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February 16, 2010

Perjury while testifying during a §3020-a disciplinary hearing results in court vacating the underlying arbitration award

Perjury while testifying during a §3020-a disciplinary hearing results in court vacating the underlying arbitration award
Phelps-Clifton Springs CSD v Nicot, Supreme Court, Ontario County, Index #103465, Justice Frederick G. Reed, February 8, 2010

In May 2007, the Phelps-Clifton Springs Central School District filed a number of disciplinary charges pursuant to Education Law §3020-a against Michael Nicot. The charges alleged, among other things, that Nicot had used a school-owned laptop computer to view, download and disseminate pornographic material.*

The hearing officer found Nicot guilty “of most of the District’s charges” and suspended Mr. Nicot without pay from his teaching position for six months rather than impose the penalty sought by the district, dismissal of Nicot from his position. The hearing officer also directed the district to continue Nicot’s health insurance coverages while he was on such six month suspension without pay.**

The District filed an appeal from the hearing officer’s ruling pursuant to CPLR Article 75, contending that penalty imposed by the hearing officer is “too lenient a penalty, under all the circumstances of the case.”***

In addition, the district asked the court to vacate the hearing officer’s directive requiring it to continue paying the employer’s contribution for Nicot’s health and dental insurance coverages during his period of suspension without pay and to vacate the hearing officer’s determination that Nicot was not guilty Disciplinary Charge #4 which alleged that Nicot misused a school district computer to engage in “on-line gambling" based on evidence that he perjured himself in testifying concerning such charges before the hearing officer.

Citing Lackow v New York City Board of Education, 51 AD3d 563, Justice Reed said that where the parties are required to engage in compulsory arbitration, as is here the case, Article 75 requires that the award “must have evidentiary support and cannot be arbitrary and capricious.”

Although §3020-a authorizes the arbitrator to impose “remedial action” or a combination of remedial actions, Justice Reed ruled that requiring the district to pay employer contributions for Nicot's medical and dental insurance coverage during his suspension without pay was not a “remedial action” and cannot be imposed on the school district absent being “specifically authorized by the Education Law….” Accordingly, said the court, that portion of the arbitrator’s award must be vacated and Nicot was directed to reimburse the school district for any contributions it made on his behalf for health and dental insurance coverages while on suspension without pay.

Justice Reed then said that he found that “the arbitrator’s determination, that a six-month suspension from [Nicot’s] position constituted sufficient discipline for this series of offenses, should shock the conscience of any reasonable person and certainly shocks the Court’s conscience.”****

As to the perjury issue, the court held that the school district had demonstrated by “clear and convincing evidence” that Nicot had perjured himself before the hearing officer, which testimony was material to his being acquitted of “Charge Number 4” and evidence of such perjury could not have been discovered prior to, or during, the disciplinary hearing. Accordingly, Justice Reed vacated that portion of the arbitrator’s award acquitting Nicot of Charge 4 because of “corruption, fraud or misconduct in procuring the award” on the part of Nicot. This issue was also remanded to the arbitrator for reconsideration of Nicot’s guilt or innocence regarding Charge 4.

The court opined that the “Punishment of dismissal, as advocated by the District, would not be shocking to this court” but held that it is the arbitrator, rather than the court, that must determine the appropriate penalty to be imposed. Accordingly, Justice Reed remanded the matter to arbitrator to determine “the proper sanction” to be imposed upon Nicot, and said that Nicot's suspension was to be continued "pending reconsideration by the arbitrator."*****

* NYPPL earlier summarized the events underlying this appeal as set out in a press release issued by the School Superintendent [see ].

** According to Justice Reed’s decision, the hearing officer found Nicot guilty of conduct unbecoming a teacher, neglect of duty, insubordination, downloading and distributing pornographic images using the school district’s computer equipment but found Nicot not guilty of using a school district laptop computer “to engage in online gambling.”

*** As required by §3020-a.4(b), the school district immediately implemented the penalty imposed by the hearing officer. Further, the imposition of the penalty could not be deferred pending a resolution of the district’s appeal in view of §3020-a..5, which, in pertinent part, provides that “In no case shall the filing or the pendency of an appeal delay the implementation of the decision of the hearing officer.”

This standard, often referred to as the Pell Doctrine [Matter of Pell, 34 NY2d 222], is typically applied in situations where the court finds that the penalty imposed is too severe in consideration of the charges for which the employee was found guilty. Here the court has applied this standard based on a finding that the penalty imposed may have been too lenient.

***** Concerning the question of an appellate body imposing a penalty greater than that originally imposed by an administrative disciplinary hearing panel, in Shurgin v Ambach, 83 AD2d 665, affd 56 NY2d 700, a case involving a disciplinary action initiated pursuant to former §3020-a, the educator challenged the Commissioner of Education's substituting the penalty of dismissal for that imposed by the hearing panel. The panel had imposed a penalty of a reprimand for "poor judgment" after finding the teacher guilty of showing his class "pornographic films." The Commissioner disagreed, holding that a reprimand was disproportionately lenient for this "serious offense" and directed that the educator be terminated. The Court upheld the Commissioner's determination.

NYPPL thanks Henry F. Sobota, Esq. of Ferrara, Fiorenza, Larrison, Barrett & Reitz, for sending it a copy of Justice Reed’s opinion.

NYPPL Comments: Over the years NYPPL has summarized a number of cases involving employees alleged to have been involved with pornography while at work or using the employer's computers for such activities.

These include a case involving “Irresistible impulse” as a defense [Perry v Comm. of Labor, 283 A.D.2d 754].

Readers may recall that in the 1959 movie Anatomy of a Murder actor James Stewart successfully defended an individual accused of murder on the theory his client's actions were the product of an "irresistible impulse."

Unemployment insurance claimant John K. Perry was not as successful with this theory in challenging a determination by the Unemployment Insurance Appeals Board denying him benefits after finding that his employment was terminated due to his misconduct. The nature of Perry's alleged misconduct: his misuse of his employer's computer equipment.

Perry, a human resource specialist, was terminated after his employer discovered that he used his computer terminal to frequently access pornographic websites during working hours. Perry's defense: his behavior was nonvolitional given his "impulse control disorder".

Perry produced a letter from his psychologist indicating that he suffered from posttraumatic stress disorder displayed in the form of obsessive behavior such as accessing pornographic websites. However, said the court, the evidence failed to establish that Perry was unable to control this impulse while working.

The Appellate Division's conclusion: Since Perry disregarded his employer's policy against accessing inappropriate websites at work, substantial evidence supports the Board's decision that Perry lost his employment due to disqualifying misconduct.

Another case: Ghita v Department of Education of the City of New York, [2008 NY Slip Op 30706, Not selected for publication in the Official Reports].

Mircea Ghita challenged an arbitrator’s determination terminating his employment with the New York City Department of Education after finding him guilty of downloading a file of pornographic material from his AOL email account and openly viewed such pornographic material using a school computer.

Supreme Court rejected Ghita’s claim that the arbitrator exceeded his authority under Education Law §3020-a, and the award terminating petitioner's employment constituted a violation of public policy and New York State Law.

In addition, a number of courts have considered the question of an employee's right to privacy in using his or her employer's computer equipment.

In Fraser v Nationwide Mutual Insurance Co., 135 F. Supp. 2d 623, the court held that an employee using his or her employer's computer equipment for personal business does not enjoy any "right to privacy" barring the employer’s reviewing the employee's e-mail [and, presumably, other material] that is stored in its computer system.

Federal District Court Judge Anita B. Brody decided that an employer may peruse an employee's e-mail files that are stored in the system without violating either federal or Pennsylvania wiretap laws.

As to the issue of the expectation of privacy, the appointing authority may wish to periodically advise its officers and employees that they have no right to privacy with respect to any data retrieved from the employer's computers, servers, video tapes, message tapes or other storage devices, electronic or otherwise.


Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the decisions summarized here. Accordingly, these summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
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