May 04, 2022

Authority to determine that there is "probable cause" to file disciplinary charges pursuant Education Law §3020-a against an individual

The principal of a New York City Department of Education [DOE] school filed disciplinary charges pursuant to Education Law §3020-a against a tenured teacher [Educator] employed at the school alleging Educator was guilty of "various instances" of incompetence, misconduct, and neglect of duty.

At the §3020-a disciplinary hearing Educator moved to dismiss the disciplinary charges on the ground that they were "defective as they fail to adhere to Education Law §3020-a(2)(a)." Educator relied on the fact that the finding of probable cause to file the disciplinary charges was made by the Educator's school principal rather than by the "employing school board."*

The §3020-a hearing officer (1) denied Educator's motion to dismiss the charges; (2) sustained the charges and specifications alleged by the school principal; and (3) determined that the appropriate penalty to be imposed on the Educator was dismissal from the position. 

Educator appealed the hearing officer's determination pursuant to CPLR Article 75 while DOE moved to dismiss Educator's appeal and to confirm the hearing officer's findings, determination and award.

Supreme Court denied DOE's to dismiss Educator's appeal and ultimately granted Educator's petition, explaining that "DOE's failure to submit the charges against [Educator] to the employing board to determine whether probable cause existed [to go forward with the disciplinary action] constitutes a procedural defect depriving [the] Hearing Officer ... of jurisdiction to consider the charges." In the words of the Supreme Court: "[The] Hearing Officer ...  rejected [Educator's] argument, but this Court does not."* DOE appealed the court's ruling.

CPLR 7511(b) sets grounds for vacating an arbitration award. The Appellate Division said that as relevant here, "[t]he award shall be vacated on the application of a party who ... participated in the arbitration ... if the court finds that the rights of that party were prejudiced by ... an arbitrator" who "exceeded his [or her] power."

Rejecting the argument advanced by Educator, the Appellate Division held that "the absence of a vote on probable cause by the 'employing board' (Education Law §3020-a[2]), did not deprive the hearing officer of the jurisdictional authority to hear and determine the underlying disciplinary charges." Rather, as the hearing officer determined, the Chancellor was vested with the authority "[t]o exercise all of the duties and responsibilities of the employing board as set forth in [Education Law §3020-a]."

Further, the Appellate Division determined that "Supreme Court erred to the extent that it concluded, in effect, as an alternative ground for its determination in the order ... that the DOE was required to submit evidence to prove that the Chancellor actually delegated the relevant authority to the principal of [Educator's] school. That issue was not raised before the hearing officer in [Educator's] motion to dismiss, was not asserted in the petition, and was not properly before the Supreme Court."

Under the circumstances, the Appellate Division concluded that "in the absence of any cognizable basis for relief asserted in [Educator's] petition [Supreme Court] should have granted the DOE's motion pursuant to CPLR 404(a) and 3211(a)(7) to dismiss the petition and, pursuant to CPLR 7511(e), to confirm the arbitration award."

* The Appellate Division's decision notes that the hearing officer concluded that a probable cause determination need not be made after a vote by the employing board on probable cause and §2590-h of the Education Law provides the Chancellor of the DOE with "the statutory authority to make a probable cause determination, and to delegate that authority to subordinate individuals within the DOE, including, as relevant here, to the principal of a school."

Click HERE to access the Appellate Division's decision.

 

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