Of particular interest to those involved in law enforcement

Of particular interest to those involved in law enforcement 

The following information has been received from AELE. 

AELE describes itself as "an extraordinary and unique resource, with free publications and online back issues since 2000." AELE has a searchable library of more than 32,000 case digests organized into 700 + indexed topics. There are no advertisements, tracking “cookies” or popups on its website. Users do not have to preregister and there is no time limit on research sessions. Contents of its online law library may be copied & pasted, saved or printed (except for commercial purposes).

Readers may forward this information to colleagues and are invited to sign up for its free periodic mailings at http://www.aele.org/e-signup.html  [N.B. AELE states that does not insert commercial messages nor sells your e-addresses.] AELE maintains a websiteat http://www.aele.org/

AELE’s July 2012 case notes and publications alert 

1. ECWs: Few police or correctional officers will use their firearm against an aggressor. Many will use an ECW in a dart or stun mode. That is why officers need to know the law of their Federal Circuit before an incident occurs, not after a lawsuit is filed. Training officers need to keep current on case law, and to modify an agency's ECW policy and in-service training, as needed.

In May, AELE created a single webpage where ECW cases are summarized. Since then, the site has expanded by a third, and now summarizes more than 200 cases. If printed on paper, the summaries are now 40 pages long, and are growing. Almost all cases cited have a link to the full decision. More than 10,000 of your colleagues have visited the webpage since May.

On June 27th we added a cautionary flag for 84 case summaries (about 42% of the total).

These summaries now begin with the word RESTRICTIVE -- because a court has determined, a jury has found, or a settlement has indicated, that the quantum of force used either was, or may have been, unreasonable. View here.    

2. ECW Resources: AELE also began a webpage where ECW articles, deployment policies, IACP conference materials and other ECW resources can be found. There are links more than 80 documents and informational sites. View here.

3. Monthly Law Journal: The June article on weapon confusion has been updated with additional cases and the article was repaginated. An appellate court unceremoniously rejected an appeal by the BART officer who fired his Glock in mistake.  View here.

4. Two New Monthly Law Journal articles.

•   Teaching 4th Amendment Based Use-of-Force

Author and trainer James Marker explains a state law enforcement academy's decision to avoid teaching a force continuum and to concentrate on standards announced in Supreme Court opinions. View here.

•   Video and Audio Taping Police Activity 

AELE introduced this topic in a May, 2009 article in the Monthly Law Journal. Much has happened since then. In addition to significant decisions in Illinois, Maryland and Massachusetts, the U.S. Justice Dept. has weighed in, with six policy recommendations. View at here.

Persons interested in contributing an article should contact AELE.

5. The July 2012 issues of AELE’s three periodicals have been uploaded.

The current issues, back issues since 2000, three 37-year case digests, and a search engine are FREE. Everyone is welcome to read, print or download AELE publications without charge. SOS: Share Our Stuff! The main menu is at: http://www.aele.org/law

Among the new cases are several that warrant mention here.

*** Law Enforcement Liability Reporter ***

• Electronic Control Weapons - Dart Mode

A Taser was used in dart mode to restrain an intoxicated man who was perceived as attempting to break away from an officer after resisting an attempt to handcuff him. The man had a medical condition which caused his arm to suffer involuntary tremors.

The trial court found that the suspect's alleged crimes were two relatively minor misdemeanors, that he did not pose a threat to the officers, and that he did not struggle with the officers, resist arrest, or try to escape, so that the use of the Taser was objectively unreasonable if the facts were as the plaintiff alleged. The officer was not entitled to qualified immunity. Shekleton v. Eichenberger, #11-2108, 2012 U.S. App. Lexis 9041 (8th Cir.). 

  

*** Fire, Police & Corrections Personnel Reporter ***

• Injuries to Trainees

A fire department "live burn" training exercise got out of hand. A recruit participating in the exercise became trapped on the third floor of the three-story vacant building being burnt, and died from her injuries. Her surviving family filed a federal civil rights lawsuit claiming that the city had acted with deliberate indifference to the decedent's safety, in violation of substantive due process.

Such a claim could not be pursued in the absence of any evidence that the department actually intended to inflict harm on the participating recruits, for which there was no evidence. Slaughter v. Baltimore, #10-2436, 2012 U.S. App. Lexis 11482 (4th Cir.).

*** Jail and Prisoner Law Bulletin ***

• Homosexual Prisoners

An insulin-dependent diabetic prisoner was hired to work in a public works program off the prison premises. After he experienced an incident in which he became ill from low blood sugar, he was removed from the program. He sued, claiming that the true reason for his termination was his gay sexual orientation. He claimed that officers supervising the work crews treated him differently than other heterosexual insulin-dependent diabetic inmates working on the project, taunting and harassing him.

The prisoner adequately stated a claim of class-based discrimination based on sexual orientation, so that the dismissal of his lawsuit was improper. His claim was not a "class-of-one" equal protection claim barred in the context of public employment by Engquist v. Oregon Dept. of Agriculture, #07-474, 128 S.Ct. 2146 (2008).Davis v. Prison Health Services, #10-2690, 2012 U.S. App. Lexis 9548, 2012 Fed. App. 131P (6th Cir.).

6. Selected criminal law and procedure cases are at two other free websites.

http://www.fletc.gov/training/programs/legal-division/the-informer/informer-editions-2012/

http://www.kenwallentine.com/Xiphos.html

-----------------------------------------------------------------------

AELE has a free search tool covering our database of more than 32,000 case summaries, since 1975.

http://www.aele.org/htdig/common/search.html

We also have three menus of the more than 32,000 case summaries, divided into 700 + topics.

1. Law enforcement civil liability at http://www.aele.org/law/Digests/civilmenu.html

2. Employment law and discipline at http://www.aele.org/law/Digests/emplmenu.html

3. Jail and prisoner legal issues at http://www.aele.org/law/Digests/jailmenu.html

View or print our guide: How to Navigate AELE’s Online Law Libraries.

All relevant medical records must be considered in making a determination regarding an application for accidental disability retirement benefits

All relevant medical records must be considered in making a determination regarding an application for accidental disability retirement benefits

Baird v New York State & Local Retirement Sys., 2012 NY Slip Op 05053, Appellate Division, Third Department

Darlene A. Baird was employed by the Westchester County Department of Social Services. She was injured in the course of performing a physical test during an interview for another position with the Department.

Although Baird returned to work, she left after three days due to pain in her right shoulder and arm. When she subsequently applied for accidental disability retirement benefits, her application was denied based on the Retirement System's expert finding that she was not permanently incapacitated from the performance of her job duties. The Comptroller sustained the hearing officer’s determination and Baird appealed.

The Appellate Division said that the Retirement System's determination relies primarily upon the report of its physician, Dr. Charles Ricciardelli. Based on his examination of Baird, Dr. Ricciardelli concluded that although she had pain in her right upper arm caused by the accident, she was "exaggerating the pain, and had only a mild, partial disability."

However, said the court, the record includes the report of an MRI of Baird's right shoulder taken after Dr. Ricciardelli examined her indicated that Baird had a biceps tendon tear. As the record did not indicate that Dr. Ricciardelli was given the chance to review the right shoulder MRI report; nor did the Retirement System call him to testify, “there is no basis for concluding that his opinion would have remained unchanged in light of the new information contained [in the MRI report].

Although the Comptroller is vested with authority to evaluate conflicting medical opinions and credit the opinion of one expert over that of another, the Appellate Division said that the medical proof relied upon “must articulate a rational, fact-based opinion based upon a physical examination and review of all the relevant medical records.”

Accordingly, the Appellate Division ruled that as Dr.Ricciardelli had not been given the opportunity to clarify his opinion based upon a review of all the relevant medical records, the Comptroller's determination was not supported by substantial evidence and must be annulled and remitted for further proceedings.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_05053.htm

Municipality may have voluntarily assumed a special duty to an injured employee based on "justifiable reliance"

Municipality may have voluntarily assumed a special duty to an injured employee based on "justifiable reliance" 

Morgan-Word v New York City Dept. of Educ., 2012 NY Slip Op 05151, Appellate Division, Second Department

Assistant Principal Rolanda Morgan-Word alleged that she was injured while attempting to break up a fight between two students at a school. Supreme Court denied the New York City Department of Education’s motion for summary judgment dismissing the complaint and the Department appealed.

The Appellate Division affirmed the lower court’s ruling, explaining that although a municipality "is immune from negligence claims arising out of the performance of its governmental functions unless the injured person establishes a special relationship with the municipality which would create a special duty of protection with respect to that individual," a special relationship may be formed "when a municipality voluntarily assumes a special duty that generates justifiable reliance by the person who benefits from the duty."

In order to demonstrate such a special duty, a plaintiff must show: "(1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured, (2) knowledge on the part of the municipality's agents that inaction could lead to harm, (3) some form of direct contact between the municipality's agents and the injured party, and (4) the injured party's justifiable reliance on the municipality's affirmative undertaking."

In this instance, said the court, the Department failed to establish its prima facie entitlement to judgment as a matter of law, because it "failed to eliminate triable issues of fact" as to whether it assumed a special duty with respect to Morgan-Word.

Accordingly, the Appellate Division ruled that Supreme Court properly denied its motion for summary judgment.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_05151.htm

Broad arbitration clause precludes judicial interpretation of a collective bargaining agreement where “public policy” is not at issue

Broad arbitration clause precludes judicial interpretation of a collective bargaining agreement where “public policy” is not at issue
City of Utica v Teamsters, Chauffeurs, Warehousemen & Helpers Local Union 182, 21 Misc 3d 1109(A), Affirmed by the Appellate Division, 41 AD3d 1232

The Teamsters filed a contract grievance alleging that a member of the collective bargaining unit had been terminated by the City “without just cause” and in violations of the “progressive discipline” procedures set out in the relevant collective bargaining agreement. When Utica rejected its demand for arbitration, the Teamsters sued seeking a court order compelling arbitration; the City resisted, contending that the employee in question was “on probation” and thus an “employee-at-will.” Justice Hester said that a “Court's analysis in this matter is governed by …. §7501 [of the CPLR which] provides that "[i]n determining any matter arising under this article, the court shall not consider whether the claim with respect to which arbitration is sought is tenable, or otherwise pass upon the merits of the dispute."

Accordingly, a court's role in reviewing applications to stay arbitration is a limited one and it is not the Court's role to interpret substantive provisions of the contract or to pass on the merits of the dispute.

In this matter neither party contended that submitting the issue to arbitration implicates a “public policy” issue. Accordingly, the question as to whether arbitration was authorized because “the parties did agree by the terms of their particular arbitration clause to refer their differences in this specific area to arbitration."

Noting that there was a “broad arbitration clause” set out in the collective bargaining agreement, Justice Hester concluded that each of the objection raised by the parties such as the City’s claim that this particular grievance is not arbitrable and the Teamsters’ claim that Utica violated “past practice” was a contract interpretation and thus issues for the arbitrator to resolve.

In addition, Justice Hester pointed out that the City’s claim that the grievance was untimely filed was also an issue involving contract interpretation and thus ripe for an arbitrator to decide.

Indicating that “it is not the Court's duty to examine the scope of the substantive provisions of the contract to determine whether this particular grievance falls within the scope” of the collective bargaining agreement, Justice Hester denied the City’s petition seeking a stay of the arbitration.

The full text of the decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2006/2006_52623.htm

Failure to properly supervise juveniles in her care

Failure to properly supervise juveniles in her care

OATH Index No. 728/12

A juvenile counselor responsible for supervising teenagers incarcerated in a special support dorm lost track of a girl, leaving the teen unattended for a half-hour, and failed to take a proper headcount of the girls in her charge.

Although the girl was not harmed, OATH Administrative Law Judge Joan R. Salzman recommended an 18-day suspension, noting that keeping count of the juveniles under her supervision was the most important duty of employee’s job, and that she had previously made a similar mistake. 

The decision is posted on the Internet at:  

Admin. for Children’s Services v. Matos-Miranda(in PDF)

Supreme Court rules on the Patient Protection and Affordable Care Act

Supreme Court rules on the Patient Protection and Affordable Care Act

National Federation of Independent Business et al. v. Sebelius, Secretary of Health and Human Services, et al., United States Supreme Court, Docket #11-393

In 2010, Congress enacted the Patient Protection and Affordable Care Act, [124 Stat. 119]. The Act’s purpose was to in­crease the number of Americans covered by health in­surance and decrease the cost of health care. While the Act’s 10 Titles run over 900 pages and contain hundreds of provisions, the National Federation case concerned constitutional challenges to two key provisions, usually referred to as the Individual Mandate and the Medicaid Expansion.

In a ruling almost 200 pages in length,*including dissents, the majority first indicated that it did not consider whether the Act embodies sound policies, commenting that “That judgment is entrusted to the Nation’s elected leaders.” It characterized the question for it to address in this action as “Does Congress have the power under the Constitution to enact the challenged provisions?”

Essentially the Act’s “Individual Mandate” requires most Americans to maintain “minimum essential” health insurance coverage. It excludes some individuals, such as prisoners and undocumented aliens from this mandate. While many individuals are expected to obtain the required insurance through their employer or under a government pro­gram such as Medicaid or Medicare, individuals who are not exempt and who do not receive health insurance through a third party are required to purchase insurance from a private company.

Beginning in 2014, individuals required to purchase insurance from a private company that fail to do so would make a “[s]hared responsibility payment” to the Federal Government calculated as a percentage of household income, subject to a floor based on a specified dollar amount and a ceiling based on the aver­age annual premium the individual would otherwise have to pay for qualifying private health insurance.

As to Congress’ authority under the Commerce Clause to enact such legislation, the court ruled: "The commerce power ... does not authorize the mandate.”

However, said the court, “Neither the Act nor any other law attaches negative legal consequences to not buying health insur­ance, beyond requiring a payment to the IRS.”

Thus, the Affordable Care Act’s requirement that certain in­dividuals pay a financial penalty for not obtaining health insurance may reasonably be characterized as a tax. Be­cause the Constitution permits such a tax, it is not [the Supreme Court’s role] to forbid it, or to pass upon its wisdom or fairness.”

* Chief Justice Roberts announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, and III–C, in which Justices Ginsburg, Breyer, Sotomayor, and Kagan, joined; an opinion with respect to Part IV, in which Justices Breyer and Kagan, joined; and an opinion with respect to Parts III–A, III–B, and III–D. Justice Ginsburg, filed an opinion concurring in part, concurring in the judgment in part, and dissenting in part, in which Justice Sotomayor, joined, and in which Justices Breyer and Kagan, joined as to Parts I, II, III, and IV. Justices Scalia, Kennedy, Thomas, and Alito filed a dissenting opinion. Justice Thomas filed a dissenting opinion.

The Syllabus [prepared by the Reporter of Decisions for the convenience of the reader] and the Opinions of the Court are posted on the Internet at:

http://www.supremecourt.gov/opinions/11pdf/11-393c3a2.pdf

Workers’ compensation benefits not available for injuries sustained by an individual in the course of an altercation unrelated to his or her employment

Workers’ compensation benefits not available for injuries sustained by an individual in the course of an altercation unrelated to his or her employment 

Belaska v New York State Dept. of Law, 2012 NY Slip Op 05046, Appellate Division, Third Department

Ann M. Belaska challenged a Workers' Compensation Board, ruling that her injury did not arise in course of her employment and denied her claim for workers' compensation benefits.

Belaska, a clerk employed by the Department of Law, sustained injuries to her chest, neck and shoulder after she was involved in an altercation with a fellow passenger on a shuttle bus ride from work to a satellite parking lot.

The Appellate Division affirmed the Board’s determination, explaining that injuries stemming from an assault which arose in the course of employment are presumed to have arisen out of the employment unless substantial evidence is presented that the assault was motivated by purely personal animosity, citing Matter of Rosen v First Manhattan Bank, 84 NY2d 856.

In this instance, said the court, Belaska testified that, at the end of the bus ride to her car after work, a passenger tried to exit before her and she told the passenger to wait for her because of her disabilities. When that passenger became frustrated because Belaska was not getting off the bus fast enough, a verbal altercation ensued which then became physical, leading to Belaska’s injuries.

Noting that Belaska had testified that she had never before met the person who allegedly assaulted her, the Appellate Division held that substantial evidence supports the Board's determination that the assault on Belaska arose from personal hostilities unrelated to her employment.

The decisions is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_05046.htm

ALJ recommends disciplinary charges be dismissed base after finding the testimony of witnesses not credible

ALJ recommends disciplinary charges be dismissed base after finding the testimony of witnesses not credible

OATH Index Nos. 525/12 and 526/12

Two correction officers who broke up a fight between two inmates were charged with beating and kicking both inmates. OATH Administrative Law Judge John B. Spooner found that the testimony of the two inmates, who did not report being assaulted by officers until a day later and who gave contradictory accounts, was not credible. He recommended that the charges against the officers be dismissed.    

The decision is posted on the Internet at:

Dep’t of Correction v. Harris (in PDF)

Duty to defend and indemnify an employee being sued triggered by allegations of misconduct related to the performance of official duties

Duty to defend and indemnify an employee being sued triggered by allegations of misconduct related to the performance of official duties
Dreyer v City of Saratoga Springs, 22 Misc 3d 1109(A)

The principal issue in Erin Dreyer’s suit against the City of Saratoga Springs and its City Council is whether the City is required to provide or pay for Dreyer’s defending herself in two Federal court actions in U.S. District Court for the Northern District of New York, Moore v Dreyer and Curley, 05-CV-1060 and Cornick v City of Saratoga Springs, Curley and Dreyer, 06-CV-0138.

Dreyer served as the City’s Deputy Commissioner of Public Safety. The relationship between Dreyer and Police Chief Edward Moore and Assistant Chief James Cornick became strained and ultimately Moore and Cornick alleged that certain of Dreyer's actions constituted criminal violations and misconduct by a public official. This resulted in the New York State Police investigating Dreyer's conduct. Later a Special Prosecutor was appointed and a Grand Jury was convened to review Dreyer's conduct.

Although the Grand Jury returned a "no-bill", [it did not indict Dreyer for any crime], it reported that she had committed several acts of misconduct, performed negligently, and deliberately acted to create and foster dissension in the police department. The report recommended that she be disciplined or removed from office.

Subsequently Moore commenced a Federal court action to recover damages against Dreyer and Curley in which he alleges that the two conspired under color of law and state action to violate his constitutional rights through adverse employment actions designed to create a hostile work environment and to force him to resign, and further, that Dreyer, with Curley's approval, intentionally and maliciously implemented a course of hostile and disparaging conduct, disseminated, publicly and privately, defamatory information about him, and illegally retaliated when he spoke out against their conduct.

The City Council decided that Curley's conduct, as alleged in Moore's complaint, fell within the scope of his official duties as Commissioner of Public Safety, and adopted a resolution to defend and indemnify Curley but determined that Dreyer's acts, as alleged in Moore's complaint, were not within the scope of her official duties as Deputy Commissioner of Public Safety and refused to provide to her a defense and indemnification. It did the same with respect to the lawsuit filed by Cornick.

Dreyer sued the City, contending that the City's determination not to provide for her defense was made in violation of law, was irrational and was arbitrary and capricious. She argued that by enacting City Code §9-1, the City intended to give City officers and employees the same protections afforded to such personnel by Public Officers Law §18. Section 18, in pertinent part, provides “the provisions of this section shall apply to any public entity (a) whose governing body has agreed by the adoption of local law, bylaw, resolution, rule or regulation (i) to confer the benefits of this section upon its employees....”

Dreyer claimed that as Deputy Commissioner she was for all practical purposes the alter ego of the Commissioner and had been properly invested by the Commissioner to carry out his broad authority to manage and supervise the police department. The City, in rebuttal, said that it correctly concluded that claims alleged against Dreyer arose from actions taken outside of her official duties and did not give rise to an obligation of the City to defend her in both actions and that its determination was rational and proper. Further, said the City, its decision that Curley's conduct giving rise to these two actions fell within his official responsibilities and that hers did not, do not constitute disparate treatment of the Commissioner and Deputy Commissioner.

Justice Nolan said that a defense under Public Officers Law §18 (a) must be provided even though an employee's actions "may be characterized as intentional wrongdoing" unless it can be determined that the conduct was "entirely unrelated to the employer's business". The court also noted that a municipal employer's statutory duty under Public Officers Law §18 to provide a defense to its officers and employees has been likened to an insurance company's contractual duty to provide a defense to one of its insured policyholders and, citing Automobile Ins. Co. of Hartford v Cook, 7 NY3d 131, commented that the Court of Appeals recently said that "when [an insurance] policy represents it will provide the insured with a defense, we have said that it actually constitutes litigation insurance' in addition to liability coverage".

Justice Nolan decided that in determining whether or not to provide Dreyer representation and indemnification, the City's inquiry should have been confined to merely a review of the two complaints "to ascertain whether [they] charge[d] that [Dreyer] was acting within the scope of...her employment at the time of the alleged wrongdoing" and “If the complaints made such allegations - and they do - the City's analysis ends there, and a defense must be provided unless, by local law, the City had adopted - which it had not - additional review requirements.”

In contrast, said the court, “any independent factual analysis by a municipality is appropriate only when the complaint fails to allege that an employee at the time of the wrongdoing was acting within the scope of employment.”

The bottom line: in determining whether Dreyer was entitled to be defended in the Moore and Cornick actions, the City was limited by Public Officers Law §18(3) and City Code §9-1 to a review of the allegations in the complaint, which did allege Dreyer was acting within the scope of her employment. By going beyond these allegations and engaging on its own in an independent assessment of the underlying facts, the City exceeded the limits on its discretion imposed by Public Officers Law §18(3) (a) and City Code 9-1. Accordingly, the court directed the City to provide Dreyer with a defense in both federal actions and to reimburse her reasonable costs of her defense to date in both actions.

Justice Nolan said that he would jurisdiction to fix said amount if the parties are unable to agree such amount.

The full text of the decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2006/2006_52618.htm

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