How To Appeal The 3020-a Decision - Part VI

Once an Arbitrator determines the "award" (penalty), both sides can appeal the "award".  In the DOE's part, the "award" was not termination and it should've been.  While for the educator the "award" was too harsh.  The Arbitrator "award" can be appealed to New York State Supreme Court under section 75-11 (CPLR 7511).

While all appeals can be filed, not all are heard.  The City's Corporation Counsel will automatically ask for dismissal and receive it. The only appeals that will not eventually be dismissed is when the plantiff can show one of the following four conditions applied to the Arbitrator "award".  They are as follows.

The sole grounds set out in Article 75 for overturning such a determination:
1. Proof of corruption, fraud or misconduct in procuring an award;
2. The partiality of the arbitrator;
3. The arbitrator exceeded his or her authority; or
4. The arbitrator failed to follow the procedures set out in Article 75.

In  other words the Arbitrator's "award" is excessive or included actions not charged under section 3020-a.  Previously, it was rare for a court judge to rule against an Arbitrator's "award".  However, of late the NYS Supreme Court judges have been more sympathetic to educators in their appeals and some cases where termination was awarded to the DOE were reversed and in other cases the "awards" were reduced in severity.  Therefore, if you are to appeal your "award" than here is the procedure to do so.

Once the arbitrator renders his final determination ("award"), teachers that wish to contest must file a notice of claim within 10 days of the final determination in the New York State Supreme Court. The NYS Supreme Court is located at 60 Centre Street and the petition should be a lawsuit against the Department of Education and the Chancellor (currently Hon. Dennis Walcott). The petition is pursuant to Article 75 of the CPLR and should outline the reasons why the determination of the arbitrator was too severe of a penalty and “shocking to the conscience and one’s sense of fairness.”

Teachers who decide to go through with the appeal and believe  they want to pursue their case in the NYS Supreme Court should compile all available evidence and either contact an educational lawyer or seek legal advice to put together the petition. Generally NYSUT lawyers will not continue on your case if you pursue Article 75 and a private lawyer is necessary. Timing is very important in all legal cases against the DOE, as all article 78 proceedings must be filed within 4 months of the date of termination, and article 75 proceedings must be filed within 10 days of the final determination. Filings after that cut-off date will be time-barred by Corporation Counsel and the petition will generally be dismissed by the presiding justice. 

Once 3020-a decisions are made traditionally NYS Supreme Court justices have been reluctant to overrule the decision of the arbitrator, but in several recent high-profile cases judges have vacated the ruling of the arbitrator and demanded a lesser penalty. 

One case is the case of Christine Rubino. In this case, the decision to vacate her termination was upheld in the NYS Appellate Court:

http://www.nytimes.com/2013/05/09/nyregion/brooklyn-teacher-who-talked-out-of-school-can-keep-her-job.html?_r=0

Another is the case of Daniel Esteban:

http://www.nytimes.com/2013/09/20/nyregion/judge-overturns-firing-of-teacher-who-faced-drug-charge.html

In both cases, the lawyers argued effectively that the penalty (termination) imposed by the arbitrator was excessive. 

So if you are terminated by the 3020-a hearing, teachers should immediately file a petition within the NYS Supreme Court within 10 days of the receipt of the final determination or "award".

This is the final section of my six part series on the NYC version of the 3020-a process.  I hope you never have to use or experience it during your professional career as an educator.The other parts of the 3020-a process can be found below and is worth reading if you want a complete picture of the NYC 3020-a process and its aftermath..

1. Part I,    The Process
   
2. Part II,  The Arbitrator
3. Part III, The Lawyers
4. Part IV, The Educator, 
5. Part V,  The "Award"

In addition, please read my articles on the investigators who are rarely "fair and balanced" and are an important part of the 3020-a process and can be found Here.and Here.

How To Appeal A 3020-a Arbitrator Decision And The "Just Cause" Provision Used To Determine The Arbitrator's "Award".

In the State Education Law 3020-a the Arbitrator is given wide discretion in deciding the award (penalty) for the tenured teacher. However, occasionally the Arbitrator violates those rules and can be overturned in New York State Court under the Article 75 provisions (CPLR 7511). An example of this is the Teddy Smith arbitration decision when a second arbitrator only used the transcripts of the first arbitration decision to decide the award. Failure of the second arbitrator to hear the case was a violation of the rules and the award was reversed by the Supreme Court Judge. Remember, the 75-11 appeal must be submitted within ten days of the decision. Failure to meet the ten day time limit means that no appeal is allowed.


The four reasons that an Arbitrator's award can be reversed can be found in the New York Public Personnel Law. These four reasons are somewhat broad and vague. However, unless the Arbitrator's decision is egregious, it is highly unlikely that the Court will overturn the Arbitrator's award. listed below are the grounds that an Arbitrator's award can be appealed.:

The sole grounds set out in Article 75 for overturning such a determination:

1. Proof of corruption, fraud or misconduct in procuring an award;

2. The partiality of the arbitrator;

3. The arbitrator exceeded his or her authority; or

4. The arbitrator failed to follow the procedures set out in Article 75.

More interestingly, is the basis for an Arbitrator to terminate a tenured teacher. While, only 10% of the 3020-a cases in New York City lead to termination (20% of cases actually heard by an Arbitrator).The basis for an Arbitrator to terminate a tenured teacher must meet the "Just Cause" provision in the employee dismissal law, Section 5 and starting from page 5-13. The seven provisions must all apply if an Arbitrator is to terminate the tenured teacher.

JUST CAUSE STANDARD BY ARBITRATORS

In determining whether an employer’s discipline of an employee was for cause. The Arbitrator usually considers two elements. The Arbitrator first makes a factual determination whether the employee committed the act alleged and then makes a determination as to whether the act committed warranted the discipline imposed. In cases of dismissal, the burden is always on the employer to prove wrongdoing, and is always so when the agreement requires “just cause” for dismissal.

According to the “just cause” standard if any of the seven questions are determined by the Arbitrator not to be true (negative), then “just cause” does not exist and the Arbitrator can use his judgment on the proper penalty, short of termination.

· Did the company give the employee forewarning or foreknowledge of the possible or probable disciplinary consequences of the employee’s conduct?

· Was the company’s rules reasonably related to a) the orderly, efficient, and safe operation of the company’s business and b) the performance that the company might expect of the employee?

· Did the company, before administering discipline to the employee, make an effort to discover whether the employee did in fact violate or disobey a rule of order by management?

· Was the company’s investigation done fairly and objectively?

· At the investigation, did the company’s decision maker obtain substantial and compelling evidence of proof that the employee was guilty as charged?

· Has the company applied its rules, orders, and penalties evenhandedly to all employees without discrimination?

· Was the degree of discipline administered by the company in a particular case substantially related to a) the seriousness of the employee’s proven offense and (b the employment record of the employee in his service to the company.

The inconsistent enforcement of company rules is improper, and the discipline is set aside upon proof of discriminatory enforcement. Further, the Arbitrator can set aside management decisions on the grounds that the employee was denied due process rights in the investigatory procedure.

While most Arbitrators follow the ""just cause" practice, some may have their own very similar standards that are used to determine their "awards".

It is very important that all teachers going into their 3020-a hearings understand what their rights are. The more you know the better you will be able to defend yourself.