Professional Staff Congress/CUNY, Local 2334, AFT, AFL-CIO v City Univ. of N.Y.
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Professional Staff Congress/CUNY, Local 2334, AFT, AFL-CIO v City Univ. of N.Y. 2014 NY Slip Op 30438(U) February 21, 2014 Supreme Court, New York County Docket Number: 103414/2012 Judge: Anil C. Singh Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. SCANNEDON2/26/2014 _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ [* 1] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY HON. M1L C. SINGH PRESENT: S'UPR~.J.E COURT rusncn PART Justice Index Number : 103414/2012 BOWEN, BARBARA INDEX N O . - - - - MOTION DATE _ _ __ vs CITY UNIVERSITY OF NEW YORK MOTION SEQ. NO. _ __ Sequence Number : 001 ARTICLE 78 The following papers, numbered 1 to _L, were read on this motion t o / f o r - - - - - - - - - - - - I No(s)._ _J _ __ _ Notice of Motion/Order to Show Cause - Affidavits - Exhibits Answering Affidavits...:... E x h i b i t s - - - - - - - - - - - - - - - - Replying A f f i d a v i t s - - - - - - - - - - - - - - - - - - - - Upon the foregoing papers, it is ordered that this motion is cl fl.. c ,d~I v/1.Ck thtl. ti./J/lexJ /n"tnt>f'ttnflAH- r1~1'0A, I /l a I No(s). _ __ _ __ 'L I No(s). _ __._?_ __ C.c () / clli../\ ce. w (.) i= en ::> .., 0 DECiDEO IN ft.CCORDANCE \inTH ACC0~1PANYif'~G DECISION I ORDER l- o w 0:: 0:: w LL w 0:: >- .:.:.. ..J ~ ..J z ::> 0 LL en I- <( (.) w w 0:: ~ UNFILED JUDGMENT This judgment has not been entered by the County Clerk and notice of entry cannot be served based hereon. To obtain entry, counsel or authorized representative must appear in person at the Judgment Clerk's Desk (Room (!) w z en 3: 0:: - - w 0 ..J en -' <( 0 (.) ~141B). LL - ::c z w 0 i= I0:: :E LL HON.~~ 0 0 Dated: AL, LI, 2~ ¢ Y ,J.S.C. SUPREME COURT JUSTICE 1. CHECK ONE: ..................................................................... ~CASE DISPOSED 2. CHECK AS APPROPRIATE: ...........................MOTION IS: 3. CHECK IF APPROPRIATE: ................................................ 0 NON-FINAL DISPOSITION 0 GRANTED IN PART 0 OTHER 0 GRANTED ~DENIED 0 SETTLE ORDER 0 SUBMIT ORDER 0 DO NOT POST 0 FIDUCIARY APPOINTMENT 0 REFERENCE [* 2] SUPREl\1E COURT OF THE STATE OF NEVI YOP-uX COUNTY OF NEW YORK: PART 61 ---------------------------------------------------------x PROFESSIONAL STAFF CONGRESS/CUNY, LOCAL 2334, AFT, AFL-CIO, BARBARA BOWEN as President of the Professional Staff Congress/CUNY, TERRENCE MARTELL as Chair of the University Faculty Senate and Chair of the Baruch College Faculty Senate, DECISION AND ORDER Index No. 103414/12 Petitioners, -againstCITY UNIVERSITY OF NEW YORK, and the BOARD OF TRUSTEES of the City University of New York, et al., Respondents. -----------------------------------------------------------)( HON. ANIL C. SINGH, J.: Petitioners in the instant Article 78 proceeding seek an order and judgment declaring that the defendant colleges in the development, approval and submission of curricula and Pathways implementation plans to the Chancellor violated the Open Meetings Law; an order declaring that defendant colleges' development, approval and submission of curricula and Pathways implementation plan is void; an order requiring members of the defendant colleges and defendant college presidents to participate in a training session conducted by the staff of the committee on open government concerning the obligations imposed by the Open Tvieetings Law; an 1 [* 3] order awarding petitioners costs and reasonable attorneys' fees; and an order enjoining defendants from further implementation of Pathways to the extent such implementation is based, in whole of in part, on the actions of public bodies in violation of the Open Meetings Law. Respondents, the City University of New York (CUNY) and the Board of Trustees of the City University of New York (Board) cross-move for an order pursuant to CPLR 217(1); 321 l(a)(l), (5) and (7); 7803; and 7804, dismissing this proceeding in its entirety, on the grounds that ( 1) petitioners' claims against the individual colleges do not lie as they are not separate legally cognizable entities from CUNY; (2) petitioners have not stated claims under New York's Open Meetings Law; (3) petitioners have failed to show the requisite "good cause" for any of the relief they seek; (4) many of petitioners' claims are time-barred; and (5) an award of costs and disbursements. Petitioners oppose the cross-motion. Background This is an Article 78 proceeding commenced by petitioners, the Professional Staff Congress/CUNY, Local 2334, AFT, AFL-CIO (PSC), the bargaining unit representative for CUNY's faculty and professional staff at over 20 campuses; Barbara Bowen, PSC's president; and Terrence Martell, the Faculty Senate's vicechair and the chair of Baruch College's own faculty senate, against CUNY and its 2 [* 4] Board. ClJ}JY is a public university comprising eleven senior and six junior colleges and several graduate schools, and serving more than 240,000 students. Pursuant to the legislature's intent, CUNY is required to "remain responsive to the needs of its urban setting and maintain its close articulation between senior and community college units." Education Law§ 6201 (2). In light of the proximity of the various C~r entities, each year a large number of its students transfers between those entities. Because each CUNY institution had reserved the right to create its own general education and major requirements, and to evaluate whether courses taken at other CUNY institutions were deemed equivalent, transfer students were often denied credit for courses and had to take additional classes. This situation was further complicated by the fact that the colleges had varying requirements as to the number of necessary general education credits. All this led to increased costs to students, longer times to obtain degrees and enter the workforce, and to students leaving CUNY without obtaining their degrees. According to CUNY websites, these problems were longstanding, and although recognized for many years, remained unresolved. See Board's minutes of June 27, 2011 meeting contained on CUNY's website. In an effort to remedy the situation, the Board proposed a transfer structure, the Pathways to Degree Completion Initiative (Pathways Initiative), which involved the creation of a set 3 [* 5] number of general education credits "Which "would be required of all CUNY undergraduate colleges and which would be transferable among those entities. While it is not exactly clear when this initiative was commenced, it apparently began at least by October 2010, when meetings, ultimately numbering about 70, were held between CUNY's central administration and the campus community, including the Faculty Senate. CUNY created a public Pathways Initiative website and kept the university community updated and informed through it, newsletter articles, and a webinar open to all. Also, there were numerous consultations and discussions with members of the CUNY community. The foregoing resulted in some modifications of the initial proposal and the drafting of a proposed resolution, which was discussed at a public hearing on June 20, 2011. The Board then held its regular meeting with respect to the proposed resolution on June 27, 2011. Public notice of that meeting and its agenda were required to be given in advance, including to the colleges, any educational organization which requested notice, and to any collective negotiation representative. Bylaw§ 1.1 (c). CUNY's website contains a June 8, 2011 notice of that board meeting, which notice attached a copy of the agenda, and indicated that the meeting would be telecast live on-line, on cable television, and on the CUNY channel. The Board passed the resolution at its meeting, after Cooper presented the 4 [* 6] , ¢ n " " ¢ If" +:' T . 1, l i F acuity ,::,enate ' s oppos1t10n to it. 1.">'ee ¢J'v1mutes 01 June 2" .LU l . meetmg on cu N"\T' s ~ '"'~. ~~ ~· website. The resolution was characterized by CUNY' s Executive Vice Chancellor and Provost, Alexandra Logue (Logue), as "historic" and by the Board's Chairman, Benno Schmidt, as a "momentous resolution," which would create "a coherent unified University in which students c[ ould] navigate across campuses." Minutes of June 27, 2011 Meeting. Under the Board's bylaws(§ 1.1 [d]), a summary of any resolution and the board's action at a regular meeting had to be posted on CUNY's website within seven days of the meeting and remain there for at least 10 years. The resolution's preamble affirmed CUNY's commitment to academic excellence and indicated that the faculty's responsibility for curriculum and courses was integral to the resolution. The resolution set forth the timeline and means for creating an efficient transfer system, which was to be operational in the Fall 2013. That resolution provided for a general education framework, which included the set number of core general education credits common to all CUNY colleges and of college option general education credits specific to the baccalaureate colleges, which credits would be required of all CUNY students and which would be transferable among the CUNY undergraduate campuses. It was further resolved that CUNY' s chancellor, in consultation with various groups, including the Faculty Senate, would create a task force, predominantly of faculty, to recommend, by December 1, 2011, a 5 [* 7] structure for the common core. The task force was to develop the areas making up the common core as defined by learning outcomes. The task force was also to indicate how many of the set number of credits would be allocated to each area. Additionally, the task force could make more specific recommendations as to technical degree programs, such as in science and math. After the task force made its recommendations, and the chancellor approved the common core's structure, each college was to specify the courses for that core which would meet the specified learning outcomes. Then a CUNY-wide committee, appointed by the chancellor, would review the courses proposed and, if appropriate, approve them. Each college was, by April 1, 2012, to provide the chancellor with its plan for the general education framework. It was also resolved that, after implementation, all of the policies and processes would be evaluated, at first yearly, starting in 2013, so as to make any needed modifications. Following the 2011 resolution's passage, the chancellor created the task force, seeking nominations from the Faculty Senate, among others. See Pathways Initiative website, August 25, 2011 "Dear Colleagues" letter from Logue. By letter dated September 6, 2011 to the CUNY Faculty, the task force's chair, Michelle Anderson (Anderson), updated the faculty on the progress of the Pathways Initiative and advised that the task force was working to complete, by November 1, 2011, its draft 6 [* 8] of its recommendations and that, on that date, the draft would be posted on the Pathways Initiative website to get feedback from any individual or group, so that the task force could make any needed revisions in time to submit the report to the chancellor by the December 1, 2011 deadline. Id., Anderson letter of September 6, 2011. The task force, on November 1, 2011, issued common core guidelines and sought comments from the CUNY college presidents by November 15, 2011. After receiving those comments, the task force, on about December l, 2011, issued a final set of common core guidelines, which were adopted by the chancellor on December 12, 2011. On July 31, 2012, the plaintiffs commenced this Article 78 proceeding. Discussion "In a proceeding to enforce the provisions of the Open ~ifeetings Law brought against a public body, the court has the power, in its discretion and upon good cause shown, to declare void, either in whole or in part, any action or any part of an action taken in violation of the statute" (2 N.Y.Jur.2d Administrative Law section 91). "Although courts are empowered 'in their discretion and upon good cause shown, to declare void any action taken by a public body in violation of the mandate' of the Open Meeting Law, it is the challenger's burden to show good cause warranting judicial relieP' (Id.). "In the absence of a showing that the procedure followed by the 7 [* 9] i.1· rl .-l ¢ .-l ¢ ¢ ¢ . ¢ ¢ puu11c b·ouy was ues1gneu to cIYcumvent the 1 law, there 1s an absence ot good cause ~ necessary to grant the requested relief' (Id.). On the record before the Court in the instant proceeding., there is no evidence whatsoever that the procedures followed by CUNY to develop., approve and implement the Pathways Initiative were designed to circumvent the law. On the contrary, it appears that respondents disseminated information widely and sought input from any interested parties through meetings, websites, webinars, consultations, discussions with members of the CUNY community, and telecasts online, on cable television and on the CUNY channel. In other words, the record clearly reflects that the Pathways Initiative was not drafted behind closed doors. The Court finds, therefore, that petitioners have not met their burden to show good cause warranting judicial relief. Accordingly it is ADJUDGED that the petition is denied, and the proceeding is dismissed. Dated 8
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