______________________________

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.