time we'll hear morrison versus the buffalo born of education it seems like you're losing your audience contract by the buffalo board of education to perform a service a two year service in what was considered a failing school district she has a great background she has great experience in working in urban districts that have great difficulties she was specifically hired for that purpose she was hired initially without any new york state certification she fully disclose that to the superintendent to the board to everyone who reviewed her contract her contract was eventually ratified by the board along the way the superintendent and the assistants mr brown the director of talent management advised her to obtain certification she did ship teen two separate certifications the certification she obtained were exactly what they directed her to obtain they fired the board at some point after that within or so of her last certification voted eight zero to terminate her this is a case that involves fairness there was a dispa r legal bargaining power if you will you say fairness you you are ruining the word contract well yes but the contract itself was negotiated from the standpoint of the board having multiple in house legal counsels in a routine law for my client came in from out of state not being familiar with new york state certification the process and relied upon them to guide her for painting the proper certification and the contract required h know the contract dispute is not specific to the job posting required but the contract the silence that was never incorporated by reference there's nothing incorporating and of course we're not here to prove the case today we're simply here to make a plausible argument are her to maintain any certifications required of her position that is qualifications required by the department of civil service or the state education department that is because the job posting is created in house by the board and in a fact the only decision that i found doing my research was this opinion from the senate occasion commissioner who found the internship position certificate to be department all right so your argument i assume at least in challenging dismissal is that since it's the education department that gave her that certificate regardless of what he said now at least about her eligibility for it that she complied with the contract is that yeah absolutely your honor ok now discovery might be you know elicit all kinds of other facts but right now you're saying this shouldn't be dismissed absolutely zero we're looking at some very specific cases the primary objective of the court of a court in interpret a contract is to give effect to the intent of the parties as revealed by the language of their agreement and i turn to page eighty two a one hundred new york law the question of ambiguity must be determined from the face of the agreement without reference to extrinsic evidence if we're looking at the job posting  that's basically our position in and i know we also have the negligent determination which i believe is the basis of giving bad legal advice essentially the mr brown  management director took it upon himself to guide her as to what the proper certification is for the job the complaint itself says of twenty five a copy of her application for employment demonstrates that time interview in hiring she truthfully declared her own lack of a valid new york state education department certification for the positions applied and interviewed for why and and and waved that's what they did your honor and in fact it's the course of conduct that is in no way for provision in the contract yes but the kind that may be true but the case law shows that of conduct of the parties deviates from that that they can't rely upon the non waiver clause if their actions treated the contract as valid which they did they paid her for almost six months they've they obviously guided her to get the certification and at some point the board voted to ratify her contract offer cation that's required by law we don't know we don't know your honor we don't know we've been might also  the but the the real injustice if you want to look at this whole big picture she did exactly what they told her to do twice and then they fired her and the only law out there that i could find shows this insurance ship's certificate is valid for whatever job she was hired to perform it's disputed your honor where exactly but the the idea here need to make a plausible argument to remain in front of the district court and we believe we've made multiple plausible arguments or multiple grounds within that breach of contract alone within that prog of the  morning morning may it please the court joel moore from the buffalo public school district arguing on behalf of a peli buffalo public school district and very specific kids are required by the department of civil service with the educate your honor i reference eighty one which is the the job posting i should say that it reflects that's what the posting required but the that's not what the actual agreement requires and i i'm i'm a little concerned here as to whether we know on this record what it is that the department of civil service or the state education department required your honor will as i understand  it the way the process works is we have a human resources department and all of our higher e's actually have to go through the city of buffalo civil service department they dictate the job specs the job duties breach of contract action from a woman who did get some certificates she got the s d l internship she got a conditional school building leader certificate how do we know that those aren't satisfactory under the requirements of the department of education or the department of civil service how do we know that on this record you're on it respectfully i submit to you that it isn't so much a question as to whether they are satisfactory i question as to what she bargained for under the contrary to the contract paragraph thirteen you don't have i didn't see anything else that allows you to require her to maintain any other certificates with the specific  certificates are mentioned in the job posting and if you look how do we know that that's what the department of civil service or the state education department require which is all the contract says she has to do your hon as i said i lean on my initial statement which is that would be reflected in civil services job posting requirements they would specify the two requisite certificates in this case i guess what i'm asking is it's possible that the job requirements you imposed are different from what the said these two state departments require and since you didn't incorporate your job notice into the her contract if you're firing her for not having those particular documents it's a question whether that is permissible under the contract especially when the allegations are that you didn't keep telling her to get the two certificates identified in the posting according to the pleadings you told her to get the s d l internship i understand this may all be disputed but that's that's the the pleading that that's what you told her to get in the end and the state department of education gave it to or whether they should have or not is another matter your honor she was instructed to get the internship certificate but she was not an instructor to get it in place of the requisite certificates and i'll mention what weapon been for then there's additional training that may have been useful for her in particular she came from out of state so i believe she was from florida and her training there would not necessarily be consistent with those of the training that's required in new york and as a result there would have been recovery which way does that country comes from florida so she can have no no idea under the sun with the requirements of the new york state department of education and  and agree with your honor but i i think that's why it was listed in the job posting and i would suggest to the court or submit to the court that the contract actually does encompass the job posting and specifically if you look at exhibit b of the contract which pacifically says attachment be to agreement of employment job duties and job description that's on eighty four and so it pushes you to the job duties and job description and that's the posting that you'll find on it if it's so obvious and why did the department and the school districts sign the contract if it's so obvious that she was not qualified your  honor i think she said she didn't lie she said she said she had read yet and she may not have known what do you have and says between qualifications that she had florida and qualifications that would be required in new york your honor and i think in some of the things that were opposing counsel are true we were presented with a candidate we thought had the core abilities to perform although she needed additional training and that's why we implement our no waiver clause in essence what a no way for  clauses is a clause that ultimately says if a party does not consistent with a contract for a period of time we reserve the right to insert ourselves an exercise in this case the opportunity to cut ties with that party but having recognized that she did bring some of great qualities to the table we wanted to give her an opportunity to meet that and so in essence once again we built that into our culture where she never told that she needed to get the thing that she needed to have well your honor we believe that we told her that by the job posting that was part and parcel of the employment agreement but then you hire without it i mean the job posting says you have to have it she doesn't have it you know she doesn't have it you hire her anyway and you give her a contract that says get whatever requirements are demanded by the by two state departments and in addition your honor she's there for over eight months so she has an opportunity to see those  absolutely but it's still not clear what requirements those two boards have you know you didn't ask for judicial notice of any state documents that say you have to have these requirements and we just don't have anything in the record on that your honor there is nothing in the record that specifically speaks to what the state requirements are on civil service and i argue with you at the dismissal was appropriate you may very well limited time on the breach of contract portion the whole purpose of us writing contracts is to memorialize the agreement and we talk about intelligent parties operating this notion that you had this large legal team which i assure you i wish we had a larger legal team that could entertain all this stuff i assure you we do not but we also are dealing with a doctor on the other side who is completely capable of understanding the intricacies of these things having been highly educated herself so we come in we agree to specific terms we go forward now to come back and say that we're going to operate outside of these terms even if there was another certification that was an equivalent and you see that there is some things on the record where people suggest maybe that was an equivalent i submit to you once again it's not a question of whether there was an equivalent it's a question of what we bargained for we bargained for two specific certifications she lacked both of those she was given time or at least had ample time eight months out of a two year contract to seek out and secure that once the district inserts itself and says you know what we've reached a point where you haven't gotten to that part of our bargain agreement and we're going to cut ties of result contractually i believe we have a right to proceed like that's the whole point of a contract we would you walk through just very quickly please mr moore what it is where it is in the contract that the school says or the school board says this was required so look you are using an attachment b to bring in yes i'm using attachment b which is referenced on the appendix to eighty four and that pushes me back to the job posting which is on a sixty five so if we actually be tell you that it refers to the job posting a believe attachment be it's just one sheet right it's just one sheet and it says job duties and job descriptions but now that why does that necessarily mean the posting well the job duties in the job description are morea lived on the post yeah but and how not as far as i'm concerned when i look at this and say how do i know that that's the job posting i mean the job posting wasn't clipped to this right no it wasn't was just this one sheet that was intended by the drafter somewhat ambiguously perhaps to refer to the job post and there was no there was no suggestion at least on the record as i understand it there was an ambiguity with respect to this this was included as a there this was included as an attachment to the amended complaint and it is arguably incorporated thereby but as i said there's nothing in the complaint that says oh there's an ambiguity we don't know what attachment be the agreement on employment or the job duties adopt job descriptions that are referenced what it's referencing well it's not clear that what it references is the certificates required in paragraph thirteen because you didn't write paragraph the third team to say that if you fail to maintain a certificate of a the department of civil service or the state education department which main clued the ones in the job posting there may be alternative ones as i said we just don't know because nothing is in the record as to what these two departments require and as i said your honor i think we have to be careful not to read the contract until tallaght he just based on thirteen i think we have to read the contract until tally of everything that's in the contract and everything in the contract includes not only the clauses that we talk about such as a no waiver but it also includes the exhibit b which which doesn't even reference the job posting it just says job duties job description and on its face  not say where to look for the case and your honor as i said i submit to you that there's there was no contention what it was referencing there's been enough there's nothing in the entire amended complaint that will say to you we did not know what they were referencing in the contract when they said job duties job description in fact everyone knew we were talking about the details that were laid out the qualifications that were laid out in the job posting and when you look at those when you reference those it references the two specific certifications  question and so you with the fact that your letter start working knowing she didn't have the certificates and you did it pursuant to a contract that says it immediately becomes now and void obviously you were prepared to give her some time to obtain whatever certificates that doesn't seem to comport with the contract and i think well i think that there is a recognition of opposing counsel as alluded to it that this was a impressive candidate which is why we brought her and we include a no waiver clause but we also because we can give an individual time to rectify a potential shortcoming in this case not having no certifications but at some point we do have that on a contract it's not a no waiver provision i mean i ask counsel should we understand the facts and circumstances here to be a waiver of the no waiver provision that says failure to maintain a certification ultimately will make the contract nolan void and so would i submit alternately which i would think means she had no contract from day one but that doesn't make sense so i'm trying to figure out what you were doing here with respect to certificate and i understand where you're coming from and i think is as i said if you just look at the terminations of agreement by operation of law cl without considering the no waiver clause one could possibly come to that agreement but when you look at those two in tandem i think you come to the conclusion the district has included some flexibility and allowing an individual to rectify a potential shortcoming in their in their job qualifications and the ability to exercise that terminations at some subsequent time if that is not fixed in this case we have a situation where you have a two year contract eight months into a two year contract with which is a significant amount of time and you have the district saying all right we've reached the point where those qualifications  shortcomings if you will should have been rectified they have not been rectified as a result we're exercising our contractual right to terminate and if you note the board mentions when they discuss the terminations and vote they say this is nothing at all to do with dr morrison conduct or her qual or her her operation up to that point it simply has to do with the fact that she your own other only a few things i believe that need to be rebutted here i believe the the court has understood this case very well given the interests here i don't  that would be a plausible argument if in eighty four the attachment the job description requirements had been completed however that was not completed so we still are back to square one  did what do you mean it's it's blank i mean it's totally blank so there's there's never for the right or it right so even in an i'll make the argument even go a little further even if that had been completed to the a fact that it said insurance ships are a sick girl district leader certificate and ship team the internship certificate at the direction of a member of the skull of the leader of the school board mr brown  she had followed their direction and had complied to the letter and in this case she did comply to the letter i know it doesn't specify insurance ship certificate it doesn't specify anything internships and typically doesn't sound much like a master degree to me well it's for a school district leadership position or so in his innes fact it would be for any position under superintendent is what we believe any position under that worked anyone who works under a superintendent who assist a superintendent who develops curriculum would be capable of using that internship certificate once the state education department by looking at the person's experience education background determines that they're fit to have an internship certificate that certificate is issued for whatever job that they're hired for working under a superintendent somebody comes from florida and signs a contract that says they have to have certain qualification if if no objection is raised and no anomaly is pointed out why can't they assume that the qualifications that they accumulated in florida have equivalency in new york i mean you come with florida driver's license you can drive in new york absolutely or i believe that's the full faith and credit clause of the constitution would be recognizing in other states granted if you were to say that a person has the sufficient talent and education to perform a particular task and base that upon qualifications that that person has in another state i take it that's here that's part of our argument you are in fact there's another argument that we included in the complaint which which is a specific section brown then superintendent of education as well as the whole selection committee she appeared in front of a multipurpose and selection committee and she was interviewed extensively by these individuals on two separate occasions before she was actually offered the contract so this was always of a full and ample opportunity for everyone to explore what her credentials were what her degrees were in what her experience was and she passed all the tests that were required reading is that the first week on the job which she's told about certification is to get a reciprocity certification right is that what yes for the first thing she's told is not to get the two certifications referred to in the job posting but to get a reciprocity certification that her florida credentials satisfy new york that is correct and  she doesn't get that she gets the conditional school building leader certificate right and we don't have anything in the record as to whether new york wires more of someone in her position believe what she obtained this internship certificate for the school district leadership position that least that's our position she obtained the highest level of certification available because the opinion we have is an internship certificate is the equivalent of the suit the underlying full fl certificate at least the whole idea is if someone is that well qualified they should be given the opportunity to finish their learning essentially on the job and then fulfill whatever courses if they have to take some courses online or attend a seminar or two to fulfill that whatever to be completed the education department gives that flexibility to candidates thank you bo