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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.

March 30, 2012

In an Article 75 challenge to a §3020-a disciplinary decision, the court asks [1] does the award have evidentiary support? and [2] is the award arbitrary and capricious?

In an Article 75 challenge to a §3020-a disciplinary decision, the court asks [1] does the award have evidentiary support? and [2] is the award arbitrary and capricious?
Malone v Board of Educ. of East Meadow Union Free School Dist., 2012 NY Slip Op 02306, Appellate Division, Second Department

A tenured teacher was stopping cars exiting the driveway of East Meadow High School in order to distribute leaflets concerning ongoing contract negotiations between the teachers' union and the East Meadow Union Free School District.

When the teacher continued to distribute the leaflets after the school principal directed him to cease that activity, he was served with disciplinary charges pursuant to §3020-a of the Education Law alleging [1] misconduct for causing a hazardous condition and [2] insubordination for failing to obey the principal's directive.

Ultimately the charges proceeded to arbitration and the arbitrator found the teacher guilty of both charges. The teacher then filed an Article 75 petition seeking to vacate the arbitration award.

Supreme Court denied the teacher’s petition and dismissed the proceeding. The Appellate Division affirmed the Supreme Court’s ruling.

Noting that where the requirement to arbitrate is statutory, as is the case in a disciplinary action conducted pursuant to Education Law §3020-a* the arbitrator's determination is subject to "closer judicial scrutiny" under CPLR 7511(b) than it would receive had the arbitration been conducted voluntarily.

However, said the court, in an Article 75 proceeding a court determines only whether the award had evidentiary support and whether the award was arbitrary and capricious.**

Here, the Appellate Division decided that the determination of the arbitrator was based on the evidence proffered at the hearing. This, said the court, including the the teacher's testimony that he approached vehicles as they exited the driveway of the high school, which required him to cross in front of moving vehicles. This, according to the decision, "established the charge of misconduct by adequate evidence."

Further, said the court, “The testimony of both [the teacher] and the school principal that [the teacher] continued to distribute leaflets after being directed to cease this activity established the charge of insubordination by adequate evidence.”

Thus, concluded the Appellate Division, “the findings with respect to both charges were not arbitrary and capricious.”

* See Education Law §3020-a[3]

** Education Law §3020-a[5], “Appeal” provides that “ 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. 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.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_02306.htm


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