Tuesday, November 22, 2011

The public policy exception considered by the courts reviewing an arbitrator’s award not absolute and the issues being decided or the relief granted must be considered

The public policy exception considered by the courts reviewing an arbitrator’s award not absolute and the issues being decided or the relief granted must be considered
City School Dist. of the City of New York v McGraham,  2011 NY Slip Op 08228, Court of Appeals

A tenured high school teacher was served with disciplinary charges pursuant to Education Law §3020-a alleging she engaged in improper conduct with a 15-year-old male student when she corresponded with the student electronically after regular school hours.

Although it was alleged the correspondence involved “a variety of personal matters and tried to discuss with him the nature of their relationship, which, in her view, was potentially romantic,” there was no physical contact, let alone a physical relationship, between the two and none of her communications were of a sexual nature.” Further, the two never met outside of school grounds.

The hearing officer found the teacher guilty of three of the five specifications preferred against her. In addition, the hearing officer determined that the teacher had engaged in inappropriate communications of an intimate nature with the student, which activities constituted conduct unbecoming her position as a teacher.

Considering that the teacher was remorseful for her conduct and that she sought therapy soon after her behavior came to light, the hearing officer, believing that teacher would repeat such conduct, a penalty of a 90 day suspension without pay and reassignment to a different school upon her reinstatement.

The New York City School District filed an Article 75 petition seeking to vacate the arbitration award, contending that the penalty imposed was irrational and contrary to the public policy of protecting children.*

Affirming the Appellate Division ruling, the Court of Appeals rejected the School District’s and held that the arbitration award did not violate public policy. Explaining that courts will only intervene in the arbitration process in those "cases in which public policy considerations, embodied in statute or decisional law, prohibit, in an absolute sense, particular matters being decided or certain relief being granted by an arbitrator," the Court of Appeals said that “[l]ooking at the award on its face, it cannot be said that either statutory or common law prohibits the penalty imposed by the hearing officer.”

The court indicated that although it cannot be disputed that the State has a public policy in favor of protecting children, this is not the type of absolute prohibition from arbitrating a "particular" matter necessary to invoke the public policy exception and to overturn the arbitral resolution.

In addition, the court found that the arbitration award was not arbitrary and capricious or irrational in that the hearing officer “engaged in a thorough analysis of the facts and circumstances, evaluated [the teacher’s] credibility and arrived at a reasoned conclusion that a 90-day suspension and reassignment was the appropriate penalty.”

In this instance, said the court, the penalty imposed was rational. Notwithstanding the “serious misconduct” of the teacher, in this case the hearing officer, finding the teacher remorseful and that her actions were unlikely to be repeated, concluded that her termination was not mandated.

Although, said the Court of Appeals, “reasonable minds might disagree over what the proper penalty should have been” this disagreement does not provide a basis for vacating the arbitral award or refashioning the penalty.

* In the course of these appeals the teacher was terminated because she allowed her teacher's certification to lapse. However, the Court of Appeals, citing Brooklyn Audit Co. v Department of Taxation & Fin., 275 NY 284, said that as the School District sought to terminate the teacher pursuant to §3020-a “in an effort to prevent her from being in a position to obtain future employment with the Department of Education,” the appeal was not moot.

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/

Challenging Adverse Personnel Decisions at http://nypplarchives.blogspot.com

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

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

Caution:

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.

THE MATERIAL ON THIS WEBSITE IS FOR INFORMATION ONLY. 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 is not providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader should seek such advice from a competent professional.

Items published in NYPPL may not be used for commercial purposes without prior written permission to copy and distribute such material. Send your request via e-mail to publications@nycap.rr.com

Copyright© 1987 - 2017 by the Public Employment Law Press.



___________________



N.B. From time to time a political ad or endorsement may appear in the sidebar of this Blog. NYPPL does not have any control over such posting.

_____________________

.