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

Thursday, July 17, 2014

Appealing an arbitrator’s §3020-a disciplinary adverse decision



Appealing an arbitrator’s §3020-a disciplinary adverse decision
2014 NY Slip Op 05271, Appellate Division, Fourth Department

On January 15, the §3020-a Disciplinary Hearing Officer (HO) found the employee  [Petitioner] guilty of one or more of the disciplinary charges filed against him and issued a decision that imposed the penalty of termination. The HO e-mailed the decision to the attorneys for the parties* on January 15, and the State Education Department (SED) received the HO's decision from the HO on January 16. SED then mailed the HO's decision to the parties on January 22, 2013. Petitioner received SED’s mailing the following day – January 23 -- and he filed a notice of petition and petition seeking an order vacating the decision of the HO pursuant to CPLR §7511 on February 1.

In lieu of answering the petition, the Depew Union Free School District filed a pre-answer motion seeking to dismiss the petition on the grounds [1] that the proceeding was not timely commenced under Education Law §3020-a (5)**and [2] that the court lacked personal jurisdiction over Depew because the notice of petition and petition were not properly served on the School District. Depew contended that these documents were served on a payroll clerk employed by Depew and not the District’s clerk or an officer of the School District.***

Supreme Court granted Depew’s motion on both the filing and service grounds advanced by the School District. The court determined that the petition was not timely filed within the meaning of Education Law §3020-a (5) inasmuch as the petition was not filed within 10 days of Petitioner's receipt of the HO's decision from the HO via e-mail. The court further determined that Petitioner's service of the petition was defective inasmuch as there was no evidence that the "payroll clerk was a designated school officer of the [District]."

Addressing the issue of “timely filing,” the Appellate Division noted that Education Law §3020-a(4)(a) provides, in pertinent part, that "[t]he hearing officer shall render a written decision … and shall forward a copy thereof to the commissioner who shall immediately forward copies of the decision to the employee and to the clerk or secretary of the employing board." §3020-a(5)(a), in pertinent part, provides that "[n]ot later than [10] 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 [CPLR §7511]."

The primary consideration of courts in interpreting a statute is to "ascertain and give effect to the intention of the Legislature. Further, a statute or legislative act is to be construed as a whole, and all parts of an act are to be read and construed together to determine the legislative intent. The Appellate Division concluded that the phrase "receipt of the hearing officer's decision" in Education Law §3020-a(5)(a) refers to Petitioner’s receipt of the hearing officer’s decision from the SED.

Accordingly, said the court, the 10-day statute of limitations in which to appeal runs from the receipt of the HO's decision sent by SED rather than Petitioner’s receipt of the copy of the decision sent to him by the HO. The Appellate Division explained that in its view, “the legislature would not structure the distribution of the notice of an HO decision such that the Commissioner of Education (and, by natural extension, the SED) is to notify an educator of such determination and then create a period in which to challenge an HO decision that could begin to run before the entity charged with providing notice to an affected educator of an HO decision has actually given such notice.”

Although the Appellate Division concluded that Supreme Court erred to the extent it determined that the petition is time-barred, it nevertheless confirmed the lower court’s order granting Dryden’s petition because it agreed with Supreme Court’s ruling that Petitioner's service of the notice of petition and petition was defective.

Citing Franz v Board of Educ. of Elwood Union Free Sch. Dist. (112 AD2d 934, lv denied 67 NY2d 603), the Appellate Division said  "[t]he courts of this State have consistently required strict compliance with the statutory procedures for the institution of claims against the State and its governmental subdivisions, and where the Legislature has designated a particular public officer for the receipt of service of process, we are without authority to substitute another."

CPLR §311(a)(7), explained the court, provides, in pertinent part, that "[p]ersonal service upon a corporation or governmental subdivision shall be made by delivering the summons . . . upon a school district, to a school officer, as defined in the education law." Education Law §2 (13) defines the term school officer as "a clerk, collector, or treasurer of any school district; a trustee; a member of a board of education or other body in control of the schools by whatever name known in a union free school district, central school district, central high school district, or in a city school district; a superintendent of schools; a district superintendent; a supervisor of attendance or attendance officer; or other elective or appointive officer in a school district whose duties generally relate to the administration of affairs connected with the public school system." A payroll clerk, said the court, was not an officer within the meaning of §311(a)(7) as Education Law §2130, entitled "Clerk, treasurer and collector in union free school district," provides for the appointment of an "individual as clerk of the board of education of such district."

Thus, said the Appellate Division, the reference to a singular clerk in §2130(1) must likewise apply to §2(13) of the Education Law such that there cannot be more than one person who is "a clerk" of the school district. The court’s conclusion: the payroll clerk was not eligible to be served with process as "a clerk" under section 2 (13). Judges Smith and Peradotto, however, concurred in the result but disagreed with the majority's conclusion that the petition was timely filed.

* Weeks v State of New York, 198 AD2d 615, discusses the procedural requirements that must be met in order to challenge an arbitration award pursuant to Article 75 and sets out guidelines addressing the filing a timely challenge to an arbitration award. The decision distinguishes between situations where the grievant is represented by an attorney and where he or she is represented by a union representative who is not an attorney. As a general rule, when an individual is represented by an attorney, delivery of the papers to the attorney is viewed as service on the individual. In such situations the attorney is deemed the individual's agent [see Bianca v Frank, 43 NY2d 168]. This was the underlying issue in Kalinsky v SUNY at Binghamton, 214 A.D.2d 860. The general rule is that: 1. If an individual is not represented by an attorney, the statute of limitations begins to run when the individual is served with the administrative determination; 2. If an individual is represented by an attorney, the administrative body may send a copy of the determination to the individual but the statute of limitations begins running upon service of the individual’s attorney; and 3. If the individual is represented by a person who is not an attorney, the administrative body may send a copy to the representative but it must serve the individual to start the statute of limitations running.

** N.B. The Statute of Limitations set out in Article 75 is ninety days; however, in cases involving a motion to vacate an arbitration award issued pursuant to §3020-a of the Education Law the time limit is, by statute, ten days.

*** The payroll clerk had advised the process server that she was not authorized to accept service of legal document.

____________________________

The Discipline Book, - A concise guide to disciplinary actions involving public employees in New York State set out in a 2100+ page e-book. For more information click on http://booklocker.com/books/5215.html
____________________________
  
.

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.

_____________________

.