TO SEARCH this database type in a word or phrase in the box in the upper left and any material containing the word or phrase will be displayed for your review.
Also, §22 of the New York State's General Construction Law, in pertinent part, provides that “Whenever words of the masculine or feminine gender appear in any law, rule or regulation, unless the sense of the sentence indicates otherwise, they shall be deemed to refer to both male or female persons.” NYPPL typically follows this protocol.
November 22, 2010
A party seeking to vacate an arbitration award must prove one or more of the limited reasons for vacating the award set out in Article 75
Matter of Smith v New York City Dept. of Educ., 2010 NY Slip Op 51989(U), Decided on November 8, 2010, Supreme Court, New York County, Judge Barbara Jaffe, [Not selected for publication in the Official Reports]
Theodore Smith, a tenured physical education teacher at the New York City Department of Education’s Museum School, was served with 23 charges Education Law 3020-a.
Arbitrator Jack Tillem was assigned to conduct the hearing in the [first] proceeding. In the course of this proceeding Smith’s attorney, David Kearney,* told Tillem that Smith had threatened to kill Tillem, whereupon Tillem recused himself from conducting the hearing in the first proceeding. .
Following an investigation by Office of the Special Commissioner of Investigations (SCI) into Kearney's allegations Smith was referred to the Department of Education’s Medical Unit for psychiatric evaluation. In the meanwhile, Kearney moved for leave to withdraw as counsel for Smith in the federal court action and described why he wished to so withdraw -- the threats Smith allegedly made against Tillem.**
Subsequently a new arbitrator conducted the disciplinary hearing , found Smith guilty of certain charges and recommended that Smith be suspended without pay for one year, a ruling that was ultimately sustained by the Appellate Division. [Smith v Department of Education, 67 AD3d 555, motion for leave to appeal denied, Slip Opinion No: 2010 NY Slip Op 66952].
The Department of Education then commenced a second disciplinary proceeding against Smith pursuant to Education Law 3020-a in which it alleged that Smith had made death threats against Tillem resulting in Tillem's recusing himself from the first proceeding thus “causing delay and thereby obstructing, impairing and perverting the administration of law.”***
The arbitrator found that Smith had "uttered death threats" against the arbitrator assigned to his first §3020-a hearing and that "such threats constituted just cause for [Smith's] dismissal from service."
Smith filed a petition pursuant to CPLR Article 75 contending that the arbitration award should be vacated on the ground of corruption, or fraud or misconduct by the arbitrator and the Department's attorneys, “which undermined the validity of the award and prejudiced his rights, as the arbitrator was biased against him.”
Noting that the scope of judicial review of an arbitration proceeding is extremely limited, Judge Jaffe said that “The court must defer to the arbitrator's decision and is bound by the arbitrator's factual findings and interpretations of the agreement at issue.”
Judge Jaffe explained that after a hearing is held pursuant to §3020-a, a party may apply to vacate the arbitrator's decision pursuant to CPLR 7511 based on allegations of misconduct, bias, excess of power, or procedural defects.
The party challenging the arbitration award, however, has the burden of proving that the award is invalid for one or more of the reasons for vacating an arbitration award specified in CPLR Article 75. Further, an allegation of bias against an arbitrator must be established by clear and convincing proof, showing more than a mere inference of partiality.
Judge Jaffe, finding that the arbitrator’s award in the second proceeding was rational and supported by adequate evidence, ruled that Smith had not satisfied his burden of proving that the arbitrator engaged in corruption, or fraud, or misconduct, and confirmed the arbitration award.
* Prior to the charges being brought against Smith, Smith retained the law firm of Neal Brickman & Associates to file a lawsuit in federal court against the NYC Department of Education. David Kearney, an attorney with the firm, agreed to represent Smith in the Federal action and subsequently agreed to represent Smith in the §3020-a proceeding.
** SCI reported that it had substantiated Kearney's allegations regarding Smith’s threats and recommended that Smith's employment be terminated and that he be placed on the Department’s “ineligible employment list.”
*** Smith was later served with third set of charges related to time and attendance. All of the charges were consolidated and considered in the second §3020-a hearing.
The decision is posted on the Internet at:
Public Personnel Law E-books
The Discipline Book - A concise guide to disciplinary actions involving public employees in
A Reasonable Disciplinary Penalty Under the Circumstances - A 442-page e-book focusing on determining an appropriate disciplinary penalty to be imposed on an employee in the public service in instances where the employee has been found guilty of misconduct or incompetence. Now available in two formats - as a large, paperback print edition and as an e-book. For more information click on http://booklocker.com/books/7401.html
The Layoff, Preferred List and Reinstatement Manual - A 645 page e-book reviewing the relevant laws, rules and regulations, and selected court and administrative decisions. For more information click on http://booklocker.com/books/5216.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
SELECTED REFERENCES and BLOGS
- A Handbook addressing disciplining public employees
- A Handbook focusing on imposing reasonable disciplinary penalties
- A Handbook focusing on layoff and reinstatement
- A Handbook on Disability Benefits for public employees
- A sample personnel handbook
- Blogging Civil Rights Law
- Blogging Constitutional Law
- Blogging Disability Law
- Blogging Education Law
- Blogging Human Rights Law
- Blogging Legal Information
- Blogging Military Law
- Blogging public libraries
- Challenging Adverse Personnel Decisions
- COVID-19 - New York State maps and data
- Delaware Employment Law Blog
- Gotham schools newsroom - A NYC school news blog
- New York City ERS blog - by John Murphy
- NY Municipalities - NYMUNIBLOG
- St. Lawrence County Civil Service Web Site
Subsequent court and administrative rulings, or additions or amendments to laws, rules and regulations may have modified or clarified or vacated or reversed or otherwise have had an impact on 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.
THE MATERIAL ON THIS WEBSITE IS FOR INFORMATION ONLY. AGAIN, REMEMBER THAT CHANGES IN LAWS, RULES, REGULATIONS AND NEW COURT AND ADMINISTRATIVE DECISIONS MAY AFFECT THE ACCURACY OF THE INFORMATION PROVIDED IN THIS LAWBLOG.
THE MATERIAL PRESENTED IS NOT LEGAL ADVICE AND THE USE OF ANY MATERIAL POSTED ON THIS WEBSITE DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP.
Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material in this blog is presented with the understanding that the publisher, editor, contributors or members of the staff are not providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is advised to seek such advice from a competent professional.