedural issues raised by respondent association. Respondent association contends that the Commissioner of Education lacks jurisdiction over an employee organization. I agree. Education Law '310 provides that any person considering himself aggrieved by an action taken at a school district meeting, by the trustees of a school district or library, or by any other official act or decision of a school officer or authority may seek review of such action or decision in an appeal to the Commissioner of Education. Education Law '310 does not authorize the Commissioner to review actions taken by an organization such as the teachers' association (Appeal of Kane, 31 Ed Dept Rep 322; Matter of Seidenberg, 15 id. 291). Thus, petitioners' claims regarding the teachers' association must be dismissed for lack of jurisdiction.

Respondent association also notes that petitioners have raised new issues in their reply and memorandum of law. The purpose of a reply is to respond to new materials or affirmative defenses set forth in the answer (8 NYCRR '275.14), not to buttress allegations in the petition or to belatedly add assertions which should have been included in the petition (Appeal of Crawmer, 35 Ed Dept Rep 306; Appeal of Aarseth, 33 id. 522; Application of Verity, 31 id. 485). Likewise, a memorandum of law may not be used to belatedly add new assertions which are not part of the pleadings (Appeal of Coombs, 34 id. 253; Appeal of the Bd. of Educ., Tuxedo Union Free School District, 33 id. 626). Therefore, petitioners' claims that respondent board violated the Open Meetings Law, that the memoranda of agreement fail to contain the notice provisions of Civil Service Law '204-a and that respondent association failed to ratify the agreements pursuant to Civil Service Law '204-a(2) were not properly raised in the petition and thus cannot be considered.

Turning to the merits, petitioners claim that the superintendent was without authority to negotiate a contract, that the negotiations were not properly conducted and that the superintendent misled the board as to the fiscal impact of the negotiated salary increases for teachers. The record in this case indicates that at respondent board's meeting on March 11, 1996, the board authorized the superintendent to enter into an agreement with the association. As reflected in the board's minutes, it specifically authorized modification of the salary schedule by increasing Steps A-S for each of the three years by 1.4% and Step T for each of the three years by 2.5%. The minutes reflect that "the Board of Education, upon recommendation of the Superintendent and extensive deliberations" approved the above-stated terms.

On March 26, 1996, the superintendent entered into the two agreements with the association that extended the previous contract. Civil Service Law '201(12) states:

the term `agreement' means the result of the exchange of mutual promises between the chief executive officer of a public employer and an employee organization which becomes a binding contract, for the period set forth therein, except as to those provisions therein which require approval of a legislative body, and as to those provisions, shall become binding when the appropriate legislative body gives its approval.

Civil Service Law '201(10) specifically states that the "the term `chief executive officer' in the case of school districts, means the superintendent of schools...." and Civil Service Law '201(11) provides the "term `legislative body of the government,' in the case of school district, means the board of education..." Therefore, respondent association negotiated with the superintendent and reached an agreement that the board of education approved.

The fact that respondent board chose this route rather that its previous practice of appointing a negotiating team does not invalidate the agreement reached between the parties. Petitioners cite no legal authority for their proposition that the contract was not properly negotiated. The fact that the parties agreed to adjust salary increases and school days and failed to address other conditions of employment does not negate the agreements, as petitioners contend. Furthermore, the cases cited by petitioners (Board of Education, City School District of Buffalo v. Buffalo Teachers Federation, 634 NYS2d 904; aff'd 217 AD2d 336; Board of Education, Yonkers City School District v. Yonkers Federation of Teachers, 49 AD2d 753, 373 NYS2d 164) are factually dissimilar from the circumstances in this case and are not persuasive. In Board of Education, City School District of Buffalo, supra, the superintendent executed an agreement that the board of education failed to approve. That was not the case here. Based on the record before me, I find no basis to conclude that the superintendent did not have the authority to enter into the agreements or that respondent board did not endorse the superintendent's actions.

I have reviewed the parties' remaining contentions and find them without merit.