STATE OF NEW YORK

SUPREME COURT: COUNTY OF CHAUTAUQUA

______________________________


MARSHA R. FAIRBANKS


Plaintiff,


vs Index #H-11871


BOARD OF EDUCATION, CITY OF

JAMESTOWN


Defendant.


______________________________


NATIONAL EDUCATION ASSOCIATION

OF NEW YORK

(Flora Miller Sliwa, Esq.

of Counsel) for Plaintiff


PHILLIPS, LYTLE, HITCHCOCK,

BLAINE & HUBER

(Mark E. Brand, Esq. of

Counsel) for Defendant



DECISION and ORDER



GERACE, J.



Petitioner makes a prima facie case for relief. She


says her husband picked up and delivered the application


for substitute teaching; that she had no contact with the


school until she was called in to substitute; that she


worked in Jamestown 17 days in 1991 and 1992, but received


no orientation, documentation, paperwork, or forms


explaining opportunities to rejoin the retirement system as


a substitute; that in 1976, while a substitute at Bemus


Point, she learned for the first time that she had a right


to join the system as a substitute and immediately applied


for membership and was placed in Tier III. If she had


joined in 1971, she would have been placed in Tier I.


After her 17 days at Jamestown, Petitioner worked as a


substitute at Bemus Point from 1972 through February 1980.


Apparently she was not advised by Bemus Point of her right


to join the system as a substitute until 1976.


Respondent explains that while it no longer has any


file on petitioner, it did have in place an orientation


program for substitute teachers that included a form


SUPPLEMENTARY BLANK FOR SUBSTITUTE TEACHERS that explained


that "Substitute and part-time teachers may apply for


membership in the New York State Teachers Retirement


System . . .". That form did not provide a place for the


applicant to indicate whether or not she elected to join


the system.


Respondent argues that proof of its institutional


practice is probative evidence that the practice was


followed in this case. However, the weight given such


evidence is affected by proof in Respondent's papers that


the practice was not followed in the case of the one


District employee who was granted retroactive membership.


 

Respondent granted a similar application for


retroactive membership to an employee who "was unable to


and did not attend the scheduled orientation meeting and


was instructed to reschedule the meeting to participate in


the District's standard procedures. Upon information and


belief, the employee did not reschedule the orientation


meeting." (emphasis supplied).


The only difference between that case and petitioner's


is that there was a file in existence on the other case.


because that employee is still working at the school. That


file does not include a copy of the blank form used for


Substitute Teachers.


Respondent claims the facts and circumstances are so


different from this case that it should not be considered.


The Court agrees there is a difference. In the earlier


case, the employee was instructed to attend an orientation


session, but, could or did not, and then was instructed to


reschedule an orientation meeting, but did not do so. The


Respondent could have at least argued negligence on the


part of the employee, but, chose not to do so, probably


because the employee still works at the school.


While there was no formal appeal procedure in place at


the time of the rejection of petitioner's application, the


personnel department did not have the final say in these

matters.


For that reason, Respondent claims Petitioner has not


exhausted her administrative remedies and asks the Court to


dismiss the petition on that ground.


The Court is reluctant to rule on the case until there


is an opportunity for the Superintendent and/or the Board


of Education to consider the affidavits of petitioner and


her husband and the arguments of her counsel.


However, in the interest of judicial economy, the


Court denies the motion to dismiss the petition and will


retain jurisdiction to avoid the necessity of repetitious


paperwork and a new proceeding in the event petitioner is


not satisfied with Respondent's decision.


Respondent was the employer who employed petitioner


when she was first eligible as a substitute to join a


public retirement system, but, Frewsburg was her first


employer in the system.


Should Respondent reject the application on the ground


that Jamestown is not the appropriate district employer


required by Section 803b.(3) to file an affidavit, the


Court will require Respondent to implead Frewsburg School


District as an interested party in these proceedings.


 

Petitioner is directed to request the Human Resource


Coordinator to reconsider the rejection of her application,


and, should he reaffirm the rejection, that she request a


review by the Superintendent, and, if necessary, a review


by the Board of Education.


Because Respondent did not adopt formal procedures for


claims for this type of proceeding until after Petitioner


sought relief, neither party shall be required to adhere


literally to those procedures, and, instead, should follow


the former custom and practice of the administration on


similar matters. Copies of the affidavits and papers before


this Court shall be deemed sufficient to constitute a basis


for reconsideration, but, either party may provide


additional proof or information.


The motion to dismiss is denied. Petitioner's motion


for an order rescinding Respondent's rejection of her claim


for retroactive membership is adjourned until December 4,


1995, at 9:30 A.M. Counsel need not appear, but, may


submit additional papers.


THIS IS THE DECISION AND ORDER OF THIS COURT.


Dated: October , 1995

Mayville, New York


____________________________

JOSEPH GERACE

Supreme Court Justice




To all Counsel:


Please take notice that a DECISION and ORDER of

which the within is a copy, is duly granted in the above

entitled action on the day of , 1995, and

duly entered in the office of the Clerk of the County of

Chautauqua on the same date.