Suspension without pay during a pending disciplinary action

Suspensionwithout pay during a pending disciplinary action
Elmore v Mills, 299 A.D.2d 545, Motion for leave to appeal denied, 9 N.Y.2d 509

Among the severalissues considered by the Appellate Division, Third Department in Elmore casewas the suspension of a tenured teacher without pay in the course of a disci­plinaryaction.

Plainview-OldBethpage Central School District filed disciplinary charges against theeducator pursuant to Section 3020-a of the Education Law. Section 3020-a.2(b)provides that in the event a teacher is suspended during pendency of thehearing, such suspension shall be with pay unless the teacher pleaded guiltyto, or was convicted of, one of several enumerated crimes.

However, in thisinstance the Taylor Law contract between the district and the teacher union, inpertinent part, provided that “A teacher who has been suspended from schoolpursuant to Section 3020-a of the Educa­tion Law shall receive his/her regularfull pay to which he/she would otherwise be enti­tled pursuant to … theCollective Bargaining Agreement [CBA] and all fringe benefits for a period of amaximum of fifteen (15) school months (11/2 years salary).... Thereafter, anysuspension may be without pay.”

In December 1998,the District, relying on this provision in the CBA, suspended the teacherwithout pay, effective January 6, 1999, pending the outcome of the disciplinaryhearing. The educator, however, had neither pleaded guilty to, nor wasconvicted of, any of the several crimes enumerated in Section 3020-a. Was theteacher's suspension without pay by the Dis­trict pursuant to the CBA lawful inview of the provisions of Education Law Section 3020-a.2(b)?

Although theAppellate Division declined to rule on this question, holding that because afinal determination in the disciplinary action had been made and thus the issuewas "moot," the court did elect to discuss a number of elementsconcerning the question of suspension without pay in a Section 3020-aproceeding. It said that:


A CBA may allow a school district to suspend its teacherswithout pay as long as the agreement's terms clearly manifest the parties' intentto do so, citing Board of Education of the City of Rochester v Nyquist, 48 NY2d97.
The CBA relied upon by the District in this case clearlycircumscribes a teacher's right to full pay during a protracted suspension.
The CBA provides for restoration of wages and benefits for anysuch period of leave without pay if the teacher ultimately is not terminatedfrom employment but here the penalty imposed on Elmore was termination.
Thus, said thecourt, if the issue of the educator's suspension without pay was properlybefore it, it would find that this provision in the CBA was valid and thatunder the circumstances the District was authorized to suspend the teacherwithout pay as provided by the CBA.