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September 13, 2013

An arbitrator's determination made pursuant to a statutory mandate to arbitrate the dispute is subject to closer judicial scrutiny than would be the case had the arbitration been conducted voluntarily



An arbitrator's determination made pursuant to a statutory mandate to arbitrate the dispute is subject to closer judicial scrutiny than would be the case had the arbitration been conducted voluntarily
2013 NY Slip Op 05816, Appellate Division, Second Department

An educator [Teacher] submitted an application to the School District seeking employment as a physical education teacher and was appointed to the position.

The School District subsequently contended that the application, which Teacher “certified to be true and complete,” failed to disclose that he had previously held a probationary teaching position with another school district. The District also claimed that Teacher had resigned from this previous position after allegations were made that he used corporal punishment and he was told that he would not receive tenure. As a result, the School District preferred three disciplinary charges against Teacher pursuant to Education Law §3020-a.

Charge No. 1 alleged that Teacher was guilty of misconduct because he had presented an employment application to the District that was false because he knowingly omitted the fact that he had been a probationary teacher at another school district. Teacher moved to dismiss the charge, contending that it was time-barred by Education Law §3020-a, which provides that no disciplinary charge may be brought more than three years after the occurrence of the alleged incompetency or misconduct.

Charge No. 1, however, also alleged that Teacher's conduct was in violation of Penal Law §175.30. §175.30 defines the crime of offering a false instrument for filing in the second degree. While the School District agreed that “no disciplinary charge may be brought more than three years after the occurrence of the alleged incompetency or misconduct,” it contended that Charge 1 was timely under the exception to the three-year statute of limitations set out in Education Law §3020-a(1) as the charge alleged “misconduct constituting a crime when committed."

The arbitrator granted Teacher’s motion, concluding that the District had failed to plead sufficient facts to establish that Teacher’s action constituted a violation of Penal Law §175.30 and thus the School District could not invoke the exception to the three-year limitations period that applies when the charged misconduct constitutes a crime.

The District challenged the arbitrator’s ruling and filed a CPLR Article 75 petition seeking to vacate the award dismissing Charge No. 1 on the ground that it was arbitrary and capricious and lacked a rational basis. The Supreme Court granted the District's petition and reinstated Charge No. 1. Teacher appealed.

The Appellate Division affirmed the Supreme Court’s decision, rejecting Teacher's contention that the Article 75 petition should have been dismissed because courts do not have the authority to review an interlocutory award dismissing one of the charges in an arbitration proceeding brought pursuant to Education Law 3020-a.

Although, said the Appellate Division, typically a court lacks authority to entertain a petition to review an interlocutory ruling of an arbitrator on a procedural matter, here the award sought to be reviewed is not one which involves "only a very limited procedural question" but involved the dismissal the most serious disciplinary charge preferred against Teacher and the only one of the three charges which alleged that he was guilty of misconduct.

Thus, explained the court, “the award is final as to that charge” and, if allowed to stand, would prevent the School District from adducing evidence in support of the alleged misconduct at the hearing. Under these circumstances, the award dismissing Charge No. 1 can be viewed as a final determination subject to review under CPLR 7511.

Significantly, the Appellate Division noted that “Where, as here, the obligation to arbitrate arises through statutory mandate [see Education Law 3020-a.3.a.] the arbitrator's determination is subject to closer judicial scrutiny than it would receive had the arbitration been conducted voluntarily.”

In this instance the court ruled that the arbitrator’s determination that Charge No. 1 failed to plead sufficient facts to establish that Teacher had violated Penal Law §175.30 was arbitrary and capricious as Charge 1 sufficiently alleged misconduct which, if proven, would constitute the crime of offering a false instrument for filing in the second degree by alleging that Teacher presented an employment application to the District which was false because he knowingly omitted the fact that he had been a probationary teacher at another school district, and that he had presented the employment application with the knowledge or belief that it would be filed with the District.

Accordingly, the Appellate Division ruled that as Charge No. 1 was sufficient to plead conduct constituting a crime, it was not barred on its face by the three-year limitations period.

The decision is posted on the Internet at:
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