Appealing an Education Law Section 3020-a arbitration award

Appealing an Education Law Section 3020-a arbitration award
Tarasow v NYC Dept. of Educ., 21 Misc 3d 1113(A)

Helen Tarasow, a tenured a guidance counselor employed by the New York City Department [DOE], was ordered removed from her school and subsequently disciplinary charges were filed against her alleging [1] that Tarasow failed to notify school authorities and parents of a12-year-old student counseled by her that the student exhibited “intentionally made scratches or cut marks on her wrists,” and [2] Tarasow failed to keep proper files and records for each assigned student, or to properly monitor and document students' progress and results of guidance interventions. A hearing on the charges pursuant to Education Law § 3020-a was held and the arbitrator concluded that:

1. DOE had proved the first specification, noting among other things, that a self-inflicted series of "cuts," "would certainly raise grave suspicion as to the mental state of the person," and that Tarasow should have reported her suspicion rather than allowing the child to go home alone; and

2. Although Tarasow has had "some training in psychotherapeutic counseling," she wrongly usurped the role of a psychiatrist or psychologist instead of reporting the self-inflicted cuttings, and that it was irrelevant that the psychiatric evaluation found the student not to be suicidal given his finding that Tarasow lacked the authority and was not empowered to make a determination about the student's mental status.

3. Tarasow proved that her files were likely discarded.

The Arbitrator concluded that "is no doubt [Tarasow] is a caring, dedicated Guidance Counselor," that her actions "were not borne of neglect," that she "truly believed she was doing the right thing," and that terminating her employment would "deprive the students of an individual who can and does provide effective counseling to students." However, noted the Arbitrator, Tarasow expressed no remorse for her actions, but only a "grudging acceptance of the requirement to do [the right thing] to stay out of trouble."

DOE asked that Tarasow be terminated; Tarasow asked that a non-monetary penalty be imposed.

The penalty imposed by the arbitrator: a two-month suspension without pay, so as to "produce a real change in her behavior" and both DOE and Tarasow filed petitions pursuant to CPLR Section 7511 seeking to vacate an arbitrator's decision.

Justice Feinman, after considering the petition by Tarasow and the cross-petition by the DOE to vacate the arbitrator's awards, denied both petitions and confirmed the arbitrator’s award.

The decision sets out a “Legal Analysis” of CPLR Article 75, which controls in situations involving a challenge to an arbitration award. The court noted that CPLR 7511(b) sets forth the limited grounds on which a petitioner can seek to vacate an award, namely misconduct by the arbitrator, partiality, exceeding the arbitrator’s powers, or procedural error.

Citing Wien & Malkin LLP v Helmsley-Spear, Inc., 6 NY3d 471, the decision state that “Judicial review of arbitration awards is extremely limited and where the arbitration hearing is conducted pursuant to Education Law §3020-a, judicial review is limited to the grounds set forth in CPLR 7511.

Further, where the parties are required to engage in compulsory arbitration, as occurred in the instant matter, judicial review under CPLR article 75 requires that the award "must have evidentiary support and cannot be arbitrary and capricious" and the determination must be in accord with due process and supported by adequate evidence, and must also be rational and satisfy the arbitrary and capricious standards of CPLR Article 78. "The test of whether a decision is arbitrary or capricious is "determined largely by whether a particular action should have been taken or is justified . . . and whether the administrative action is without foundation in fact.'" (See Pell v Board of Educ., 34 NY2d 222].

Other points made by Justice Feinman:

1. A reviewing court must defer to the administrative fact finder's assessment of the evidence and the credibility of the witnesses

2. In an Education Law Section 3020-a proceeding, the arbitrator is free to fashion a remedy as he or she believed proper, referring to the ruling of the Court of Appeals in Silverman v Benmor Coats, Inc., 61 NY2d 299.

3. As to DOE's petition seeking vacatur of the award on the ground that it was irrationally lenient, it must be denied based in part on the credibility finding of the arbitrator that Tarasow is a dedicated guidance counselor and a benefit to her students, and on the evidence in the record that she has always had satisfactory ratings in her job. His implicit finding that she was guilty of bad judgment on this one occasion is rationally based.

4. The arbitrator rationally credited Tarasow's statement that in the future, she would immediately report any similar incident, as sufficient proof that no matter what her personal thoughts might be in a situation, she would follow the DOE rules.

5. The award of an arbitrator need not conform to the traditional relief that a court might

N.B. Section 3020-a.5 sets out a very short statute of limitations to appeal a Section 3020-a arbitrator’s decision. Subdivision 5 provides as follows: 5. Appeal. Not later than ten days after receipt of the hearing officer's decision [emphasis supplied], 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. The court's review shall be limited to the grounds set forth in such section. The hearing panel's determination shall be deemed to be final for the purpose of such proceeding. In no case shall the filing or the pendency of an appeal delay the implementation of the decision of the hearing officer.

In contrast, CPLR Section 7511 provides that “An application to vacate or modify an award may be made by a party within ninety days after its delivery ….”

The full text of the decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2008/2008_52066.htm

Continuation on leave of absence from a teaching position upon permanent appointment to a classified service position critical to educator’s right to reinstatement to the teaching position

Continuation on leave of absence from a teaching position upon permanent appointment to a classified service position critical to educator’s right to reinstatement to the teaching position

Fehlhaber v Board of Educ. of Utica City School Dist., 2012 NY Slip Op 04904, Appellate Division, Fourth Department

Craig S. Fehlhaber was initially employed by the Utica City School District as a tenured teacher. In 1997 the district appointed Fehlhaber as "Clerk of the Works" and later as Superintendent of Buildings and Grounds.

In 2010 the Board abolished the position of Superintendent of Buildings and Grounds and Fehlhaber asked to be "bump" vertically into the position of Maintenance Foreman or, in the alternative, to resume a teaching position. The Board denied both of these requests and Fehlhaber filed an Article 78 petition seeking a court order directing the Board to place him in one of those positions. Supreme Court dismissed his petition and Fehlhaber appealed..

Initially the Appellate Division resolved a procedural issue.

Supreme Court had ruled that Fehlhaber had failed to file a timely notice of claim. However, the Appellate Division agreed with Fehlhaber that “no notice of claim was required” in this instance.

Although, said the court, Education Law §3813(1) mandates that a notice of claim be filed when a claim is asserted against a board of education, "the notice of claim requirement is inapplicable to cases which seek to vindicate tenure rights which are legal rights guaranteed by State law and in the public interest," citing Cowan v Board of Educ. of Brentwood Union Free School Dist., 99 AD2d 831 and other decisions.

That said, the Appellate Division held that Supreme Court had properly dismissed the petition on the merits. Although Fehlhaber contended that he was entitled to a vertical "bump" into the position of Maintenance Foreman pursuant to Civil Service Law §80(6), the court noted that the record established that the Utica Municipal Civil Service Commission, after consulting with the New York State Civil Service Commission, said that "[i]n order for the rights of bumping' to exist, the [Fehlhaber] would have to demonstrate a legal entitlement to that bumping right.”

The Utica Commission, however, determined that Fehlhaber did not have any such bumping right. 

Here, said the court, in a case concerning an employee's bumping rights under the Civil Service Law, Matter of Hughes v Doherty, 5 NY3d 100, the Court of Appeals ruled that "judicial review of [the Commission's] classification system and determinations are limited to whether there was a rational basis for the agency's conclusion.... Unless the [Commission's] determinations were arbitrary or capricious, a court should not undermine its actions."

As the Appellate Division found that Fehlhaber failed to establish that the Commission's determination was arbitrary or capricious, or that there was no rational basis for its determination, it sustained the Supreme Court’s dismissal of his Article 78 petition on the merits.

Fehlhaber had raised an alternative theory  -- that he is merely on a leave of absence* from his tenured teaching position and was thus entitled to be reinstated to that position. The Appellate Division said that it agreed with Supreme Court that “[Fehlhaber] voluntarily abandoned his teaching position and thereby relinquished his tenure rights, at the latest, upon leaving the position for which the leave of absence was approved.”

Although it is well settled that "[t]he burden of proving abandonment is upon the [Board] and must be established by clear and convincing evidence that the [educator], by a voluntary and deliberate act, intended to relinquish [his or] her teaching position and forfeit [his or] her tenure rights," in this instance the Board granted Fehlhaber a leave of absence in 1997 "[t]o assume duties as Clerk of the Works."

When Fehlhaber left the Clerk of the Works position in 2002, he received a permanent appointment to the position of Superintendent of Buildings and Grounds, a position in the classified service, and he failed to seek reinstatement as a teacher or an extension of his leave of absence when he received that permanent appointment.

* 4 NYCRR 5.2, Leaves of Absence, applies to employees in the classified service of the State and public authorities, public benefit corporations and other agencies for which the Civil Service Law is administered by the State Department of Civil Service. Subdivision (c) provides as follows: (c) Successive leaves of absence. Where a leave of absence without pay has been granted for a period which aggregates two years, or more if extended pursuant to subdivision (b) of this section, a further leave of absence without pay shall not be granted unless the employee returns to his position and serves continuously therein for six months immediately preceding the subsequent leave of absence. Many local civil service commissions have adopted a similar rule.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_04904.htm

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Judge found to have presided over judicial matters involving persons with whom he had a “close relationship” removed from office

Judge found to have presided over judicial matters involving persons with whom he had a “close relationship” removed from office
Matter of Young, 2012 NY Slip Op 05089, Court of Appeals

The State Commission on Judicial Conduct sustained six charges of misconduct alleged against Lafayette D. Young, Jr., a Justice of the Macomb Town Court, St. Lawrence County, finding that he had engaged in serious misconduct when he presided over matters involving persons with whom he and his paramour had close relationships. The Commission determined that Judge Young should be removed from his office.*  

The Commission found that “In all cases, but one, [Judge Young] neither disqualified himself nor disclosed [his] relationship to the defendant or complaining witness. Additionally, in many of the cases at issue, Judge Young’s conduct gave the appearance of favoritism towards the Petrie family defendant or complaining witness.”

Moreover, the Court of Appeals said that  "ex parte communications with[certain] parties further exacerbated Judge Young's improper conduct as they highlight his close relationships to the Petrie family and his partiality towards them."

Holding that "Such conduct demonstrates a misuse of his judicial office and damages public confidence in his integrity and impartiality," the Court of Appeals sustained the sanction imposed by the Commission: that Judge Young, removal from his position, as the appropriate penalty under the circumstances.

* See New York Constitution, Article VI, § 22; Judicial Law §44

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_05089.htm

Changing the method of testing employees for the use of illegal drugs constitutes a “procedure” that is a mandatory subject of collective bargaining

Changing the method of testing employees for the use of illegal drugs constitutes a “procedure” that is a mandatory subject of collective bargaining
City of New York v Patrolmen's Benevolent Assn. of the City of New York, Inc., 56 AD3d 70

On August 1, 2005, NYPD unilaterally discontinued using urinalysis as its preferred method of random drug screening of its police personnel in favor or using a type of hair follicle testing known as radioimmunoassay of hair (RIAH). The Detectives Endowment Association filed an improper practice petition with the New York City Office of Collective Bargaining (OCB) on behalf of itself, the Patrolmen's Benevolent Association and the Sergeants Benevolent Association (the unions) contending that by unilaterally changing the drug testing method, NYPD violated New York City Collective Bargaining Law §12-306(a)(4) (Administrative Code, Title 12, Chapter 3).

OCB granted the unions' petition, finding that NYPD violated New York City Collective Bargaining Law "by unilaterally changing drug testing procedures, a mandatory subject of bargaining." Although NYPD argued that probationary police officers were subject to hair follicle testing for illegal drugs, OCB said that "even if NYPD's procedures for hair testing are the same as applied to a subset of employees already subject to such testing, the expansion of the categories of employees to whom the procedures now are applied constitutes a unilateral change in drug screening procedures." The City appealed OCB’s ruling contending that OCB’s determination was arbitrary and capricious,

The Appellate Division, disagreed, rejecting the City of New York’s argument that its changing the method of random drug testing utilized by NYPD for the screening of police officers from urinalysis to hair analysis is exempt from collective bargaining because it involves the disciplinary authority of the Police Commissioner, as conferred by New York City Charter §434 and Administrative Code of the City of New York §14-115.

Pointing out that the Administrative Code provision gives the Commissioner's investigatory authority arises only after written charges have been preferred and reasonable notice of the alleged infraction has been given, the court concluded that “no persuasive policy reason has been advanced to require OCB to depart from its prior decisions, which have consistently found that routine drug screening procedures are a mandatory subject of collective bargaining.”

The Appellate Division said that the City attempted to avoid its obligation to engage in collective bargaining with respect to the methods used for the routine drug testing of NYPD members by extending the investigatory authority granted to the Commissioner beyond the context of formal disciplinary proceedings to which it is confined. It then reversed the judgment of the Supreme Court, New York County that had granted the City’s petition and annulled OCB’s determination and reinstated OCB's ruling on its finding that the City failed to negotiate concerning a mandatory subject of collective bargaining.

The full text of the decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2008/2008_07798.htm

Continuation of employment upon the expiration of a contract of employment may not be automatic

Continuation of employment upon the expiration of a contract of employment may not be automatic
Goldman v White Plains Ctr. for Nursing Care, LLC, 11 NY3d 173

Some public employments, typically those involving employment in a position having academic rank at a public college or university [see, for example 4 NYCRR 335.10] or as a school superintendent or an associate school superintendent, [see, for example, Education Law §§1711(3) and 2507(1)], are controlled by employment contracts between the parties.

The issue to be resolved in the Goldman case was whether the expiration of a two-year employment contract gives rise to successive one-year implied “common law” contracts of employment when the employee continues working for the employer without a new agreement in place. In this instance the Court of Appeals concluded that Lorraine Goldman became an at-will employee at the end of the two-year period and did not enjoy any “successive one-year implied contract of employment with White Plains.

Goldman’s initial contract of employment, executed in 1990, provided that the parties would "enter into good faith negotiations . . . with respect to renewal of th[e] Agreement on mutually agreeable terms" no less than nine months before the contract was due to expire.” The agreement could be terminated by the mutual consent of the parties or "[b]y either party giving notice to the other at least six (6) months prior to the end of the Employment Period of its intention not to renew this Agreement." At expiration of the contract or termination of employment, the employer would "be released of any responsibility or obligation hereunder, except for payment of salary and benefits accrued to the effective date of such expiration or termination." Finally, the contract included a provision that stated it was the "entire Agreement and understanding" of the parties and could "not be changed, modified or amended, except by a writing signed by" Goldman and her then employer.

During the course of the two-year term, Goldman and her employer did not discuss renewal of the agreement and neither sent a notice of termination. After the contract expired on March 31, 1992, Goldman continued to serve as the facilities’ administrative director and received annual salary adjustments. However the facilities were purchased by White Plains Center for Nursing Care, LLC and NMC Acquisitions, LLC (White Plains) from Goldman’s initial employer in October 2004. In conjunction with that transaction, White Plains Center executed an assignment and assumption of contracts, which listed Goldman’s 1990 employment contract among the documents provided to the purchasers. Three months later, White Plains Center terminated Goldman's employment.

In deciding Goldman’s breach of contract action, the Appellate Division concluded that the application of an implied contractual arrangement after expiration of the two-year term was inconsistent with the express language of the original employment agreement. The Court of Appeals agreed, holding that “A fundamental tenet of contract law is that agreements are construed in accordance with the intent of the parties and the best evidence of the parties' intent is what they express in their written contract.”

Goldman’s contract provided that in the event the agreement was allowed to expire at the conclusion of the two-year term, her then employer would have no further obligations to her other than compensating her for accrued salary and benefits. Further, said the court, the contract “unambiguously indicate that the parties understood that the employment contract would end at the conclusion of the two-year period unless an extension was agreed upon.”

Rejecting Goldman’s argument that under “common law” she had a one-year implied contract on the same terms as set forth in the original agreement each year that her employment continued after the expiration of the written contract, the Court of Appeals held that “this contention conflicts with the well-established rule that, ‘absent an agreement establishing a fixed duration, an employment relationship is presumed to be a hiring at will, terminable at any time by either party.’”

The court then pointed out that Goldman’s argument relies on a common-law rule that recognizes an inference that parties intend to renew an employment agreement for an additional year where the employee continues to work after expiration of an employment contract. In a footnote, the Court of Appeals explained that “The common law created a presumption of a new term of employment of only one year to avoid a statute of frauds problem.”

However, said the court, this common-law presumption — developed in the 19th century before the establishment of the employment-at-will doctrine — can be rebutted by demonstrating that the parties did not intend to allow a contract to renew automatically.

In this instance, said the court, Goldman’s employment became an at-will arrangement upon the expiration of the agreement under the terms of the contract itself on March 31, 1992 and thus White Plains was entitled to summary judgment dismissing the breach of contract claim.

The Court of Appeals then observed that “Parties to future contracts can avoid uncertainty regarding application of the common-law rule simply by specifying that continuation of the employment relationship after the expiration of the contractual period will result in either successive one-year extensions of employment or at-will employment status.”

The full text of the decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2008/2008_07760.htm