August 28, 2019

Violating a "last chance agreement" to avoid disciplinary action

A tenured assistant principal [Plaintiff] assigned to host an award ceremony arrived at the school admittedly under the influence of alcohol. Disregarding the instructions of his principal, Plaintiff left the school in his car and was thereafter arrested for driving while intoxicated. His arrest was reported in the local media and was discussed by parents and students on social media.

In consideration of the fact that Plaintiff had been a well-regarded teacher and administrator, the school district [Respondent] elected not to initiate disciplinary proceedings but instead offered Plaintiff a "last chance agreement" requiring Plaintiff to satisfy various counseling and reporting requirements and which provided that if, in the future, Plaintiff tested "positive for alcohol on school grounds or was convicted of an alcohol-related offense, he would be terminated without a hearing under Education Law §3020-a." Plaintiff agreed to the terms set out in this "last chance agreement."*

Subsequently faculty and staff reported that Plaintiff appeared to be intoxicated at a school dance at which he was the administrator in charge. Respondent took no disciplinary action then because it was unable to verify those suspicions by administering a blood alcohol test on petitioner. Shortly thereafter Plaintiff was arrested for driving while intoxicated after he refused a breathalyzer test. 

As the last chance agreement provided for Plaintiff's immediate termination without a hearing only if he tested positive for alcohol or was convicted of an alcohol-related offense, Respondent initiated disciplinary proceedings pursuant to §3020-a of the Education Law. 

The seven charges filed against Plaintiff including allegations that he failed to comply with the last chance agreement and violated school policies by keeping empty alcohol bottles in his desk at school. After a three-day disciplinary hearing, the Hearing Officer sustained all seven charges and accepted Respondent's recommendation that Plaintiff be terminated from his position.

In response to Plaintiff's initiating this proceeding under Education Law §3020-a (5) and CPLR §7511 seeking to vacate the arbitration award, Respondent cross-moved to confirm the arbitration award. Supreme Court vacated certain charges and specifications and certain factual findings of the Hearing Officer and found the penalty to be shocking to the conscience. Respondent appealed and the Appellate Division reversed the lower court's judgment.

In vacating the arbitration award in part, the Supreme Court determined that, among other things, [1] the parties "mutually rescinded" the last chance agreement when they proceeded to arbitration, thus rendering that agreement void and [2] Respondent elected its remedy by proceeding to arbitration, thereby foregoing any prospective disciplinary action against Plaintiff under the last chance agreement. 

In addition, Supreme Court found that the Hearing Officer's recommendation of termination was shockingly disproportionate to Plaintiff's misconduct "inasmuch as that misconduct did not occur on school grounds," remitting the matter to a different hearing officer to conduct a hearing on the appropriate sanction for the charges sustained.

Respondent appealed and the Appellate Division reversed the lower court's judgment, explaining:

1. There was no evidence in the record that, by proceeding to arbitration, the parties intended to cancel or mutually rescind the last chance agreement. Rather, at the disciplinary hearing, both parties agreed that the last chance agreement remained valid and enforceable;

2. Supreme Court erred in its determination that the last chance agreement was rendered unenforceable under the election of remedies doctrine inasmuch as that doctrine has no application to the last chance agreement or to the facts of this case, opining that [i]f it was the intent of the parties to preclude [Respondent] from seeking a penalty for [Plaintiff's] failure to comply with the last chance agreement if [Respondent] 'employed the procedures set forth by [Education Law § 3020-a], it was incumbent upon them to have specifically so stated' in the agreement" and nothing in the agreement indicated that Respondent was limited to disciplining Plaintiff under the last chance agreement for future misconduct or that Respondent could not initiate a disciplinary hearing with respect to Plaintiff's violations of the last chance agreement itself;

3. Supreme Court erred in vacating the Hearing Officer's conduct findings as Education Law §3020-a (5) permits judicial review of a hearing officer's decision but expressly provides that "the court's review shall be limited to grounds set forth in" CPLR 7511 whereby "[a]n arbitration award may not be vacated unless it violates a strong public policy, is irrational, or clearly [e]ceeds a specifically enumerated limitation on the arbitrator's power." In the words of the Appellate Division, "Where, as here, the parties are "subject to compulsory arbitration, the award must satisfy an additional layer of judicial scrutiny—it must have evidentiary support and cannot be arbitrary and capricious ...." and "it must be in accord with due process." and "the record establishes that those findings were rational, had evidentiary support, and were not arbitrary and capricious, impermissibly based on uncharged conduct, or otherwise improper; and

4. Citing Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale and Mamaroneck, Westchester County, 34 NY2d 222, Supreme Court erred in vacating the penalty imposed by the arbitrator, commenting that "Unless an irrationality appears or the punishment shocks one's conscience, sanctions imposed by an administrative agency should be upheld." Given the seriousness of Plaintiff's offenses and his position as a role model for young adults, the Appellate Division said it could not conclude that the Hearing Officer's penalty of termination was shocking to the conscience and in vacating the penalty Supreme Court inappropriately substituted its judgment for that of the Hearing Officer.

* Taylor v Cass, 122 A.D.2d 885, illustrates impact of a settlement agreement providing for a disciplinary probation award that provided that the appointing authority could summarily terminate the employee without any hearing if, in the opinion of his superior, "his job performance was adversely affected by his intoxication on the job during the next six months.”

The decision is posted on the Internet at:


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