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Thursday, April 07, 2011

Challenging a Section 3020-a disciplinary decision


Challenging a Section 3020-a disciplinary decision
Great Neck UFSD v Brandman, Appellate Division, 286 AD2d 735 

It is not a simple task to overturn an arbitration award as the Great Neck decision demonstrates.

The Great Neck Union Free School District attempted to vacate or modify a Section 3020-a disciplinary arbitration award by filing a petition pursuant to Article 78 of the Civil Practice Law and Rules [CPLR]. Its efforts were rebuffed by Nassau Supreme Court Justice Ralph Franco.

The Appellate Division sustained Justice Franco’s ruling, holding:

The Supreme Court properly confirmed the Hearing Officer's determination since the petitioner did not demonstrate any basis for vacating it under CPLR 7511 (see, Education Law § 3020-a [5]; Matter of Board of Educ. v Ziparo, 275 AD2d 411; cf., Matter of Board of Educ. v Yusko, 269 AD2d 445, 446). The Hearing Officer's determination has a rational basis and is supported by the record (see, CPLR 7801; Matter of Fischer v Smithtown Cent. School Dist., 262 AD2d 560).

The district had filed Section 3020-a charges against school psychologist Edward Brandman. The charges included allegations that Brandman:

1. Had an intimate sexual relationship with the mother of students under his care;

2. Failed to disclose this relationship to his supervisors;

3. Discouraged the mother from terminating her relationship with him; and

4. Discouraged the mother from reconciling with the natural father of the children.

Arbitrator Joseph P. Sireman had found Brandman guilty of professional misconduct. The penalty imposed: a two-year suspension without pay. The hearing officer said that the penalty imposed reflected Brandman’s otherwise [22 year] unblemished employment record with the district.

In response, the district filed a petition pursuant to Article 78 of the CPLR, contending that as a matter of public policy, the award be vacated and [Brandman] terminated.

Justice Franco dismissed the district’s petition seeking to vacate the award for a number of reasons.

He first noted that Section 3020-a(5) provides that appeals from such determinations must be filed within ten days of its receipt pursuant to Article 75, Section 7511 of the CPLR rather than pursuant to Article 78 of the CPLR.*

The court also pointed out that the basis for challenging an arbitration award under Article 75 is very limited. Among the reasons for asking a court vacate such an award are the following:

1. The award resulted from corruption, fraud or misconduct in procuring the award; or

2. Partiality on the part of the arbitrator; or

3. The arbitrator exceeded his or her authority or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made.

The court found nothing in the record to suggest any such basis for overturning the arbitrator’s award existed.

Justice Franco concluded that [g]iven the charges and [Brandman’s] otherwise unblemished record, the hearing officer’s determination imposing a two year suspension without pay is a significant financial penalty, reflects the seriousness of the charges offered as proven by the district and cannot be construed by this Court as irrational or against public policy.

Justice Franco also commented that his analysis cannot change because the facts or implications of a case might be disturbing, or because an employee’s conduct is particularly reprehensible.

As to the district’s public policy argument, the court said that an alleged violation of public policy is not one of the justifications set out in Article 75 for vacating an arbitrator’s determination.

In certain cases, however, the courts have adopted a violation of a strong public policy standard when considering petitions to vacate an arbitrator’s award.

For example, in Matter of the Town of Callicoon, 79 NY2d 907, the Court of Appeals has ruled that a court could vacate an arbitrator’s award if it determines that the award violated a strong public policy.

More recently, noted Justice Franco, the Court of Appeals addressed the public policy exception as justification for overturning an arbitrator’s award. In State Correctional Offices [Kuhnel] and Police Benevolent Association v State, 94 NY2d 321, it said that:

The public policy exception has its roots in common law, where it is well settled that a court will not enforce a contract that violates public policy. A court, however, may not vacate an award on public policy grounds when vague or attenuated considerations of a general public interest are at stake.

The Kuhnel case involved a State corrections officer, Edward Kuhnel, who was suspended from duty and served with disciplinary charges after the Department of Correctional Services learned that he flew a Nazi flag from the front porch of his home on December 10, 1996 -- the 55th anniversary of Hitler’s declaration of war on the United States.

The arbitrator dismissed the charges and the department sought to vacate the award on the theory the arbitrator’s ruling concerning Kuhnel’s off-duty activities violated a strong public policy. The Court of Appeals sustained the arbitrator’s determination, holding:

… looking at the only prong of the public policy exception argued before this Court, we conclude that the award does not violate a well-defined constitutional, statutory or common law of this State.

In another Section 3020-a disciplinary action that involved considering public policy with respect to the penalty imposed, the Appellate Division, Second Department, found that a disciplinary penalty consisting of counseling, remediation, and a 60-day suspension, violated a strong public policy.

East Hampton Union Free School District teacher Jeffrey Yusko was found guilty of unwanted and inappropriate physical contact and verbal conduct ... with the students entrusted to his care over the course of three school years.

East Hampton filed an Article 75 petition seeking to vacate the penalty imposed by the hearing officer. A State Supreme Court judge granted the district’s petition and directed it to terminate Yusko.

The Appellate Division sustained the lower court’s granting the district’s petition as far as it vacated the penalty imposed by the hearing officer but held that the Supreme Court had exceeded its authority when it substituted the penalty of dismissal.

The court said the lower court should have remanded the matter for a rehearing before a different hearing officer and that a new determination on the issue of the penalty to be imposed should be made by the new hearing officer [East Hampton Union Free School District v Jeffrey Yusko, 269 AD2d 445]. 

* Section 3020-a.5 provides: Appeal. 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 section seven thousand five hundred eleven of the civil practice law and rules.
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Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

A Reasonable Penalty Under The Circumstances at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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