Vacating a Section 3020-a arbitration award

Vacating a Section 3020-a arbitration award
Westhampton Beach UFSD v Ziparo, 275 AD2d 411

It is not unusual for a party to decide to challenge the determination of the hearing officer or panel following a Section 3020-a disciplinary action. Essentially a Section 3020-a decision is treated as an arbitration award and thus the provisions of Article 75 of the Civil Practice Act and Rules [CPLR] control any attempt to vacate such an award.

As the Westhampton Beach decision by the Appellate Division, Second Department, demonstrates, the grounds for vacating an award under Article 75 are very limited.

The district filed certain disciplinary charges against David Ziparo. The Section 3020-a hearing officer found him guilty of the charges. The penalty imposed: suspension without pay for one year. In addition, the hearing officer conditioned Ziparo’s return to teaching upon his obtaining a certification of psychiatric fitness.

Westhampton appealed a State Supreme Court’s confirmation of the hearing officer’s determination. The Appellate Division dismissed the appeal, ruling that Westhampton did not demonstrate any basis for vacating the award under CPLR 7511 and the hearing officer’s determination has a rational basis and is supported by the record.

On what basis could a court vacate a determination by a Section 3020-a hearing officer or panel? Section 7511(b)(1) of the CPLR allows a court to vacate or modify an award only if it finds:

1. Corruption, fraud or misconduct in procuring the award; or

2. Partiality of an arbitrator appointed as a neutral, except where the award was by confession;

3. 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

4. The failure to follow the procedure set out in Article 75, 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.

Another important consideration when deciding whether to challenge a Section 3020-a disciplinary determination: the statute of limitations. Section 3020-a(5) provides that such a challenge must be filed within ten days of the receipt of the decision -- a very short period in which to perfect the appeal.

Governor David A. Paterson fined $62,125 after being found guilty of charges that he received complimentary tickets to Game 1 of the 2009 World Series

Governor David A. Paterson fined $62,125 after being found guilty of charges that he received complimentary tickets to Game 1 of the 2009 World Series
Source: The New York State Commission on Public Integrity

On December 21, 2010, the New York State Commission on Public Integrity announced that it had fined Governor David A. Paterson $62,125* after finding him guilty of charges that he solicited, accepted and received five complimentary tickets to Game One of the 2009 World Series for himself, two aides, his teenage son and his son's friend.

The Commission reports that "It is the largest fine imposed on a public official" by it.

The Commission said that “The Governor's false testimony is . . . evidence that he knew his conduct was unlawful and, thus, is one factor underlying the Commission's determination that the Governor violated Public Officers Law §§73(5)(a), 73(5)(b), 74(3)(d), 74(3)(f) and 74(3)(h).”

The Decision also noted that Governor Paterson “did not perform a ceremonial function at the game, and his attendance was not related to his duties and responsibility as a public official.” Further, the Commission indicated that “Even if the Governor had performed a ceremonial function at the game, it would not have entitled him to free tickets for his son and his son's friend.”

The Commission noted that the Yankees have “myriad and continuing business and financial interests that relate to New York State government,” including real estate, stadium development and tax matters.

“The moral and ethical tone of any organization is set at the top. Unfortunately the Governor set a totally inappropriate tone by his dishonest and unethical conduct. Such conduct cannot be tolerated by any New York State employee, particularly our Governor,” commented Michael Cherkasky, the Chairman of the Commission.

* The $62,125 civil penalty consists of the value of the tickets, $2,125, plus $25,000 for violating Public Officers Law §73(5)(a), $25,000 for violating Public Officers Law §73(5)(b), and $10,000 for violating Public Officers Law §74(3)(d). The law does not authorize a civil penalty for a violation of Public Officers Law §§74(3)(f) and §74(3)(h).

Click here to read the Hearing Officer's Decision dated 12/9/2010.

Teacher placement and the ADA

Teacher placement and the ADA
Arbitration between the United Educators of San Francisco and San Francisco [California] Unified School District, Arbitrator William E. Riker

In 1997 a hearing impaired California teacher, certified to teach deaf students at the high school level and regular students from kindergarten through eighth grade, was laid off when her position was eliminated. Her name was placed on a preferred list.

Assigned to clerical work, in April 1998, the teacher asked to be assigned to teach kindergarten or first-grade. She also asked for a reasonable accommodation, including an interpreter to translate her signed conversation. The district rejected her request and continued employing her in a clerical capacity.

Ultimately, the teacher filed a grievance contending that the district violated the collective bargaining agreement by not placing her in a classroom and that the district discriminated against her because of her disability. She also filed a disability discrimination complaint under the Americans with Disabilities Act.

Arbitrator William E. Riker denied her grievance, ruling that the school district was not required to place a hearing-disabled teacher in a kindergarten or first-grade classroom unless she is able to perform the essential functions of the position.

Riker’s rationale: The ADA requires fair treatment of qualified individuals with disabilities, but it does not require the employer to change the essential functions of a job to accommodate a disabled employee who cannot perform them.

Riker ruled that kindergarten and first grade teachers must be able to carefully listen to children’s speech and help them to develop and mimic speech patterns and thought processes.