Doctrine of collateral estoppel may bar making of new findings of fact in an administrative hearing

Doctrine of collateral estoppel may bar making of new findings of fact in an administrative hearing
Foster v Commissioner of Labor, 262 AD2d 899

The Carthage Central School District dismissed Sharon Foster after a Section 75 disciplinary hearing officer found her guilty of misconduct in the operation of her school bus. The hearing officer found that Foster had backed up her school bus on a state highway on numerous occasions, although she knew that such a maneuver was unsafe.

Following her dismissal, Foster was denied unemployment insurance benefits on the grounds that she was terminated from her position for “disqualifying misconduct.”

After a number of procedural steps had been completed, an Unemployment Insurance Administrative Law Judge concluded that he was bound by the factual findings of the Section 75 proceeding and held that Foster’s action constituted disqualifying misconduct. The Appellate Division agreed, sustaining the Unemployment Insurance Board’s determination.

The Appellate Division also rejected Foster’s claim that she did not get a fair hearing before the Unemployment Insurance Board’s ALJ because she was not permitted to present a witness who was available to testify. The Appellate Division said that the witness’s testimony was irrelevant once the ALJ concluded that the underlying facts had been established by the final determination in the Section 75 proceeding.

According to the ruling, Foster, who was represented by counsel in the Section 75 disciplinary proceeding, had a full and fair opportunity to litigate all the factual issues concerning the charges of misconduct.

The court said that the factual findings made in during the Section 75 hearing were entitled to be given a collateral estoppel effect and thus Foster was “precluded from relitigating the factual issues” in the course of her unemployment insurance hearing.

In a parallel type of situation, if an employee is found guilty in a court of law of a crime such as stealing, and disciplinary charges are filed related to that same incident of theft, there is no lawful way for an administrative disciplinary hearing officer to find the employee not guilty of stealing. This was the holding in Kelly v. Levin, 440 NY2d 424, a case that challenged the acquittal an employee in an administrative disciplinary action earlier found guilty of a criminal act involving the same allegations.
.

Determining if a demand to submit a grievance to arbitration is subject to the “two-prong test"

Determining if a demand to submit a grievance to arbitration is subject to the “two-prong test"
Matter of Board of Educ. of Deer Park Union Free School Dist. v Deer Park Teachers' Assn., 2010 NY Slip Op 07338, Decided on October 12, 2010, Appellate Division, Second Department

Regina Moraitis was appointed to the position of Computer Teacher and subsequently she was awarded tenure in that area. In January 2009 the petitioner, Deer Park Union Free School District abolished Moraitis's position and terminated her employment.

The Deer Park Teachers' Association filed a grievance on behalf of Regina Moraitis pursuant to a collective bargaining agreement between the Deer Park School Union Free District and the Teachers' Association and ultimately demanded that the grievance be submitted to arbitration. The demand described the nature of the grievance as one for contract interpretation, and asserted that Deer Park had violated the collective bargaining agreement by abolishing Moraitis's teaching position and not offering her an available position.

Deer Park, in the course of the litigation, said that its appointment of Moraitis to the position of Computer Teacher was a mistake it did not discover until years after the appointment and she should have been appointed as a Computer Technology Staff Developer and that the Developer position was not in the collective bargaining unit represented by the Association.

Deer Park commenced an Article 75 proceeding seeking to permanently stay arbitration on the ground that Moraitis did not hold a position within the bargaining unit represented by the Teachers' Association. The Supreme Court denied Deer Park’s petition and dismissed the proceeding. The Appellate Division affirmed the lower court’s ruling.

The Appellate Division said that to determine whether a dispute between a public sector employer and employee is arbitrable the courts apply a “two-prong test” described by the Court of Appeals in Matter of Acting Supt. of Schools of Liverpool Cent. School Dist. (United Liverpool Faculty Assn.), 42 NY2d 509.

The first prong of the test: is any statutory, constitutional, or public policy prohibition against arbitrating the grievance? If there is no prohibition against arbitrating, the second prong of the test is triggered and the court must examine the parties' collective bargaining agreement and determine if they in fact agreed to arbitrate the particular dispute.

As Deer Park did not contend that arbitration of the subject matter of the dispute was prohibited by law or public policy, the only issue to be resolved is whether the parties agreed to arbitrate the particular dispute.

In such a situation, said the Appellate Division, if the arbitration clause is broad enough to encompass the subject matter of a dispute, "[t]he question of the scope of the substantive provisions of the contract is itself a matter of contract interpretation and application, and hence it must be deemed a matter for resolution by the arbitrator," citing Board of Educ. of Lakeland Cent. School Dist. of Shrub Oak v Barni, 49 NY2d 311.

As the Court of Appeals ruled in Matter of Board of Educ. of Watertown City School Dist. v Watertown Educ. Assn., 74 NY2d 912, a stay of arbitration is inappropriate where "the parties' agreement to arbitrate the dispute is clear and unequivocal but there is some ambiguity as to the coverage of the applicable substantive provision of the contract."

Pointing out that the “Recognition Clause” in the collective bargaining agreement “explicitly excludes certain employees,” the court noted that the list of excluded employees did not include either the position of Computer Technology Staff Developer or Computer Teacher.

As Article XIII, Section 1(a) of the collective bargaining agreement defines a grievance terminating in binding arbitration as "a claim based upon interpretation, meaning or application of any provision of this contract" with only claim excluded from Article XIII, Section 1(a) is a claim regarding the denial of tenure, the Appellate Division concluded that collective bargaining agreement clearly provides for arbitration of a dispute involving the proper interpretation of its provisions and, on its face, “the subject matter of the dispute as set forth in the [Association’s] demand for arbitration is arbitrable.”

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_07338.htm
NYPPL

Liability for line of duty injuries

Liability for line of duty injuries
Gonzalez v Iocovello, Appellate Division, 249 AD2d 143, Ct. of Appeals, 93 NY2d 539

The so-called “firefighter’s rule” refers to the strict limits that the courts have placed on the ability of police officers and firefighters to sue co-workers or others for injuries suffered in the line of duty, even if negligence was involved. One notable decision is Santangelo v New York State, 71 NY2d 393, in which the Court of Appeals -- the state’s highest court -- said the firefighter’s rule barred a police officer from suing a co-worker for injuries the officer suffered in the line of duty.

The legislature responded to the Santangelo ruling by enacting Section 205-e of the General Municipal Law in 1989 to nullify it. Essentially, Section 205-e allows a police officer to sue a co-worker and, or, the employer in cases where the defendant’s violation of a law, rule or regulation caused the police officer’s or firefighter’s line of duty injury.*

The ability of police officers to sue, and win damages, when the violation of a law by a fellow officer caused the injury was confirmed by the Court of Appeals in the Gonzalez decision. The case involved New York City police officer Maria C. Gonzalez, who suffered a permanent line of duty injury when the patrol car in which she was a passenger drove through a red light while responding to a “burglary in progress” call and was struck by another vehicle.

Gonzalez sued the city, claiming that she had been injured in the line of duty because her partner violated the Vehicle and Traffic Law. The city, on the other hand, contended that Gonzalez could not sue it on the theory that she suffered the injury as a result of her partner’s violation of a law. But the Court of Appeals disagreed and let her $3,300,000 jury award stand. Finding that there was nothing in Section 205-e to prevent Gonzalez from suing, the court commented that if the legislature had intended to bar such lawsuits, it “could have easily” done so in view of the several amendments to Section 205-e it had enacted.

The decision states that a violation of the Vehicle and Traffic Law is a valid basis for a claim under Section 205-e. The court pointed out that although Section 1104(e) of the V&T Law “allows emergency vehicles to run stoplights and violate other traffic laws in emergency situations,” the emergency vehicle driver is liable for his or her “reckless disregard for the safety of others.’”

In another case decided at the same time, Cosgriff v City of New York, 93 NY2d 539, the Court of Appeals ruled that the city’s failure to keep its sidewalks in “safe repair” violated the City’s Charter and its Administrative Code and thus it could be sued pursuant to Section 205-e by a police officer who tripped on a defective sidewalk while chasing a drug dealer.

* The General Obligations Law allows lawuits by police officers and firefighters injured by the negligence or intentional conduct of any person, except an employer or co-employee (Chapter 703, Laws of 1996). The Court of Appeals said that “[t]he inclusion of the explicit exception in General Obligations Law Section 11-106 magnifies its absence in General Municipal Law Section 205-e,” especially since Section 205-e was amended by the same Chapter 703.
.

Rating the oral test performance by applicants in a civil service examination to be based on objective standards

Rating the oral test performance by applicants in a civil service examination to be based on objective standards
Merlino v Schneider, Ct. of Appeals, 93 NY2d 477

Oral tests are sometimes included as part of the examination for appointment and promotion in the public service. The Merlino case sets out the basic standard used by the courts in reviewing appeals challenging the candidate’s oral test score.

Carmen Merlino challenged her oral test score for an examination for language proficiency. The Court of Appeals held that Merlin’s test results were based on “objective standards,” commenting that the abilities for which candidates would be tested and the substance, form and method of the oral exam were all clearly delineated. Essentially, courts require oral tests to provide a reviewable record and an objective rating scheme to pass judicial scrutiny.

The court said that in this instance:

The oral language exam tested grammar, pronunciation, and vocabulary in the context of a 15-minute extemporaneous conversation. These qualities cannot be measured solely by objective criteria. Although some subjective elements, of necessity, entered into the evaluation, the fact that a subjective element may have been involved to some degree in petitioner's rating is not sufficient in and of itself to invalidate the Department's ultimate determination: "The mandate of the Constitution for the ascertainment of merit and fitness, so far as practicable, by competitive examination, may not be transformed into an interdict against the examinations which are best adapted for the demonstration of fitness. It would be impossible to formulate a standard by which such qualities may be defined or measured with entire objectivity.”
.

Overtime and the Fair Labor Standards Act

Overtime and the Fair Labor Standards Act
Alden v Maine, US Supreme Court, 527 U.S. 706

The question of the enforceability of the Fair Labor Standards Act’s [FLSA] mandates concerning overtime with respect to employees in the public service, especially those engaged in law enforcement and firefighting, has been an issue for a number of years.

In Alden v Maine the U.S. Supreme Court held that federal courts do not have jurisdiction to adjudicate alleged FLSA violations insofar as states are concerned, nor does a state court have jurisdiction to consider a state’s alleged FLSA violations without the consent of the state. Why? Because the 11th Amendment, which provides states with sovereign immunity, bars such lawsuits in federal court.

In the words of the High Court, “Congress lacks power under Article I to abrogate the States’ sovereign immunity from suits commenced or prosecuted in the federal courts.” Further, the court held that “the powers delegated to Congress under Article I of the United States Constitution do not include the power to subject nonconsenting states to private suits for damages in state courts.” This means that state workers are unable to sue their employer concerning alleged FLSA violations unless it has consented to such suits.

However, the “overtime provision” set out in Section 134 of New York’s Civil Service Law preceded Congress’ attempt to make the states subject to FLSA. Accordingly, it could be argued that New York State, as an employer, did not “deliberately” waived its Eleventh Amendment immunity from suit by state workers for alleged violations of the FLSA in federal court based on the decision in Mueller v Thompson.

If a state adopts the FLSA as state law and allows state employees to sue it for alleged violations of the state’s law, it loses its Eleventh Amendment immunity from suit by its employees brought in the federal courts for alleged violations of the federal FLSA [Mueller v Thompson, 858 F.Supp. 885].

In Mueller, where Wisconsin was the employer, the court said that there is no waiver of a state’s Eleventh Amendment immunity “unless the state has made its intention to waive its rights under the amendment clear.” Wisconsin had incorporated FLSA into state law in 1971. In 1974 Congress amended the FLSA, making it applicable to the states and their political subdivisions. The 7th Circuit concluded that “on this legislative history” Wisconsin had not waived its 11th Amendment immunity because it adopted a state FLSA prior to 1974. Does this mean that payment for overtime is no longer required to be paid to employees of New York State? No, for a number of reasons.

Section 134 of the Civil Service Law provides for the payment of overtime at “time and one-half” to eligible state workers. Alleged violations of Section 134 - a state law - may be tested in state court. In addition, collective bargaining agreements negotiated pursuant to the Taylor Law may require payment for overtime. Violation of such types of provisions are typically subject to contract grievance arbitration procedures.

What about suing a political subdivision of a state for alleged violations of FLSA in federal court? According to the Alden ruling there is an “important limit” to the principle of sovereign immunity barring suits against States -- the immunity does not extend to suits prosecuted against a municipal corporation or other governmental entity that is not an arm of the State.
.

The employee organization's duty of fair representation

The employee organization's duty of fair representation
Pietraszewski and CSEA Local 1000, 32 PERB 3019

Does a union’s duty of fair representation require it to provide assistance -- financial or legal -- simply because a unit member wishes to file a lawsuit against his or her employer? This was the significant question raised by Arthur Pietraszewski, Jr. when he filed an improper practice charge against CSEA Local 1000.

CSEA Local 1000 declined to represent Pietraszewski in his age discrimination lawsuit against the state. It also refused to reimburse him for the fees he paid to a private attorney whom he retained to represent him in that lawsuit.

Contending that CSEA’s actions violated its duty of fair representation, Pietraszewski filed improper practice charges against CSEA with PERB.

CSEA told PERB that it decided not to provide Pietraszewski with legal assistance or financial support in his lawsuit because, after reviewing his allegations, it believed that his case was “not sufficiently meritorious for CSEA to take it on.”

PERB dismissed Pietraszewski’s complaint, commenting that a union enjoys “wide latitude” with respect to the investigation and prosecution of contract grievances. In other words, the union can exercise its discretion with respect to filing the grievance or prosecuting the grievance beyond a particular step in the grievance procedure.

This same “wide latitude,” said PERB, is equally applicable with respect to a union’s decision regarding its providing legal services concerning matters arising outside the collective bargaining agreement.

PERB found that CSEA had made its decision in good faith, commenting that even if CSEA were in error regarding the merits of Pietraszewski’s age discrimination allegations, that judgmental mistake would not constitute a breach of its duty of fair representation.

According to the ruling, having properly denied Pietraszewski’s request for representation, CSEA was not required reimburse him for his attorney’s fees and other expenses he may have incurred in pursuing the litigation he initiated.

In another case duty of fair representation case, Brignoni and Council 82, 32 PERB 3020, PERB said that settling a grievance under terms that may adversely affect some, but not other, unit members does not support a finding that the employee organization violated its duty of fair representation without evidence of arbitrary or discriminatory action or bad faith on the part of the employee organization, citing United University Professionals, 22 PERB 3013.
.

Accidental disability retirement

Accidental disability retirement
Bloom v City of New York, NYS Supreme Court, 7/99, Justice Braun [Not selected for publication in the Official Reports]

Bloom, a guidance counselor for the New York City School District, filed a grievance contending that she was disabled as a result of her inhaling toxic substances that arose from construction, repairs, and renovation of her school. Former New York City Board of Education Chancellor Joseph Fernandez sustained her grievance, holding that Bloom had suffered “a line of duty injury.”

But when Bloom filed an accidental disability retirement application with the New York City Teachers’ Retirement System [TRS], TRS held that her injuries were not causally related to the alleged exposure to construction materials and rejected her application. TRS’ decision was upheld by the courts (Bloom v TRS, 233 AD2d 254, dismissed in part and denied in part, 90 NY2d 838.

Bloom then sued the district and the City for “a personal injury,” negligence and reckless conduct. The board of education moved for summary judgment, arguing that TRS’s determination “has a collateral estoppel effect.”

Bloom, also relying on “collateral estoppel,” asked the court for summary judgment based on the favorable grievance determination by the Chancellor, contending that the Chancellor’s determination constituted an admission of the district’s liability.

As to the board’s claim of collateral estoppel, the court explained that Bloom had “voluntarily chose to participate in the adjudicative resolution process of TRS by applying for benefits, and thus she may fairly be collaterally estopped by the TRS determination.”

With respect to Bloom’s argument, the court said that the Chancellor’s acknowledgement of the causal connection in the grievance adjudication normally would be a binding admission against the board.

Justice Braun said that although “... a quasi-judicial agency determination can have a collateral estoppel effect” that would bar further litigation; here there are “two conflicting decisions.” Therefore, the court concluded, “logically they must be held to cancel out each other.”

Since there is a significant issue of fact exists as to whether the actions and inactions of board was the proximate cause of Bloom’s injuries, granting summary judgment to either Bloom or the board would not be appropriate.

Accordingly, a trial was required.
.

Union sued for negligence for allegedly providing misinformation concerning retirement benefits

Union sued for negligence for allegedly providing misinformation concerning retirement benefits
Grahame v Rochester Teachers Association, 262 AD2d 963, motion to appeal dismissed, 94 NY2d 796

May a union be sued for alleged negligence with respect to information it provided to a member? This was the question presented by Harriet E. Grahame, as the executrix of the estate of Carole A. Wemett. Grahame is suing the Rochester Teachers Association for negligence, alleging that it provided Wemett with “erroneous information ... regarding her retirement benefits.” The Appellate Division has upheld a State Supreme Court’s refusal to dismiss Grahame’s negligence action.

The association attempted to have the case dismissed because Grahame “failed to allege that the individual members of defendant union ratified the acts of their representative.” The Appellate Division said that it was unnecessary for Grahame to do so as her action against the union is based on the negligence of its agent “in the course of performing an essential activity of the [union].” Also rejected was the association’s argument that Grahame’s complaint “is in essence one for breach of the duty of fair representation but is couched in terms of negligence in order to circumvent the Statute of Limitations and evidentiary problems.”

The Appellate Division said that because the collective bargaining agreement does not address employees’ retirement benefits, “the alleged negligent misrepresentation action was not subsumed by the duty of fair representation.”
.

Terminated employee’s back pay settlement obviates individual’s claim for unemployment insurance benefits for the period covered by the settlement

Terminated employee’s back pay settlement obviates individual’s claim for unemployment insurance benefits for the period covered by the settlement
Matter of Glick v Commissioner of Labor, 2010 NY Slip Op 07103, decided on October 7, 2010, Appellate Division, Third Department

Joseph Glick was terminated from his position with the Office of Children and Family Services on October 27, 2005. He applied for and received unemployment insurance benefits in the amount of $10,165.50, covering the period from November 2005 through May 2006.

Subsequently Glick sued Children and Family Services alleging wrongful discharge. Ultimately the matter was settled and Glick received $92,317.15 in back pay covering the period between his termination in October 2005 and May 1, 2008.

The Department of Labor then notified Glick that, in light of the settlement, he was no longer entitled to the unemployment insurance benefits he received because he was not totally unemployed "at that time." When Labor Department charged Glick with a recoverable overpayment of unemployment benefits in the amount of $10,165.50, he sued.

The Appellate Division affirmed Labor’s determination, holding that a lump-sum payment of back pay constitutes wages for the purpose of determining benefits and, therefore, the Board's determination that Glick was not totally unemployed and the overpayment was recoverable is supported by substantial evidence.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_07103.htm
NYPPL

Collateral estoppel

Collateral estoppel
Jaworowski v NYC Transit Authority, 2nd Circuit, 182 F. 3d 900, Cert. denied, 99–542

The doctrine of collateral estoppel prevents a party from relitigating issues previously considered by one forum in a second forum. The doctrine is based on the concept that a party may not relitigate an issue if the identical issue was necessarily decided in a previous proceeding, provided that the party against whom collateral estoppel is being asserted had a full and fair opportunity to litigate the issue in the prior action.

The Jaworowski case demonstrates the elements considered by courts when determining whether the doctrine applies in a particular situation with respect to whether or not the identical issue was decided in a previous proceeding or whether there was an opportunity for such issues to be considered.

Leonard Jaworowski was terminated from his position with the New York Transit Authority following a disciplinary arbitration. He brought an Article 75 action in State Supreme Court in an effort to have the arbitration award vacated. Unsuccessful in this effort, Jaworowski next filed a lawsuit in federal district court pursuant to 42 USC Section 1983 alleging “various constitutional infirmities in an arbitration proceeding arising out of disciplinary charges brought against him by the Authority.”

The Authority claimed Jaworowski’s federal action was barred under the doctrine of collateral estoppel because he already had “his day in court” on these issues as a result his bringing an Article 75 action. The district court agreed, ruling that Jaworowski was estopped from suing on these claims because they had been previously litigated in his Article 75 action brought in New York state court. The Circuit Court of Appeals affirmed the lower court’s ruling.

Jaworowski’s major argument was that the doctrine of collateral estoppel should not bar his federal suit because the claims he was asserting in his Section 1983 complaint were not identical to those he litigated in state court. His reason was that the standards of review of arbitrations differ between New York state courts and federal courts.

According to Jaworowski, to prevail in state court he would have had to prove that the alleged due process violations rendered the arbitration irrational, while in federal court he need only show that the arbitration violated due process.

The Circuit Court of Appeals said that his argument “mistakenly conflates two different grounds for setting aside an arbitration under New York law.” Although one ground for vacating an arbitration decision is to show that the award is “totally irrational,” a court applying New York law will also vacate an arbitration if it finds that the arbitration violated due process, citing Beckman v Greentree Securities, Inc., 87 NY2d 566.

The Circuit Court said that the district court correctly dismissed his Section 1983 action because New York State courts do not review constitutional challenges to arbitration decisions more deferentially than do federal courts.
.

Union takes disciplinary action against union member

Union takes disciplinary action against union member
Perez v Local 39, IUOE, USDC EDNY

Can a union member slander his or her union leadership and avoid internal union discipline? Yes, as the Perez case shows.

The membership of Local 39, International Union of Operating Engineers, disciplined Richard Perez for “willfully slandering and libeling another member of the Union.” The penalty imposed: a fine of $4,177 and an order directing Perez to write letters of apology.

The General Executive Board of the International upheld the decision, but reduced the fine to $2,088.50 on the condition that the Perez “apologize.” Perez refused to apologize, and was barred from attending the meetings of Local 30.

Perez sued, contending that his “free speech” rights, guaranteed by Section 101(a)(2) of the Labor Management Reporting and Disclosure Act of 1959 (LMRDA), 29 USC. Section 411(a)(2), were violated.

A federal district court judge agreed, noting that the Second Circuit U.S. Court of Appeals, which has jurisdiction in New York, Connecticut and Vermont, has interpreted LMRDA “liberally.”

The U.S. District Court for the Eastern District of New York ruled that the LMRDA protects union members’ rights to freely express their opinions about union matters, even where that expression amounts to libel or slander,” citing DeCarlo v. Salamone, 977 F. Supp 617.

Section 101(a) (2) of the LMRDA, 29 USC. Section 411(a) (2), provides, in relevant part, that “Every member of any labor organization shall have the right to ... express any views, arguments, or opinions ... provided, that nothing herein shall be construed to impair the right of a labor organization to adopt and enforce reasonable rules as to the responsibility of every member toward the organization as an institution and to his refraining from conduct that would interfere with its performance of its legal or contractual obligations” [29 USC. Section 411(a) (2)].

The Local’s membership took disciplinary action against Perez because he wrote “a scathing letter” to Frank Hanley, the General President of the International Union of Operating Engineers, complaining about alleged retaliation he suffered after a 1995 union election. The court said that “whether or not [the Local] may have been justified in disciplining [Perez] for some other reason, their inclusion of the charge of libel ran afoul of [his] rights under the LMRDA.”
.

Appeal of an administrative disciplinary action must be presented to the proper forum

Appeal of an administrative disciplinary action must be presented to the proper forum
Westhampton Beach UFSD v Ziparo, 275 A.D.2d 411

School districts can pursue disciplinary charges against school employees in three different ways: (1) under Section 75 of the Civil Service Law (for employees in the classified service); (2) under Section 3020-a of Education Law (for teachers and others in the unclassified service); or, in some cases, (3) under an arbitration provision set out in of collective bargaining agreement. Appeal procedures, depend on the nature of the disciplinary action involved.

Typically disciplinary action taken pursuant to Section 75 may be appealed to either the courts as provided by Article 78 of the Civil Practice Law and Rules [CPLR] or the responsible civil service commission.

Disciplinary action taken pursuant to a “disciplinary arbitration procedure” (such as the one provided by Section 3020-a or by an arbitration provision of a collective bargaining agreement) is subject to review pursuant to Article 75 of the CPLR.*

The Westhampton Beach UFSD case involved the appeal of a disciplinary determination by hearing officer who heard charges filed under Education Law Section 3020-a. Westhampton Beach challenged the hearing officer’s Section 3020-a determination by bringing an Article 78 action rather than pursuant to CPLR Article 75. In other words, the district tried to appeal a Section 3020-a disciplinary procedure under the appeals procedure ordinarily available in appealing Section 75 disciplinary decisions.

The case involved a teacher named Ziparo who was found guilty by a Section 3020-a hearing officer of inflicting corporal punishment on several students by striking them with a belt. [On one occasion, the teacher allegedly “pushed a student and issued vulgarities.”]

In light of the teacher’s “otherwise 23 year unblemished teaching record” with the district, the hearing officer recommended that the teacher “be suspended without pay for one year, from February 1, 1999 until January 31, 2000, subject to being certified to return to his teaching duties by a mutually agreed upon psychiatrist.”

In an effort to have the teacher terminated from his employment, the district filed a petition pursuant to Article 78. It contended that the hearing officer’s recommendation was irrational and violative of public policy. It argued that the hearing officer’s decision was subject to review under Article 78 because the award was arbitrary, capricious and an abuse of discretion.

The Court dismissed the appeal, saying that any judicial review of a Section 3020-a determination is controlled by CPLR Article 75 rather than CPLR Article 78. It cited Section 3020-a(5) of the Education Law, which provides that “...the employee or the employing board may make an application to the New York State Supreme Court to vacate or modify the decision of the hearing officer pursuant to Section 7511 of the Civil Practice Law and Rules.”

Accordingly, the standard of review to be applied was the standard set out in Section 7511 of the CPLR and not the standard used in resolving an Article 78 action.

CPLR 7511(b)(1) allows a court to vacate or modify an award if it finds [a] Corruption, fraud or misconduct in procuring the award; or [b] Partiality of an arbitrator appointed as a neutral, except where the award was by confession; or [c] An arbitrator, or agency or person making the award exceeded his power or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made; or [d] Failure to follow the procedure of this article, unless the party applying to vacate the award continued with the arbitration with notice of defect and without objection.

In addition, courts have held that an arbitration award may be vacated if it is inconsistent with a “strong public policy.”

Supreme Court Judge Floyd said that applying the criteria set out in Section 7511, there was nothing in the record before the court that justified the modification or vacating of the hearing officer’s recommendation to impose a one-year suspension without pay rather than termination as the penalty. The Appellate Division agreed.

The decision noted that Section 3020-a permits a hearing officer to impose a variety of penalties including a written reprimand, a fine, a suspension for a fixed time without pay, or dismissal. Further, in lieu of imposing any of these penalties, “the hearing officer is also empowered to impose remedial action upon the employee including directing the employee to seek counseling or medical treatment.”

Confirming the arbitration award, the court said that the hearing officer was well within his authority to direct Ziparo’s suspension for one year and that his return to his teaching duties was to be conditioned upon his being certified as fit for duty by a psychiatrist.

Given the charges and Ziparo’s otherwise unblemished record, the court decided that a one year suspension without pay was “a significant financial penalty, reflecting the seriousness of the charges preferred and proven by the district and cannot be construed as irrational.”

The decision also states that the hearing officer was within his authority to condition Ziparo’s return to his teaching duties upon a certification by a mutually agreed upon psychiatrist. The court indicated that “such [a] condition is remedial in nature, does not violate Section 913 of the Education Law and insures that the District’s, the hearing officer’s, and the teacher’s concerns regarding his fitness to continue [in] his profession are judged by an impartial objective evaluation.” [Section 913 provides for the medical examination of teachers and other school district or BOCES employees “by a physician of his choice” or a physician selected by the district.]

* Before Section 3020-a was modified by the state Legislature in 1994, individuals would appeal a 3020-a disciplinary decisions to the Commissioner of Education. For this reason, one occasionally finds references to disciplinary appeal decisions by the Commissioner.

============================================
If you are interested in learning more about disciplinary procedures involving public officers and employees, please click here: http://thedisciplinebook.blogspot.com/
============================================
.