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:
Another is the case of Daniel Esteban:
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..
- Part I, The Process
- Part II, The Arbitrator
- Part III, The Lawyers
- Part IV, The Educator,
- Part V, The "Award"