In this criminal proceeding and action, the petitioner seeks to compel the Nassau County Board of Cooperative Educational Services (hereinafter BOCES) to pay her, pursuant to a collective bargaining agreement between BOCES and the BOCES Educational Administrators Association, the sum of $16,768, representing the cash value of a 40-day vacation leave balance, and pursuant to a 2004 amendment to the collective bargaining agreement, the sum of $14,252.80, representing the cash value of a 34-day vested bank vacation leave balance.
BOCES moved to dismiss the combined petition/complaint, arguing that, as a matter of public policy, the petitioner is not entitled to either payment because she pleaded guilty to attempted grand larceny in the second degree for stealing its funds. The Supreme Court agreed with BOCES and dismissed the petition/complaint on the ground that BOCES was within its right to deny the petitioner’s request for a lump sum payment representing her unused and vested bank vacation leave in light of her criminal guilty plea.
The petitioner’s guilty plea did not warrant dismissal of her petition/complaint. Rather, the express provisions of the collective bargaining agreement must control. The collective bargaining agreement at issue provides that unit members employed on a twelve (12) month basis shall be entitled to twenty-two (22) days of leave with pay per calendar year to be taken as approved by the appropriate department head or his/her designee, consistent with the needs of the agency. Such annual leave shall be earned and may be accumulated from year to year, up to a maximum accumulation of forty (40) days.
Further, a 2004 amendment to the collective bargaining agreement provides that unit members who maintain a vacation day account consisting of more than forty (40) days will be granted a vested bank of vacation days. Upon resignation for purposes of retirement or resignation for purposes of separation other than a separation “for cause”, the unit member will be paid a cash sum equal to the number of days remaining in the unit member’s vested bank of vacation leave days.
Here, the petitioner continues to deny that she diverted funds from BOCES for her own personal use. Nevertheless, she admits that she agreed to resign and plead guilty to attempted grand larceny in the second degree. Paragraph 5 of the 2004 amendment to the collective bargaining agreement gives BOCES the discretion to deny payment for vested bank vacation leave if the employee’s separation from BOCES was for cause. Under the circumstances, the petitioner’s separation from BOCES was for cause. Accordingly, even assuming the truth of the allegations set forth in the petition/complaint and according the petitioner every favorable inference, as we must at this stage of the proceedings, the petitioner failed to state a claim that BOCES is required to pay her the cash value of her 34-day vested bank vacation balance.
Turning to the petitioner’s claim that BOCES must pay her the cash value of her 40-day vacation leave balance, the petition/complaint asserts that the 2004 amendment to the collective bargaining agreement acknowledges a past practice, established for a substantial period of time, in which BOCES pays retiring employees for any unused vacation leave.
Although the collective bargaining agreement itself is ambiguous in that it does not specifically require BOCES to pay retiring employees the cash value of their accumulated vacation leave balances, paragraph 6 of the 2004 amendment to the collective bargaining agreement specifically references such a past practice, and unlike paragraph 5, does not contain a separation for cause element. Under the circumstances, the petition/complaint stated a claim that BOCES pay the petitioner the cash value of her 40-day vacation leave balance.
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