Challenging a Section 3020-a disciplinary decision

Challenging a Section 3020-a disciplinary decision
Great Neck UFSD v Brandman, Appellate Division, 286 AD2d 735 

It is not a simple task to overturn an arbitration award as the Great Neck decision demonstrates.

The Great Neck Union Free School District attempted to vacate or modify a Section 3020-a disciplinary arbitration award by filing a petition pursuant to Article 78 of the Civil Practice Law and Rules [CPLR]. Its efforts were rebuffed by Nassau Supreme Court Justice Ralph Franco.

The Appellate Division sustained Justice Franco’s ruling, holding:

The Supreme Court properly confirmed the Hearing Officer's determination since the petitioner did not demonstrate any basis for vacating it under CPLR 7511 (see, Education Law § 3020-a [5]; Matter of Board of Educ. v Ziparo, 275 AD2d 411; cf., Matter of Board of Educ. v Yusko, 269 AD2d 445, 446). The Hearing Officer's determination has a rational basis and is supported by the record (see, CPLR 7801; Matter of Fischer v Smithtown Cent. School Dist., 262 AD2d 560).

The district had filed Section 3020-a charges against school psychologist Edward Brandman. The charges included allegations that Brandman:

1. Had an intimate sexual relationship with the mother of students under his care;

2. Failed to disclose this relationship to his supervisors;

3. Discouraged the mother from terminating her relationship with him; and

4. Discouraged the mother from reconciling with the natural father of the children.

Arbitrator Joseph P. Sireman had found Brandman guilty of professional misconduct. The penalty imposed: a two-year suspension without pay. The hearing officer said that the penalty imposed reflected Brandman’s otherwise [22 year] unblemished employment record with the district.

In response, the district filed a petition pursuant to Article 78 of the CPLR, contending that as a matter of public policy, the award be vacated and [Brandman] terminated.

Justice Franco dismissed the district’s petition seeking to vacate the award for a number of reasons.

He first noted that Section 3020-a(5) provides that appeals from such determinations must be filed within ten days of its receipt pursuant to Article 75, Section 7511 of the CPLR rather than pursuant to Article 78 of the CPLR.*

The court also pointed out that the basis for challenging an arbitration award under Article 75 is very limited. Among the reasons for asking a court vacate such an award are the following:

1. The award resulted from corruption, fraud or misconduct in procuring the award; or

2. Partiality on the part of the arbitrator; or

3. The arbitrator exceeded his or her authority or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made.

The court found nothing in the record to suggest any such basis for overturning the arbitrator’s award existed.

Justice Franco concluded that [g]iven the charges and [Brandman’s] otherwise unblemished record, the hearing officer’s determination imposing a two year suspension without pay is a significant financial penalty, reflects the seriousness of the charges offered as proven by the district and cannot be construed by this Court as irrational or against public policy.

Justice Franco also commented that his analysis cannot change because the facts or implications of a case might be disturbing, or because an employee’s conduct is particularly reprehensible.

As to the district’s public policy argument, the court said that an alleged violation of public policy is not one of the justifications set out in Article 75 for vacating an arbitrator’s determination.

In certain cases, however, the courts have adopted a violation of a strong public policy standard when considering petitions to vacate an arbitrator’s award.

For example, in Matter of the Town of Callicoon, 79 NY2d 907, the Court of Appeals has ruled that a court could vacate an arbitrator’s award if it determines that the award violated a strong public policy.

More recently, noted Justice Franco, the Court of Appeals addressed the public policy exception as justification for overturning an arbitrator’s award. In State Correctional Offices [Kuhnel] and Police Benevolent Association v State, 94 NY2d 321, it said that:

The public policy exception has its roots in common law, where it is well settled that a court will not enforce a contract that violates public policy. A court, however, may not vacate an award on public policy grounds when vague or attenuated considerations of a general public interest are at stake.

The Kuhnel case involved a State corrections officer, Edward Kuhnel, who was suspended from duty and served with disciplinary charges after the Department of Correctional Services learned that he flew a Nazi flag from the front porch of his home on December 10, 1996 -- the 55th anniversary of Hitler’s declaration of war on the United States.

The arbitrator dismissed the charges and the department sought to vacate the award on the theory the arbitrator’s ruling concerning Kuhnel’s off-duty activities violated a strong public policy. The Court of Appeals sustained the arbitrator’s determination, holding:

… looking at the only prong of the public policy exception argued before this Court, we conclude that the award does not violate a well-defined constitutional, statutory or common law of this State.

In another Section 3020-a disciplinary action that involved considering public policy with respect to the penalty imposed, the Appellate Division, Second Department, found that a disciplinary penalty consisting of counseling, remediation, and a 60-day suspension, violated a strong public policy.

East Hampton Union Free School District teacher Jeffrey Yusko was found guilty of unwanted and inappropriate physical contact and verbal conduct ... with the students entrusted to his care over the course of three school years.

East Hampton filed an Article 75 petition seeking to vacate the penalty imposed by the hearing officer. A State Supreme Court judge granted the district’s petition and directed it to terminate Yusko.

The Appellate Division sustained the lower court’s granting the district’s petition as far as it vacated the penalty imposed by the hearing officer but held that the Supreme Court had exceeded its authority when it substituted the penalty of dismissal.

The court said the lower court should have remanded the matter for a rehearing before a different hearing officer and that a new determination on the issue of the penalty to be imposed should be made by the new hearing officer [East Hampton Union Free School District v Jeffrey Yusko, 269 AD2d 445]. 

* Section 3020-a.5 provides: Appeal. Not later than ten days after receipt of the hearing officer's decision, 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 seven thousand five hundred eleven of the civil practice law and rules.
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Workers found guilty of a “slow-down” in completing their assigned tasks based on circumstantial evidence

Workers found guilty of a “slow-down” in completing their assigned tasks based on circumstantial evidence

Department of Sanitation v Venning, OATH Index #763/11 and Index #764/11

Two New York City sanitation workers were charged with willfully failing to complete their route.

OATH Administrative Law Judge Tynia Richard found that circumstantial evidence supported the inference that the workers intentionally slowed their pace, and recommended a five-day penalty as to each worker for that charge.

One employee was also charged with disobeying an order from a supervisor, directing profanity at her, and recklessly driving away while she was stepping away from the truck, all of which charges were sustained.

ALJ Richard recommended a 30-day suspension without pay for that incident.

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/11_Cases/11-763.pdf

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Employee claims coercion in his agreeing to a demotion in lieu of disciplinary action

Employee claims coercion in his agreeing to a demotion in lieu of disciplinary action
Pagano v Port Authority, 270 AD2d 206

The Employment Relations Panel of the Port Authority of New York and New Jersey affirmed Authority Police Sergeant Frank Pagano agreement to accept a demotion to patrol officer.

Pagano sued, seeking reinstatement to his former position. Pagano claimed that his agreement to the demotion was coerced. The Appellate Division rejected his petition. The court decided that the Panel’s determination may not be disturbed since substantial evidence supports the Panel’s decision that “the Port Authority did not unduly influence or coerce petitioner’s request for demotion from the rank of sergeant to that of police officer.”

Coercion is an issue that sometimes emerges in the course of a disciplinary settlement. An individual may claim that he or she was threaten with disciplinary action if he or she declined to resign or refused to agree to some personnel change demanded by the appointing authority.

The Court of Appeals addressed this question in Rychlick v Coughlin, 63 NY2d 643.

Rychlick, a state correction officer, was told that unless he immediately submitted his resignation, formal disciplinary charges would be filed against him. He submitted his resignation.


A few days later, claiming that he had been forced to submit his resignation, Rychlick attempted to withdraw it. The department refused to allow him to withdraw the resignation and Rychlick sued on the grounds that it had been obtained under duress and thus was void.

The general rule is that a resignation must be in writing and once submitted, its withdrawal or recession requires the approval of the appointing authority.

The Court of Appeals, upholding Corrections’ refusal to allow Rychlick to withdraw the resignation, said that threatening an employee with disciplinary action if he or she did not resign did not constitute duress since the appointing authority had the legal right to file such charges.

The basic principle: threatening to do what one had the legal right to do does not constitute duress.

Another aspect of demanding that an individual submit his or her resignation or face disciplinary charges: such a resignation may be considered in determining the individual’s eligibility for public employment in the future.

Civil Service Law Section 50.4(e) authorizes the State Department of Civil Service or a civil service commission to disqualify an applicant or employee “who has been dismissed from a permanent position in the public service upon stated written charges of incompetence or misconduct, after an opportunity to answer such charges in writing, or who has resigned from, or whose service has otherwise been terminated in, a permanent or temporary position in the public service, where it is found after appropriate investigation or inquiry that such resignation or termination resulted from his incompetency or misconduct, provided, that in cases of dismissal, resignation or termination after written charges of incompetency, the examination or certification in question be for a position that requires the performance of a duty or duties which are the same as or similar to the duty or duties of the position from which the applicant has been dismissed, resigned or terminated on account of incompetency”.
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Public policy exception to compelling arbitration

Public policy exception to compelling arbitration

Matter of Mineola Union Free School Dist. v Mineola Teachers' Assn., 37 AD3d 605

The Appellate Division affirmed a Supreme Court ruling dismissing a motion for a preliminary injunction staying arbitration filed by the Mineola Union Free School District and granting the Mineola Teachers’ Association’s motion to compel arbitration.

After holding that “the subject of the claim sought to be arbitrated is the type authorized by the Taylor Law,” the Appellate Division explained:

Contrary to the District's contention, an arbitrator's award in favor of the Association would not violate public policy.

The court noted that “The public policy exception to parties' power to agree to arbitrate disputes, and an arbitrator's power to resolve disputes, is a narrow one,” applying only in situations where “the award itself [would] violate a well-defined constitutional, statutory or common law of this State.”

In this instance, the Appellate Division concluded that “no law prohibits an award validating the procedures enumerated” in an article set out in the collective bargaining agreement between the parties.

The public policy exception in arbitration was considered by the Court of Appeals in NYC Transit Authority v Transport Workers Union of America, 99 NY2d 1

The decision is posted on the Internet at:

http://nypublicpersonnellawarchives.blogspot.com/2007/02/public-policy-exception-to-arbitration.html
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The date of the certification of the candidate for appointment rather than the date a candidate's name is reachable for appointment controls

The date of the certification of the candidate for appointment rather than the date a candidate's name is reachable for appointment controls
Matter of Woods v New York City Dept. of Citywide Admin. Servs., 2011 NY Slip Op 02719, Court of Appeals

Among the qualifications for appointment as New York City firefighter was that the candidate, by the date of appointment, have “successfully completed 30 semester credits from an accredited college or university or obtained a four-year high school diploma and completed two years of honorable full-time U.S. military service.”

Robert Thomas Woods passed a civil service examination and his name was placed on a list of eligibles to be appointed as a New York City firefighter.

Woods did not meet these requirements at the time he sat for the examination nor did he meet them at the time his name was initially reached for appointment as a firefighter. However, Woods was on active military duty when his name was initially reached on the list.

When Wood was discharged from military service he filed an "Application Under State Military Law for Determination of Rights on Eligible List" with the New York City Department of City-wide Administrative Services [DCAS] for “a determination of his rights under Military Law §243.” §243, in pertinent part, provides that any person whose name is on an eligible list and comes up for certification while on duty, shall have his or her name placed on a special eligible list if a request is made within 90 days of his or discharge from active duty.

DCAS decided that Woods’ name could not be placed on a special eligible list because on the date when his name initially had been reached for appointment from the list, he was not qualified for appointment on that date.

The Court of Appeals disagreed, holding that Military Law §243(7) required DCAS to place petitioner on a "special eligible list", from which he could be certified for appointment after his military duty ended. The court explained that so long as Woods met the qualifications for appointment when the time to certify him for appointment arrived, it did not matter that he did not satisfy them when his name was first reached for certification for appointment from the list, at which time he was on military duty.

DCAS, said the court, “misconceived the statutory scheme,” pointing out that §243(7), by using the word "shall" rather than "may" gives DCAS no discretion to refuse to put names on a special eligible list.

Although Civil Service Law §50.4 allows DCAS to exercise its discretion not to certify names of people who do not meet the required qualifications, that discretion, said the Court of Appeals, may be exercisable at the time when the decision about such certification is made — here when Woods’ name “was or should have been reached on the special list” and certified for appointment.

Accordingly, said the court, Supreme Court and the Appellate Division determinations that Woods’ name should not be placed on a special military eligible list were incorrect and must be vacated.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_02719.htm
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