STATE OF NEW YORK
SUPREME COURT: COUNTY OF CHAUTAUQUA
MARSHA R. FAIRBANKS
vs Index #H-11871
BOARD OF EDUCATION, CITY OF
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
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
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
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
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
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.