Friday, April 29, 2016

The essentials of challenging an employee disciplinary action where compulsory arbitration is involved


The essentials of challenging an employee disciplinary action where compulsory arbitration is involved
Davis v New York City Board/Department of Educ., 2016 NY Slip Op 02544, Appellate Division, First Department

Where the parties are subject to compulsory arbitration in determining an employee disciplinary matter pursuant to the terms and conditions set out in law or in a collective bargaining agreement negotiated pursuant to Article 14 of the Civil Service Law, due process requirements must be met in making the determination and the award cannot be arbitrary and capricious.
 
VHB, a tenured teacher employed by the New York Department of Education [Department], was served with disciplinary charges pursuant to Education Law §3020-a*

The Hearing Officer who conducted the disciplinary arbitration hearing found that the Department had provided VHB with assistance and numerous opportunities to improve her skills but concluded that VHB “was either unable or unwilling to adjust her teaching methods to comply with her supervisors' appropriate directives.” The penalty imposed on VHB: dismissal from her position.

VHB filed a petition pursuant to CPLR Article 75 seeking a court order annulling the arbitration award. The Appellate Division, explaining that Education Law §3020-a(5) limits judicial review of a hearing officer's determination to the grounds set out in CPLR §7511, said §7511, in relevant part,  provides that a court may vacate an arbitration award in the event the court finds that:

1. The rights of the party challenging the award were prejudiced by corruption, fraud or misconduct in procuring the award;

2. The arbitrator appointed as a neutral was not impartial;

3. The arbitrator exceeded his or her power or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made;

4. There was a failure to follow the procedure of set out in CPLR Article 75 [except if the party applying  to vacate the award continued with the arbitration with notice of the defect and without objection].

In certain cases, however, the courts have adopted "a violation of a strong public policy standard" when considering petitions to vacate an arbitrator’s award. For example, in Matter of the Town of Callicoon, 79 NY2d 907, the Court of Appeals ruled that a court could vacate an arbitrator’s award if it determines that the award violated a strong public policy. 

The Appellate Division said that the award in VHB's case was not arbitrary and capricious and “was well supported by the evidence.” The Hearing Officer, said the court, had engaged in a through analysis of the facts and circumstances, evaluated witnesses' credibility, and arrived at a reasoned conclusion. VHB's due process rights were met as she was provided with notice, an appropriate hearing and the opportunity to present evidence and cross-examine witnesses.

As to VHB's claim that the arbitrator was prejudiced, court said that VHB “failed to sustain her burden of demonstrating bias or misconduct by the Hearing Officer, who did not exceed her powers.”

Addressing the penalty imposed on VHB, termination, the Appellate Division said that “the penalty of termination is not excessive” and denied VHB’s appeal in its entirety.

* See “letter of agreement” from NYC Department of Education Chancellor Klein to UFT President Michael Mulgrew dated April 15, 2010 concerning the processing and resolution of disciplinary charges filed against an educator employed by the New York City Department of Education pursuant to §3020-a of the Education Law.

The decision is posted on the Internet at:
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A Reasonable Penalty Under The Circumstances - a 618-page volume focusing on New York State court and administrative decisions addressing an appropriate disciplinary penalty to be imposed on an employee in the public service found guilty of misconduct or incompetence. For more information click on http://booklocker.com/7401.html
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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/

Challenging Adverse Personnel Decisions at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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