CPLR Article 75 petitioner has the burden of demonstrating the arbitrator’s alleged misconduct, bias, excess of power, or procedural defects

CPLR Article 75 petitioner has the burden of demonstrating the arbitrator’s alleged misconduct, bias, excess of power, or procedural defects
Matter of Blythe v New York City Bd./Dept. of Educ. 2010 NY Slip Op 32592(U) September 20, 2010, Sup Ct, NY County, Judge Cynthia S. Kern [Not selected for publication in the Official Reports]

Kathryn Blythe, a New York City schoolteacher, filed a petition pursuant to Article 75 of the Civil Practice Law and Rules [CPLR] seeking to vacate the opinion and award issued pursuant to Education Law 3020-a by Hearing Officer Arthur Riegel, Esq. The hearing officer had found Blythe guilty of certain charges filed against her* and imposed the penalty of suspension without pay until the end of the 2010-2011 school year.

Blythe argued that Riegel’s award should be vacated on the basis that he committed misconduct, bias and fraud.

Judge Kern, noting that Education Law §3020-a(5) provides that judicial review of a hearing officer’s findings must be conducted pursuant to CPLR 7511, said that such an award may be vacated only upon a showing of "misconduct, bias, excess of power or procedural defects," citing Lackow v Dept. of Education of the City of New York, 51 A.D.3d 563.

Here, said the court, “judicial scrutiny is stricter than that for a determination rendered where the parties have submitted to voluntary arbitration. 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 party challenging an arbitration determination has the burden of showing its invalidity.”

Holding that Blythe failed to provide any evidence demonstrating misconduct, bias, the exercise of "excess of power," or procedural defects, Judge Kern ruled that “Hearing Officer Riegel’s decision was rational and supported by adequate evidence.”

As to Blythe’s complaint that her due process rights were violated because the New York City Board of Education did not vote on the charges filed against her, Judge Kern ruled that her argument was “without merit” as “Education Law §2590-f( l)(c) … applicable only to the New York City school district … specifically grants community superintendents authority to appoint and discharge all employees.”

Denying Blythe’s request for relief under CPLR Article 75, Judge Kern dismissed Blythe’s petition “in its entirety.”

* Judge Kern said that "Hearing Officer Riegel based his penalty on his finding, after fully considering all of the evidence and arguments presented, that petitioner was excessively absent, had left her students unsupervised in the hallway and in the classroom and had violated Chancellor’s regulation A420 against corporal punishment" but had dismissed all other charges that had been filed against her.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/pdfs/2010/2010_32592.pdf
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Tape recording public meetings

Tape recording public meetings
Schuldiner v City Univ. of NY, NYS Sup. Ct., Index No. 8236/98, [Not selected for publication in the Official Reports; referred to in Perez v City University of New York, 195 Misc.2d 16]

Sometime an individual may appear at a public hearing, tape recorder in hand. May an entity subject to the Open Meetings Law prohibit observers from tape-recording a public meeting conducted by the entity?

This was one of the questions raised by Schuldiner after the College of Staten Island Association voted to prohibit observers from tape-recording two of its meetings. Barred from tape-recording at both public meetings held by the Association, Schuldiner sued.

New York State Supreme Court Justice Peter P. Cusick, citing Smith v. City University of New York, 92 NY2d 707, first pointed out that the Association was a “public body” as defined by Section 102(2) of the Public Officers Law and an “agency” as defined by Section 86(3) of that law.* Accordingly, it was subject to both the Open Meetings Law and the Freedom of Information Law.

Considering the Court of Appeals’ conclusion that an entity such as the College of Staten Island Association was a “public body” within the meaning of the Open Meetings Law, Justice Cusick decided that the Association’s blanket prohibition against the use of audio tape recordings of its public meetings violated the public policy embodied in the Public Officers Law.

Citing Mitchell v. Board of Education, 113 AD2d 924, as authority for his determination, Justice Cusick said that the Association’s votes to bar tape recordings of its February 25, 1998 and March 11, 1998 meetings also violated the State’s Open Meetings Law and declared them to be void.

Schuldiner also won an order preventing the Association from prohibiting the use of hand-held tape recorders by persons attending future meetings of the Association.

Holding that the Association’s reliance on the First Department’s ruling in Smith in 1998 to the effect that such an association was not a “public entity” as authority to bar the tape recording of its meetings was reasonable as the Court of Appeals had not yet ruled on the issue, Justice Cusick rejected Schuldiner’s request for attorney fees and costs pursuant to Public Officers Law Section 89(4)(c).

* In Smith, the Court of Appeals, reversing a 1998 ruling by the Appellate Division, First Department, held that college associations such as the College of Staten Island Association were public bodies and thus subject to the Open Meetings Law.
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Use of video tapes in evaluating disability claims

Use of video tapes in evaluating disability claims
Aprea v Sonn, NYS Supreme Court [Not selected for publication in the Official Reports]

If an employer suspects that an individual receiving Workers’ Compensation benefits or benefits pursuant to Section 207-a or Section 207-c of the General Municipal Law is malingering, it may decide to arrange for the surveillance of the individual and make video tapes of the individual’s activities. In the Aprea case, the court addresses the question of the right of the individual to see the video tape.

John F. Aprea sued a number of doctors. The physicians had arranged for “a videotaped surveillance” of Aprea and wanted to depose [question under oath] him before providing him with a copy of the tape. Aprea, on the other hand, demanded that he be allowed to view the tape before being deposed. The doctors contended that was necessary to question Aprea before he viewed the video tape because it showed him performing physical activities that are “inconsistent with his claims of disability.”

State Supreme Court Justice Janice Bowman pointed to a case dealing with this exact issue, DiMichel v. South Buffalo Railroad Company, 80 NY2d 184. In DiMichel, Justice Bowman said, the Court of Appeals “recognized that an order delaying discovery of films until after the plaintiff has given a deposition minimizes the potential for tailored testimony.”

Justice Bowman also observed that “subsequent to the DiMichel decision, and seemingly in response to it, the legislature amended CPLR Section 3101 by adding subdivision (1) requiring “full disclosure of any films, photographs, video tapes or audio tapes, including transcripts or memoranda thereof, ... involving the plaintiff ... [and although] silent as to the time frame in which such disclosure is required ... [did not] seek to overrule the Court of Appeals decision in DiMichel.”

Aprea was directed to submit to a further deposition before he would be allowed to view the video tapes. After being deposed, said the court, he would be entitled to view all of the surveillance films during the surveillance.
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Do teachers have a "one-slap" rule?

Do teachers have a "one-slap" rule?
Source: ICEUFT Blog [ http://iceuftblog.blogspot.com/ ]

Termination reversals after 3020-a hearings are extremely rare, but given the right circumstances and a "hanging" arbitrator and you just might get your case reversed. So is the case of Beverly Riley.

On September 21, 2006, Riley, a fifteen year elementary school teacher at P.S. 28, allegedly approached a nine-year old student who was in the hallway after school. As she approached the child, who was waiting for her family to pick her up, Riley allegedly grabbed the girl, pulled her to the wall and slapped her on the left side of the face.

The incident was reported to the principal, OSI investigated and Riley was charged with corporeal punishment. A second charge of corporal punishment was preferred against Riley for an incident allegedly occurring against another student on October 4, 2006.

After a five day hearing the arbitrator dismissed the October 4, 2006 incident but sustained the first incident and imposed the penalty of termination. In his finding the arbitrator noted Riley's fifteen year unblemished record but found it insignificant due to the devastating impact on the child.

The arbitrator wrote "even one proven incident of corporal punishment can have a devastating impact on the involved student, and justifies the imposition of severe discipline. . .[s]tudents and parents need to know that the Department will not tolerate teachers using physical force to discipline students, even where the incident of corporal punishment was isolated and the only bruise was 'on the inside'."

On appeal Justice Saliann Scarpulla of New York Supreme Court found that the arbitrator had gone too far. One slap does not indicate the pattern of misconduct that deserves the most severe penalty. Besides, the child admitted she was not injured by the incident.

The Court ordered Riley be reinstated and the matter be sent to another arbitrator for a penalty consistent with the Court's decision.

A copy of the September 13, 2010 court decision is posted here here.

Summary posted by Jeff Kaufman.
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Removing an individual's name from the preferred list

Removing an individual's name from the preferred list
Donato v Plainview-Old Bethpage CSD, 264 AD2d 843

Removing a teacher from a preferred list always holds the potential for litigation. In the Donato case, the New York State Supreme Court ruled that Linda Donato could not sue the Plainview-Old Bethpage Central School District for removing her from a preferred list, only to be reversed by the Appellate Division.

The case illustrates that, as a general rule, it is the employer’s duty to canvass the preferred list when it wishes to fill a position for which the list must be used.

Donato was initially appointed as a social studies teacher by the district in 1966. She was given tenure as social studies chairperson effective September 1, 1984. In 1991 Donato was “excessed” [i.e., laid off] when the district abolished the chairperson position for budgetary reasons. Her name was placed on a preferred list for the title.

In accordance with former Section 2510(3)(a) of the Education Law, Donato’s name was to be certified from the preferred list for appointment to the same or a similar position for a period of seven years from the effective date of her layoff.

In September 1997, the district appointed Dorothy Wohl to the position of social studies department chairperson. Upon learning of Wohl’s appointment, Donato wrote to Superintendent Anthony Cavanna contending that she was entitled to reinstatement to the position to which Wohl had been appointed since she was on the preferred list.

In October 1997, the district wrote to Donato advising her that her request for reinstatement was denied. Donato sued Cavanna and the Board of Education by filing an Article 78 action in January 1998 seeking reinstatement and back salary. She also named Wohl as a necessary party in her petition.

The board and Cavanna asked the court to dismiss the proceeding on the ground that it was time-barred. They contended that Donato’s name had been removed from the preferred list in 1992 because of “her failure to apply for a vacant position” and her alleged failure to challenge, in a timely fashion, her removal from the preferred list. The Supreme Court agreed and dismissed Donato’s petition. But the Appellate Division reversed the lower court’s ruling and remanded the matter back to Supreme Court for further consideration.

The key factor: the Appellate Division found no evidence in the record that Donato’s name had been removed from the preferred list in 1992. Therefore, the court held, Donato had filed a timely challenge to the district’s refusal to appoint her to the position that became available in 1997. Donato’s claim “accrued in 1997 and not in 1992, [so] this proceeding is not time-barred.”

The court noted that the district had examined Donato’s preferred list status in 1994 during litigation involving a different vacancy. Examining the record of that case, the Appellate Division said the district had conceded that Donato “was preferentially eligible for reinstatement to her abolished position or a similar one.”

Here are some points to keep in mind regarding preferred lists:

1. Typically the most senior individual on the list may be “passed over” or, under certain circumstances, have his or her name removed from the list, only if he or she actually declines the appointment.

2. The name of an individual may not be removed from a preferred list if he or she merely declines appointment to a different position for which certification of the preferred list was not mandated or deemed appropriate.

3. The individual is not required to seek information concerning the existence of any vacancy for which he or she could be certified.

4. While an appointing authority is not required to fill a vacant position, if it elects to do so, it must use the appropriate preferred list if one exists. (Under certain circumstances, a public employer may be required to use other types of “preferred lists” such as a “special military list.”)

5. If an individual accepts other employment, his or her name is to remain on the preferred list until it may otherwise be lawfully removed. For example:

An individual is laid off from Position A and subsequently accepts a position “to a lower rank position” for which the preferred list was certified. The following year the employer reestablishes Position A. Assuming that the individual who was laid off from Position A is eligible for certification from the preferred list and that he or she is the most senior person on the list, he or she must be appointed to the newly created position or the position must remain vacant.

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If you are interested in learning more about layoff procedures involving employees in the public service in New York State please click here: http://nylayoff.blogspot.com/
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Representation and indemnification of public officers and employees sued in connection with official duties

Representation and indemnification of public officers and employees sued in connection with official duties
Tarrant v Schenectady Police Dept., Supreme Court, [Not selected for publication in the Official Reports, see, also, Tarrant v. City of Schenectady, 279 AD2d 870]

A public officer’s or employee’s right to “employer provided” representation and indemnification in the event he or she is sued and held liable in connection with the performance of official duties is an important one.

The Tarrant case illustrates the fact that where the employer declines to provide for such representation or indemnification, the individual must act promptly, and correctly, if he or she wishes to challenge the employer’s decision.

On February 17, 1999, Pamela Tarrant, an Afro-American, initiated a lawsuit against the City of Schenectady, its police department and police officer John Lewis for alleged violations of her civil rights. This particular aspect of the litigation concerns Lewis’ claim that the City is required to pay for his defense.

In the course of Tarrant’s action, Lewis contended that the City “failed to follow a procedure set forth in a Collective Bargaining Agreement” providing for this benefit. The City, on the other hand, argued that the Agreement did not apply in Lewis’ case because:

1. Lewis had been terminated from his position effective November 13, 1998; and

2. “The words and conduct of Lewis which purportedly gave rise to Ms. Tarrant’s action at law were outside the scope of Officer Lewis’ duties and were, therefore, not subject to defense under the Collective Bargaining Agreement.”

State Supreme Court Justice Robert E. Lynch did not have the opportunity to consider these important issues, however. Why? According to the ruling, the court did not have jurisdiction to consider Lewis’ petition since it was filed in connection with “a separate legal action ... initiated by Ms. Tarrant.”

Although the Taylor Law agreement clearly allowed Lewis to challenge the refusal of the City to provide for his defense “by an Article 78” action, he was required to initiate such a challenge in a timely fashion.

To do this he was required to take a number of steps including “purchasing an index number ... filing a Notice of Petition or an Order to Show Cause, along with a Verified Petition ... and serving the City” with the complaint. He failed to do this, despite being advised by the City’s Corporation Counsel, Michael Brockbank, that he was required to do so if he wished to challenge the City’s determination.

Another problem for Lewis concerned the fact that he did not file an “Answer” to Tarrant’s complaint within the 30-day period allowed for this purpose. This, said Justice Lynch, meant that Lewis was in “default” and the “affirmative relief” he was seeking as part of Tarrant’s lawsuit “is clearly not countenanced under New York Law.”*

It seems clear that in the event a public employer rejects a demand for representation or indemnification when a individual is sued in connection with some act or omission he or she claims is work related, it would be in the best interests of the individual to obtain the services of a private attorney immediately for purpose of representation in the litigation to avoid default. While the individual may later elect to challenge the employer’s decision, his or her interests would, in the meantime, be represented in the action.

In many instances the representation and indemnification provisions of Section 18 of the Public Officers Law apply. A municipality may refuse to provide for Section 18 representation or indemnification if its attorney determines that the individual was not action within the scope of his or her public employment or duties or where the alleged injury or damage resulted from “intentional wrongdoing or recklessness” on the part of the individual. The individual is required to [1] provide the employer with the “legal papers” within 10 days of after being served and [2] provide “full cooperation” in connection with its defense of the action.

* In another action brought against a Schenectady police officer, DiSorbo v Pederson, DiSorbo filed a “default judgment against Pederson” because he failed to answer allegations of “illegal arrest and harassment” then pending in federal district court. The City earlier advised Pederson that it would not provide for his defense or indemnification because he was “uncooperative when questioned about the case.”
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