The public policy exception considered by the courts reviewing an arbitrator’s award not absolute and the issues being decided or the relief granted must be considered

The public policy exception considered by the courts reviewing an arbitrator’s award not absolute and the issues being decided or the relief granted must be considered

City School Dist. of the City of New York v McGraham,  2011 NY Slip Op 08228, Court of Appeals

A tenured high school teacher was served with disciplinary charges pursuant to Education Law §3020-a alleging she engaged in improper conduct with a 15-year-old male student when she corresponded with the student electronically after regular school hours.

Although it was alleged the correspondence involved “a variety of personal matters and tried to discuss with him the nature of their relationship, which, in her view, was potentially romantic,” there was no physical contact, let alone a physical relationship, between the two and none of her communications were of a sexual nature.” Further, the two never met outside of school grounds.

The hearing officer found the teacher guilty of three of the five specifications preferred against her. In addition, the hearing officer determined that the teacher had engaged in inappropriate communications of an intimate nature with the student, which activities constituted conduct unbecoming her position as a teacher.

Considering that the teacher was remorseful for her conduct and that she sought therapy soon after her behavior came to light, the hearing officer, believing that teacher would repeat such conduct, a penalty of a 90 day suspension without pay and reassignment to a different school upon her reinstatement.

The New York City School District filed an Article 75 petition seeking to vacate the arbitration award, contending that the penalty imposed was irrational and contrary to the public policy of protecting children.*

Affirming the Appellate Division ruling, the Court of Appeals rejected the School District’s and held that the arbitration award did not violate public policy. Explaining that courts will only intervene in the arbitration process in those "cases in which public policy considerations, embodied in statute or decisional law, prohibit, in an absolute sense, particular matters being decided or certain relief being granted by an arbitrator," the Court of Appeals said that “[l]ooking at the award on its face, it cannot be said that either statutory or common law prohibits the penalty imposed by the hearing officer.”

The court indicated that although it cannot be disputed that the State has a public policy in favor of protecting children, this is not the type of absolute prohibition from arbitrating a "particular" matter necessary to invoke the public policy exception and to overturn the arbitral resolution.

In addition, the court found that the arbitration award was not arbitrary and capricious or irrational in that the hearing officer “engaged in a thorough analysis of the facts and circumstances, evaluated [the teacher’s] credibility and arrived at a reasoned conclusion that a 90-day suspension and reassignment was the appropriate penalty.”

In this instance, said the court, the penalty imposed was rational. Notwithstanding the “serious misconduct” of the teacher, in this case the hearing officer, finding the teacher remorseful and that her actions were unlikely to be repeated, concluded that her termination was not mandated.

Although, said the Court of Appeals, “reasonable minds might disagree over what the proper penalty should have been” this disagreement does not provide a basis for vacating the arbitral award or refashioning the penalty.

* In the course of these appeals the teacher was terminated because she allowed her teacher's certification to lapse. However, the Court of Appeals, citing Brooklyn Audit Co. v Department of Taxation & Fin., 275 NY 284, said that as the School District sought to terminate the teacher pursuant to §3020-a “in an effort to prevent her from being in a position to obtain future employment with the Department of Education,” the appeal was not moot.

Independent determination needed by town board

Independent determination needed by town board

Ross v. Town Board of the Town of Ramapo, 78 A.D.2d 656

A police officer was injured in a fall. His application for an accidental disability retirement allowance under the Retirement and Social Security Law was denied by the Retirement System. The Town of Ramapo continued to pay the officer’s full salary (see Section 207-a, General Municipal Law) until the Town Board passed a resolution terminating the employment almost four years later.

The Board had relied upon the determination by the Retirement System that the injury was not service related. The Court ordered the police officer reinstated, holding the Board’s action did not provide the required due process.

The critical issue appears to be that the Retirement System had not made a “final determination” and the Board would have to make an independent determination as to the job-relatedness of the injury. The Court said “(the Board cannot) deny these (Section 207-a) benefits...based upon the finding of another State agency ... not yet final and which is predicated upon a different standard of proof”.

The decision in Economico (50 NY2d 120) was distinguished in this case. In Economico the injury involved was conceded not to be service related. This decision suggests that the employer must take independent action to remove a police officer from the payroll when it believes that the injury was not service related within the meaning of Section 207-a.

Police sick-out violates Taylor Law

Police sick-out violates Taylor Law

Police Benevolent Association of the City of Yonkers v. New York State Public Employment Relations Board, 51 N.Y.2d 779

The Court of Appeals upheld PERB’s ruling that the Yonkers Police Union was involved in an illegal.

PERB had found the Union had supported or condoned two “sick-outs.”  

While the court said the mere showing that a significant number of union members have engaged in a strike would not be sufficient to prove a violation of the Taylor Law by the Union, statements of union leaders, combined with the fact of the strike itself and the other evidence adduced at the hearing held by PERB was sufficient to provide “substantial evidence” of the violation.

Validation requirements for civil service test

Validation requirements for civil service test

Guardians v. Civil Service Commission, 23 FEP Cases 909

The Circuit Court of Appeals for the 2nd Circuit (New York) has rejected a rigid and literal application of the EEOC Guidelines on test validation.

The Court adopted a “functional” approach, holding an acceptable content validation study may consist of a suitable job analysis, reasonably competent examiners, a relationship between the test content and the job and a scoring system which can be used to select from those better able to do the job.

In addition, the Court indicated that permissible use of rank ordering requires a demonstration that the point differences used reflect differences in job performance.