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Thursday, December 17, 2009

Article 75 petition seeking to vacate a disciplinary arbitration award terminating a tenured teacher dismissed as untimely

Article 75 petition seeking to vacate a disciplinary arbitration award terminating a tenured teacher dismissed as untimely
Matter of Awaraka v Board of Educ. of City of New York, 59 AD3d 442

Josephine Awaraka, a tenured teacher employed by the New York City Board of Education, was found guilty of eight specifications of misconduct in a hearing conducted pursuant to Education Law § 3020-a. In a decision dated July 24, 2006, the hearing officer imposed as a penalty, Awaraka’s dismissal from her position with the District.

The Appellate Division’s decision reports that on July 24, 2006, Awaraka and her attorney were each sent a copy of the hearing officer's determination.

On September 11, 2006, Awaraka filed a petition pursuant to CPLR Article 75 in an effort to vacate the hearing officer’s determination.

The District objected, contending that Awaraka’s Article 75 action was untimely.

Supreme Court, Kings County, granted the District’s motion to dismiss Awaraka’s petition, finding that, indeed, Awaraka was time-barred and dismissed her Article 75 petition. The Appellate Division affirmed.

The statute of limitations for challenging a Section 3020-a disciplinary determination is very short. Education Law §3020-a(5) provides that "[n]ot later than ten days after receipt of the hearing officer's decision, the employee . . . may make an application to the New York State Supreme Court to vacate or modify the decision of the hearing officer pursuant to [CPLR 7511]."

In this instance Awaraka had designated the attorney assigned by her union to be her agent for service during the pendency of the entire grievance proceeding before the hearing officer. The attorney was served with a copy of the decision of July 24, 2006 but Awaraka did not file her Article 75 petition until September 11, 2006, which was more than ten days after her attorney was served with the disciplinary determination.

As such, said the Appellate Division, “this proceeding is time-barred,” and sustained the lower court’s ruling.

Weeks v State of New York, 198 AD2d 615, discusses the procedural requirements that must be met in order to challenge an arbitration award pursuant to Article 75 and sets out guidelines addressing the filing a timely challenge to an arbitration award.*

The decision distinguishes between situations where the grievant is represented by an attorney and where he or she is represented by a union representative who is not an attorney.
As a general rule, when an individual is represented by an attorney, delivery of the papers to the attorney is viewed as service on the individual. In such situations the attorney isdeemed the individual's agent [see Bianca v Frank, 43 NY2d 168].

The Appellate Division said that Section 7506(d) of the CPLR specifically provides that where a party in an arbitration is represented by an attorney, papers to be served on a party are to be served on the attorney.

In contrast, the court held that there was no similar statutory requirement when a party elects to be represented by a union representative who is not an attorney.

The court said that "although service of the arbitration award on the union representative is a matter of courtesy ... such service does not trigger the limitations period for seeking to vacate the award...." That period begins to run only upon delivery of the decision to the party.

Although the Weeks decision addressed a situation arising under a disciplinary arbitration procedure, it would probably be viewed as applicable in other types of administrative proceedings such as a disciplinary action under 75 of the Civil Service Law when aperson is represented by a union official who is not an attorney.

In 1978 Civil Service Law Section 75.2 was amended to allow an individual against whom charges were preferred to be represented by a representative of a recognized or certified employee organization. Prior to the effective date of the amendment only an attorney could represent the individual against whom disciplinary charges were filed.

In view of the rationale underlying the Weeks decision, where an individual is represented in an administrative proceeding by a person not an attorney, it would seem prudent to send copies of all papers to both the individual and the individual's representative.

* N.B. The statute of limitations set out in Article 75 is ninety days; in cases involving a motion to vacate an arbitration award issued pursuant to Section 3020-a of the Education Law the time limit is, by statute, ten days.

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Handbooks focusing on New York State and Municipal Public Personnel Law:

The Discipline Book, - a concise guide to disciplinary actions involving public employees in New York State. A 1900+ page e-book. For more information click on http://booklocker.com/books/5215.html

The Layoff, Preferred List and Reinstatement Manual - a 435 page handbook reviewing the relevant laws, rules and regulations, and selected court and administrative decisions. For more information click on http://booklocker.com/books/5216.html

A Reasonable Disciplinary Penalty Under the Circumstances - A 600+ page guide to penalties imposed on public employees in New York State found guilty of selected acts of misconduct. For more information, click on http://booklocker.com/books/7401.html

General Municipal Law§§ 207-a and 207-c - Disability Leave for fire, police and other public sector personnel - a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder. For more information click on http://booklocker.com/books/3916.html

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