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Tuesday, June 22, 2010
Section 3020-a disciplinary appeals
Austin v NYC Board of Education, 280 A.D.2d 365
The Austin decision by the Appellate Division, First Department, sets out the standards followed by the courts in considering appeals from Section 3020-a disciplinary determinations. Typically these standards are considered in connection with motions by the parties to confirm or vacate the hearing officer's decision.
The ruling also addresses an issue that is frequently of concern in such disciplinary proceedings: the acceptance and consideration of hearsay evidence by the hearing officer.
Wallace Austin was served with disciplinary charges pursuant to Section 3020-a of the Education Law. He was found guilty of certain of the charges and specifications. A State Supreme Court justice overturned the hearing officer's ruling on the basis that it was not supported by substantial evidence in the record. The Appellate Division, however, said that the lower court had applied an incorrect standard in reviewing Austin's petition and vacated the lower court's determination.
According to the Appellate Division's decision, the lower court had applied the standard applicable in reviewing challenges to administrative determinations brought pursuant to Article 78 of the Civil Practice Law and Rules [CPLR].
The Article 78 standard for review: Was the administrative determination supported by substantial evidence in the record.
In contrast, the standard of review of Section 3020-a disciplinary decisions is controlled by CPLR Article 75, not the standards to be met in resolving a challenge brought pursuant to CPLR Article 78.
Essentially a CPLR Article 75 proceeding concerns challenges to arbitration awards while an Article 78 proceeding tests whether an administrative determination was arbitrary or capricious.
The Appellate Division pointed out that Section 3020-a(5) specifically requires that a court's review of a Section 3020-a hearing officer's decision in accordance with the standard spelled out in CPLR 7511.
The sole grounds set out in Article 75 for overturning such a determination:
1. Proof of corruption, fraud or misconduct in procuring an award;
2. The partiality of the arbitrator;
3. The arbitrator exceeded his or her authority; or
4. The arbitrator failed to follow the procedures set out in Article 75.
In addition to these statutory standards justifying the vacating of the arbitration award, the courts have declared arbitration awards that violate a strong public policy null and void.
The Appellate Division said that since Austin failed to show any misconduct, bias, excess of power or procedural defects on the part of the hearing officer, [or any violation of a strong public policy] his petition must be dismissed.
In addition, the court observed that the rules governing Section 3020-a disciplinary hearing procedures do not require compliance with technical rules of evidence. Accordingly, a hearing officer may accept and consider hearsay evidence in such an administrative proceeding.
The Appellate Division also commented that "the hearing officer credited the testimony of the Principal and Assistant Principal and found [Austin's] testimony to be inconsistent and incredible."
There are other critical elements to be remembered in connection with appealing a Section 3020-a disciplinary determination.
For example, in addition to the limited grounds for vacating the arbitration award listed in Section 7511, Section 3020-a sets a very short statute of limitations for filing a petition to overturn or modify the award as well as setting other limitations in appealing such decisions.
Section 3020-a.5 provides that:
1. Not later than ten days after receipt of the hearing officer’s decision, the employee or the employing board may make an application to the New York state supreme court to vacate or modify the decision of the hearing officer pursuant to CPLR Section 7511.
2. The court’s review shall be limited to the grounds set forth in Article 75. Further, the hearing panel’s determination shall be deemed to be final for the purpose of such proceeding.3. In no case shall the filing or the pendency of an appeal delay the implementation of the decision of the hearing officer.
Keeping in mind the 10-day limitation for perfecting an appeal from a Section 3020-a decision, it should be remembered that the basic rules concerning effective service of a final determination for the purposes of filing a timely appeal are as follows:
1. If the individual is not represented by an attorney or by a union official, the individual must be served to begin the statute of limitations running.
2. If an employee is represented by an attorney, the administrative body may send a copy of the determination to the employee but it must serve the attorney to begin the running of the statute of limitations.
3. If the employee is represented by a person who is not an attorney, the administrative body may send a copy to the representative but it must serve the employee to start the statute of limitations running.
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