Appellate Division affirms Supreme Court's vacating an arbitration decision and award issued by a Hearing Officer

Supreme Court granted the Board of Education of the City School District of the City of New York's [BOE] petition to vacate an arbitration decision and award issued by the Hearing Officer. The Appellate Division unanimously affirmed the Supreme Court's ruling.

BOE had filed disciplinary charges against a tenured social worker [Employee] at the Department of Education pursuant to §3020-a of the Education Law "following investigations into allegations that [Employee] had inappropriately touched his then-girlfriend's daughter (Student A) on multiple occasions between 2012 and 2014, beginning when she was 12 years old."

At Employee's §3020-a disciplinary hearing, BOE called a number of witnesses and submitted an order of fact-finding and disposition issued by Family Court, which, among other things, found Employee guilty of sexually abusing Student A and ordered him to complete a sex offender program. 

The Hearing Officer dismissed all seven specifications filed against Employee, finding that the evidence did not support BOE's charges against him. BOE  initiated a CPLR Article 75 proceeding challenging Hearing Officer's decision.

Citing Matter of Asch v New York City Bd./Dept. of Educ., 104 AD3d 415, the Appellate Division opined that Supreme Court "properly vacated the Hearing Officer's award, as it was not rational or supported by adequate evidence." 

The Appellate Division's decision notes that the Hearing Officer's finding "that Student A's failure to testify at the hearing violated [Employee's] due process rights is erroneous", explaining that due process "requires only that [the accused] have the opportunity to call witnesses and present evidence at the hearing, which [Employee] did."

In addition, the Appellate Division's decision states that the Hearing Officer "disregarded the testimony of witnesses from the [New York Police Department] and various state agencies who interviewed Student A and investigated her allegations regarding [Employee] on grounds that it was 'hearsay' evidence." The Appellate Division's decision then pointed out that "Hearsay is admissible in [administrative] disciplinary proceedings," citing Education Law §3020-a[3][c] and Matter of Smith v New York City Dept. of Educ., 109 AD3d 701, leave to appeal denied, 22 NY3d 856.

In the words of the Appellate Division:

The Hearing Officer's rejection of Family Court's order of fact-finding and disposition finding [Employee] guilty of child sexual abuse, on the sole basis that the disciplinary proceeding requires de novo review, was also irrational (see e.g. Matter of Board of Educ. Of Dundee Cent. School Dist. [Coleman], 96 AD3d [*2]1536, 1538-1539 [4th Dept 2012]). In reaching its determination, Family Court reviewed evidence and testimony from 11 witnesses, including Student A and investigators from various state agencies, during its fact-finding hearing. The Hearing Officer similarly ignored or gave minimal weight to the numerous pieces of evidence supporting BOE's specifications while misconstruing witness testimony to find that Student A's allegations were not credible. Given that stricter judicial scrutiny is applied to determinations rendered in compulsory arbitration (see Lackow, 51 AD3d at 567; Austin v Board of Educ. of City School Dist. of City of N.Y., 280 AD2d 365, 365 [1st Dept 2001]), BOE more than met its burden of showing that vacatur of the award is warranted.

Click HERE to access the Appellate Division's decision posted on the Internet.

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