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

Friday, September 28, 2012

Trial court may not substitute its judgment for that of the arbitrator when the record supports the arbitrator’s ruling


Trial court may not substitute its judgment for that of the arbitrator when the record supports the arbitrator’s ruling

Supreme Court, New York County, vacated, in part, an arbitrator’s finding that a tenured teacher guilty of disciplinary charges alleging sexual misconduct and dismissed certain specifications, vacated the penalty imposed by the arbitrator -- termination of the teacher's employment, and remanding the proceeding for a new hearing before a new arbitrator to determine if the teacher was guilty of the surviving allegations and for a redetermination of the penalty to be imposed in the event the new arbitrator found the teacher guilty of one or more of the surviving disciplinary charges and specifications.

The Appellate Division(1) reinstated the initial arbitrator’s finding of sexual misconduct and (2) reinstated the penalty imposed by the arbitrator, termination.

The court said that judicial review of the arbitrator’s award in this instance is limited to the grounds set out in CPLR §7511(b)1* as required by §3020-a(5) of the Education Law.

The court explained that where, as here, “the arbitration is compulsory,” the excess of power standard under CPLR §7511(b) includes review of "whether the award is supported by evidence or other basis in reason, as may be appropriate, and appearing in the record." Thus, 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 Appellate Division said there was adequate evidence to support the arbitrator's conclusion that teacher committed sexual misconduct by performing an "action that could reasonably be interpreted as soliciting a sexual relationship" within the meaning of the relevant provisions in the collective bargaining agreement. By finding to the contrary, the Appellate Division said that Supreme Court “impermissibly substituted its own judgment for that of the arbitrator” by crediting the teacher’s testimony that had been rejected by the arbitrator.

In light of the evidence, the Appellate Division said that the penalty of termination, notwithstanding teacher's “prior lack of disciplinary history,” did not shock its sense of fairness.

* §7511 of the Civil Practice Law and Rules provides for “Vacating or modifying” an arbitration award. With respect to “Grounds for Vacating,” §7511 (b)1 provides for the vacation of an arbitration award in the event the court finds that the rights of the party challenging the award were prejudiced by: 
     (i) corruption, fraud or misconduct in procuring the award; or 
     (ii) partiality of an arbitrator appointed as a neutral, except where the award was by confession; or 
     (iii) an arbitrator, or agency or person making the award exceeded his power or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made; or 
     (iv) failure to follow the procedure of this article, unless the party applying to vacate the award continued with the arbitration with notice of the defect and without objection.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_06255.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.

_____________________

.