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June 28, 2012

Appealing an Education Law Section 3020-a arbitration award

Appealing an Education Law Section 3020-a arbitration award
Tarasow v NYC Dept. of Educ., 21 Misc 3d 1113(A)

Helen Tarasow, a tenured a guidance counselor employed by the New York City Department [DOE], was ordered removed from her school and subsequently disciplinary charges were filed against her alleging [1] that Tarasow failed to notify school authorities and parents of a12-year-old student counseled by her that the student exhibited “intentionally made scratches or cut marks on her wrists,” and [2] Tarasow failed to keep proper files and records for each assigned student, or to properly monitor and document students' progress and results of guidance interventions. A hearing on the charges pursuant to Education Law § 3020-a was held and the arbitrator concluded that:

1. DOE had proved the first specification, noting among other things, that a self-inflicted series of "cuts," "would certainly raise grave suspicion as to the mental state of the person," and that Tarasow should have reported her suspicion rather than allowing the child to go home alone; and

2. Although Tarasow has had "some training in psychotherapeutic counseling," she wrongly usurped the role of a psychiatrist or psychologist instead of reporting the self-inflicted cuttings, and that it was irrelevant that the psychiatric evaluation found the student not to be suicidal given his finding that Tarasow lacked the authority and was not empowered to make a determination about the student's mental status.

3. Tarasow proved that her files were likely discarded.

The Arbitrator concluded that "is no doubt [Tarasow] is a caring, dedicated Guidance Counselor," that her actions "were not borne of neglect," that she "truly believed she was doing the right thing," and that terminating her employment would "deprive the students of an individual who can and does provide effective counseling to students." However, noted the Arbitrator, Tarasow expressed no remorse for her actions, but only a "grudging acceptance of the requirement to do [the right thing] to stay out of trouble."

DOE asked that Tarasow be terminated; Tarasow asked that a non-monetary penalty be imposed.

The penalty imposed by the arbitrator: a two-month suspension without pay, so as to "produce a real change in her behavior" and both DOE and Tarasow filed petitions pursuant to CPLR Section 7511 seeking to vacate an arbitrator's decision.

Justice Feinman, after considering the petition by Tarasow and the cross-petition by the DOE to vacate the arbitrator's awards, denied both petitions and confirmed the arbitrator’s award.

The decision sets out a “Legal Analysis” of CPLR Article 75, which controls in situations involving a challenge to an arbitration award. The court noted that CPLR 7511(b) sets forth the limited grounds on which a petitioner can seek to vacate an award, namely misconduct by the arbitrator, partiality, exceeding the arbitrator’s powers, or procedural error.

Citing Wien & Malkin LLP v Helmsley-Spear, Inc., 6 NY3d 471, the decision state that “Judicial review of arbitration awards is extremely limited and where the arbitration hearing is conducted pursuant to Education Law §3020-a, judicial review is limited to the grounds set forth in CPLR 7511.

Further, where the parties are required to engage in compulsory arbitration, as occurred in the instant matter, judicial review under CPLR article 75 requires that the award "must have evidentiary support and cannot be arbitrary and capricious" and the determination must be in accord with due process and supported by adequate evidence, and must also be rational and satisfy the arbitrary and capricious standards of CPLR Article 78. "The test of whether a decision is arbitrary or capricious is "determined largely by whether a particular action should have been taken or is justified . . . and whether the administrative action is without foundation in fact.'" (See Pell v Board of Educ., 34 NY2d 222].

Other points made by Justice Feinman:

1. A reviewing court must defer to the administrative fact finder's assessment of the evidence and the credibility of the witnesses

2. In an Education Law Section 3020-a proceeding, the arbitrator is free to fashion a remedy as he or she believed proper, referring to the ruling of the Court of Appeals in Silverman v Benmor Coats, Inc., 61 NY2d 299.

3. As to DOE's petition seeking vacatur of the award on the ground that it was irrationally lenient, it must be denied based in part on the credibility finding of the arbitrator that Tarasow is a dedicated guidance counselor and a benefit to her students, and on the evidence in the record that she has always had satisfactory ratings in her job. His implicit finding that she was guilty of bad judgment on this one occasion is rationally based.

4. The arbitrator rationally credited Tarasow's statement that in the future, she would immediately report any similar incident, as sufficient proof that no matter what her personal thoughts might be in a situation, she would follow the DOE rules.

5. The award of an arbitrator need not conform to the traditional relief that a court might

N.B. Section 3020-a.5 sets out a very short statute of limitations to appeal a Section 3020-a arbitrator’s decision. Subdivision 5 provides as follows: 5. Appeal. Not later than ten days after receipt of the hearing officer's decision [emphasis supplied], 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.

In contrast, CPLR Section 7511 provides that “An application to vacate or modify an award may be made by a party within ninety days after its delivery ….”

The full text of the decision is posted on the Internet at:

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