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Decision No. 16,413

Appeal of EASTERN SUFFOLK BOARD OF COOPERATIVE EDUCATIONAL SERVICES ADMINISTRATIVE/SUPERVISORY UNIT, on behalf of NANCY SMALLING, from action of the Board of Cooperative Educational Services, Eastern Suffolk, First Supervisory District regarding a personnel matter.

Decision No. 16,413

(September 18, 2012)

Law Offices of Louis D. Stober, Jr., L.L.C., attorneys for petitioner, Louis D. Stober, Jr., Esq., of counsel

Littler Mendelson, P.C., attorneys for respondent, Denise Barton Ward, Esq., of counsel  

KING, JR., Commissioner.--Petitioners Eastern Suffolk Board of Cooperative Educational Services Administrative/Supervisory Unit (“Administrative/Supervisory Unit”) and Nancy Smalling appeal respondent's failure to include a specified salary increase in the calculation of Smalling's base salary, pursuant to a collective bargaining agreement ("the Agreement").  The appeal must be dismissed.

On July 1, 2011, petitioner Smalling was promoted to principal from her previous position as assistant principal, and given a two-year probationary appointment.  According to the employee salary notice received by petitioner Smalling on July 30, 2011, her base salary as principal, as of July 1, 2011 for the 2011-2012 school year, included a promotional increase of $3,000, as provided for in Article IV, section D(2) of the Agreement.  However, the base salary did not include an additional $4,700 increase to which petitioners claim she is entitled under Article IV, section B(4) of the Agreement, which states:

Unit members receiving less than the maximum permissible base salary as of June 30, 2008, June 30, 2009, June 30, 2010 and June 30, 2011 shall receive increases in base salary of $4,200, $4,400, $4,400, $4,500 and $4,700 on these same terms.

On or about January 5, 2012, petitioner Administrative/Supervisory Unit filed a Stage 1 grievance on behalf of petitioner Smalling against respondent, followed by the filing of a Stage 2 grievance after a failure to resolve the salary matter at the Stage 1 level.  On January 17, 2012, respondent's representatives met with petitioners to resolve the matter in accordance with the Agreement, resulting in a memorandum dated January 20, 2012 from respondent's Chief Operation Officer, acting as Chief Executive Officer pursuant to the Agreement, which denied the grievance.  Petitioners then commenced this appeal pursuant to Stage 3 of the grievance procedure, which provides for an appeal to the Commissioner from the decision of the Chief Executive Officer at Stage 2 of the grievance process.

Petitioners contend that petitioner Smalling, as a member of the Administrative/Supervisory Unit who was receiving less than the maximum permissible base salary as of June 30, 2011, was entitled to receive an additional increase in her base salary of $4,700, pursuant to Article IV, section B(4) of the Agreement, with interest.  Petitioners request that I issue an order declaring petitioner Smalling entitled to such increase.

Respondent denies petitioners’ allegations and contends that the appeal must be dismissed as untimely because it was commenced more than 30 days from the January 20, 2012 decision rendered in the Stage 2 grievance proceeding.

An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879).  However, the continuing wrong doctrine applies when the ongoing action is itself an unlawful action, such as the unlawful employment of an unqualified individual (Appeal of Kippen, 48 Ed Dept Rep 469, Decision No. 15,919), unlawful appointments to a district’s shared decision-making team (Appeal of Sadue-Sokolow, 39 Ed Dept Rep 6, Decision No. 14,155), an improperly constituted professional development team (Appeal of Copenhagen Teachers’ Association, et al., 45 Ed Dept Rep 459, Decision No. 15,381) or certain ongoing expenditures under an austerity budget that did not comply with the law (Appeal of Aarseth, 32 Ed Dept Rep 506, Decision No. 12,901).  The doctrine does not apply where the specific action being challenged is a single action, inaction or decision and the resulting effects are not intrinsically unlawful (Application of Ayers, 48 Ed Dept Rep 350, Decision No. 15,883; Appeal of a Student with a Disability, 48 id. 146, Decision No. 15,821, judgment granted dismissing petition to review, April 8, 2009, Sup.Ct., Albany Co. [Zwack, J.]). 

In this appeal, petitioners challenge respondent's failure to apply, on July 1, 2011, a specified salary increase to petitioner Smalling's base salary that petitioners allege is required under a collective bargaining agreement.  Exclusion of such salary increase, in the event that such salary increase is proven to be required under the collective bargaining agreement, would be intrinsically unlawful, and would potentially affect petitioner's salary in each successive school year.  It therefore constitutes a continuing wrong sufficient to excuse petitioners' untimely appeal with respect to the computation of salary for the future and 30 days prior to commencement of the appeal (seeAppeal of Carlin, et al., 32 Ed Dept Rep 222, Decision No. 12,814; Appeal of Quinn, et al., 31 id. 244, Decision No. 12,632).  Therefore, to that extent, I decline to dismiss petitioners' appeal as untimely.

Nevertheless, the appeal must be dismissed on the merits.  In his January 20, 2012 memorandum, the hearing officer found that the salary increase provided for in Article IV, section B(4) of the Agreement is applicable only to those administrators who hold the same title on July 1st as he or she held on June 30th and therefore does not apply to petitioner Smalling, who resigned as assistant principal on June 30, 2011 and was promoted to principal on July 1, 2011.  Petitioner Smalling was therefore only entitled to the salary increase for promotions provided for in Article IV, section D, which provides that if an administrator is selected for a promotional position within the bargaining unit requiring a new probationary period, she/he shall receive an increase in base of salary of no less than $3,000.

Article IV section B(4) of the Agreement regarding salaries provides, in applicable part, that "Unit members who are receiving less than the maximum permissible base salary appropriate to their titles (emphasis supplied)" as of June 30, shall receive on July 1, 2011 a specified increase (i.e., $4,700 for unit members receiving less than the maximum permissible base salary on June 30, 2011).  Respondent contends that petitioner Smalling, by resigning her position of assistant principal on June 30, 2011 and accepting the promotion to principal effective July 1, 2011, was no longer in her prior title area of assistant principal as of July 1, 2011 and therefore was ineligible for the salary increase.  Respondent further contends that the purpose of Article IV, section B(4) is to keep bargaining units within the parameters of the Agreement's minimum and maximum salaries for "their titles" by increasing the salary of the title held on June 30th for those who continue in that same title on July 1, to a number that did not exceed the maximum permissible base salary for that title. I find this to be a reasonable reading of the plain language of the Agreement.  There cannot be an "increase" in the salary for a particular title if the employee is in a different title as of the effective date of the increase.  By accepting the promotion to principal on July 1, 2011, petitioner Smalling became subject solely to the provisions of Article IV, section D of the Agreement entitled "Promotions." 

Petitioners also appear to contend that there is a past practice of applying both the promotional increase in section D(2) and the base salary increase in section B(4) to someone who resigns in one school year and accepts a new position for the subsequent school year. 

In his January 20, 2012 memorandum, the Chief Operation Officer states he reviewed the records for all Administrative/Supervisory Unit members who were promoted to higher level administrative positions, and determined that 21 members were promoted to higher level positions since 2004, with nine of those being promoted on July 1st dates.  Of the nine, six were earning less than the starting salary for the level to which they were being promoted and three were earning more.  Those six members were brought up to the starting salary commensurate with the new promotional level, but did not receive an additional salary increase pursuant to section B(4) of the Agreement.  The remaining three members were appointed at a starting salary $3,000 greater than their previous salaries, but the Chief Operation Officer found that two errors occurred in July 1, 2008 and July 1, 2009 in which both sections B(4) and D were applied to determine a member's salary, but that respondent acknowledged the errors and, upon their discovery, took steps to prevent future errors.  The Chief Operation Officer determined that two anomalies out of a total of 21 promotions in the last six years does not constitute the establishment of a global expectation or past practice.     Upon the record before me, I do not find respondent's determination to be arbitrary, capricious or unreasonable.  Petitioners have failed to carry their burden of proof to establish that the two instances where both sections B and D of Article IV were applied in determining a member's salary are not anomalous errors but instead constitute the established practice of respondent (Appeal of Pulvermacher, 36 Ed Dept Rep 333, Decision No. 13,740).