November 04, 2011

Challenging arbitration awards

Carroll v Perkle, Appellate Division, 296 AD2d 755, 756, lv dismissed 98 NY2d 764)

Judicial review of an arbitration award has been statutorily limited by Article 75 of the Civil Practice Law and Rules [CPLR]. Essentially an arbitration award stands unless the court determines that one or more defects in the process have been demonstrated:

1. There was corruption, fraud or misconduct in procuring an award;

2. The arbitrator was not impartial;

3. The arbitrator exceeded his or her authority;

4.the procedures set out in Article 75 were not followed.

In addition to these statutory reasons for vacating the arbitration award, the courts have declared awards found to violate a strong public policy to be null and void.
Challenges to a §3020-a disciplinary decision issued are processed pursuant to Article 75 of the CPLR.[1]

In Carroll, however, the Appellate Division adopted a different standard of review in considering a dismissed employee's effort to vacate an Education Law Section 3020-a disciplinary arbitration award.

Citing Matter of Bernstein [Norwich City School Dist. Bd. Of Education], 282 AD2d 70, the Appellate Division said:

Where, as here, the parties are forced to engage in compulsory arbitration, judicial review under CPLR Article 75 requires that the "award be in accord with due process and supported by adequate evidence in the record."
Accordingly, the Appellate Division concluded, the applicable standard for review of the arbitration award in Carroll's case is whether there was substantial evidence in the record to establish the employee's guilt with respect to the charges levied against him. The court also pointed to CPLR Section 7803[2] as authority to adopt a "substantial evidence" standard in appeals from a §3020-a determination. In the words of the court:

[W]e must determine "whether there is a rational basis in [the whole record] for the findings of fact supporting the [Hearing Panel's recommendation],"

citing 300 Gramatan Ave. Assocs. v State Div. of Human Rights, 45 NY2d 176.

Christopher Carroll was a tenured guidance counselor. He had 19 years of service with the Rondout Valley CSD. As a guidance counselor he was responsible for, among other things, creating individualized academic plans for students, planning students' courses for the upcoming academic year, analyzing student report cards to determine whether students passed, adjusting academic plans if students failed, and performing annual reviews of student records.

After several students failed to graduate, the Board of Education filed Section 3020-a disciplinary charges against Carroll alleging that he failed to maintain required records, he neglected to provide required remedial assistance for students who failed a Regents Competency Test; he failed to schedule students for required courses; and he falsified a student's record.

The Hearing Panel found Carroll guilty of some, but not all, of the charges. It then determined that under the circumstances, dismissal was the appropriate penalty to be imposed. Carroll was terminated from his position.

Carroll filed a motion to vacate the arbitration award pursuant to Article 75. Supreme Court, relying on CPLR §7511, dismissed his petition, finding that disciplinary arbitration panel neither exceeded its power nor executed an imperfect award.

Carroll appealed the Supreme Court's ruling, contending that the Supreme Court applied too narrow a standard when it limited its review only to those criteria specifically set out in CPLR §7511. The Appellate Division agreed with Carroll, ruling that the appropriate standard of review was whether there was substantial evidence to support the panel's determination with respect to those charges for which the panel had found him guilty. The court then found that all but one of the Hearing Panel's determinations met the substantial evidence in the record standard.

Carroll raised two additional issues in his appeal. He contended that (1) he was denied administrative due process because the Hearing Panel found him guilty of charges that had not been filed against him; and (2) the Hearing Panel failed to consider the school board's failure to provide "remediation" when it determined the penalty.

According to the Appellate Division, the panel found Carroll guilty of intentionally recording that a student had passed a course although the student had failed the course.

Carroll contended that he was never charged with intentionally falsifying records. The charge filed alleged that Carroll was guilty of misconduct when he marked a student's plan card to indicate that the student had passed a course without having taken the course. The Appellate Division held that the charge adequately apprised Carroll that the alleged misconduct amounted to his intentionally falsifying the student's record and dismissed this branch of Carroll's appeal.

The court, however, agreed that Carroll had been denied administrative due process because the Hearing Panel failed to consider "mitigating circumstances" in determining the penalty. The Appellate Division said that the Hearing Panel failed to honor Carroll's request that the Board of Education's "lack of effort to correct his behavior," be considered by the panel in determining appropriate penalty to be imposed.[3]

The Appellate Division said that there was nothing in the record to indicate that the Hearing Panel considered the Board's efforts. if any, to correct Carroll's unacceptable behavior. Accordingly, the Appellate Division vacated the Hearing Panel's "recommendation" as to the penalty to be imposed and directed that the panel reconsider its recommendation.[4]

Although Section 3020-a(5) clearly states that CPLR Article 75 controls with respect to appeals involving §3020-a decisions, in deciding the Carroll appeal the Appellate Division concluded that §3020-a appeals are to be treated as though they were Civil Service Law §75 disciplinary appeals.
The Court of Appeals declined to review the Appellate Division’s ruling.

Further, if the Appellate Division's view that a §3020-a hearing constitutes compulsory arbitration and thus is subject to the substantial evidence test is correct, its determination raises some additional issues.

§3020-a.1 authorizes a school district and an employee organization to negotiate an alternative to the statutory disciplinary procedure set out in §3020-a. These alternative procedures are usually referred to as "contract disciplinary procedures" and typically are processed as "disciplinary grievances." Practically all contract disciplinary procedures mandate, as the final step, binding arbitration.

Does Carroll mean that Article 75 motions to vacate or modify a disciplinary arbitration award resulting from "compulsory" arbitration in a contract disciplinary procedure negotiated pursuant to the Taylor Law is subject to a court's review based on the "substantial evidence" standard rather than limited to the reasons for vacating an award set out in Article 75?

In any event, in view of Carroll, it would be good practice for a disciplinary hearing panel, statutory or negotiated, to explicitly set out its findings of fact and the reasons for its imposing a particular penalty based in its finding that the individual was guilty of one or more of the charges filed against him or her.

Except with respect to the most egregious acts of misconduct, the Carroll decision clearly signals the need, and reasons, for the employer to attempt to undertake remedial efforts to correct or improve an educator's unsatisfactory behavior and performance prior to its filing formal disciplinary charges against the individual. This type of action is usually referred to as "progressive discipline," i.e., the individual is to be provided with notice of his or her need to improve performance and offered assistance, and a reasonable opportunity, to attain this goal.

[1] §3020-a..5 provides: 5. 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 §7511of the CPLR. The court's review shall be limited to the grounds set forth in such section. The hearing panel's determination shall be deemed to be final for the purpose of such proceeding. In no case shall the filing or the pendency of an appeal delay the implementation of the decision of the hearing officer. [emphasis supplied]

[2] In contrast to the §3020-a(5) appeal procedure , an individual may appeal an adverse Civil Service Law §75 disciplinary decision to the court pursuant to Article 78 of the CPLR or the individual may elect to appeal the determination to the responsible civil service commission rather than to the courts. In such cases the court applies the substantial evidence in the record test to determine whether or not to sustain the administrative decision.

[3] §3020-a(4) provides that "At the request of the employee, in determining what, if any, penalty or other action shall be imposed, the hearing officer shall consider the extent to which the employing board made efforts towards correcting the behavior of the employee which resulted in charges being brought under this section through means including, but not limited to, remediation, peer intervention or an employee assistance plan."

[4] Although the Court used the term "recommendation" in reference to the disciplinary panel's decision as to the penalty, to be imposed, Section 3020-a provides for the Panel's deciding the appropriate penalty to be imposed rather than its recommending a penalty to be imposed to a school board.


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.
New York Public Personnel Law Blog Editor Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. 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 posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
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