Sunday, December 28, 2008
Vacating a Section 3020-a arbitration award
Vacating a Section 3020-a arbitration award
Westhampton Beach UFSD v Ziparo, App. Div., Second Dept., 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 (see below). 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.
By Harvey Randall, Esq. on Wednesday, June 27, 2007
Appeal of administrative disciplinary action must be presented to the proper forum
Westhampton Beach UFSD v Ziparo, 275 A.D.2d 411
In a proceeding pursuant to CPLR article 75 to modify a determination of a Hearing Officer made pursuant to Education Law § 3020-a, dated February 3, 1999, which, after a hearing, sustained certain charges against the respondent David Ziparo, suspended him for one year without pay, and conditioned his return to teaching upon a certification of psychiatric fitness, the Board of Education of the Westhampton Beach Union Free School District appeals from a judgment of the Supreme Court, Suffolk County (Floyd, J.), entered August 19, 1999, which denied the petition and confirmed the determination.
Ordered that the the judgment is affirmed, with costs.
The Supreme Court properly confirmed the Hearing Officer's determination since the petitioner did not demonstrate any basis for vacating it under CPLR 7511 (see, Education Law § 3020-a ; Matter of Roemer v Board of Educ., 268 AD2d 479; cf., Matter of Board of Educ. v Yusko, 269 AD2d 446). The Hearing Officer's determination has a rational basis and is supported by the record (see, CPLR 7511; Matter of Fischer v Smithtown Cent. School Dist., 262 AD2d 560).
The petitioner's remaining contention is without merit.
Mangano, P. J., O'Brien, Sullivan and H. Miller, JJ., concur.
The Appellate Division affirmed Supreme Court Justice Floyd ruling, set out below:
ORDERED that this application by Petitioner seeking to modify and/or vacate a certain arbitration award is considered under Education Law 3020-a and CPLR 7511 and is denied. The petition is dismissed. The award is confirmed.
The Respondent is a tenured physical education teacher for the past 23 years within the Petitioner’s school district. On April 8, 1998, Petitioner school district proffered charges against the teacher which included, inter alia, conduct unbecoming a teacher and insubordination for inflicting corporal punishment against several students by striking them with a belt. On another occasion, the teacher allegedly “pushed” a student and issued “vulgarities.”
Following a hearing pursuant to Education Law 3020-a, the hearing officer, in a 55 page written decision, found the teacher “guilty of a number of charges” including the use of corporal punishment. However, because of an otherwise 23 year unblemished teaching record, the hearing officer did not recommend the teacher’s termination. Rather, the hearing officer recommended that the teacher be suspended without pay for one year from February 1, 1999 until January 31, 2000 subject to being certified to return to his teaching duties by a mutually agreed upon psychiatrist.
On the instant petition, the Petitioner seeks to modify the recommendation of the hearing officer by directing that the teacher be terminated from his employment contending, inter alia, that the recommendation is irrational, violative of public policy and subject to review under Article 78 asserting that the award is arbitrary, capricious and an abuse of discretion. The Respondent demurs and does not dispute the hearing officer’s findings but urges that judicial review is limited to the confines of Article 75 rather than Article 78.
Education Law 3020-a(5) provides in part the following:
5. Appeal. Not later than ten days after receipt of the hearing officer’s decision, 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.
In view of this unambiguous legislative mandate, this Court must apply the standard of review of Article 75, that is, CPLR 7511 and not that of Article 78.
CPLR 7511(b) (1) sets forth the criteria upon which a Court may vacate or modify an award:
(i) corruption, fraud or misconduct in procuring the award; or (ii) partiality of an arbitrator appointed as a neutral, except where the award was by confession; or (iii) 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 (iv) failure to follow the procedure of this article, unless the party applying to vacate the award continued with the arbitration with notice of defect and without objection.
Here, this Court discerns no basis under CPLR 7511(b) (1) to modify or vacate the hearing officer’s recommendation. Indeed, the hearing officer made findings of fact consistent with those facts as asserted by Petitioner. Petitioner urges termination upon the basis that the hearing officer’s determination to suspend the Respondent for one year rather than terminate his employment with the school district is “irrational.” Although neither party to this proceeding has submitted a transcript of the entire hearing, a review of the record now presented fails to reveal that the hearing officer’s recommendation is “irrational.” Rather, the record and the hearing officer’s recommendations reflect the seriousness of the charges and notes that except for the current charges, no other charges have ever been filed by the District against the Respondent in the prior twenty two years of tenured service to the district.
Moreover, Education Law 3020-a(4) (a) permits a hearing officer to impose a variety of penalties to include a written reprimand, a fine, a suspension for a fixed time without pay, or dismissal. In lieu of the foregoing, the hearing officer is also empowered to impose remedial action upon the employee including directing the employee to seek counseling or medical treatment. The hearing officer was well within his authority to direct the suspension of the Respondent for one year and that his return to his teaching duties would be conditioned upon being certified as fit for duty by a psychiatrist. Given the charges and the Respondent’s otherwise unblemished record, the hearing officer’s determination imposing a one year suspension without pay is a significant financial penalty, reflects the seriousness of the charges proffered and proven by the district and cannot be construed by this Court as irrational.
Further, the hearing officer was also within his authority to condition Respondent’s return to his teaching duties upon a certification by a mutually agreed upon psychiatrist. Such condition is remedial in nature, does not violate Education Law 913 and insures that the District’s, the hearing officer’s, and the Respondent’s concerns regarding his fitness to continue his profession are judged by an impartial objective evaluation.
Accordingly, the hearing officer’s determination reflects a balanced decision based on the facts and well within his authority as defined by Education Law 3020-a. The remainder of Petitioner’s arguments are without merit and the petition is dismissed. The hearing officer’s determination is confirmed.
Submit order confirming the hearing officer’s award.
Posted by Plain English Legal Publications at Wednesday, August 22, 2007
Vacating a disciplinary arbitration award
Roemer v NYC Bd. of Ed., App. Div., Second Dept., 268 AD2d 479, Motion for leave to appeal denied, 94 NY2d 763
The Roemer decision serves as a reminder that the grounds for appealing a Section 3020-a disciplinary determination are very limited. In order to overturn a Section 3020-a arbitration award, it is necessary to prove that one or more of the statutory reasons set out in Article 75 of the Civil Practice Law and Rules for vacating the award exist.
Under Article 75, [Section 7511.b] an arbitrator’s award can be vacated if a court finds that the rights of a party were violated because of corruption, fraud or misconduct in obtaining the award; the arbitrator was not impartial; to one party; the arbitrator exceed his or her powers or so imperfectly exercised them that a final determination was not made or the arbitration procedures were not followed [unless the party objecting to the award continued with the arbitration without objection after becoming aware of the defect].
Here David Roemer, a New York City schoolteacher, was terminated after the Section 3020-a arbitrator found him guilty of charges of incompetence and insubordination. He attempted to vacate the award. However, the Appellate Division sustained the Supreme Court’s dismissal of Roemer’s petition to vacate the award because Roemer “did not demonstrate” any basis for vacating the award under Section 7511.
In addition to the limited grounds for vacating the arbitration award set in Section 7511, Section 3020-a set a very short statute of limitations for filing a petition to overturn or modify the award as well as settling other limitations in such cases. Section 3020-a.5 sets out the following limitations with respect to challenging a Section 3020-a disciplinary determination:
1. Not later than ten days after receipt of the hearing officer’s decision, 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 CPLR Section 7511.
2. The court’s review shall be limited to the grounds set forth in Article 75. Further, the hearing panel’s determination shall be deemed final for the purpose of such proceeding.
3. In no case shall the filing or the pendency of an appeal delay the implementation of the decision of the hearing officer.
Point 3 is particularly significant as it allows the appointing authority to impose the penalty determined by the arbitrator while the decision is being challenged.
By Harvey Randall, Esq. on Friday, May 11, 2007