::^l::: 1y:?

i:
In the Matter of the Application of

SUPREME COURT OF THE STATE OF NEW YORK

...........

THE BOARD OF EDUCATION OF THE CITY

SCHOOL DISTRICT OF THE CITY OF NEW YORK ("DOE"), and DENNIS M. WALCOTT, as Chancellor of the DOE,
Petitioners,

AFFIRMATION IN
SUPPORT OF

For a Judgment and Order Pursuant to Article 75 of the Civil Practice Law and Rules, - against -

PETITIONERS' MOTION FOR A TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION

Index No

l12

MICHAEL MULGREW, as President of the I-INITED FEDERATION OF TEACHERS, Local 2, American

Federation of Teachers, AFL-CIO; and ERNEST LOGAN, as President of the COTINCIL OF SCHOOL SUPERVISORS AND ADMINISTRATORS, Local 1, American Federation of School Administrators, AFL-CIO,
Respondents

MAXWELL D. LEIGHTON, an attomey duly admitted to practice before the

Courts of the State of New York, affirms, pursuant to Rule 2106 of the New York Civil Practice

Law and Rules ("CPLR") and under the penalties of perjury, that the following is true
correct:

and

l.

am an Assistant Corporation Counsel in the office of Michael A.

Cardozo, Corporation Counsel of the City of New York, attorney for petitioners in the abovecaptioned proceeding, and make this affirmation upon information and beliet based on the books

and records of the City of New York ("City") and the Board of Education of the City School

District of the City of New York (now known as the New York City Department of Education ("DOE"),
as

well as conversations with employees of the City and the DOE.

2. 3.

This affirmation is made in support of petitioners' verifted petition and

petitioners' motion for a temporary restraining order and preliminary injunction.

On June 29,2012, Arbitrator Scott E. Buchheit issued an Award, dated

June 29, 2012, in the arbitration entitled

In the MaTter of Arbitration Befween

d Federation

ofTeachers, Local

2,

uncil of School Suoervisors and Administrators . [.ocal

and New York

Cit.v Depqrtment qf Education,

AAA

Case

No. 13 390 01302 12 ("the Award"). A copy of the

Award is annexed to the Verified Petition as Exhibit " l ."

4.
Federation

The Award purports to resolve grievances brought by the United

of

Teachers ("UFT") and the Council

of School

Supervisors and Administrators

("CSA"), (collectively, the "LJnions"), which alleged that the DOE violated their Collective
Bargaining Agreements ("CBAs") by closing twenty-four persistently lowest achieving schools and seeking to re-staff the resulting new schools pursuant to the terms and procedures of the CBAs.

5.

The Award concluded, without offering any analysis,l that the Unions'

grievances are arbitrable and moreover sustained them. The Award must be vacated because the grievances are not arbitrable.

6.

In effect, the Award will halt the DOE from

completing an urgently

needed initiative, already

well underway, to close twenty-four failing public schools and replace

them with new strengthened schools designed to salvage the educational careers of over 30,000
students.

7.

Accordingly, petitioners have commenced this proceeding by order to

show cause to vacate the Award, pursuant to CPLR $ 751

1. The grievances

are not arbitrable

and, as such, the Award was made in excess of the arbitrator's jurisdiction under the parties' collective bargaining agreements and, moreover, violates public policy.

8.
directed remedies destroyed

Because the Award cannot survive the Court's review, and because its

will irreparably harm the DOE's initiative which, already

begun, would be

if

now delayed, petitioners respectfully request that the Court grant a temporary

restraining order.

A.

Background

g.

On

April 26,2012, the Panel for Educational Policy ("PEP")

authorized the

DOE to close twenty-four schools, which the State Commissioner of Education had declared
among the Persistently Lowest Achieving ("PLA") in the state and designated them Schools

Undcr Registration Review ("SURR"). The PEP also authorized the DOE to immediately
replace them with new schools that

will continue to serve the students who were enrolled in the

schools

to be closed. This initiative will provide the children at these schools a renewed

opportunity for success. Furthermore, the initiative may qualify the subject schools for School
Improvement Grant ("SIG") funding under a remedial educational model called "tumaro.md," in

which schools are closed and re-opened with new staff and enhanced educational programs.

10. To that

end, the initiatives at the heart of this case-which PEP adopted on

June 22,2012.

April 26, 2012--were approved by the State Education Department ("SED") on

That is, the SED approved the closure of the twenty-four struggling schools to be immediately
replaced with new, strengthened schools.
1

1. This initiative,

supporled

by the SED, will

expeditiously improve the

new

educational opportunities

for the students enolled in these twenty-four schools. Each

' The Award

notes that an Opinion

will follow at alater

date.

-3

school has developed rigorous, school-specific strategies to measure and screen prospective staff,

including current staff who apply to work at the new schools. Based on these criteria, and in
accordance

with the staffing requirements in DOE's existing CBAs with the Unions, new schools

will hire the best possible teaching staff and supervisors. 12. To better-effectuate these plans, the DOE also applied for SIG funding for
the new twenty-four schools. SIG funding is made available through the federal govemment's Elementary and Secondary Education Act for state education depaftments (in New York's case,

the SED) for distribution to schools whose students are not making adequate yearly progress,
provided that the school districts seeking such funding adopt one of four federally-contemplated

intervention strategies for those students.2 The DOE presented the twenty-four new schools to the SED for SIG fuirding under a model referred to as the "turnaround" model, but made clear

that

it would close the struggling

schools and open new ones regardless

of whether

federal

funding was approved.

13. As noted

above, by letter, dated June22,2012, the State Commissioner

of

Education, the highest authority on education in New York, approved the DOE's plan to close

the twenty-four struggling schools and replace them with new

ones.

copy of

the

Commissioner's letter to DOE Chancellor Dennis Vy'alcott, dated June 22,2012, is annexed to
the Verifred Petition as Exhibit "2."

14. Under the New York State Education Law, the State Commissioner of
Education is solely vested with the authority and duty to determine which schools to close and to

2 Although New York regulations require school districts where schools are designated as "persistently low achieving" ("PLA") to implement one of the four the intervention strategies contemplated by the federal statute for those PLA schools, (see 8 N.Y.C.R.R. $

-4-

approve the opening of new schools. See Education Law $ 305; see also et seq.

N.Y.C.R.R. $$ I00.2,

15.

Separately, the SED Commissioner also wrote that SIG funding for the 24

new schools would be approved conditionally upon three events: (a) demonstration of
compliance with Article l8D of the UFT's CBA at the new schools; (b) submission of proof that

"relevant stakeholders" had been consulted in the process of crafting the proposals for the new
schools; and (c) a demonstration

of reduction of the risk of enrollment of

disproportionate

numbers of students with disabilities, English language learners, and students that are performing

below proficiency. See Verified Petition, Exhibit "2," at

7.

16.

The contingencies that must be met to receive SIG funding is not related

to the SED Commissioner's approval of the plan to close the twenty-four struggling schools and
open new ones in their place. See id.

17.

Pursuant to Article l8D of the UFT CBA, when a new school is created to

replace a school that is being phased out or closed, a Personnel Committee is created to screen

the teaching applicants for the new school. See UFT CBA, relevant portions of which
annexed to the Petition as Exhibit

are

"3"
new

18.

Teachers

in the school which will be closed and replaced by the

school have the right to apply and be considered for positions at the new school:

If

another school(s) is impacted (i.e., closed or phased out), staff from the impacted school(s) will be guaranteed the right to apply and be considered for positions in the School. If suffrcient numbers of displaced staff apply, at least fifty percent of the School's pedagogical positions shall be selected

100.2(pXlOXiv)), approval of that intervention model for SIG funding is not related to whether a school district may have its SURR plan for a school to be closed approved by the Commissioner.

-5-

from among the appropriately licensed most senior applicants from the impacted school(s), who meet
the School's qualifications. The Board will continue to hire pursuant to this provision of the Agreement until the impacted school is closed.

UFT CBA Art. l8(DX3), Exhibit "3."

19.

Through this contractually agreed-upon process, DOE will be able to hire

the very best teachers to improve the educational outcomes for the students at the twenty-four
new schools. There is no dispute that DOE has followed the process set forth in UFT CBA Art. 18(DX3) by accepting applications to staff the new schools from teachers assigned to the closing
schools and considering their qualifications.3

B.
(l)

The Prerequisites for Preliminary Injunctive Relief are Satisfied

20.

For preliminary injunctive relief, the following prerequisites must be met:

a clear right to the relief sought (also articulated as a likelihood

of

success on the merits); (2)

proof that they will suffer irreparable injury if the preliminary injunction.is not granted; and (3) proof that the balance of the equities tips in their favor. W.T. Grant v. Srogi, 52 N.Y.2d 496 (l
e8 1).

21.

Petitioners are likely to succeed on the merits in this proceeding to vacate

the Award. First, the Award must be vacated as

it

was made in excess of the arbitrator's

jurisdiction. "'Where a collective bargaining agreement contains an express restriction upon the

3 It should be noted that under the Stipulation and Order, dated May 24, 2012, in a prior proceeding before this Court, Mulgrew v. Bd. of Educ., Index No. 600002112 ("Stipulation"), the parties merely agreed to expedite the arbitration of the Unions' grievances, allowed the DOE to continue the steps necessary for implementing its initiative, and set forth the remedies to be applied if the Award sustained the grievances. As the Stipulation expressly sets forth, nothing about those terms, the expedition or those remedies operated to waive in any way the DOE's position, arguments or rights with respect to this present challenge to the arbitrability and merits of the grievances following the Award's issuance. See Stipulation, which is annexed to the Verified Petition as Exhibit "7 ," at II " 13" and "2l."

-6-

powers of the arbitrator, the limitation

will be upheld

"

Port Auth. Police

enevolent Ass'n v

Port Auth.,235 A.D.zd 359 (1st Dep't 1997) (citing City of New York v Davis,146 A.D.2d 480,
482

(tst Dep't

1989)).

22.

The CBAs are silent on what constitutes a school closure or new school.

The Unions' grievance sought from the arbitrator a finding that the proposed new schools are not new and that the closing schools are not truly closing. But because neither the UFT nor CSA's

CBA

def,rnes

a "school closure" or a "new school," the arbitrator was without jurisdiction to

determine such issues.

In fact, as discussed in more detail below, only the New York State

Commissioner of Education has the hnal authority to determine whether a school may be closed. Further, because only the State Commissioner of Education can approve the opening of a new school, any attempt to define a school closure or opening ip a CBA would be void as against

public policy.

23.

The CBAs agree that in arbitrating disputes that

[t]he arbitrator shall limit hislher decision strictly to the application and interpretation of the provisions of this Agreement and he/she shall be without power or authority to make any decision:

1.

or varying in any wy, the terms of this Agreement or of applicable law or rules or
regulations having the force and effect of law;

Contrary to, or inconsistent with, or modifying

Article 22(C) of the CBA between the DOE and the UFT; Article 10(C) of the CBA between the
DOE and the CSA. Relevant portions of the UFT CBA and the CSA CBA are annexed to the Verified Petition as Exhibits "3" and "4," respectively.

24.

The final decision as to closing a school or opening a new school lies with

the SED and its Commissioner. The CBAs expressly limit the arbitrator from interpreting

-7

matters

of law. Yet that is what the Award, in

deeming the grievances arbitrable, has

unequivocally done.

25.

The New York State Legislature vested the DOE Chancellor with the

power to create and close schools. See N.Y. Education Law $ 25g0-h. When the Chancellor
determines

to close a school, the DOE must provide notice to the public and

prepare an

Educational Impact Statement ("EIS"), giving an in-depth analysis of the effect that closing the
school

will have on the community, at least forty-five days before a Panel for Educational Policy

("PEP")

vote. If PEP approves the Chancellor's 26.

plan, the DOE submits an application to the

SED Commissioner for approval.

The SED's procedures for review and approval are highly regulated. The

DOE must submit separate applications to SED to close a school, to open a new school, and to
designate a school in a particular SIG model. The SED Commissioner, alone, has the authority

to review the sufficiency of the education plans submitted by the DOE and to ultimately decide
on the DOE's application to close a school. See 8 NYCRR 100.2(pXl

l)(iv).

This regulation has

2

the force and effect of

law.

See

v. N.Y.S. Div. Of Tax A

N.Y.3d 249,254 (2004) ("[V/]here an agency has adopted a regulation that is consistent with its
enabling legislation . . . the rule has the force and effect of law.").

27.

The First Department has refrained from reviewing the DOE's decision to

close a school. In Ferrer v. Quinones, a school closing was challenged, but the Court dismissed the claim. See Ferrer v. Ouinones,l32 A.D.2d277 (1't Dep't 1987). The First Department held

that the Chancellor's decision to close a school "because of its academic deficiencies concerns a matter of educational policy and is thus nonjusticiable." Id. at 278. The nonjusticiability of

-8-

school closings affirms that school closing decisions by the DOE, subject to approval by the
SED, are not reviewable by an arbitrator under the CBAs.

28.

Indeed, the UFT has previously argued that the ultimate decision to close a

school lies with the SED Commissioner. See Mulsrew v. Bd. Of Educ. of Citv Sch. Dist. Of

City of New York, 927 N.Y.S.2d 855 , 862 (Sup. Ct. N.Y. Cty.2}ll)(Mulgrew II)("Both agree that the issue

sides

of

whether DOE can phase out

or close the

schools under the

Commissioner's Regulations is a matter which must be brought before the Commissioner."). In

Mulgrew II, the Court declined to rule on the soundness of the decision to close schools because

"it is not the role of the judiciary to pass in a general way on the wisdom, or lack thereof, of the
educational policy decisions made by the other branches of government." Id. at 860.

29.

Thus, whether a school should be closed is a decision that is solely within

the purview of the DOE, subject to the approval of the SED. The statutory process for closing
schools requires, among other things: a vote by PEP, which, for the twenty-four schools at issue,

took place on April 26,2012; review by the SED of the schools selected by the DOE for closure;
and the SED's approval of the closed schools, which occurred on June 22,2012.

30.

Accordingly, the question of whether a school closing is, in fact, a closing,

and whether a new school is,

in fact, a new school, is not appropriate for the grievance and

arbitration procedures outlined

in the pafties' CBAs, and is in direct

contravention

of the

provisions detailed therein. Any determination by the Awad ruling on the validity of school
closures and openings is an act in excess of the arbitrator's jurisdiction.

31.

Second, and more glaringly, given that the SED already has approved the

school closures and recognized the new schools, the Award violates public policy by usurping
the authority reserved by law to the SED.

-9

32. In County of Westchester v. Westchester County Correction Officers

Benevolent Ass'n,269 528, 529 (2d Dep't 2000), the Second Department found that the

^.D.2d
"conditions imposed by an arbitrator upon [Westchester] County with respect to the placement of fcorrection officers] violated a strong public

policy." The Court held that "such

conditions

usurped the authority of the Westchester Department of Correction to determine where and when

to assign its correction officer personnel." Id. (citation omitted). Furthermore, "[g]iven the
nature of that Department's responsibilities, i.e., the management and control of the County's prison population, it would be imprudent to allow a third-party such as an arbitrator to determine
the placement of correction officers." Id. (citing N.Y. State Inspection, Sec. & Law Enforcement

Emples., Dist. Council 82

v. Cuomo, 64 N.Y.2d

233 ,239

(1984)). Accordingly, the Court

uphcld thc modification of thc arbitrator's dctermination by "eliminating the conditions imposed

with respect to the assignment of [the correction officers] in question." Id.

33. In N.Y. State Inspection, cited in support County of Westchester,

the

Court of Appeals detailed the "fundamental principle of law that each department of government should be 'free from interference, in the lawful discharge of duties expressly conferred, by either

of the other branches."' N.Y. State Inspection, 64 N.Y.zd at239. There, the Court found that

the "primary responsibility for administering the [Department of Correctional

Services
$

("DOCS")] system is vested in the Commissioner of Correctional Services (Correction Law,

112), who is appointed by and holds office at the pleasure of the Governor."

Id. The Court

fuither noted that the "responsibility for maintaining, establishing and closing any correctional

facility operated by DOCS is expressly conferred upon the Commissioner of Correctional

Services. (Correction Law,

$ 70, subd 3, par [a].)."

Id.

"The manner by which the

State

addresses complex societal and governmental issues

is a subject left to the discretion of

the

-10-

political branches of government." Id. (citing Klostermann v. Cuomo, 61 N.Y.2d 525 (1984);
Abrams v New York Cit)' Tr. Auth., 39 N,Y.2d 990 (1976)). Where, as here, policy matters

have "demonstrably and textually been committed

to a

coordinate, political branch of

government, any consideration of such matters by a branch or body other than that in which the

power expressly is reposed would, absent extraordinary or emergency circumstances, constitute

an ultra vires act." Id. (internal citation omitted).

34.

Indeed, this Court previously has characterized the foregoing cases as

"situations where the arbitrator went astray of the dispute at hand and clearly usurped issues of governance and governmental discretion; the awards were consequently vacated as against

public policy."

fN 35.

v. Police Benevolent Ass'n of the Pohce

Sup.

't of N

Inc.,200l N.Y. Misc. LEXIS 587 (N.Y.

Ct.Aug.30,2001).

Here, the SED Commissioner has approved the DOE's closures of twenty-

four failing schools. Moreover, he has recognized that, in their place, DOE has designed and
designated new schools. See SED letter, dated June22,2012, which is annexed to the Verified

Petition as Exhibit "2."

36.

The Unions' grievances plainly alleged that the closed schools were not

truly closed and that the new schools were not truly new:
The Board of Education has improperly identified 24 schools as "closing" and/or "new" and is removing UFT members from those schools and/or requiring them to re-apply for their positions in violation of Articles 2, l7B, I 8D, 20 and 2 1 G of the Teachers Collective Bargaining Agreement, and corresponding Articles in other Agreements.
F
>t<

{<

Should this matter not be positively adjudicated at the Chancellor's level, the UFT requests that this matter be joined before an Arbitrator with the like

- 11-

grievance filed by the Council of Supervisors and Administrators (CSA), in that both appeals share common issues, law and facts.

UFT Grievance, dated Aprrl2T , 2012, which is annexed to the Verified Petition collectively with
the CSA Grievance, dated April 30, 2012, as Exhibit "5."

37. By hnding these grievances 38.

arbitrable, the arbitrator exceeded his

jurisdiction under the parties' collective bargaining agreements and violated public policy.

Not only are the matters ruled upon by the Award solely entrusted to the
issued.

SED, the SED had found the closed and new schools valid before the Award was

Accordingly, as the Award must be vacated, petitioners hold a likelihood of success on the
merits in this proceeding.

39.

Second, as set forth in the Affidavit of Marc Sternberg, Deputy Chancellor

for Portfolio Planning, swom to on July 2, 20i2 ("sternberg Aff."), unless the Award is stayed,
the DOE

will

be irreparably harmed. See Stemberg

Aff., Tll"12" to "15."

40. For purposes of a preliminary injunction, "irreparable" harm is "a

continuing harm resulting in substantial prejudice by the acts sought restrained

if

permitted to

continue pendente lite." Chr)sler Corp. v. Fedders Conr., 63 A.D.2d 567, 569 (lst Dep't 1978).

41. Unless petitioners' motion for a temporary restraining

order and preliminary

injunction are granted, the DOE's plans to effectuate change at these twenty-four schools is
utterly foreclosed: "Even a temporary interruption of the process now in progress to close the
struggling schools and replace them with new, strengthened ones

will

cause irreparable harm to

the DOE's ability to attract qualified candidates and engage in the structural overhauls necessary

to have the new schools ready for students by the first day of classes in September." Stemberg

Aff.,

"12."

-12-

42.

Such an interruption

will

negate any possible chance of the new schools

becoming properly-staffed and ready for the first day of classes in Septemb er of 2012.

43.

Finally, the balance of the equities plainly lies with the petitioners. As set

forth in the Sternberg Aff.

"16" to "18," the Award impermissibly impairs the DOE's ability,

which the SED has expressly permitted, to close and replace failing schools.

44.

Under the Award, the Unions would return their members to a stagnant

status quo, safeguarding their parochial interests

in not being inconvenienced by teaching in

another school. A status quo for over 30,000 children in the failing schools is simply intolerable.

45.

Accordingly, given the foregoing, petitioners respectfully request that the

Court grant their request for a temporary restraining order until this Court can issue a preliminary

injunction.

46.

On the afternoon

of Friday, June 29, 2012,I left a voicemail

message for

Alan M. Klinger, Esq., of Stroock

advising that petitioners
Monday, July 2, 2012.

&

Stroock &. Lavan, L.L.P., lead counsel for respondents,

will

make this application to the Court by order to show cause on

subsequently spoke with Mr. Klinger on the morning of July 2,2012,

before making this application.

47.

No prior application for the relief requested in the order to show

cause

with temporary restraining order has been made to this or any other Court and petitioners have
no other adequate remedy at law.

Dated:

New York, New York

Iuly 2,2012

13 -