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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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                               - 2 -                         No. 192

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,


     1
      In 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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                                 - 4 -                       No. 192

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 pre-
September 1, 1994 CBAs. We decline to ascribe to it a counter-
textual 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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                                 - 8 -                        No. 192

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.




                                 - 9 -
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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                                 - 2 -                        No. 192

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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