Attorneys made oral arguments at a lengthy July 18 hearing in Miraglia et al. v. New York City Department of Education et al. Attorney Austin Graff argued for the petitioners, 51 Department of Education employees who were adversely affected by the DOE’s COVID-19 vaccine mandate, while five lawyers represented respondents in the case, the DOE, United Federation of Teachers (UFT) and Council of Supervisors and Administrators (CSA).
Nineteen of the petitioners attended the proceedings in Staten Island before Richmond County Supreme Court Judge Wayne Ozzi. Family members and a few other City workers who opposed the mandates were also in the courtroom to show their support for the petitioners. (Jump to the bottom for more interviews with petitioners.)
The respondents brought up a variety of procedural challenges involving standing, statutes of limitation, and res judicata, but there were a few central issues that the substantive arguments revolved around. They have to do with the documents that laid out how the mandate would be implemented for UFT and CSA members employed by the DOE. Those documents are known as “arbitration awards,” because they were written by an arbitrator after the unions went to arbitration when they were at an impasse in their negotiations.
Austin Graff argued for the petitioners that:
The arbitration awards were arbitrary and capricious and in violation of the law, because the unions and the DOE arbitrator had no legal right to go to arbitration and the arbitrator, Martin Scheinman, had no legal authority to create the awards.
The unions breached their duty of fair representation by relinquishing their right to collectively bargain for their members and agreeing to accept arbitration, and then failing to bring a legal challenge against the arbitration awards.
The waiver that some petitioners signed under the mandate, waiving legal rights and agreeing to remain suspended without pay, was invalid because they signed it under duress.
The respondents’ attorneys argued that:
Other court decisions have found that the mandate created a legally valid condition of employment, and the unions were unable to successfully challenge it.
Nothing in New York State law prevents unions and employers from choosing to use an arbitrator if they’ve reached an impasse in negotiations.
The unions did their best to obtain protections for DOE employees under the mandate, winning the ability to receive an enhanced severance package, stay on leave without pay for a year with health benefits, and appeal rejected accommodation requests.
When a CSA attorney cited the ability to remain on payroll during the accommodation appeal process as one of the protections the unions had gained for their members through arbitration, many of the petitioners in the courtroom reacted with an audible “No.”
Central to the question of whether the arbitration awards were legitimate is New York Civil Service Law, section 209.3(f). Graff argued that the law requires an impasse in negotiations between school districts and public employees’ unions such as the UFT and CSA to be resolved through further negotiations, not arbitration: “The agreement to arbitrate was arbitrary capricious and in violation of lawful procedure under section 209.3(f) of the Civil Service Law,” he said, citing a long list of decisions supporting the claim.
For more on the legal arguments in this case: Petitioners’ attorney Austin Graff discussed them in this podcast episode:
Precedents at Play and a Picture of Cozy Political Relationships
Much of the courtroom discussion touched on other recent decisions relevant to whether the arbitration award was legitimate and could impose the mandate as a new condition of employment, notably the February 2023 O'Reilly v. Board of Education decision.
The judge himself brought O’Reilly up, and the respondents’ attorneys called it a binding precedent, while Graff pointed out that O’Reilly did not specifically address section 209.3(f). In the O’Reilly decision, a panel of appellate judges ruled that the arbitration award was lawful and imposed a valid new condition of employment for tenured teachers.
However, one of the O’Reilly judges wrote a partial dissent insisting that “new conditions of employment . . . cannot be applied to already-tenured teachers except by an act of the legislature.” The DOE, he wrote, should have implemented the mandate as a “work rule,” and followed the disciplinary procedure requirements of Education Law section 3020-a when it decided to fire employees for breaking it. That would have given them the opportunity to address the charges against them in a hearing before termination.
Moreover, the O’Reilly decision is on its way to New York’s highest court for review. It’s on the Court of Appeals hearing calendar for September 11. How an eventual ruling there might affect Miraglia is unclear. But the impending review underscores the fact that questions about whether the mandate could be imposed as a condition of employment and whether the arbitration awards that implemented it were valid are still unresolved by the courts.
At the Miraglia hearing, Graff gave a spirited response to the respondents’ arguments and painted a picture of a cozy relationship between City officials, the DOE, unions that enabled them to suspend and fire educators by relinquishing their bargaining power, and a self-dealing arbitrator who designated his own firm to be paid as an “independent arbitrator” to review accommodation appeals. “The ‘independent arbitrator’ was Scheinman!” said Graff.
Graff pointed to documents demonstrating that Scheinman had hosted fundraisers at his home in 2013 for then-candidate Bill de Blasio, who enthusiastically imposed the City’s vaccine mandates as mayor.
Judge Ozzi: “Why Not Take Them Back?”
Near the end of the hearing, Judge Ozzi brought up a question that has been on a lot of people’s minds. The pandemic is over, he pointed out. The mandate has been lifted, the petitioners are experienced teachers, and there’s a shortage of qualified teachers. “Why not take them back?” he asked.
DOE attorney Kathleen Linnane responded that the petitioners had the option to “reapply for reinstatement” to work for the DOE, which drew more indignant “No”s from the petitioners in the room. Linnane was referring to offers to City workers that have generally required them to relinquish certain civil service rights and the right to sue for back pay in order to be considered for rehiring.
As he closed the hearing, the judge noted the complexity of the legal issues involved in the case: “They are not easy,” he said. “They require some hard looking into, and that's exactly what I plan to do.”
Austin Graff spoke to petitioners after the hearing in this video, courtesy of petitioner Stephanie Edmonds:
Edmonds also talked with me about the hearing herself (find her on Instagram and YouTube: @TeachingLiberty):
Another petitioner who spoke with me at the courthouse after the hearing was a CSA member as a school administrator:
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