SUPREME COURT OF THE STATE OF NEW YORK COLTNTY OF NEW YORK

In the Matter of the Application of

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,

VERIFIED PETITION
Index No.

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

MICHAEL MULGREW, as President of the TINITED FEDERATION OF TEACHERS, Local 2, American

Federation of Teachers, AFL-CIO; and ERNEST LOGAN, as President of the COLTNCIL OF SCHOOL

SUPERVISORS AND ADMINISTRATORS, Local 1, American Federation of School Administrators, AFL-CIO,

Respondents.

Petitioners, THE BOARD

OF EDUCATION OF THE CITY

SCHOOL

DISTRICT OF THE CITY OF NEV/ YORK (also known as the New York City Department of
Education ("DOE")), and DENNIS M. WALCOTT, as Chancellor of the DOE, by their attorney

MICHAEL A. CARDOZO, Corporation Counsel of the City of New York, as and for their
Verified Petition, allege as follows:

PRE,LIMINARY STATEMENT

Petitioners bring this Article 75 proceeding to vacate the decision and

award issued by Arbitrator Scott E. Buchheit ("Arbitrator Buchheit") on June 29, 2012, in

Arbitration Between United Federation of Teqchers, Local 2, Council of School Supervisors and
Administrators, Local

and New York Cifii Department o.f Education, AAA, Case No. 13 390

01302 l2 ("Award"). A copy of the Award is annexed hereto as Exhibit

"l."

2.
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 respective
Collective Bargaining Agreements ("CBAs") by closing twenty-four failing schools and seeking to staff new schools pursuant to the terms and procedures of the CBAs.

3. 4.

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

grievances were arbitrable and, moreover, sustained them.

N.Y. Civil Practice Law and Rules ("CPLR") $ 751l(bxlxii provides

that an arbitrator's award shall be vacated where:

an arbitrator, or agency or person making the award

exceeded his power or so imperfectly executed it that final and definite award upon the subject matter submitted was not made.

5.

As discussed below, the Award exceeds Arbitrator Buchheit's power and

violates public policy, and, accordingly, must be vacated.

PARTIES

6. .

Petitioner DOE

is

organized under and exists pursuant

to the N.Y.

Education Law, and maintains its principal place of business in New York County.
7

Respondent Mulgrew is a resident of the State and City of New York, and

is the

President

of the UFT, an unincorporated labor

organization that

is the

recognized

The Award notes that an Opinion

will follow at a later

'L-

date

bargaining agent for all nonsupervisory pedagogical personnel and classroom paraprofessionals
employed by the DOE.

8.

Respondent Logan is a resident of the State and City of New York, and is

the President of the CSA, an unincorporated labor organization that is the recognized bargaining
agent for all supervisory pedagogical personnel employed by the DOE.

JURISDICTION AND VENUE

9. 10.

The jurisdiction of this Court to hear this petition is based on Article 75

of

the CPLR and, in particular, CPLR $$ 7501 ,7502, and 7511.

Venue

is properly placed in New York County, pursuant to

CPLR

$ 7502(aXi), on the grounds that the DOE does business

within New York County and it is the

county in which events material to this petition took place,

FACTS

A.

Background

1L

The New York State Legislature vested the DOE Chancellor with the power

to create and close schools.

determines

See

N.Y. Education Law $ 2590-h. When the

Chancellor
an

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

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. See Afhdavit of Assistant Corporation Counsel Maxwell D. Leighton ("Leighton

Aff.") atl25.

12. Pursuant to 8 N.Y.C.R.R. $ 100.2, the State Commissioner of

Education

("Commissioner") designates schools that are the farthest from meeting certain academic
benchmarks he has established and most in need of improvement as Schools Under Registration

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Review ("SURR"), See Affidavit of the DOE, Deputy Chancellor for Portfolio Planning, Marc
Sternberg ("sternberg

Aff.")

atl"3."

Many SURR schools are also designated as persistently

lowest achieving ("PLA") schools, based on their low graduation rates and/or failure to make
adequate yearly student progress, among other

things.

See 8

N.Y.C.R.R. 100.2(pX9).

13. On April 26, 2012, the PEP authorized the DOE to close twenty-four
SURR/PLA schools. See Sternberg

Aff. at I "4." The PEP also authorized the DOE

to

immediately replace the closing schools with new schools that will continue to serve the students who were enrolled in the schools to be closed. See id. This initiative will provide the children at
these schools with a renewed opportunity for success. See

id.

Furthermore, the initiative may

qualify the subject schools for federal School Improvement Grant ("SIG") funding under an
educational intervention model called "Turnaround." See id.

14. In the case of SURR schools, in addition to the PEP approval process
described above, the DOE must also submit a closure application

to the Commissioner for

approval. See id. at !l

5. By letter dated June22,2072,

a copy of which is annexed hereto as

Exhibit "2," the Commissioner approved the DOE,'s plans to close the 24 failing SURR/PLA
schools as authorized by the PEP,

15. When the Chancellor determines to open a school, he must submit

application

an
a

for

registration

of the new school to the Commissioner, who makes

recommendation regarding approval to the New York State Board of Regents (the "Board of

Regents"). See 8 N.Y.C.R.R. 100.2(p). By approving the DOE's closure applications, which
expressly contemplated

the opening of 24 new,

strengthened replacement schools, the

Commissioner also recommended approval of the DOE's applications to register replacement

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schools that

will welcome in the students who had attended the closed

schools when classes

begin again in September. See 8x.2.

16. The purpose of the DOE's initiative with

respect to the 24 schools at issue,

which has now been authorized by the PEP and the Commissioner, is to expeditiously improve
the educational opportunities for the students enrolled in these 24 schools. See Sternberg Aff. at

7.

Towards this end, each new school has developed rigorous, school-specific strategies to

measure and screen prospective staff, including current staff who apply to work at the new

schools. See id. Based on these criteria, and in accordance with the staffing requirements in the DOE's existing CBAs with the Unions, new schools have put in place a process aimed at hiring
the best possible teaching staff, thus immediately improving teacher quality and, by extension,

improving the quality of learning for the students. See id.

17. In hiring instructional staff for new schools, the DOE historically
demonstrated an ability to hire high-quality teachers. See id. at J[

has

8.

The process

will be no

different for the 24 new schools at issue in this case. See id. Indeed, the schools have already
received over 26,000 applications for positions. See id.

18.

The new schools have also developed new programs and school supports that

are intended to improve student learning. See id. at fl

9.

The DOE intends to implement new

instructional and structural reforms at these 24 schools that visions for student success and faculty excellence. See

will

include new missions and

id.

These schools

will, among other

things, adopt new curricula and instructional models and offer more academic supports for serving high-needs students. See

id.

By building on the strongest elements of the existing

schools, hiring new talent and incorporating new elements designed to better meet student needs,

the immediate closure and replacement of these schools will, in petitioners' judgment, give

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students access to a higher-quality educational option while they continue to attend school in the
same

building.

See id.

19. To better effectuate

the new 24 schools. See id. at
1T

these plans, the DOE also applied for SIG funding for

10.

SIG funding is made available through the federal

government's Elementary and Secondary Education Act for state education departments (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 approved intervention strategies for those students.2 See

of four federally-

id.

The DOE applied to SED for SIG

funding for the 24 new schools under the "Turnaround" model. See id.

20. However, the DOE has been clear about its intent to move forward with
closing the 24 failing schools and opening 24 new ones, regardless of whether SIG funding is

provided.

See

id. at fl I L The DOE is committed to improving the educational opportunities for

its students and will not allow the educational futures of 30,000 students to be contingent on the
receipt of SIG funding. See id.

21.

When the Commissioner approved the DOE's plan to close the 24 failing

schools and replace them with new ones, he also stated 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;

2 New York regulations require school districts to implement one of the four intervention strategies set forth by the federal statute for PLA schools. See 8 N,Y.C.R.R. $ 100.2(p)(1O)(iv)), Howevet, approval of that intervention model for SIG funding pulposes does not affect the State Commissioner of Education's ability to approve a school district's plan to close a SURR/PLA school, or to recommend the registration of a new school.

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and (c) a demonstration of reduction of the risk of enrollment of disproporlionate numbers of

students with disabilities, English language learners, and students that are performing below

proficiency.

See

Ex.2.
The conditions placed on the receipt of SIG funding are wholly unrelated to

22.

the Commissioner's clear approval of the SURR plans to close the 24 struggling schools and
open new ones in their place. See Sternberg

Aff. atn n.

23. In

sum, under the duties delgated to him by State law and regulations, the

Commissioner determined that the DOE's proposal to close the 24 SURR schools fulfilled all

applicable regulatory requirements, and also recommended the registration

replacement schools. See id. at fl 13.

of 24 new,

B.

Arbitration

24.

The Unions' CBAs, copies of which are annexed hereto as Exhibits "3"

(UFT CBA) and "4" (CSA CBA), provide mandatory administrative grievance and arbitration
processes

for disputes over the application of provisions within the CBAs. See Ex. 3, Art.22;

Ex, 3, Art. X.

25.

On or about April 30, 2012, the Unions hled nearly identical grievances,

alleging that the DOE had engaged

in "sham closures" that would result in the improper

reassignment of staff, copies of which are collectively annexed hereto as Exhibit "5."

26.

Chancellor Walcott denied the grievances by decisions dated May

11,

2012, in which the Chancellor detailed, in pertinent part, that the DOE's authority to close a school and register a new school is set forth and governed by the N.Y. Education Law and, as
such, is not proper for adjudication through the grievance and arbitration processes set forth in the Unions' CBAs. The Chancellor's Decisions are collectively annexed hereto as Exhibit "6."

-7

27.

The Unions sought to appeal the Chancellor's determinations through

arbitration and, by Order to Show Cause dated May 7,2012, commenced a proceeding in N.Y.
Supreme Court, New York County, pursuant to Article 75 of the CPLR, seeking an injunction in

aid of arbitration that would prohibit the DOE from removing staff from the 24 schools at issue
and hiring new staff at the replacement schools pending issuance of the arbitrators' awards on

their grievances.

28.

That proceeding was settled by a Stipulation and Order, dated May 24,

2012 ("Stipulation"), a copy of which is annexed hereto as Exhibit

"7l' by which

petitioners

agreed that the Unions' grievances would be consolidated before Arbitrator Buchheit on an expedited basis and the Unions agreed to allow the DOE to continue to take steps to implement the closure of the 24 schools and staffing of the new schools.

29.

The Stipulation detailed that it would "not constitute a waiver of any other

contractual or legal right, claim or defense related to the underlying grievances, including, but

not limited to, the right to bring an Article 75 proceeding for any available remedy
enforcement of the final decision of the arbitrations." Stipulation, Ex. "7."

against

30. At the arbitrations

and, now, in support of this proceeding, petitioners

argued three independent reasons as to why the Unions' grievances were not arbitrable: 1) the

CBAs are silent on what constitutes a school closure or new school; 2) the CBAs expressly prohibit the arbitrator from making any decision contrary to, or inconsistent with, applicable
laws, rule or regulations; and 3) public policy prevents the DOE from bargaining away any statutorily vested power pertaining to the maintenance

of

standards

in the classroom.

See,

generall),, Affirmation of Maxwell D, Leighton, dated July 2,2012 (Leighton Aff,").

-8-

31.

Notwithstanding the fact that the nondelegable authority

to

authorize

school closures and openings, as well as to determine the future

of SURR/PLA

schools was

vested in the Chancellor and State Commissioner of Education by state law, Arbitrator Buchheit issued an Award that found the Unions' grievances-that turned on whether the 24 schools were

being closed and new schools were being opened-were arbitrable. See Ex. 1, at

5.

The Award

also proceeded to sustain the grievances and order that the DOE comply with the provisions
detailed in flfl 8-l

of the Parties' Stipulation. See id.

C.

This Proceeding

32.

The Award must be vacated because

it

was made

in

excess

of

the

arbitrator's jurisdiction. See Leighton Aff. at

IT "21"

and

"22." Additionally, given that the

State Commissioner of Education has the statutory authority to approve the school closures and register the new schools, the Award violates public policy by usurping the authority reserved by

law to the State Commissioner of Education, the New York State Board of Regents and the DOE

Chancellor. See id.

33.

The Unions' CBAs both contain language that limits the jurisdiction of

arbitrators in the following way:

[t]he arbitrator shall limit his/her 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:

Contrary to, or inconsistent with, or modifying 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;

2.

Involving Board discretion under the provisions of this Agreement, under Board by-laws, or under applicable law, except that the arbitrator may decide in a particular case whether the

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provision was disregarded

or applied in

discriminatory or arbitrary or capricious manner so as to constitute an abuse of discretion, namely whether the challenged judgment was

justifiably could lead to the conclusion as opposed to merely capricious or whimsical preferences or the absence of
based upon facts which

supporting factual reasons.

3, Limiting or interfering in any way with

the powers, duties and responsibilities of the Board under its by-laws, applicable law, and rules and regulations having the force and effect of law.

See Ex. 3,

UFT CBA, Art.22(C); Ex. 4, CSA CBA, Art. X(C).

34.

The Unions' grievances sought from the arbitrator a finding that the

proposed new schools are not new and that the closing schools are not truly closing. See Leighton Aff. at n36." But, because neither of the Unions' CBAs defines a "school closure"

or a "new school," the arbitrator was without jurisdiction to determine such issues. See id.

35.

As discussed above, the New York State Legislature has vested the DOE

Chancellor with the power to create and close schools. See N.Y, Education Law $ 2590-h. When the Chancellor determines to create or a close a school, the DOE must provide notice to
the public and an Educational Impact Statement ("EIS"), giving an in-depth analysis of the effect that the new or closing school

will have on the community, at least forty-five

days before a PEP

vote.

See Leighton

Aff.

at

n"25." If PEP approves the plan, the DOE

submits an application to

the SED Commissioner for approval. See id.

36.

the SED's procedures for review and approval arc highly regulated. See

id. at fl "26." The DOE must submit separate applications to the SED to close a SURR school, to register any new school, and to place a school

in a particular SIG model.

See

id.

The

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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 SURR

school. See 8 N.Y.C.R.R. $ 100.2(p)(11)(iv).

37.

Unless the Award is vacated, over 30,000 children

will remain consigned to

failing schools that the state's highest educational authority expressly permitted the DOE to close
and replace. See Sternberg

Aff. at fl "16." It is unconscionable that the education of these

children may have to suffer for yet another year at a school both petitioners and the State found worthy of closure. See id.

38.

No prior application for the relief sought herein has been made to this or

any other Court, and petitioners have no other adequate remedy at

law.

See Leighton

Aff. at fl

"47."
CAUSE OF ACTION

39. 40. 41.

Petitioners repeat and reallege each and every allegation set forth in

paragraphs "1" throughu36," inclusive, as if fully set forth here.

Arbitrator Buchheit's exceeded his authority

in finding the grievances

arbitrable and sustaining the grievances. The arbitration award violates public policy in that the arbitrator usurped

the authority granted by the Education Law to the Chancellor and the State Commissioner of
Education to determine matters relating to school closures and openings.

42.

For the foregoing reasons, the Award must be vacated.

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\ilHEREFORE, petitioners respectfully request that a Judgment and Order

be

entered vacating the Award, together with such other and further relief as this Court deems just
and proper. Dated:

New York, New York July 2,2012

MICHAEL A. CARDOZO
Corporation Counsel of the City of New York Attorney for Petitioners 100 Church Street, Room 2-143 New York, New York 10007-26

(2t2)
By:

78

Assistant

Of Counsel

Georgia Pestana Chlarens Orsland Martha Mann Alfaro Charles Carey Benjamin J. Traverse

To

STROOCK & STROOCK & LAVAN LLP Alan M. Klinger, of counsel

180 Maiden Lane New York, New York 10038 (212) 806-s400

UNITED FEDERATION OF TEACHERS Adam S. Ross, of counsel 52 Broadway New York, New York 10004 (212) 701-e420

COUNCIL OF SCHOOL SUPERVISORS AND ADMINISTRATORS

David N. Grandwetter, Esq., of counsel 40 Rector Street, l2th Floor New York, New York 10006 (718) 8s2-3000

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VERIFICATION
STATE

OFNEWYORK

)
SS

cotrNTY OF NEW

YORK

Chad Pimentel, being duly sworn, states that he is an attomey in the Office of the

General Counsel of the Board of Education of the City School District of the City of New York

(also known as the New York City Department of Education ("DOE")), that he has read the foregoing petition in the matter

of Bd. gf Edvc., et ano^ v. Mulgrew, et qno and knows

the

contents thereof to be true, except for any contents alleged to be true based upon information and beliefl, which he believes to be true, and that the source of this information and the basis for his

belief are the books and records of the DOE and other deparlments of the City government and
statements made by certain officers or agents of the DOE.

to before me this day ofJuly, 2012

,Ue
NOTARY

,t-lo|ory

rbtc

ffir of

ft.r

"enmon

Index No.

SUPREME COURT OF THE STATE OF NEW YORK

In the Matter of the Application

of

THE BOARD OF EDUCATION OF THE CITY SCHOOL DISTzuCT OF THE CITY OF NEW )'ORK ("DOE"), et ano,
Petitioners, For a Judgment and Order Pursuant to Article 75 of the Practice Law and Rules,

Civil

against

MICFIAEL MULGREW, as President of the LINITED FEDERATION OF TEACHERS, Local2, American Federation of Teachers, AFL-CIO, et ano,
Respondents.

VERIFIED PETITION MICHAEL A. CARDOZO Corporation Counsel of the City of New York
Attorney

for

Respondents

100 Church Street,

New York, New York 10007 Of Counsel: Georgia Pestana, Martha Mann

Alfaro, Chlarens Orsland, Manuell Leighton, Charles Carey, and Benjamin Traverse
Due and timely service is hereby admitted.

Dated: New York, N.Y. ..........

Signed:

.., 201_

Attorneyfor