Best Lawblog Contest for 2017 now being conducted by The Legal Institute

From now until
September 15th, 2017, Lawblog fans can nominate their favorite blogs and bloggers for inclusion in the voting round of 2017. As in previous years, the nomination process is competitive, meaning the more nominations a blog receives, the more likely it is to be included in the public voting stage of the contest.

To access the link to the nomination form, click on:

https://www.theexpertinstitute.com/blog-contest/?utm_source=email&utm_medium=email&utm_content=CTA&utm_campaign=blog-contest-8.14.2017-general

Wednesday, August 01, 2012

A disciplinary settlement agreement in which the appointing authority waived the right to bring certain charges against an individual bars the appointing authority from subsequently bring charges based on the same event[s] or omission[s]


A disciplinary settlement agreement in which the appointing authority waived the right to bring certain charges against an individual bars the appointing authority from subsequently bring charges based on the same event[s] or omission[s]
Matter of Board of Educ of The Unadilla Val. Cent. Sch. Dist., 2012 NY Slip Op 05779, Appellate Division, Third Department

The Unadilla Valley Central School District appealed Supreme Court’s denial of its Article 75 petition to vacate an arbitration award.

The school district and one of its educators entered into a "settlement agreement" whereby:

1. The educator agreed to a retroactive suspension without pay, to a reassignment, to discontinue coaching school sports, and to the placement of a letter of reprimand in his personnel file in which he admitted that he had engaged in misconduct and conduct unbecoming a teacher; and

2. The school district agreed not to bring disciplinary charges pursuant to Education Law §3020-a agaisnt the educator "with regard to any of the matters involved in the investigation," but retained the right to bring disciplinary charges "alleging incompetency based upon the results of the Education Law [§]913 examination."*

The educator submitted to a §913 examination and the school district then filed disciplinary charges against the educator pursuant to Education Law §3020-a(1) alleging that the educator was “unfit to perform the job duties of a teacher" and suspended him with pay pending a hearing on the charge.

Ultimately the Hearing Officer issued a written decision concluding that the school district had failed to meet its burden of establishing that the educator was unfit to teach and dismissed the charge. The school district filed a petition pursuant Article 75 of the CPLR to seeking to vacate the arbitration award, which petition was denied by Supreme Court.

The Appellate Division affirmed Supreme Court’s ruling, explaining that judicial review of and authority to vacate a hearing officer's determination of disciplinary charges against a tenured teacher is limited to the grounds set forth in CPLR 7511(b)(1), including acts in excess of the arbitrator's power [and citing City School District of New York v McGraham, 17 NY3d 917] [w]here, as here, parties are subject to compulsory arbitration, the award must satisfy an additional layer of judicial scrutiny — it 'must have evidentiary support and cannot be arbitrary and capricious.'"

The school district had argued that the medical testimony established the educator's unfitness to teach, and the Hearing Officer's determination to the contrary is irrational and arbitrary and capricious.

Initially, said the Appellate Division, the Hearing Officer properly declined to sustain the charge based upon  the educator’s conduct as disclosed in the pre-settlement investigation given that in the agreement, the school district had "explicitly waived the right to bring charges with regard to any of the matters involved in the investigation." In contrast, said the court, the school district retained the right to pursue charges based upon the results of the Education Law §913 medical examination.

Although the educator’s prior underlying inappropriate conduct was certainly relevant to that charge and properly considered by all of the testifying medical experts in their assessments of his condition, the Appellate Division ruled the prior conduct could not, by itself, meet school district's burden of proof on the charge.

Further, said the Appellate Division, “the evidence regarding [the educator’s] underlying conduct did not authorize the Hearing Officer to impose discipline in the absence of a finding of guilt on the charge.” 

In contrast, if the school district had initially believed, based upon the results of the investigation, that the educator was unfit to teach, it could have pursued disciplinary charges pursuant to Education Law §3012(2)(a) or (b), premised upon the disclosed underlying conduct. It elected not to do so and, instead, waived the right to bring such charges in the settlement agreement and retained the educator as a tenured teacher in exchange for certain concessions from him.

On the merits, said the Appellate Division, Supreme Court properly confirmed the arbitration award dismissing the charge. Contrary to the school district's contentions, the arbitrator's award did not violate public policy so as to have "exceeded his power" nor was it irrational.

Given the hearing officer’s conclusion that the school district had failed to prove the sole charge presented, the court opined that “it certainly cannot be a violation of public policy to decline to impose a penalty or to require counseling or supervision” under these circumstances.

The Appellate Division then ruled that “As a result of the school district’s decision to enter into an agreement waiving a myriad of appropriate disciplinary charges of general unfitness to teach — such as neglect of duty, immoral character or conduct unbecoming a teacher, the charge before the Hearing Officer was limited to unfitness to teach by reason of a mental condition or disability." As the Hearing Officer rationally concluded that this charge was not proven, the Appellate Division affirm Supreme Court's order denying the school district's application to vacate the award.” 

On another point, the Appellate Division noted that Supreme Court had granted the educator's request for “an anonymous caption.” The Appellate Division pointed out that while the educator was entitled to request a private hearing on the disciplinary charges, there is no provision requiring anonymity on judicial review of an arbitration award on such charges.

* §913 authorizes the “Medical examinations of teachers and other employees,” such examination to be conducted by the individual’s personal physician or by a physician designated by the appointing authority.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_05779.htm

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/

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.

_____________________

.