Attempting to vacate an adverse arbitration award rendered after a consensual arbitration process

Attempting to vacate an adverse arbitration award rendered after a consensual arbitration process

Transit Workers Union, Local 100 v New York City Tr. Auth., 2017 NY Slip Op 05446, Appellate Division, Second Department

The New York City Transit Authority [CTA] terminated the employment of a member of the Transit Workers Union, Local 100 [Local 100], a bus CTA driver, who had been involved in an incident with a pedestrian. Local 100 filed an Article 75 action seeking a court order vacating an arbitration award that held that CTA had just cause to terminate Local 100's member's employment because of the incident.

The Supreme Court denied the petition and Local 100 appealed.

The Appellate Division sustained the lower court's decision, explaining that "Where, as here, an arbitration award was rendered after a consensual arbitration process pursuant to the terms of a collective bargaining agreement, the award may not be vacated unless it violates a strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation of the arbitrator's power."

Contrary to Local 100's contention that the arbitrator's award was irrational, the Appellate Division ruled that "the arbitrator's award was supported by evidence in the record and is, therefore, rational."

Local 100 also argued that the penalty imposed, termination from employment, was irrational. The Appellate Division said it disagreed and sustained the dismissal of the bus driver from employment by CTA, concluding that the penalty did not violate any strong public policy or clearly exceed an enumerated limitation on the arbitrator's power.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_05446.htm

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A Reasonable Disciplinary Penalty Under the Circumstances - The text of this publication focuses on determining an appropriate disciplinary penalty to be imposed on an employee in the public service in instances where the employee has been found guilty of misconduct or incompetence. Now available in two formats - as a large, paperback print edition, and as an e-book. For more information click onhttp://booklocker.com/books/7401.html

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Suspension of a tenured teacher requires the timely filing of written charges and specifications with the clerk or secretary of the board of education

Suspension of a tenured teacher requires the timely filing of written charges and specifications with the clerk or secretary of the board of education

Decisions of the Commissioner of Education, Decision No. 17,054

After disposing of a number of procedural issues, the Commissioner of Education addressed Petitioner's allegations that she was unlawfully placed on administrative leave with pay without any disciplinary charges having been preferred against her pursuant to Education Law §3020-a in violation of her rights to administrative due process. Holding that this aspect of the appeal submitted by Educator was timely, the Commissioner explained that the "Suspension of a tenured teacher requires a board of education to file written charges with the clerk or secretary of the board (see Education Law §3020-a). Suspension of a tenured teacher without the filing of such charges within a reasonable time is ultra vires and constitutes a continuing wrong.

Turning to the merits of Petitioner's appeal, the Commissioner found that although Petitioner was advised that she was being placed on “paid administrative leave,” there was nothing in the record indicating the reason for her placement on such leave beyond the initial two days. In any event, the Commissioner found that Petitioner had been suspended for more than a year without any charges being preferred against her and that during that time she has been prohibited from coming onto school property. 

The only reason provided by the district for the continuation of Petitioner on such leave was her failure to submit a HIPAA-compliant release and submit to an independent medical examination as requested more than three months after she was placed on such "administrative leave."  However, said the Commissioner, there is nothing in the record to show that the district preferred charges alleging insubordination against Petitioner based on her alleged failure to comply with the district’s directive "to submit to a medical examination, as it is clearly empowered to do."

The Commissioner agreed that a board of education has the right to place an employee on administrative leave pending an investigation and, or pending disciplinary charges being filed against the employee and has the right to require a teacher to submit to a medical examination. However, on this record, the Commissioner ruled that the district’s actions constitute an unlawful suspension in the absence of its timely filing of disciplinary charges against Petitioner. Further, said the Commissioner, the board of education did not introduce any evidence that it was conducting an active investigation during the period of such administrative leave and had not established that it took action to file charges within a reasonable time in compliance with Education Law §2566(6). Further, the Commissioner noted that there was no "viable explanation" for the board's delay in bringing disciplinary charges against Petitioner.

The Commissioner concluded that as Petitioner's suspension was not acted upon in a timely manner, it must be deemed null and void and directed that all references to the suspension challenged by Petitioner be expunged from her record.

Finally, the Commissioner ordered that Petitioner be deemed to be on involuntary sick leave pursuant to Education Law §913 until she submits to a medical examination, indicating "that nothing in this decision precludes [the] board from filing [disciplinary] charges [against Petitioner] in accordance with Education Law §3020-a within the period of limitation prescribed in Education Law §3020-a(1).

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume56/d17054 

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Imposing a lesser disciplinary penalty than the one recommended by the disciplinary hearing officer

Imposing a lesser disciplinary penalty than the one recommended by the disciplinary hearing officer

2017 NY Slip Op 01628, Appellate Division, First Department

The penalty of termination of employment was imposed by a disciplinary hearing officer upon the petitioner in the Article 78 action [Petitioner], a special education home instruction teacher. The hearing officer found that Petitioner had submitted time sheets falsely stating that she had provided instruction to a disabled student and inaccurately indicated that she had reported to certain New York City Department of Education [DOE] schools and libraries over the two-month period in the aftermath of the impact of Hurricane Sandy on New York City and its surrounding area.

There was no question that the hearing officers findings were correct; Petitioner was guilty of all charges and specifications. Petitioner, however, appealed, seeking a court order not to setting aside the findings of misconduct but only an order modifying the penalty imposed on her. Further, Petitioner had acknowledged her error in judgment and pledged to change her practices and never to repeat the error.

Notwithstanding Petitioner's guilt of the charges misconduct filed against her, the Appellate Division ruled that under the circumstances the penalty of termination shocked its sense of fairness and applied the so-called Pell Doctrine [see Matter of Pell v Board of Educ., 34 NY2d 222, 233.

The Appellate Division explained that here there were extraordinary conditions to consider, as well as certain attempts at mitigation undertaken by Petitioner, including the following:

1. Petitioner and her student had been displaced from their homes as a result of Hurricane Sandy and Petitioner, although she had contacted her student's mother, did not provide any educational services to her student.

2. The Department of Education had not provided teachers such as Petitioner with any guidance or information as to the instruction of students displaced by Hurricane Sandy, other than that displaced students would not be penalized.

3. Petitioner had filled out the time sheets in question in advance of the dates to which those time sheets pertained and although she had  no provided instruction to the disabled student on the days indicated in those time sheets, she had instructed other students on each of the dates in question and she would have received the same salary regardless of how many students she had instructed or how many hours she had spent with them, and thus derived no extraordinary benefit from her actions.

4. Prior to Hurricane Sandy Petitioner had an unblemished record over a 17-year period as a special education home instruction teacher and the disabled student's mother had  testified at the disciplinary hearing that Petitioner was a good teacher who worked well with her son and had served his needs more successfully than had other teachers.

The Appellate Division characterized Petitioner's misconduct as "more a matter of lax bookkeeping than implementation of any venal scheme" and no intent to defraud or harm to the public. and any harm to DOE was mitigated. It then explained that "a [disciplinary] result is shocking to one's sense of fairness if the sanction imposed is so grave in its impact on the individual subjected to it that it is disproportionate to the misconduct, incompetence, failure or turpitude of the individual, or to the harm or risk of harm to the agency or institution, or to the public generally visited or threatened by the derelictions of the individuals."

Additional factors to be considered, said the court, "would be the prospect of deterrence of the individual or of others in like situations, and therefore a reasonable prospect of recurrence of derelictions by the individual or persons similarly employed."

Noting that at the hearing Petitioner admitted guilt and acknowledges that her misconduct warrants punishment since the disabled student was deprived of the services of a teacher for two months, the Appellate Division,  . Petitioner does not seek to set aside the findings of misconduct contained in the hearing officer's opinion, but only to modify the penalty imposed on her. She has acknowledged her error in judgment and has pledged to change her practices and never to repeat the error.

Citing Bolt v New York City Dept. of Education, 145 AD3d 450, the Appellate Division said that "There is no evidence that '[Petitioner] could not remedy her behavior'" and that it believed that the penalty of termination, "is disproportionate to the level of [Petitioner's] misconduct and exceeds the standards that society requires to be applied to this offense."

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2017/2017_01628.htm

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A Reasonable Disciplinary Penalty Under the Circumstances - The text of this publication focuses on determining an appropriate disciplinary penalty to be imposed on an employee in the public service in instances where the employee has been found guilty of misconduct or incompetence. Now available in two formats - as a large, paperback print edition, and as an e-book. For more information click on http://booklocker.com/books/7401.html

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