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December 6, 2018

Determining the appropriate evidence standard to be applied in a disciplinary action


Determining the appropriate evidence standard to be applied in a disciplinary action
Johnson v Riverhead Cent. Sch. Dist., 2018 NY Slip Op 08021, Appellate Division, Second Department

Joe Nell Johnson II, a tenured teacher employed by the Riverhead Central School District, was served with disciplinary charges pursuant to Education Law §3020-a alleging that he was guilty of misconduct that was "incompatible with the standards required to be seen as a positive role model for the students."

Ultimately the disciplinary hearing officer found Johnson guilty of the charges filed against him and directed the school district to terminate his employment.

Johnson filed a petition pursuant to CPLR Article 75 seeking a court order vacating the hearing officer's determination. Supreme Court denied Johnson's petition and dismissed the proceeding, whereupon Johnson appealed the Supreme Court's ruling to the Appellate Division contending that the hearing officer should have applied the preponderance of the evidence standard in making his findings.

A "preponderance of the evidence" is the standard used in disciplinary actions where arbitration is not mandated and requires that the evidence for one side outweighs evidence for the other side by some degree, however minute and the preponderance of the evidence standard generally applies only when the penalty of dismissal is accompanied by some added stigma. 

However §3032-a.3, as amended, provides that the Commissioner of Education, "upon receipt of a request for a hearing in accordance with subdivision two of this section" the commissioner shall notify the American Arbitration Association of the need for a hearing and request the Association to provide a list of names of persons from the Association's panel of labor arbitrators to serve as hearing officers. Accordingly, in Martin v Ambach, 67 NY2d 975, the Court of Appeals held that to determine whether charges were properly brought under Education Law §3020-a, the proper standard is “preponderance of evidence”, not substantial evidence.

The Appellate Division then pointed out that where the obligation to arbitrate arises through a statutory mandate such as §3020-a, the hearing officer's determination is subject to closer judicial scrutiny under CPLR 7511(b) than it would otherwise receive. Here the parties were required to arbitrate the disciplinary action as mandated by statute. In the words of the Appellate Division, "An award in a compulsory arbitration proceeding must have evidentiary support and cannot be arbitrary and capricious."

Further, in an Article 75 review of the hearing officer's determination the court considers "whether the decision was rational or had a plausible basis" but, as the Court of Appeals held in Matter of Berenhaus v Ward, 70 NY2d 436, when reviewing compulsory arbitrations in §3020-a proceedings the court should accept the hearing officer's credibility determinations, even where there is conflicting evidence and room for choice exists.

Finding that the hearing officer's determination has evidentiary support and was not arbitrary and capricious, the Appellate Division held that Johnson [1] was provided with adequate notice of the charges that was reasonably specific and in light of all the relevant circumstances Johnson [2] was apprised of charges against him sufficient "to allow for the preparation of an adequate defense."

As to the penalty imposed by the hearing officer, termination, the Appellate Division said that the penalty of termination "was not irrational or shocking to one's sense of fairness."

Click here to Read a FREE excerpt from The Discipline Book concerning the due process rights of public employees in New York State. 

The decision is posted on the Internet at:

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