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This opinion is uncorrected and subject to revision before

publication in the New York Reports.

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No. 192 

In the Matter of Roseann Kilduff,

 Respondent,

 v.

Rochester City School District, 

et al.,

 Appellants.

Cara M. Briggs, for appellants.

Anthony J. Brock, for respondent.

LIPPMAN, Chief Judge:

By letter dated September 23, 2011, respondent School

District notified petitioner, a tenured school social worker,

that she was to be suspended for 30 days without pay for

specified misconduct. Petitioner made a written request for a

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hearing on the specifications pursuant to Education Law § 3020-a,

but was advised by respondent that she was not entitled to the

process prescribed in that statute, and could challenge the

disciplinary determination against her only by means of the

procedures set forth in the collective bargaining agreement (CBA)

between the School District and the Rochester Teachers

Association, then most recently renegotiated in 2006. That

agreement provided in relevant part:

"Except as provided elsewhere in this

Section, any disciplinary action imposed upon

any eligible teacher may be processed as a

grievance and arbitration procedure"

(emphasis added).1

After unsuccessfully grieving the matter via the

process specified in the CBA, petitioner commenced this article

78 proceeding to annul the disciplinary determination, alleging

that she had been disciplined without being afforded the process

to which she was entitled under the Education Law as a tenured

school district employee. She pointed out that the relevant CBA

had been altered through renegotiation and had taken effect since

September 1, 1994, and that Education Law § 3020 (1)2 required,

1In a subsequent subsection of the CBA it is provided that

no eligible teacher may be discharged without the process

prescribed in Education Law §§ 3020 and 3020-a.

2

The portion of Education Law § 3020 (1) relevant to the

issues presently raised states:

"No person enjoying the benefits of tenure

shall be disciplined or removed during a term

of employment except for just cause and in

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in substance, that all CBAs altered by renegotiation or becoming

effective on or after September 1, 1994 afford eligible (i.e.,

tenured) school district employees the option of challenging the

imposition of discipline by the process set forth in Education

Law § 3020-a, notwithstanding the provision of an alternative

process in a CBA. Supreme Court, however, understood Education

Law § 3020 (1) to grandfather alternative, mandatorily prescribed

pre-September 1, 1994 CBA discipline procedures for as long after

September 1, 1994 as those procedures remained unaltered, even if

the CBA in which they were contained had during the same period

accordance with the procedures specified in

section three thousand twenty-a of this

article or in accordance with alternate

disciplinary procedures contained in a

collective bargaining agreement covering his

or her terms and conditions of employment

that was effective on or before September

first, nineteen hundred ninety-four and has

been unaltered by renegotiation, or in

accordance with alternative disciplinary

procedures contained in a collective

bargaining agreement covering his or her

terms and conditions of employment that

becomes effective on or after September

first, nineteen hundred ninety-four;

provided, however, that any such alternate

disciplinary procedures contained in a

collective bargaining agreement that becomes

effective on or after September first,

nineteen hundred ninety-four, must provide

for the written election by the employee of

either the procedures specified in such

section three thousand twenty-a or the

alternative disciplinary procedures contained

in the collective bargaining agreement"

(emphasis added).

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been altered in other respects through renegotiation. 

Finding this understanding of the statute at odds with

the provision's plain language, the Appellate Division reversed

and granted the petition (107 AD3d 1536, 1537 [2013]). It read

the statute categorically to require that all CBAs becoming

effective on or after September 1, 1994, afford eligible

employees facing discipline the right to elect the review process

provided by Education Law § 3020-a, even if the CBA retained an

unaltered alternative grievance procedure originally agreed upon

before September 1, 1994 (107 AD3d at 1537). Inasmuch as the

governing CBA took effect in 2006, petitioner, in the court's

view, had the right pursuant to Education Law § 3020 (1) to

choose the statutory review process over the alternative

grievance procedure contained in the CBA, and the School

District's failure to honor that right required the annulment of

the challenged discipline, imposed without the process to which

petitioner was entitled (id.). The matter is now before us

pursuant to leave granted by this Court (22 NY3d 854 [2013]) and

we affirm.

Prolix though the governing statute, Education Law §

3020 (1), may seem, it is plain that the legislative intent

informing its 1994 amendment (L 1994, ch 691) was to assure that

tenured educators against whom formal disciplinary charges were

lodged could avail themselves, if they so chose, of the

procedural protections set forth in contemporaneously amended

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Education Law § 3020-a. While section 3020 (1) does

"grandfather" pre-September 1, 1994 CBA discipline review

procedures contained in unaltered CBAs, its evidently dominant

purpose was prospectively to secure the right of tenured

employees to avail themselves of the process set forth in

Education Law § 3020-a. That purpose and the indefinite

retention of mandatory alternative CBA review procedures are not

easily, if at all, reconcilable. With that in mind, we believe

the statute must be understood to sunset CBA provisions depriving

tenured employees of the § 3020-a recourse to which they are

otherwise entitled. Respondents object that the phasing out of

these provisions would deprive the CBA parties of a bargained for

benefit or detriment, but it is manifest that the 1994 amendment

of Education Law § 3020 (1) was intended precisely to render a

tenured employee's right to elect the statutory process in the

event of discipline generally non-negotiable. We have, of

course, previously recognized the importance the Legislature has

accorded the status of tenure in the educational context as well

as its attendant purpose to preserve the process by which tenured

educators are to be disciplined and removed against the vagaries

of collective bargaining (see Holt v Board of Educ. of Wetbutuck

Cent. School Dist., 52 NY2d 625, 632 [1981]). 

While, understandably, the Legislature did not in its

1994 amendment of section 3020 (1) undertake to invalidate

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negotiated provisions in then operative CBAs,3 or to disallow the

continued inclusion in CBAs of alternative, more "streamlined"

discipline procedures, neither did it countenance the indefinite

perpetuation of CBA terms depriving tenured employees of the

choice of process it expressly guaranteed. Thus, the statute

unambiguously provides that when a CBA is altered by

renegotiation or takes effect on or after September 1, 1994, it

must permit tenured employees to elect section 3020-a's

discipline review procedures, notwithstanding the availability of

alternative, CBA-prescribed procedures. The School District's

and dissent's proposed interpretation -- that only renegotiation

of alternative CBA discipline procedures themselves (as opposed

to renegotiation of the CBA in which they are contained), is

capable of triggering the statutorily required employee option --

is not only grammatically unavailable (since the phrases "that

was effective" and "and has been unaltered by renegotiation"

3

The grandfathering language which the dissent finds so

significant as to justify the conclusion that the Legislature

made a grammatical error, even though textually the statute is

grammatically unflawed, obviously does no more than emphasize

that the statute is not intended to undo still effective preSeptember 1, 1994 CBAs. We decline to ascribe to it a countertextual purpose on the general theory that all grandfathering

provisions are at cross-purposes with a broader legislative

objective. That may be conceptually true but is not a

particularly useful observation where, as here, the question is

not whether there is some measure of grandfathering intended, 

but its extent. The statute, read in its entirety, addresses

that question clearly and indeed with grammatical precision. It

presents no occasion for the interpretive liberty the dissent

proposes. 

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unmistakably refer to the CBA in its entirety and not to any

distinct CBA components), but at odds with section 3020 (1)'s

manifest purpose of eventually ensuring that all tenured

educators will have the non-negotiable right to avail themselves

of the disciplinary process prescribed by the 1994 Education Law

amendments.

The relevant legislative history does not suggest that

respondent's proposed gloss is viable. It is true that that

history does indicate that a purpose of the 1994 amendments was

to continue to authorize the use of alternative, bargained-for

discipline procedures (see e.g. Governor's Program Bill

Memorandum, Bill Jacket, Assembly Bill No. 11762-A, L 1994, ch

691), but it does not follow that the Legislature also meant to

deny tenured educators facing discipline the right to elect the

likely more protective review procedures set forth in Education

Law § 3020-a.4 That section, we note, was extensively revised as

part of the 1994 Education Law amendments to make the statutory

review process less cumbersome. And, in view of that reworking,

the rationale for permitting the statutory process to be

supplanted by bargained-for CBA alternatives became significantly

4

Indeed, it was understood at the time of the legislation's

consideration that "[f]or collective bargaining agreements

containing disciplinary procedures which are effective after

September 1, 1994, the employee must be able to elect either the

procedures contained in the agreement or those contained in 3020-

a" (Governor's Office of Employee Relations Memorandum in

Support of Assembly Bill 11762-a, Bill Jacket, L 1994, Ch 691

[emphasis supplied]). 

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less compelling. In any case, it is the language of the statute

that is the best evidence of the Legislature's intent (Riley v

County of Broome, 95 NY2d 455, 463 [2000]), and Education Law §

3020-a plainly provides that, in any CBA taking effect on or

after September 1, 1994, tenured employees must be permitted to

elect the discipline procedures set forth in Education Law §

3020-a. Here, as the Appellate Division correctly observed, the

determinative circumstance is that the governing renegotiated CBA

became effective in 2006.

We would add that, while the statute would trump a CBA

provision becoming effective on or after September 1, 1994,

relegating a tenured employee exclusively to a non-statutory

discipline procedure, we perceive no reason to conclude that the

present CBA in fact does that. It provides merely that a

disciplinary action "may," not that it "must," be processed in

accordance with the agreement's grievance and arbitration

provisions.5 Indeed, the record strongly suggests that it was

only in view of the optional, and therefore statutorily

inoffensive, character of the contractually available discipline

process, that the provision, originally negotiated prior to

September 1, 1994, was retained unaltered in the parties'

5

That the CBA required § 3020-a process where the discharge

of a tenured employee was sought, does not mean, as the District

contends, that it purported to preclude a tenured employee from

electing such process where less serious discipline was at issue.

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subsequent CBAs. Thus, even under the CBA itself, petitioner may

well have not been foreclosed from invoking the statutory

procedure.

Accordingly, the order of the Appellate Division should

be affirmed, with costs.

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Matter of Roseann Kilduff v Rochester City School District

No. 192 

SMITH, J.(dissenting):

The Legislature amended Education Law § 3020 (1)

effective September 1, 1994, to require that tenured teachers and

other educators be allowed to elect the procedures contained in

Education Law § 3020-a in preference to any other procedures that

might be provided in a collective bargaining agreement. The

amendment contained a grandfather clause, allowing discipline "in

accordance with alternate disciplinary procedures contained in a

collective bargaining agreement . . . that was effective on or

before September first, nineteen hundred ninety four and has been

unaltered by renegotiation." The majority interprets the words

"and has been unaltered by renegotiation" in a way that gives

them substantially no effect. Under today's decision, the

Legislature was wasting its time when it put those six words in

the statute.

The School District here seeks to enforce alternative

disciplinary procedures that have been preserved unchanged in

collective bargaining agreements with petitioner's union since at

least 1992. The majority says that these procedures are not

within the grandfather clause because, though the procedures have

been continued in existence, they are not in the same agreement

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that they once were; the collective bargaining agreement has been

replaced by successor agreements, and its terms have been altered

in ways irrelevant here, several times since September 1, 1994.

The majority makes no attempt to answer the question:

What was the Legislature trying to accomplish when it wrote the

words "which has been unaltered by renegotiation"? If those

words were not there, the statute would mean essentially the same

thing that the majority says it means. It would grandfather

disciplinary procedures "contained in a collective bargaining

agreement . . . that was effective on or before" September 1,

1994. It seems to me that the obvious purpose of the "unaltered

by renegotiation" language is to extend the grandfather clause's

protection to procedures that remain unaltered in subsequent

agreements.

The majority makes essentially two arguments in defense

of its reading of the statute. First, it points out that

grammatically only the singular noun "agreement," not the plural

noun "procedures," can be the subject of the verb "has been

unaltered." Secondly, it says that the School District's

interpretation "is at odds with" the Legislature's "manifest

purpose of eventually ensuring that all tenured educators will

have the non-negotiable right to avail themselves" of section

3020-a procedures (majority op at 6). I concede the grammatical

point, but it seems to me much more likely that the Legislature

made a grammatical error than that it intended the words "and has

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been unaltered by renegotiation" to be inconsequential. The

majority's other point seems to me without force. Every

grandfather clause makes an exception to the accomplishment of

the legislative purpose. That is what a grandfather clause is.

* * * * * * * * * * * * * * * * *

Order affirmed, with costs. Opinion by Chief Judge Lippman. 

Judges Graffeo, Rivera and Abdus-Salaam concur. Judge Smith

dissents in an opinion in which Judges Read and Pigott concur.

Decided November 20, 2014

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