Preview
FILED: ONONDAGA COUNTY CLERK 06/02/2016 04:41 PM INDEX NO. 2016EF2080
NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 06/02/2016
STATE OF NEW YORK
SUPREME COURT COUNTY OF ONONDAGA
In the Matter of the Application of
LINDA SANTANAM;JOHN KURYLA,in his capacity
as President of the NORTH SYRACUSE EDUCATION Index No. 2016-549
ASSOCIATION; and the NORTH SYRACUSE
EDUCATION ASSOCIATION,
Petitioners, Hon. James P. Murphy
-against-
BOARD OF EDUCATION, NORTH SYRACUSE
CENTRAL SCHOOL DISTRICT; ANNETTE
SPEACH,in her capacity as Superintendent of the
North Syracuse Central School District; THE NORTH
SYRACUSE CENTRAL SCHOOL DISTRICT; AND
ALFRED RICCIO, in his capacity as Hearing Officer
Respondents.
ANSWERING MEMORANDUM OF LAW ON BEHALF OF RESPONDENTS
BOARD OF EDUCATION,NORTH SYRACUSE CENTRAL SCHOOL
DISTRICT; ANNETTE SPEACH;AND THE NORTH SYRACUSE CENTRAL
SCHOOL DISTRICT
BOND,SCHOENECK &KING PLLC
Attorneys for Respondents
Office and P.O. Address
One Lincoln Center
Syracuse, New York 13202-1355
Telephone:(315) 218-8000
Of Counsel:
Douglas M. McRae, Esq.
Katherine R. Schafer, Esq.
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TABLE OF CONTENTS
Pa e
Preliminary Statement .............................................................................. 1
Statement of Facts .................................................................................... 2
Argument .................................................................................................. 7
Point I
A Writ of Prohibition Is an Extraordinary Remedy, Only Available
Where There Is A Clear Entitlement to Relief ......................................... 7
Point II
Petitioners Have Failed To Establish Any Clear Legal Right To A
Writ of Prohibition Under the Plain Language of the Collective
Bargaining Agreement ......................................................................... 8
Point III
Petitioners Fail To Offer Any Basis for Disregarding the Plain Language
Of The Collective Bargaining Agreement, and Their Prior Conduct
Under Such Language ........................................................................ 13
Point IV
Petitioners Have Not Shown Prohibition Is Justified By the Gravity of
The Potential Harm and Lack of an Adequate Alternative Avenue
For Remedy ...................................................................................... 20
Conclusion .............................................................................................. 20
i
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PRELIMINARY STATEMENT
Respondent Annette Speach ("Speach"), in her capacity as Superintendent of
the North Syracuse Central School District (the "District"), brought Charges
pursuant to Section 75 of the New York Civil Service Law against Petitioner Linda
Santanam ("Santanam"), seeking her termination from employment with the
District as an Occupational Therapist due to Santanam's misconduct. Pursuant to
Civil Service Law Section 75, the District scheduled a hearing on the Charges,
at which Santanam has the right to be represented and to summon and present
witnesses and other proof on her behalf.
In response, Petitioners commenced this special proceeding under Article 78
seeking a writ prohibiting the hearing, arguing that Respondents acted in excess of
their jurisdiction and authority by following the procedure set out in Civil Service
Law Section 75 to discipline Santanam. Petitioners argue that the "Just Cause"
provision in the parties' collective bargaining agreement waived its members' due
process protections udner Section 75 and 76 of the Civil Service Law. This
argument is without merit.
First, Petitioners are unable to show that they have a "clear legal right"
entitling them to the "extraordinary remedy" of prohibition. While parties to a
collective bargaining agreement can certainly agree to supplement, modify or
replace Section 75 rights and procedures pursuant to Section 76(4) of the Civil
Service Law, it is well-established that the due process rights of Section 75 can only
be waived by explicit and unmistakable language. And the Just Cause language in
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the collective bargaining agreement here falls far short of this standard, as it is
neither an explicit nor an unmistakable waiver of Civil Service Law Section 75.
Instead, the Just Cause language merely augments the protections of the Civil
Service Law by allowing the Association to grieve the discipline after it is imposed
following a hearing pursuant to Section 75. Respondents are still allowed and,
in fact, are required to both bring charges and hold a hearing pursuant to Section
75 prior to imposing any discipline upon Santanam.
Secondly, Petitioners have not, and cannot, cite to any bargaining history or
other evidence that the District and the Association intended to waive and replace
Section 75 of the Civil Service Law by agreeing to a "just cause" grievance provision
in the collective bargaining agreement. In fact, to the contrary, the parties' own
conduct —including when the District previously brought Section 75 Charges
against Santanam, and the parties then entered into agreements to settle those
disciplinary charges that explicitly acknowledged Santanam's Section 75 rights —
demonstrates that they did not waive or replace Section 75 in the collective
bargaining agreement.
Finally, even assuming Petitioners could show a clear legal right to a writ of
prohibition, such an extraordinary remedy is not justified here based upon an
examination of the gravity of the alleged harm and the availability of adequate
alternatives for relief. Specifically, Petitioners have two adequate alternate avenues
for remedy here should they believe themselves aggrieved of a determination issued
pursuant to Section 75:(1) they could decide to appeal the Section 75 determination
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under CPLR Article 78, as provided in Section 76 of the Civil Service Law;
or (2) they could assert a challenge to the whatever penalty is ultimately imposed
after the hearing in accordance with the Just Cause grievance procedure in the
collective bargaining agreement. If Santanam and the Association were to prevail at
either, Santanam would be reinstated with full back pay.
Petitioners are simply not entitled to a writ of prohibition, because they
cannot show a clear legal right to the relief, nor is such an extraordinary remedy
justified by the gravity of the potential harm or a lack of adequate alternative
avenues for remedy. The language of the collective bargaining agreement does not
explicitly waive the due process protections of Section 75 and, as such, the District
must follow the procedure set forth in Section 75 prior to imposing any discipline
upon Santanam. The hearing must be held, and this Article 78 proceeding should be
dismissed.
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STATEMENT OF FACTS
Santanam is currently employed by the North Syracuse Central School
District as an Occupational Therapist (Speach Affidavit, ¶ 2).1 As an individual
holding a position by permanent appointment in the competitive class of the
classified civil service, Santanam falls under the definition of persons protected by
the due process protections of Section 75 of the New York Civil Service Law
(Civil Serv. Law § 75[1][a]). Section 75 prohibits protected individuals from being
removed from their positions or otherwise subject to any discipline, except after
charges are brought alleging incompetency or misconduct and a showing of
incompetency or misconduct is made at a hearing held on those charges (Civil Serv.
Law § 75[1]).
Pursuant to the Section 75 procedure, the District brought 15 charges of
misconduct against Santanam on May 2, 2016, seeking her termination from
employment (Speach Affidavit, ¶ 4, Ex. A). Santanam was provided with notice of
the Charges and of the hearing, scheduled for June 1, 2016, as required by Section
75(Speach Affidavit, ¶¶ 6-7, Ex. C). The Board of Education appointed Alfred Riccio
as Hearing Officer in the matter of the Charges preferred against Santanam by
Resolution dated May 2, 2016 (Speach Affidavit, ¶ 5, Ex. B). Pending the hearing
and a determination on the Charges, Santanam was suspended without pay for 30
days, as permitted in Civil Service Law Section 75(3).(Speach Affidavit, ¶ 5, Ex. B).
1 References to "Speach Affidavit, ¶_" are to the June 1, 2016 Affidavit of Annette Speach, the
District's Superintendent of Schools and to the referenced exhibits attached thereto.
C~
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Santanam is also a member of the collective bargaining unit represented by
Petitioner North Syracuse Education Association ("NSEA" or the "Association") and,
as such, is entitled to the protections of the collective bargaining agreement
between the District and the Association (Speach Affidavit, ¶ 8). The collective
bargaining agreement between the District and the Association, which is effective
July 1, 2015 through June 30, 2019, contains a Just Cause provision in Article 8.8
that states:
No bargaining unit member will be disciplined, reprimanded, reduced
in rank or compensation or deprived of any professional advantage
without just cause. Any such action shall be subject to the grievance
procedure set forth in this Agreement. Elimination or abolishment of
position shall not constitute discipline, a reprimand, a reduction in
rank or compensation, or deprivation of any professional advantage
within the meaning of this paragraph (the parties' collective
bargaining agreement [the "CBA"] is attached to the Petition as
Exhibit A).
Under the Just Cause provision of the CBA bargaining unit members may
not be disciplined unless it is for just cause, and any discipline that is imposed may
be grieved by the Association pursuant to the CBA's grievance procedure
(Speach Affidavit, ¶ 9). Article 3 of the collective bargaining agreement contains the
grievance procedure, which includes three steps that culminate in final and binding
arbitration (Petition, Ex. A). Neither CBA Article 8.8 nor Article 3 contain any
reference to Sections 75 or 76 of the Civil Service Law, or any explicit waiver of,
or reference to, any statutory rights (Petition, Ex. A).
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On May 9, 2016, the Association submitted a Step 1 grievance challenging,
among other things, the District's filling of Section 75 Charges against Santanam
seeking her termination (Speach Affidavit, ¶ 8). The District denied the grievance
on May 16, 2016 (Speach Affidavit, ¶ 18). Upon information and belief,
the Association has advanced the grievance to Step 2 (Speach Affidavit, ¶ 18).
The Petitioners have simultaneously commenced this proceeding under Article 78
seeking a writ prohibiting the Section 75 hearing from being held, arguing that the
CBA waived the due process protections of Section 75. Respondents respectfully
oppose that application.
D
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ARGUMENT
POINT I
A WRIT OF PROHIBITION IS AN EXTRAORDINARY
REMEDY, ONLY AVAILABLE WHERE THERE IS A
CLEAR ENTITLEMENT TO RELIEF.
Writs of prohibition are a judicial tool available to prevent a body or officer
from proceeding with some specific act that is in excess of that entity's authority or
jurisdiction (CPLR 7803[2]). As the Courts have long acknowledged, such writs are
an "extraordinary remedy," only appropriate "when there is a clear legal right"
to the relief being sought (Matter of Nicholson v State Commission on Judicial
Conduct, 50 NY2d 597, 605-606 [1980] [citations omitted]; see also Matter of Town
of Huntington v New York State Division of Human Rights, 82 NY2d 783, 786
[1993]). And even where such a clear legal right exists, prohibition is still not
mandatory, but rather left to the sound discretion of the court (La Rocca v Lane,
37 NY2d 575, 579 [1975]; Matter of Town of Huntington, 82 N.Y.2d at 786.
In addition, as the Court of Appeals expressly affirmed, the "writ is generally
not available to correct common procedural or substantive errors, and will not lie
where its proponent has access to another adequate legal remedy unless, in the rare
instance, it would furnish a more complete and efficacious remedy"(Matter of Town
of Huntington, 82 NY2d at 786 [citations omitted]). Accordingly, "even where the
writ may be technically appropriate, the court must consider other factors such as
the gravity of the potential harm caused by the threatened excess of power or
whether other proceedings in law or equity could correct the flaw, in determining
whether a proponent's request should ultimately be granted" (Id.).
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POINT II
PETITIONERS HAVE FAILED TO ESTABLISH ANY
CLEAR LEGAL RIGHT TO A WRIT OF PROHIBITION
UNDER THE PLAIN LANGUAGE OF THE
COLLECTIVE BARGAINING AGREEMENT.
Petitioners have commenced this special proceeding under .Article 78 to
prohibit the Respondents from following through with a Section 75 hearing,
arguing that such a hearing would be in excess of their authority because the
Petitioners previously waived their rights to the Section 75 due process protections
in the parties' CBA. Specifically, Petitioners' argument is that the Just Cause
provision in Section 8.8 of the CBA constitutes a waiver of Sections 75 and 76 of the
Civil Service Law on behalf of the Association's bargaining unit members,
meaning that the members must be unilaterally disciplined by the District with no
hearing. Under this argument, such discipline would be subject only to the
grievance procedure in Article 3.3 of the CBA.
That is simply not correct. Again, as an individual holding a position by
permanent appointment in the competitive class of the classified civil service,
Santanam is — by definition —presumptively covered by the due process protections
of Section 75 of the Civil Service Law (Civil Serv. Law § 75[1][a]). And under the
Section 75 due process protections, in order for the District to discipline Santanam,
the District would have to first both bring charges and hold a hearing pursuant to
Civil Service Law Section 75.2 See N.Y. Civil Serv. Law § 75(1). It would only be
2 Section 75(3) of the Civil Service Law allows for an unpaid suspension for up to 30 days while the
Charges are pending. This is not considered discipline, since if the employee is acquitted of the
'~ j
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after such a hearing that the District would be permitted to impose discipline,
and such discipline would then still be subject to the grievance procedure under the
CBA. In other words, by default, both the Section 75 due process protections and the
Just Cause grievance procedures should apply here.
Now it is certainly correct, as Petitioners assert, that parties to a collective
bargaining agreement can agree to supplement, modify or replace Section 75 rights
and procedures as expressly permitted by Civil Service Law ~ 76(4). However, it is
well-established that the due process protections of Section 75 can only be waived
"when there is clear and compelling evidence of a voluntary, knowing and intelligent
waiver" (Burka v N.Y.C. Transit Azcth., 744 F. Supp. 63, 65 [SDNY 1990][emphasis
added] citing D.H. Overmyer Co. v Frich Co., 405 US 174 [1972]; see also Matter of
Chenango Forks Cent. Sch. Dist. v New York State Pub. Empl. Relations Bd.,
95 AD3d 1479, 1484 [3d Dept 2012] ["A waiver is the intentional relinquishment of
a known right" which "must be clear, unmistakable and without ambiguity."]).
As the Supreme Court has cautioned, the Courts must "indulge in every
reasonable presumption against waiver of fundamental constitutional rights"
(Burka, 744 F. Supp. at 65 [citations and quotations omitted]) and, as such,
even though "a contract provision may modify or replace the more traditional forms
of judicial and/or statutory protection afforded public employees ... such a provision
must be clear and unambiguous in effecting the modification or replacement in
order to be enforceable" (Matter of Delmage u Mahoney, 224 AD2d 688, 689
charges at the hearing, she is entitled to be restored to her position and to receive full back pay for
the period of unpaid suspension (Civil Service Law § 75[3]).
"~
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[2d Dept 1996] citing Frontier Ins. Co. u State of New York, 197 AD2d 177
[3d Dept 1994] aff'd 87 NY2d 864 [1995]).
Under the law, the language in a collective bargaining agreement must be
much more explicit than the "just cause" language at issue here in order for a Court
to find that it constitutes a waiver of an individual's Section 75 due process rights —
it has to specifically reference the statute and unambiguously indicate that it is
being replaced (see e.g. Stresing u Agostinoni, 2014 U.S. Dist. LEXIS 75511, at *3
[WDNY 2014] [agreement provides that "Discipline shall be imposed upon
employees otherwise subject to the provisions of Sections 75 and 76 of the Civil
Service Law only pursuant to this Article, and the procedure and remedies herein
provided shall apply in lieu of the procedicre and remedies prescribed by such
sections of the Civil Service Law which shall not apply to employees"] [emphasis
added]; Barnes v Pilgrim Psychiatric Ctr., 860 FSupp2d 194, 199 [EDNY 2012]
["Article 33 [of the collective bargaining agreement] states that its provisions are
provided `in lieu of the procedure specified in the Civil Service Law Sections 75 and
76."'] [emphasis added]; Ciambriello v County of Nassau, 292 Fad 307, 314
[2d Cir. 2002] [agreement provides that "the provisions of this section shall be
exclusive for all persons in the negotiating unit and shall be in lieu of any and all
other statutory or regulatory disciplinary protections"] [emphasis added]; Matter of
Board of Educ. of the Sachem Cent. Sch. Dist. v United Pub. Serv. Empl. Union,
2009 N.Y. Misc. LEXIS 6468, at *10 [N.Y. Sup. Ct. Suffolk County 2009]
["[S]ubdivision (A) of Article XI, entitled `discipline and discharge,' provides in its
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entirety, `[iJn lieu of any procedure at law available to members of the bargaining
unit, and pursuant to Section 76(4) of the Civil Service Law, the parties have
negotiated the following procedure, which shall be the sole and exclusive procedure
pursuant to which members of the bargaining unit shall be discharged and
disciplined."'] [emphasis added]; Miller v City of Ithaca, 2010 U.S. Dist. LEXIS
99531, at *43 [NDNY 2010] ["`The parties fully and completely waive whatever
rights they may have had under Civil Service Law § 75 ...."']
Indeed, even in Antinore v State (49 AD2d 6 [4th Dept 1975] affd 40 NY2d
921 [1976], a case cited by Petitioners in support of their waiver argument,
the language in the parties' collective bargaining agreement at issue there that was
held to constitute a waiver of the individuals' Section 75 due process protections
explicitly stated:
33.1 Effective July 1, 1973, the following disciplinary procedure for
incompetency or misconduct shall apply to all employees as provided
herein in lieu of the procedure specified in the Civil Service Law
Sections 75 and 76 (see relevant portion of the Record on Appeal,
attached as Exhibit 1 to the Affidavit of Douglas M. McRae, Esq. sworn
to June 2, 2016).
And when New York State United Teachers ("NYSUT"), which is affiliated
with the Association, intends to waive the due process protections of Sections 75
and 76 of the Civil Service Law, it does so explicitly and unambiguously.
For example, language recently proposed by NYSUT and then adopted into the
current collective bargaining agreement between the North Salem Central School
District and the North Salem School Related Professionals NYSUT/AFT/NEA, AFL-
(;lU, falls under an explicit heading entitled "Waiver of Rights Under S"ections ~5
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and 76 of the Civil Service Law" and goes on to specify that the disciplinary
procedures provided therein are "in lieLc of the Civil Service Law Sections 75 and
76," that the "employer and the Union fully understand and agree that the
provisions of the Civil Service Law herein stated shall not apply to disciplinary
action instituted against Unit members," and that Unit members understand and
agree that they have "expressly waived their rights" under the Civil Service Law (see
relevant portion of the NYSUT-NSCSD collective bargaining agreement, attached
as Exhibit 2 to the McRae Affidavit).
The waivers are clear, unmistakable and without ambiguity. The Just Cause
provision in Article 8.8 of the CBA that Petitioners seek to rely upon here is not.
And when faced with language like the Just Cause provision at issue here,
the Courts have refused to find that such language constitutes a waiver of the
Section 75 due process protections. For example, in Matter of Granville Cent. Sch.
Dist. u Granville Non-Instructional Employees Assoc. (114 AD2d 626 [3d Dept
1985]), the Court explained that the "just cause" provision in a collective bargaining
agreement did not replace the statutory protections of Civil Service Law Section 75
and 76, but instead provided the public employee with "a further alternative"
in addition to the Civil Service Law, "that of pursuing to resolution by arbitration
`just cause' grievances" (Id. at 627). As the Court explained, "[s]ince a decision to
impose discipline was a prerequisite to arbitration, the grievance provisions of the
collective bargaining agreement do not supplant, but rather augment, the statutory
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methods of appeal detailed in Civil Service Law § 76." (Id.). That is precisely the
situations here.
Similarly, in Matter of Kavoukian u Bethleman Cent. Sch. Dist. (63 AD2d 767
[3d Dept 1978]), the Court found the parties' agreement to a grievance procedure in
their collective bargaining agreement was not a waiver or replacement of Sections
75 and 76 of the Civil Service Law, because since Section 75 requires a hearing
upon stated charges prior to discipline for covered employees, "the grievance
provisions of the subject employment contract do not supplant the provisions of
Section 75 of the Civil Service Law." (Id. at 768 [emphasis added]). Likewise,
in Delmage (224 AD2d 688), the court found that the language regarding discipline
in the parties', collective bargaining agreement was too ambiguous to constitute a
"clear and unambiguous" waiver of Section 75 of the Civil Service Law, concluding
that "[i]n light of these ambiguities and inconsistencies, it cannot be reasonably
concluded that the petitioner, expressly or impliedly, waived his right to a hearing
pursuant to Civil Service Law Section 75."(Id. at 689).
The result must be the same here. The Just Cause language in the CBA
between the District and the Association does not waive Section 75 of the Civil
Service Law. Rather, as found by the courts in Matter of Granville Cent. Sch. Dist.
and Matter of Kavoukian, the Just Cause grievance procedure is merely a
supplement to the due process protections under Section 75 of the Civil Service
Law, offering the statutory protections and also allowing the Association to grieve
the discipline after it is imposed following a hearing.
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POINT III
PETITIONERS FAIL TO OFFER ANY BASIS FOR
DISREGARDING THE PLAIN LANGUAGE OF THE
COLLECTIVE BARGAINING AGREEMENT,
AND THEIR PRIOR CONDUCT UNDER SUCH
LANGUAGE.
On its face, the parties' CBA does not, as a matter of law, constitute a clear,
unmistakable and unambiguous waiver of the Section 75 due process protections.
This is the understanding of Respondent Speach, the District's Superintendent
(Speach Affidavit, § 13). And Petitioners have not cited any bargaining history or
other evidence that the District and the Association intended to waive and replace
Sections 75 and 76 of the Civil Service Law by agreeing to a Just Cause grievance
provision in the CBA. Indeed, it is respectfully submitted that no such evidence
could possibly exist, since the prior conduct of the parties here explicitly
acknowledged Santanam's Section 75 rights under prior collective bargaining
agreements that had the same Just Cause language.
In particular, in 2010 the District brought charges pursuant to Civil Service
Law Section 75 against Santanam for misconduct, suspending her without pay for
30 days during that time just as it did in this matter (Speach Affidavit, ¶ 14). At the
time, there was a collective bargaining agreement between the parties that had the
same Just Cause language that was used in the CBA at issue here (Speach
Affidavit, ~ 17). And in resolving those charges, Santanam and the Association
agreed to settle by accepting an unpaid disciplinary suspension of 60 days pursuant
to a Settlement Agreement, dated April 7, 2010, signed by Santanam, then-
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President of the Association, Sylvia A. Matousek, and then-Superintendent of the
District, Jerome F. Melvin, Ph.D. (Speach Affidavit, ¶¶ 14-15; Ex. D).
That settlement agreement explicitly acknowledged the existence of Santanam's
Section 75 rights, stating that "Santanam voluntarily and with the advice of legal
counsel waives her rights, including her rights pursuant to Section 75 of the Civil
Service Law and all contractual rights arising under NSEA's labor agreement with
the District"(Speach Affidavit, ¶ 15, Ex. D).
This is important for two reasons. First, it confirms that the parties here
understood that the Just Cause language in the collective bargaining agreement did
not waive the due process protections of Section 75 of Civil Service Law. If Section
75 had been waived in the collective bargaining agreement, there would have been
no reason to acknowledge Santanam's Section 75 rights and to make a clear,
unmistakable and unambiguous waiver of those rights in the settlement agreement.
Second, it demonstrates that the District and the Association know how to waive
Civil Service Law Section 75 rights in a clear, unmistakable and unambiguous
manner, and are perfectly capable of doing so when they actually intended to
effectuate a waiver of Section 75.
Similarly, Santanam, the District and the Association were also parties to
another settlement agreement executed in February of 2015, while the District was
preparing to bring different Section 75 Charges against Santanam for misconduct
(Speach Affidavit, ~ 14; Ex. E). Under the 2015 settlement agreement, Santanam
agreed to accept another unpaid disciplinary suspension and, just like in the 2010
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settlement agreement, explicitly acknowledged and waived her Section 75 rights by
stating that: "Santanam voluntarily, and with the advice of the NSEA, waives her
rights including all contractual rights arising under the NSEA's labor agreement
with the District and her rights pursuant to Section 75 of the New York State Civil
Service Law"(Speach Affidavit, ¶ 16, Ex. E).
Simply put, the claim advanced here —for the first time —that the language
in the Just Cause provision of the CBA constitutes a waiver of Santanam and
others' Section 75 due process protections is not only disingenuous and without
evidentiary support, but in fact contrary to their prior course of conduct. The parties
did not agree to waive Section 75 of the Civil Service Law by agreeing to the Just
Cause provision in the CBA. Accordingly, Respondents are allowed and, in fact,
required to bring charges against Santanam, to hold a hearing, and to receive the
input of a hearing officer pursuant to Section 75 prior to imposing any discipline
upon Santanam. Petitioners are thus unable to show that Respondents have acted,
or have threatened to act, in excess of their authority or jurisdiction under Section
75 of the Civil Service Law, and cannot possibly establish that they have a "clear
legal right" entitling them to the extraordinary remedy of prohibition.
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POINT IV
PETITIONERS HAVE NOT SHOWN PROHIBITION IS
JUSTIFIED BY THE GRAVITY OF THE POTENTIAL
HARM AND LACK OF AN ADEQUATE ALTERNATIVE
AVENUE FOR REMEDY.
Finally, even assuming for the sake of argument that the Petitioners could
somehow establish a clear legal right to a writ of prohibition, such an
"extraordinary remedy" is not justified here based upon an examination of the
gravity of the alleged harm and the availability of adequate alternate avenues for
remedy. Specifically, following a hearing on the Charges pursuant to Section 75 of
the Civil Service Law, the most "harm" that could result to Santanam would be that
her employment with the District could be terminated for intentional misconduct
(Civil Service Law § 75[1]). And upon that "harm," Petitioners have two adequate
alternate avenues for remedy, namely: (1) appeal the Section 75 hearing
determination under CPLR Article 78, as permitted under Section 76(1) of the Civil
Service Law; or (2) challenge the termination pursuant to the Just Cause grievance
procedure in the CBA (which is what they want to do anyway). If Santanam and the
Association were to prevail at either, she would be reinstated with full back pay
(Civil Service Law § 76[3]).
In other words, there are alternate avenues that the Petitioners can seek that
would eliminate any of the potential harm that Santanam would face —indeed,
Petitioners' argument in fact removes one of these
Preview
FILED: ONONDAGA COUNTY CLERK 06/02/2016 04:41 PM INDEX NO. 2016EF2080 NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 06/02/2016 STATE OF NEW YORK SUPREME COURT COUNTY OF ONONDAGA In the Matter of the Application of LINDA SANTANAM;JOHN KURYLA,in his capacity as President of the NORTH SYRACUSE EDUCATION Index No. 2016-549 ASSOCIATION; and the NORTH SYRACUSE EDUCATION ASSOCIATION, Petitioners, Hon. James P. Murphy -against- BOARD OF EDUCATION, NORTH SYRACUSE CENTRAL SCHOOL DISTRICT; ANNETTE SPEACH,in her capacity as Superintendent of the North Syracuse Central School District; THE NORTH SYRACUSE CENTRAL SCHOOL DISTRICT; AND ALFRED RICCIO, in his capacity as Hearing Officer Respondents. ANSWERING MEMORANDUM OF LAW ON BEHALF OF RESPONDENTS BOARD OF EDUCATION,NORTH SYRACUSE CENTRAL SCHOOL DISTRICT; ANNETTE SPEACH;AND THE NORTH SYRACUSE CENTRAL SCHOOL DISTRICT BOND,SCHOENECK &KING PLLC Attorneys for Respondents Office and P.O. Address One Lincoln Center Syracuse, New York 13202-1355 Telephone:(315) 218-8000 Of Counsel: Douglas M. McRae, Esq. Katherine R. Schafer, Esq. 1 of 22 TABLE OF CONTENTS Pa e Preliminary Statement .............................................................................. 1 Statement of Facts .................................................................................... 2 Argument .................................................................................................. 7 Point I A Writ of Prohibition Is an Extraordinary Remedy, Only Available Where There Is A Clear Entitlement to Relief ......................................... 7 Point II Petitioners Have Failed To Establish Any Clear Legal Right To A Writ of Prohibition Under the Plain Language of the Collective Bargaining Agreement ......................................................................... 8 Point III Petitioners Fail To Offer Any Basis for Disregarding the Plain Language Of The Collective Bargaining Agreement, and Their Prior Conduct Under Such Language ........................................................................ 13 Point IV Petitioners Have Not Shown Prohibition Is Justified By the Gravity of The Potential Harm and Lack of an Adequate Alternative Avenue For Remedy ...................................................................................... 20 Conclusion .............................................................................................. 20 i 2 of 22 PRELIMINARY STATEMENT Respondent Annette Speach ("Speach"), in her capacity as Superintendent of the North Syracuse Central School District (the "District"), brought Charges pursuant to Section 75 of the New York Civil Service Law against Petitioner Linda Santanam ("Santanam"), seeking her termination from employment with the District as an Occupational Therapist due to Santanam's misconduct. Pursuant to Civil Service Law Section 75, the District scheduled a hearing on the Charges, at which Santanam has the right to be represented and to summon and present witnesses and other proof on her behalf. In response, Petitioners commenced this special proceeding under Article 78 seeking a writ prohibiting the hearing, arguing that Respondents acted in excess of their jurisdiction and authority by following the procedure set out in Civil Service Law Section 75 to discipline Santanam. Petitioners argue that the "Just Cause" provision in the parties' collective bargaining agreement waived its members' due process protections udner Section 75 and 76 of the Civil Service Law. This argument is without merit. First, Petitioners are unable to show that they have a "clear legal right" entitling them to the "extraordinary remedy" of prohibition. While parties to a collective bargaining agreement can certainly agree to supplement, modify or replace Section 75 rights and procedures pursuant to Section 76(4) of the Civil Service Law, it is well-established that the due process rights of Section 75 can only be waived by explicit and unmistakable language. And the Just Cause language in 3 of 22 the collective bargaining agreement here falls far short of this standard, as it is neither an explicit nor an unmistakable waiver of Civil Service Law Section 75. Instead, the Just Cause language merely augments the protections of the Civil Service Law by allowing the Association to grieve the discipline after it is imposed following a hearing pursuant to Section 75. Respondents are still allowed and, in fact, are required to both bring charges and hold a hearing pursuant to Section 75 prior to imposing any discipline upon Santanam. Secondly, Petitioners have not, and cannot, cite to any bargaining history or other evidence that the District and the Association intended to waive and replace Section 75 of the Civil Service Law by agreeing to a "just cause" grievance provision in the collective bargaining agreement. In fact, to the contrary, the parties' own conduct —including when the District previously brought Section 75 Charges against Santanam, and the parties then entered into agreements to settle those disciplinary charges that explicitly acknowledged Santanam's Section 75 rights — demonstrates that they did not waive or replace Section 75 in the collective bargaining agreement. Finally, even assuming Petitioners could show a clear legal right to a writ of prohibition, such an extraordinary remedy is not justified here based upon an examination of the gravity of the alleged harm and the availability of adequate alternatives for relief. Specifically, Petitioners have two adequate alternate avenues for remedy here should they believe themselves aggrieved of a determination issued pursuant to Section 75:(1) they could decide to appeal the Section 75 determination 0 4 of 22 under CPLR Article 78, as provided in Section 76 of the Civil Service Law; or (2) they could assert a challenge to the whatever penalty is ultimately imposed after the hearing in accordance with the Just Cause grievance procedure in the collective bargaining agreement. If Santanam and the Association were to prevail at either, Santanam would be reinstated with full back pay. Petitioners are simply not entitled to a writ of prohibition, because they cannot show a clear legal right to the relief, nor is such an extraordinary remedy justified by the gravity of the potential harm or a lack of adequate alternative avenues for remedy. The language of the collective bargaining agreement does not explicitly waive the due process protections of Section 75 and, as such, the District must follow the procedure set forth in Section 75 prior to imposing any discipline upon Santanam. The hearing must be held, and this Article 78 proceeding should be dismissed. 3 5 of 22 STATEMENT OF FACTS Santanam is currently employed by the North Syracuse Central School District as an Occupational Therapist (Speach Affidavit, ¶ 2).1 As an individual holding a position by permanent appointment in the competitive class of the classified civil service, Santanam falls under the definition of persons protected by the due process protections of Section 75 of the New York Civil Service Law (Civil Serv. Law § 75[1][a]). Section 75 prohibits protected individuals from being removed from their positions or otherwise subject to any discipline, except after charges are brought alleging incompetency or misconduct and a showing of incompetency or misconduct is made at a hearing held on those charges (Civil Serv. Law § 75[1]). Pursuant to the Section 75 procedure, the District brought 15 charges of misconduct against Santanam on May 2, 2016, seeking her termination from employment (Speach Affidavit, ¶ 4, Ex. A). Santanam was provided with notice of the Charges and of the hearing, scheduled for June 1, 2016, as required by Section 75(Speach Affidavit, ¶¶ 6-7, Ex. C). The Board of Education appointed Alfred Riccio as Hearing Officer in the matter of the Charges preferred against Santanam by Resolution dated May 2, 2016 (Speach Affidavit, ¶ 5, Ex. B). Pending the hearing and a determination on the Charges, Santanam was suspended without pay for 30 days, as permitted in Civil Service Law Section 75(3).(Speach Affidavit, ¶ 5, Ex. B). 1 References to "Speach Affidavit, ¶_" are to the June 1, 2016 Affidavit of Annette Speach, the District's Superintendent of Schools and to the referenced exhibits attached thereto. C~ 6 of 22 Santanam is also a member of the collective bargaining unit represented by Petitioner North Syracuse Education Association ("NSEA" or the "Association") and, as such, is entitled to the protections of the collective bargaining agreement between the District and the Association (Speach Affidavit, ¶ 8). The collective bargaining agreement between the District and the Association, which is effective July 1, 2015 through June 30, 2019, contains a Just Cause provision in Article 8.8 that states: No bargaining unit member will be disciplined, reprimanded, reduced in rank or compensation or deprived of any professional advantage without just cause. Any such action shall be subject to the grievance procedure set forth in this Agreement. Elimination or abolishment of position shall not constitute discipline, a reprimand, a reduction in rank or compensation, or deprivation of any professional advantage within the meaning of this paragraph (the parties' collective bargaining agreement [the "CBA"] is attached to the Petition as Exhibit A). Under the Just Cause provision of the CBA bargaining unit members may not be disciplined unless it is for just cause, and any discipline that is imposed may be grieved by the Association pursuant to the CBA's grievance procedure (Speach Affidavit, ¶ 9). Article 3 of the collective bargaining agreement contains the grievance procedure, which includes three steps that culminate in final and binding arbitration (Petition, Ex. A). Neither CBA Article 8.8 nor Article 3 contain any reference to Sections 75 or 76 of the Civil Service Law, or any explicit waiver of, or reference to, any statutory rights (Petition, Ex. A). 7 of 22 On May 9, 2016, the Association submitted a Step 1 grievance challenging, among other things, the District's filling of Section 75 Charges against Santanam seeking her termination (Speach Affidavit, ¶ 8). The District denied the grievance on May 16, 2016 (Speach Affidavit, ¶ 18). Upon information and belief, the Association has advanced the grievance to Step 2 (Speach Affidavit, ¶ 18). The Petitioners have simultaneously commenced this proceeding under Article 78 seeking a writ prohibiting the Section 75 hearing from being held, arguing that the CBA waived the due process protections of Section 75. Respondents respectfully oppose that application. D 8 of 22 ARGUMENT POINT I A WRIT OF PROHIBITION IS AN EXTRAORDINARY REMEDY, ONLY AVAILABLE WHERE THERE IS A CLEAR ENTITLEMENT TO RELIEF. Writs of prohibition are a judicial tool available to prevent a body or officer from proceeding with some specific act that is in excess of that entity's authority or jurisdiction (CPLR 7803[2]). As the Courts have long acknowledged, such writs are an "extraordinary remedy," only appropriate "when there is a clear legal right" to the relief being sought (Matter of Nicholson v State Commission on Judicial Conduct, 50 NY2d 597, 605-606 [1980] [citations omitted]; see also Matter of Town of Huntington v New York State Division of Human Rights, 82 NY2d 783, 786 [1993]). And even where such a clear legal right exists, prohibition is still not mandatory, but rather left to the sound discretion of the court (La Rocca v Lane, 37 NY2d 575, 579 [1975]; Matter of Town of Huntington, 82 N.Y.2d at 786. In addition, as the Court of Appeals expressly affirmed, the "writ is generally not available to correct common procedural or substantive errors, and will not lie where its proponent has access to another adequate legal remedy unless, in the rare instance, it would furnish a more complete and efficacious remedy"(Matter of Town of Huntington, 82 NY2d at 786 [citations omitted]). Accordingly, "even where the writ may be technically appropriate, the court must consider other factors such as the gravity of the potential harm caused by the threatened excess of power or whether other proceedings in law or equity could correct the flaw, in determining whether a proponent's request should ultimately be granted" (Id.). 7 9 of 22 POINT II PETITIONERS HAVE FAILED TO ESTABLISH ANY CLEAR LEGAL RIGHT TO A WRIT OF PROHIBITION UNDER THE PLAIN LANGUAGE OF THE COLLECTIVE BARGAINING AGREEMENT. Petitioners have commenced this special proceeding under .Article 78 to prohibit the Respondents from following through with a Section 75 hearing, arguing that such a hearing would be in excess of their authority because the Petitioners previously waived their rights to the Section 75 due process protections in the parties' CBA. Specifically, Petitioners' argument is that the Just Cause provision in Section 8.8 of the CBA constitutes a waiver of Sections 75 and 76 of the Civil Service Law on behalf of the Association's bargaining unit members, meaning that the members must be unilaterally disciplined by the District with no hearing. Under this argument, such discipline would be subject only to the grievance procedure in Article 3.3 of the CBA. That is simply not correct. Again, as an individual holding a position by permanent appointment in the competitive class of the classified civil service, Santanam is — by definition —presumptively covered by the due process protections of Section 75 of the Civil Service Law (Civil Serv. Law § 75[1][a]). And under the Section 75 due process protections, in order for the District to discipline Santanam, the District would have to first both bring charges and hold a hearing pursuant to Civil Service Law Section 75.2 See N.Y. Civil Serv. Law § 75(1). It would only be 2 Section 75(3) of the Civil Service Law allows for an unpaid suspension for up to 30 days while the Charges are pending. This is not considered discipline, since if the employee is acquitted of the '~ j 10 of 22 after such a hearing that the District would be permitted to impose discipline, and such discipline would then still be subject to the grievance procedure under the CBA. In other words, by default, both the Section 75 due process protections and the Just Cause grievance procedures should apply here. Now it is certainly correct, as Petitioners assert, that parties to a collective bargaining agreement can agree to supplement, modify or replace Section 75 rights and procedures as expressly permitted by Civil Service Law ~ 76(4). However, it is well-established that the due process protections of Section 75 can only be waived "when there is clear and compelling evidence of a voluntary, knowing and intelligent waiver" (Burka v N.Y.C. Transit Azcth., 744 F. Supp. 63, 65 [SDNY 1990][emphasis added] citing D.H. Overmyer Co. v Frich Co., 405 US 174 [1972]; see also Matter of Chenango Forks Cent. Sch. Dist. v New York State Pub. Empl. Relations Bd., 95 AD3d 1479, 1484 [3d Dept 2012] ["A waiver is the intentional relinquishment of a known right" which "must be clear, unmistakable and without ambiguity."]). As the Supreme Court has cautioned, the Courts must "indulge in every reasonable presumption against waiver of fundamental constitutional rights" (Burka, 744 F. Supp. at 65 [citations and quotations omitted]) and, as such, even though "a contract provision may modify or replace the more traditional forms of judicial and/or statutory protection afforded public employees ... such a provision must be clear and unambiguous in effecting the modification or replacement in order to be enforceable" (Matter of Delmage u Mahoney, 224 AD2d 688, 689 charges at the hearing, she is entitled to be restored to her position and to receive full back pay for the period of unpaid suspension (Civil Service Law § 75[3]). "~ 11 of 22 [2d Dept 1996] citing Frontier Ins. Co. u State of New York, 197 AD2d 177 [3d Dept 1994] aff'd 87 NY2d 864 [1995]). Under the law, the language in a collective bargaining agreement must be much more explicit than the "just cause" language at issue here in order for a Court to find that it constitutes a waiver of an individual's Section 75 due process rights — it has to specifically reference the statute and unambiguously indicate that it is being replaced (see e.g. Stresing u Agostinoni, 2014 U.S. Dist. LEXIS 75511, at *3 [WDNY 2014] [agreement provides that "Discipline shall be imposed upon employees otherwise subject to the provisions of Sections 75 and 76 of the Civil Service Law only pursuant to this Article, and the procedure and remedies herein provided shall apply in lieu of the procedicre and remedies prescribed by such sections of the Civil Service Law which shall not apply to employees"] [emphasis added]; Barnes v Pilgrim Psychiatric Ctr., 860 FSupp2d 194, 199 [EDNY 2012] ["Article 33 [of the collective bargaining agreement] states that its provisions are provided `in lieu of the procedure specified in the Civil Service Law Sections 75 and 76."'] [emphasis added]; Ciambriello v County of Nassau, 292 Fad 307, 314 [2d Cir. 2002] [agreement provides that "the provisions of this section shall be exclusive for all persons in the negotiating unit and shall be in lieu of any and all other statutory or regulatory disciplinary protections"] [emphasis added]; Matter of Board of Educ. of the Sachem Cent. Sch. Dist. v United Pub. Serv. Empl. Union, 2009 N.Y. Misc. LEXIS 6468, at *10 [N.Y. Sup. Ct. Suffolk County 2009] ["[S]ubdivision (A) of Article XI, entitled `discipline and discharge,' provides in its 12 of 22 entirety, `[iJn lieu of any procedure at law available to members of the bargaining unit, and pursuant to Section 76(4) of the Civil Service Law, the parties have negotiated the following procedure, which shall be the sole and exclusive procedure pursuant to which members of the bargaining unit shall be discharged and disciplined."'] [emphasis added]; Miller v City of Ithaca, 2010 U.S. Dist. LEXIS 99531, at *43 [NDNY 2010] ["`The parties fully and completely waive whatever rights they may have had under Civil Service Law § 75 ...."'] Indeed, even in Antinore v State (49 AD2d 6 [4th Dept 1975] affd 40 NY2d 921 [1976], a case cited by Petitioners in support of their waiver argument, the language in the parties' collective bargaining agreement at issue there that was held to constitute a waiver of the individuals' Section 75 due process protections explicitly stated: 33.1 Effective July 1, 1973, the following disciplinary procedure for incompetency or misconduct shall apply to all employees as provided herein in lieu of the procedure specified in the Civil Service Law Sections 75 and 76 (see relevant portion of the Record on Appeal, attached as Exhibit 1 to the Affidavit of Douglas M. McRae, Esq. sworn to June 2, 2016). And when New York State United Teachers ("NYSUT"), which is affiliated with the Association, intends to waive the due process protections of Sections 75 and 76 of the Civil Service Law, it does so explicitly and unambiguously. For example, language recently proposed by NYSUT and then adopted into the current collective bargaining agreement between the North Salem Central School District and the North Salem School Related Professionals NYSUT/AFT/NEA, AFL- (;lU, falls under an explicit heading entitled "Waiver of Rights Under S"ections ~5 11 13 of 22 and 76 of the Civil Service Law" and goes on to specify that the disciplinary procedures provided therein are "in lieLc of the Civil Service Law Sections 75 and 76," that the "employer and the Union fully understand and agree that the provisions of the Civil Service Law herein stated shall not apply to disciplinary action instituted against Unit members," and that Unit members understand and agree that they have "expressly waived their rights" under the Civil Service Law (see relevant portion of the NYSUT-NSCSD collective bargaining agreement, attached as Exhibit 2 to the McRae Affidavit). The waivers are clear, unmistakable and without ambiguity. The Just Cause provision in Article 8.8 of the CBA that Petitioners seek to rely upon here is not. And when faced with language like the Just Cause provision at issue here, the Courts have refused to find that such language constitutes a waiver of the Section 75 due process protections. For example, in Matter of Granville Cent. Sch. Dist. u Granville Non-Instructional Employees Assoc. (114 AD2d 626 [3d Dept 1985]), the Court explained that the "just cause" provision in a collective bargaining agreement did not replace the statutory protections of Civil Service Law Section 75 and 76, but instead provided the public employee with "a further alternative" in addition to the Civil Service Law, "that of pursuing to resolution by arbitration `just cause' grievances" (Id. at 627). As the Court explained, "[s]ince a decision to impose discipline was a prerequisite to arbitration, the grievance provisions of the collective bargaining agreement do not supplant, but rather augment, the statutory 12 14 of 22 methods of appeal detailed in Civil Service Law § 76." (Id.). That is precisely the situations here. Similarly, in Matter of Kavoukian u Bethleman Cent. Sch. Dist. (63 AD2d 767 [3d Dept 1978]), the Court found the parties' agreement to a grievance procedure in their collective bargaining agreement was not a waiver or replacement of Sections 75 and 76 of the Civil Service Law, because since Section 75 requires a hearing upon stated charges prior to discipline for covered employees, "the grievance provisions of the subject employment contract do not supplant the provisions of Section 75 of the Civil Service Law." (Id. at 768 [emphasis added]). Likewise, in Delmage (224 AD2d 688), the court found that the language regarding discipline in the parties', collective bargaining agreement was too ambiguous to constitute a "clear and unambiguous" waiver of Section 75 of the Civil Service Law, concluding that "[i]n light of these ambiguities and inconsistencies, it cannot be reasonably concluded that the petitioner, expressly or impliedly, waived his right to a hearing pursuant to Civil Service Law Section 75."(Id. at 689). The result must be the same here. The Just Cause language in the CBA between the District and the Association does not waive Section 75 of the Civil Service Law. Rather, as found by the courts in Matter of Granville Cent. Sch. Dist. and Matter of Kavoukian, the Just Cause grievance procedure is merely a supplement to the due process protections under Section 75 of the Civil Service Law, offering the statutory protections and also allowing the Association to grieve the discipline after it is imposed following a hearing. 13 15 of 22 POINT III PETITIONERS FAIL TO OFFER ANY BASIS FOR DISREGARDING THE PLAIN LANGUAGE OF THE COLLECTIVE BARGAINING AGREEMENT, AND THEIR PRIOR CONDUCT UNDER SUCH LANGUAGE. On its face, the parties' CBA does not, as a matter of law, constitute a clear, unmistakable and unambiguous waiver of the Section 75 due process protections. This is the understanding of Respondent Speach, the District's Superintendent (Speach Affidavit, § 13). And Petitioners have not cited any bargaining history or other evidence that the District and the Association intended to waive and replace Sections 75 and 76 of the Civil Service Law by agreeing to a Just Cause grievance provision in the CBA. Indeed, it is respectfully submitted that no such evidence could possibly exist, since the prior conduct of the parties here explicitly acknowledged Santanam's Section 75 rights under prior collective bargaining agreements that had the same Just Cause language. In particular, in 2010 the District brought charges pursuant to Civil Service Law Section 75 against Santanam for misconduct, suspending her without pay for 30 days during that time just as it did in this matter (Speach Affidavit, ¶ 14). At the time, there was a collective bargaining agreement between the parties that had the same Just Cause language that was used in the CBA at issue here (Speach Affidavit, ~ 17). And in resolving those charges, Santanam and the Association agreed to settle by accepting an unpaid disciplinary suspension of 60 days pursuant to a Settlement Agreement, dated April 7, 2010, signed by Santanam, then- 14 16 of 22 President of the Association, Sylvia A. Matousek, and then-Superintendent of the District, Jerome F. Melvin, Ph.D. (Speach Affidavit, ¶¶ 14-15; Ex. D). That settlement agreement explicitly acknowledged the existence of Santanam's Section 75 rights, stating that "Santanam voluntarily and with the advice of legal counsel waives her rights, including her rights pursuant to Section 75 of the Civil Service Law and all contractual rights arising under NSEA's labor agreement with the District"(Speach Affidavit, ¶ 15, Ex. D). This is important for two reasons. First, it confirms that the parties here understood that the Just Cause language in the collective bargaining agreement did not waive the due process protections of Section 75 of Civil Service Law. If Section 75 had been waived in the collective bargaining agreement, there would have been no reason to acknowledge Santanam's Section 75 rights and to make a clear, unmistakable and unambiguous waiver of those rights in the settlement agreement. Second, it demonstrates that the District and the Association know how to waive Civil Service Law Section 75 rights in a clear, unmistakable and unambiguous manner, and are perfectly capable of doing so when they actually intended to effectuate a waiver of Section 75. Similarly, Santanam, the District and the Association were also parties to another settlement agreement executed in February of 2015, while the District was preparing to bring different Section 75 Charges against Santanam for misconduct (Speach Affidavit, ~ 14; Ex. E). Under the 2015 settlement agreement, Santanam agreed to accept another unpaid disciplinary suspension and, just like in the 2010 15 17 of 22 settlement agreement, explicitly acknowledged and waived her Section 75 rights by stating that: "Santanam voluntarily, and with the advice of the NSEA, waives her rights including all contractual rights arising under the NSEA's labor agreement with the District and her rights pursuant to Section 75 of the New York State Civil Service Law"(Speach Affidavit, ¶ 16, Ex. E). Simply put, the claim advanced here —for the first time —that the language in the Just Cause provision of the CBA constitutes a waiver of Santanam and others' Section 75 due process protections is not only disingenuous and without evidentiary support, but in fact contrary to their prior course of conduct. The parties did not agree to waive Section 75 of the Civil Service Law by agreeing to the Just Cause provision in the CBA. Accordingly, Respondents are allowed and, in fact, required to bring charges against Santanam, to hold a hearing, and to receive the input of a hearing officer pursuant to Section 75 prior to imposing any discipline upon Santanam. Petitioners are thus unable to show that Respondents have acted, or have threatened to act, in excess of their authority or jurisdiction under Section 75 of the Civil Service Law, and cannot possibly establish that they have a "clear legal right" entitling them to the extraordinary remedy of prohibition. 18 of 22 POINT IV PETITIONERS HAVE NOT SHOWN PROHIBITION IS JUSTIFIED BY THE GRAVITY OF THE POTENTIAL HARM AND LACK OF AN ADEQUATE ALTERNATIVE AVENUE FOR REMEDY. Finally, even assuming for the sake of argument that the Petitioners could somehow establish a clear legal right to a writ of prohibition, such an "extraordinary remedy" is not justified here based upon an examination of the gravity of the alleged harm and the availability of adequate alternate avenues for remedy. Specifically, following a hearing on the Charges pursuant to Section 75 of the Civil Service Law, the most "harm" that could result to Santanam would be that her employment with the District could be terminated for intentional misconduct (Civil Service Law § 75[1]). And upon that "harm," Petitioners have two adequate alternate avenues for remedy, namely: (1) appeal the Section 75 hearing determination under CPLR Article 78, as permitted under Section 76(1) of the Civil Service Law; or (2) challenge the termination pursuant to the Just Cause grievance procedure in the CBA (which is what they want to do anyway). If Santanam and the Association were to prevail at either, she would be reinstated with full back pay (Civil Service Law § 76[3]). In other words, there are alternate avenues that the Petitioners can seek that would eliminate any of the potential harm that Santanam would face —indeed, Petitioners' argument in fact removes one of these