Answering brief

Sup. Ct. Kings Co.
Index No. 21557/98

To be argued by
(10 minutes requested)

Case No.: 99-00490





- against -




Corporation Counsel of City of New York,
Attorney for Respondent
100 Church Street,
New York, New York 10007
(212) 788-1041



June 30, 1999.









ARGUMENT (p. 11)




See text.


This is an appeal of an Order, entered on or about December 10, 1998, of Supreme Court, Kings County (Vaughan, J.) which dismissed a petition seeking reversal of a Decision, dated June 1, l998, of a hearing panel in a proceeding under Section 3020-a of the Education Law, which found petitioner, a former tenured physics teacher with the New York City Board of Education ("Board"), guilty of charges involving incompetent teaching and insubordination, and dismissed him from service.


Did the IAS Court correctly dismiss for failure to state a cause of action the petition challenging petitioner's dismissal from teaching service?


By notice of petition and petition, dated June 24, 1998, and stated to proceed under Article 75 of the CPLR (1- 10)* and prepared by counsel who had represented petitioner before a hearing panel in a proceeding pursuant to Section 3020-a of the Education Law, petitioner challenged the panel decision finding him guilty of charges of incompetent teaching and insubordination and dismissing him from teaching service with the New York City Board of Education. Besides raising several technical objections, not pursued on this appeal, concerning the timeliness of the panel decision, the petition alleged (6) "(t)he charges, the outgrowth of the disagreement between myself and the principal of Edward R. Murrow, Saul Bruckner ("Bruckner")with respect to the method I was to use in teaching physics, pertained to teaching methodology" (petition, par. 7). The petition states, with respect to the findings of the panel, par. 2c, "I contend that the panel, statutorily mandated to consider the disciplinary charges, in concluding that I had rendered incompetent teaching services without finding as a prerequisite for such a conclusion that a valid educational experience had not occurred within my classroom and when in fact learning had occurred, misconstrued controlling law and thereby rendered an arbitrary decision." (5)

The petition attached as an exhibit the detailed specifications (11-34), and the Decision of the panel (36-85), which contains a 25 page discussion of the evidence adduced at hearing (61-85).


The Decision summarized the lengthy charges against respondent as involving the following (68):

  • Respondent's failure to construct and/or provide lesson plans for classes.
  • Respondent's failure to actively engage himself in the teaching/learning process.
  • Respondent's failure to include aim, motivation and summaries in student lessons.
  • Respondent's failure to attend pre- and post- observation conferences.

The panel found that there was no doubt that petitioner failed to prepare lesson plans. The materials petitioner submitted as lesson plans -- an example being quoted in the Decision (at 69-70) - - were not lesson plans since these had no objective, but were more accurately described as work sheets which were given out to the students (70-71).

The panel also found that petitioner's supervisors Principal Bruckner, and Assistant Principal Cohen, had repeatedly told petitioner the elements of a proper lesson plan, with the Decision setting forth quotations from two written communications from supervisors to respondent concerning the elements of a proper lesson plan (71-72). In addition, petitioner admittedly refused to comply with the supervisory directives concerning lesson plans,with petitioner stating in response to a written supervisory communication in the second year of complaints about petitioner's lack of lesson plans, that he intended to rely on the same plans which had been found to be inadequate the prior year because these were only student worksheets (72). The Assistant Principal had given petitioner a book of lesson plans for his course on scientific methods, but petitioner did not use these plans (73).

The Panel Decision also sustained the charges that petitioner's classes were incompetently taught based on detailed testimony concerning many supervisory observations of petitioner's classes (73-74). The record also supported the conclusion that petitioner would not attempt to comply with supervisory recommendations in critiques of his teaching, quoting one of petitioner's responses (74) :

You regard my methods as inferior to your own teaching practices and paradigms. You think my lessons are bad, but if I follow your directions my lessons will be transformed from bad to average or good. You demand that I implement these changes. I refuse and you, with the vehemence of outraged virtue, insult my teaching and declare that my lessons are unsatisfactory.

The panel stated (75):

These comments are revealing. They indicate a teacher who stubbornly refuses to make the changes demanded of him. While he steadfastly believed he was right, the simple fact is that he willfully decided to ignore the suggestions and directives of those empowered to make them. Such unwillingness must weigh heavily against him, the Panel finds.

The panel also stated that there was no doubt that Principal Bruckner and Assistant Principal Cohen properly criticized petitioner for failing to adequately involve the students in his lessons. The panel stated that these supervisory "observations are factually based particularly in light of respondent's comments that he had students working in pairs and was available to answer questions. While such a technique might be occasionally useful, it is surely not a substitute for hands on teaching which engages students' interest, attention and participation. Furthermore, none of Bruckner and Cohen's suggestions or observations were based on anything but their assessment of his performance." (76). The panel concluded on this issue (76-77):

In sum, on this point, there is nothing in the record to even remotely suggest that Bruckner or Cohen placed unreasonable demands upon Roemer. They surely did not conspire to oust him and Roemer acknowledged that he did not regard them as malicious individuals bent on getting him. Instead, the goals they espoused - - more student participation, greater responsiveness to students' questions , injecting lessons with aims, motivations, etc.; and better use of demonstrations, reflect commonly accepted pedagogical methodology. Thus, Respondent's failure to adhere to them renders him culpable of the charges alleging unsatisfactory performance in its various forms.

We note Respondent's claim that he was utilizing a methodology which was successful in his assignment at Erasmus High School. Whether this is so or not we need not decide. The fact remains that his supervisors in his current assignment wanted him to to teach differently. In their view, he was simply handing out worksheets, taking a few minutes to explain the day's work and in essence, letting the students fend for themselves. They obviously had a right to espouse that he conduct his classes in a different manner. That manner was neither irrational nor unsupportable. Thus, by adamantly refusing to accede to their suggestions, Respondent revealed his own culpability of these charges, the Panel concludes.

The panel also found that petitioner was "blatantly insubordinate" for repeatedly failing to meet, as directed, with the principal and assistant principal concerning their observations of petitioner's lessons (78). Petitioner found the supervisory directives meaningless since he believed nothing good could come of the meetings and simply stopped attending them (78).

The panel determined that petitioner should be discharged from teaching service with the New York City Board of Education. The panel rejected petitioner's contention that the pendency of conciliation procedures concerning petitioner's lessons and lesson plans under Article 24 of the contract between the teachers' union and the Board of Education, warranted petitioner's continued refusal to even attempt to comply with the supervisory directives concerning petitioner's lesson plans and lessons (79-81). While he panel found that conciliation initially was not properly conducted at the District Superintendent level (79), that "did not permit him to flout legitimate directives of his school administrators and to continue teaching in the manner he had previously taught and to fail to provide required lesson plans. Nothing in the conciliation process permits a teacher to use it as shield to ignore the pedagogical methodology which the school deems appropriate" (80). Furthermore, a conciliator ultimately was appointed and testified at the disciplinary hearing before the panel that he made it clear at a conciliation session in March 1995 that "we are not going to be able to resolve this issue. We are not going to find common ground." (80). Accordingly, petitioner's assertion that he was waiting for conciliation to finish before changing his teaching methods was without merit. (80) "In addition, on November 8, 1995, Respondent was formally notified that the conciliation process was at an end (Respondent's Exhibit 41). Yet even after this date, he refused to attend post observation conferences or to involve students to a greater degree in lessons or to provide written lesson plans." (81).

The panel noted that a teacher deemed incompetent and/or insubordinate in a pedagogical setting usually is given an additional opportunity to improve, however, petitioner had been given extensive opportunities to do so and continued to insist that his methods were correct and that he would not change them. Petitioner's teaching had been observed about 15 times in one and one-half years, with each observation followed by a detailed report which specifically delineated what was expected of petitioner (81- 82). Even at the disciplinary hearing, petitioner indicated that at most he would be willing to modify his practice only if the school administrators were willing to accept some or all of his views about teaching (83). Petitioner "would not accept the suggestions of administrators until and unless the conciliation process made the administrators change their own views." Since the process did not produce this result, there was no reason to believe that Respondent would alter his practices if he were returned to duty. (84). The Decision states (82):

Significantly, Respondent did not evince a lack of understanding to the criticisms and suggestions offered. Indeed, the Panel was impressed with his knowledge of the subject matter and his general intelligence. Instead, Respondent simply refused to incorporate the many suggestions and directives issued. As such, we are convinced, this is not a case of a teacher who could improve with additional training. Instead, this is a case of a teacher who simply believed he was right and everyone else was wrong. Thus, we conclude, no useful purpose would be served by restoring Respondent to duty.

The Employee Panel Member concurred in the findings of culpability, but recommended, in lieu of discharge, a period of probation with the clear understanding that petitioner comply with school policy, provide the required lesson plans and meet with his supervisors, at their direction, in order to improve his teaching strategies; or, as an alternative, petitioner be transferred to another high school (89-90).


Respondent moved to dismiss the petition on the grounds that it fails to state a cause of action and was time-barred (93 - 94).** An appeal to the courts of a decision of a hearing officer or panel under Section 3020-a of the Education Law is governed by Section 3020 (5), which states:

5. Appeal . Not later than after receipt of 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. 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 a memorandum of law, respondent argued that the petition failed to state a cause of action under the limited scope of judicial review under Section 7511 of the CPLR, which was incorporated into Section 3020-a(5) of the Education Law. Petitioner's objections to the untimeliness of the decision would not warrant vacating of the decision.*** Respondent stated that the decision was sufficiently final and definite, and argued that petitioner's challenge to the panel's determination was fact-based and alleged errors of fact or substantive law were not a basis for reversal of a decision at arbitration unless the errors rendered the determination totally irrational, which was not the case here.

Petitioner, now appearing pro se at this stage having discharged his counsel (96), submitted a reply arguing in substance, that his "innovative" method of teaching was appropriate, and that the dispute concerning his teaching methods should have been resolved by conciliation (99-101).


The Decision and Order of the IAS Court, dated December 1998, stated that after oral argument, on the pleadings and papers, the petition is denied and dismissed, and the cross-motion to dismiss is granted (C)



In his appeal to this Court, petitioner argues that the petition should not have been dismissed because the award is totally irrational (Appellant's Brief, pp. 15-30), relying in this argument on detailed characterizations of the record clearly not appropriate to judicial review under CPLR Section 7511. Petitioner also argues that the standard of review is not that of Article 75, but closer to that of Article 78 of the CPLR, because the disciplinary hearing was mandated by statute and was not a voluntary arbitration (Appellant's Brief, p. 38). In addition, appellant argues that the panel exceeded its authority by conducting the hearing prior to successful completion of conciliation (Appellant's Brief, p. 30), that the award allegedly violates public policy because it discourages use of innovative teaching methods such as petitioner's (Appellant 's Brief, p. 31) , and relegates the parties to litigation, since petitioner allegedly has a breach of contract action because the Board did not conciliate the matter (Appellant's brief, p. 37). None of these claims stated a cause of action and the petition correctly was dismissed.

Petitioner's claim that the panel decision should be vacated as against public policy fails to state a cause of action. As stated in Matter of Sprinzen (Nomberg),46 NY2d 623, 630 (1979), the Court's "must exercise due restraint" in striking arbitration awards on public policy grounds, "for arguably every controversy has at its core some issue requiring the application, or weighing, of policy considerations. Thus there are now but a few matters of concern which have been recognized as so intertwined with overriding public policy considerations as to either place them beyond the bounds of the arbitration process itself or mandate the vacatur of awards which do violence to the principles upon which such matters rest (See Matter of Port Jefferson Sta. Teachers Assn. v. Brookhaven Comsewoque Union Free School Dist., 45 NY2d 898, 899)," Intervention in the arbitration process on public policy grounds is warranted only in "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. Stated another way, the courts must be able to examine an arbitration agreement or an award in its face, without engaging in extended factfinding as legal analysis, and conclude that public policy precludes its enforcement." Id. 46 NY2d at 631. As stated in Hall v. State of New York (Department of Environmental Conservation), 235 AD2d 757, 758 (3rd Dept. (1997)):

An arbitration award may not be vacated unless it violates a strong and substantial public policy, is irrational or clearly exceeds a specific limitation on the arbitrator's power (see, Matter of Town of Callicoon [Civil Serv. Empls. Assn.] , 70 NY2 d 907; see Matter of Sprinzen [Nomberg], 46 NY2d 623, 630) . " Incantations of 'public policy' may not be advanced to overturn every arbitration award " *** Only when the award contravenes a strong public policy, almost invariably involving an important constitutional or statutory duty or responsibility, may it be set aside" (Matter of Port Jefferson Sta. Teachers Assn. v. Brookhaven-Comsewoque Union Free School Dist., 45 NY2d 898, 899).

Petitioner's contention that his teaching methods, found to have been incompetent by an expert panel, are "innovative" and further the development of teaching techniques, raises no issue of public policy warranting judicial action under Article 75 of the CPLR.

The panel also unquestionably had jurisdiction to hear the disciplinary charges and to render a decision under Section 3020-a (2) (c) (3) (4).The panel was not barred from hearing the disciplinary matter or from rendering a decision by the conciliation provision, Article 24 of the collective bargaining agreement. The rulings in the Decision concerning the effect of that provision involved the interpretation and application of the agreement, and such rulings must be sustained if not totally irrational. Matter of Town of Callicoon (Civil Serv. Empls. Assn.), 70 NY2d 907, 909 (1981). The interpretation thereof is not reversible for error of law. Matter of Sprinzen, supra, 46 NY2d at 629. Nor was the decision erroneous in that regard. Article 24 provides for voluntary conciliation and no party is compelled to reach a negotiated outcome thereunder. In addition, it was uncontroverted that conciliation was formally concluded before the disciplinary charges were filed (35, 37, 81) and long before the disciplinary trial and decision, and that petitioner had been put on notice during the prior school year that the matter could not be conciliated (80). Furthermore, this expert disciplinary panel, utilized at the teacher's option, only "when the charges concern pedagogical incompetence or issues involving pedagogical judgment," Education Law Section 3020-a (2) (c), was authorized to interpret the contract conciliation provision and Education Law Section 3020-a to reach the wholly rational conclusions that the prior conciliation effort did not bar the disciplinary proceeding or at any time relieve petitioner of his obligations to follow supervisory directives and to teach competently (79-80).

Petitioner's claim that the decision should be vacated because it relegates the parties to litigation also fails to state a cause of action. An award is subject to vacatur on such a ground if it leaves the parties unable to determine their rights and obligations, if it does not resolve the controversy submitted, or if it creates a new controversy. See Meisels v. Uhr, 79 NY2d 526, 536 (1992): arbitration award provision that a religious tribunal would resolve any future disputes did not render the award nonfinal or indefinite in violation of CPLR Section 7511 (b) (1) (iii); Morgan Guaranty Trust Co. v. Solow, 114 AD2d 818, 821-822 (1st Dept. 1985) affd 68 NY2d 779 (1986): where award contained the formula to solve a rent escalation clause dispute but did not contain the formula calculation it was sufficiently definite and final under CPLR Section 7511 (b) (1) (iii); Matter of Guetta (Raxon Fabrics Corp.), 23 AD2d 40, 44 (1st Dept. 1987), rejecting an argument that the lack of discussion of a party's claim rendered an award indefinite: "To be final and definite, it is necessary only that the award resolve the dispute submitted in a manner that does not remit the parties to a new controversy or future litigation, and that unequivocally indicates their respective rights and obligations and what each must do (Hiscock v. Harris, 74 NY 108, 113; Matter of Overseas Distribs. Exch. [Benedict Bros. & Co.], 5 AD2d 498, 499, see, 5 NY Jur 2d, Arbitration and Award, Sections 102, 103). No particular format is required to make an award final and definite. 'Any form of words which amounts to a decision of the question submitted is good as an award; no technical expressions are necessary, nor any introductory recitals.' (Ott v. Schroeppel, 5 Y 482, 484-485.)".

The subject decision clearly rules that petitioner was guilty of the charges of incompetence and insubordination and clearly stated that he should be discharged from teaching service with the Board. Petitioner's threat to bring a baseless contract action does not render the decision invalid under the standards of CPLR Section 7511(b) (iii).

An arbitration award will not be vacated by the Courts for error of fact or law and will be sustained unless it is totally irrational or violative of a strong public policy. Maross Construction. Inc. v. Central New York Regional Transportation Authority, 66 NY2d 341, 346 (1985); Matter of Albany County Sheriff's Local 775 (County of Albany) 63 NY2d. 654, 656 (1984); Matter of Sprinzen, supra, 46 NY2d at 629. The petitioner's claim that this award was totally irrational fails to state a cause of action.

The failure to prepare adequate lesson plans has been recognized by the Courts as a basis for discipline under Section 3020-a of the Education Law. Meyer v.Board of Education of the Charlotte Valley Central School District, 182 AD2d 873, 874 (3rd Dept. 1992); Clarke v. Board of Education of Vestal Central School District,105 AD2d 893 (3rd Dept. 1984); Root v. Board of Education of the Fulton Consolidated School District, 59 AD2d 328, 331 (4th Dept. 1977). "Formal lesson plans play a vital role in the proper functioning of a classroom teacher. Such proper planning is indispensable to effective teaching. Petitioner had a duty to follow the instructions of his superiors which he virtually ignored despite exhaustive and long term efforts on the part of the school district to remedy the problem." Meyer v. Board of Education of the Charlotte Valley Central School District, supra, 182 AD2d at 874. The failure to follow the directive to develop adequate lesson plans is a basis for a finding of insubordination, Meyer, supra ,182 AD2d at 874; Clarke v. Board of Education of the Vestal School District , supra, 105 AD2d at 895; as was petitioner's refusal to change his lesson techniques despite repeated supervisory recommendations following observations of petitioner's classes. Root v. Board of Education of the Fulton Central School District, supra, 59 AD2d at 330-331; Meyer, supra, 182 AD2d at 874; Clarke, supra, 105 AD2d at 894.

The Court's have also repeatedly sustained the termination of the services of a teacher when the teacher's attitude or lack of competence is such as to indicate that an improvement in performance is unlikely. Clarke, supra, 105 AD2d at 895: "Surely termination is not an unduly excessive response to one whose teaching is substandard and who is persistently insubordinate (Matter of Root v. Board of Educ., 59 AD2d 328), particularly when there is no indication that the same or similar conduct would not be repeated if petitioner was allowed to return to work"; Matter of J ones, 189 AD2d 518 (2d Dept. 1993): when the panel found that petitioner failed to improve his teaching performance despite many warnings and opportunities to do so and that he would not improve his skills if permitted to return to work, dismissal was appropriate and not shocking to one's sense of fairness, citing Matter of Pell v. Board of Education, 34 NY2d 222, 233, (1974); Accord: Mongitore v. Regan, 133 AD2d 815 (2d Dept. 1987): this Court sustained dismissal when the record did not support a finding that placing the petitioner back in the classroom after a lesser penalty than dismissal would improve her methods of teaching; Carlan v. Board of Education of Lawrence Union Free School District, 128 AD2d 706, 707 (2d Dept. 1987) : dismissal from teaching position was sustained when there was no indication that the petitioner would not repeat the same or similar conduct -- repeated neglect of duty, insubordination, failure to prepare and grade certain final examinations, and manipulation of test scores -- if he were permitted to return to work; see Linfield v. Nyquist, 65 AD2d 846 (3rd Dept. 1978) affd 48 NY2d 1005 (1980): when findings of inefficient and incompetent service involved a pattern of conduct, not one incident, the sanction of dismissal was not inappropriate. "[A]lthough in one view this result may appear harsh, to decline to uphold the determination would be to force the board of education to continue to employ a teacher, who has been found, after a hearing, to be incompetent." Id. 48 NY2d at 1007; Kaczala v. Board of Education of East Ramapo Central School District, 123 AD2d 668 (2d Dept. 1986), sustaining the dismissal of a teacher after a hearing under Section 3020-a of the Education Law, this court stated: "We note that a Board of Education is required to follow the recommendation of a hearing panel convened pursuant to Education Law Section 3020-a (see, Poole v. Little Val. Cent. School Dist., 114 Misc 2d 901, 903 affd 99 AD2d 650) and that a court should generally not substitute its judgment for that of such a panel. There is a presumption that the panel possesses an expertise which places it in a better position to evaluate the penalty to be applied in cases of misconduct than those lacking their special insight or experience (cf. Kostika v. Cuomo, 41 NY2d 673; Matter of Ahsaf v Nyquist, 37 NY2d 182). In this case, the hearing panel, taking into account the need to protect other students from the harm that would result from the repetition of the petitioner's misconduct, recommended his discharge; this recommendation, which was binding upon the respondent Board of Education, should not now be disturbed."****

Petitioner cites Garippa v. Board of Education of City School District of the City of New York, NYLJ, 4/2/98, p. 31, col. 6 (Sup. Ct. N.Y. Co.) and Austin v. Board of Education of the City School District of the City of New York, NYLJ, 5/6/99, p. 29, col. 5, for the position that a more exacting CPLR Article 78 standard of review applies to awards arising from compulsory arbitration than the judicial standard of review for arbitration awards resulting from consensual, contractual arbitration. These cases rely for authority upon Mount St. Mary's Hospital v. Catherwood, 26 NY2d 493 (1970); Caso v. Coffey, 41 NY2d 153 (1976); Motor Vehicle Manufacturers Assn. v. State of New York, 75 NY2d 175 (1990) and MVAIC v. Aetna Casualty & Surety Co., 89 NY2d 214 (1996). Even under these authorities, the standard of review of a compulsory arbitration award is not substantial evidence, but rationality. The standard of review of an award in mandatory arbitration is that the award must have evidentiary support and cannot be arbitrary or capricious. MVAIC v. Aetna Casualty & Surety Co., supra, 89 NY2d at 223.

The standard of review is not substantial evidence, as demonstrated by the holding that an award resulting from mandatory arbitration can be reviewed even if the hearing was not transcribed, with the award sustained if the record shows a rational basis therefor. Caso v. Coffey, supra, 41 NY2d at 159 - 160. Nor does error of law mandate reversal of an award in compulsory arbitration if the issue of law was unsettled. MVAIC v. Aetna Casualty & Surety Co., supra, 89 NY2d at 224. The standard If review for a compulsory arbitration award is whether it is supported by adequate evidence in the record and whether it is rational and satisfies the arbitrary and capricious standard of CPLR. A stenographic record of the arbitration proceeding is not a prerequisite for such judicial review. Lyeth v. Chrysler Corp. 929 F.2d 891, 896, 897 (2d Cir. 1991). In this case, the panel decision contains an extensive reasoned evaluation of the evidence. Nor does appellant raise issues of fact. He baselessly challenges the panel's conclusions that his manner of teaching, the nature of which was not in dispute, was not appropriate; and petitioner further argues that he was justified in his admitted refusal to meet with the principal and assistant principal to discuss his teaching methods.

In any event, Garippa and Austin incorrectly apply case law concerning compulsory arbitration to review of teacher disciplinary hearings pursuant to Section 3020-a(5) of the Education Law. The 1994 amendment of Section 3020-a of the Education Law effected by Chapter 691 of the Laws of 1994, which included the language providing in Section 3020-a (5) for review of the decision of a hearing officer pursuant to Section 7511 of the CPLR, did not convert the disciplinary hearings under the Education Law into compulsory arbitration. The format of the disciplinary hearings retained the substantial procedural requirements of prior disciplinary hearings (See Education Law Section 3020-a (3 ((c)), mainly expediting the time sequences thereof. The language in question simply limited judicial review of the hearing officer's or panel's decision in the disciplinary hearing, using CPLR Section 7511 standards as that limited standard of judicial review.

Applying substantial evidence Article 78 review standards to Section 3020-a decisions disregards the plain language of the statute, and the legislative intent, which is evident from the language itself as well as from the legislative history. The governing rule of statutory construction is that courts are obliged to interpret a statute to effectuate the intent of the legislature, and where the statutory language is clear and unambiguous it should be construed to give effect to the plain meaning of the words used. Judge Rotenberg Education Center v. Maul, 91 NY2d 298, 303 (1998); People v. Finnegan, 85 NY2d 53, 58 (1995) cert. den. 516 U.S. 919 (1995); State of New York v. Ford Motor Co., 74 NY2d 495, 500 (1989).This language clearly changes the scope and standard of judicial review of a disciplinary determination under Section 3020-a to that provided in CPLR Section 7511.

To the extent the statutory language is in any way ambiguous, which here it is not, resort to the legislative history is appropriate to discern the legislative intent. Judge Rotenberq Educational Center v. Maul, supra, 91 NY2d at 303; B & F Building Corp. v. Liebig, 76 NY2d 689, 693 (1990); State of New York v. Ford Motor Co., supra, 74 NY2d at 500-501; Action Electrical Contractors Co. v. Goldin, 64 NY2d 213, 221-222 (1984); People v. Correa, 248 AD2d 630 (2d Dept.1998) affd for reasons stated at App. Div. 93 NY2d 821 (1999); People v. Cypress Hills Cemetery, 208 AD2d 247, !52-253 (2d Dept. 1995)The legislative history, as set forth in an extensive bill jacket, makes very clear that the purpose of the bill was to carry out recommendations of a Moreland Act Commission appointed by the Governor, which Commission, in taking testimony from over 300 witnesses, heard repeated criticism of the procedures for bringing disciplinary charges against tenured teachers. The commission concluded that the process resulted in hearings that were far too expensive and time consuming, with such a proceeding estimated to typically cost in excess of $80,000, and to take over a year to resolve. One statutory objective was that the disciplinary hearing decision should be final. Governor's Approval Memorandum, Governor's Program Bill Memorandum, p. 3; Budget Report on Bills, p. 1; the statute "provides that the decisions of disciplinary hearing officers/panels are final and subject to appeal only under special circumstances." The Commissioner of Education, in a memorandum recommending disapproval of the bill, noted that Education Law Section 3020-a was being amended to "limit judicial review of Section 3020-a hearing officer or panel decisions to the procedure for review of an arbitrator's decision under CPLR 7511, which does not include any review of the merits of the decision. " Id. p. 3. The Commissioner argued that either Commissioner or judicial review was required, with both being eliminated under the bill. The Commissioner's memorandum stated: "Eliminating the Commissioner's authority to review Section 3020-a panel decisions and limiting judicial review to Article 75 of the CPLR will, as a practical matter, mean that the arbitrator's decisions will be final and virtually unreviewable. There is no review of the merits of an arbitrator's decision under CPLR Section 7511, which will mean that the arbitrator's decision will be final unless it is affected by fraud, partiality or procedural defects. This contrasts with the current standard for judicial review of Section 3020-a decisions under Article 78 of the CPLR, as articulated in Pell v. Board of Education, 34 NY2d 222 (1974). Under this standard, a court has the authority to review Section 3020-a decisions on the merits and may overturn the penalties imposed in such decisions if they are so arbitrary and capricious as to be "shocking to the conscience" of the Court. The Commissioner's current review powers are even broader and provide substantial protection of the public, since the Commissioner may substitute his judgment for that of the hearing panel." Id. pp. 4-5.

In enacting the statute, the legislature is presumed to be aware of existing case law. B & F Buildings Corp. v. Liebig, supra, 76 NY2d IL at 693; Foy v. 1120 Avenue of the Americas, 223 AD2d 232, 237 (2d Dept.1996); Phillips v. Legrett, 141 AD2d 710, 711 (2d Dept. 1988). To attribute to the legislature an intent to adopt Article 78 standards of review applicable to compulsory arbitrations to the decisions in teacher discipline when the legislature specifically made reference to CPLR Section 7511 review standards in the amended legislation, would erroneously attribute to the legislature a largely futile act, since teacher discipline decisions were already subject to Article 78 review under the prior law. See B & F Building Corp. v. Liebig, supra, 76 NY2d at 694; Foy v. 1120 Avenue of America Associates, supra, 223 AD2d at 232, 237; New York Life Insurance Co. v. State Tax Commission, 80 AD2d 675, 677 (3rd Dept. 1981) affd for reasons stated in mem. at App. Div. 55 NY2d 758 (1981). Had the legislature intended to provide for judicial review under CPLR Section 7803 (3), that could easily have been stated. Furthermore, the legislature had authority to effect this change in judicial review and could constitutionally do so. Mount St. Marry's Hospital v. Catherwood, supra, 26 NY2d at 505: "There is no doubt that a legislature may establish a tribunal, rather than a court, to hear and determine disputes even where substantial property rights are involved, but there must be due process of law, both substantive and procedural. Nor, as has been said, is due process of law necessarily judicial process, but it must be a due process of law." See also Motor Vehicle Manufacturers Assoc. v. State of New York, supra, 75 NY2d at 184; "The Constitution gives the Legislature the 'power to alter and regulate the jurisdiction and proceedings in law and in equity' (NY Const, art VI, Section 30). It may award jurisdiction to other tribunals, change or abolish common law causes of action or substitute new remedies." The procedures for Section 3020-a disciplinary hearings, with judicial review under CPLR Section 7511 standards and procedures, satisfy due process requirements.*****

In sum, the Decision of the panel under Section 3020-a, finding petitioner to be an incompetent, insubordinate teacher whose employment should be terminated clearly was rational and within the panel's authority. Furthermore, even if Article 78 standards of review applicable to compulsory arbitration were applicable here, the panel decision should be sustained as not arbitrary or capricious. Accordingly, the Order of the IAS Court dismissing the petition should be affirmed.


*Unless otherwise indicated, numbers in parentheses refer to page numbers of the Record on Appeal .

**The Decision exhibit indicates it was received by the State Education Department on June 5, 1998 (86), and is dated June 1, 1998 (85). The petition alleges receipt by petitioner on June 15,1998, as it previously had been misdirected to Rockville Centre (par. l6, petition) (8) . Since respondent proceeded by Notice of Motion on the law alone, without affirmation, affidavits or exhibits, and did not establish the date of mailing or the address to which the decision was mailed, presumptions relating to regularity and timing of mailing do not arise, and the petition allegation concerning receipt within ten days prior to the commencement of the proceeding was not rebutted. Accordingly, to the extent that the Decision of the IAS Court may have been based in part on the claimed untimeliness of the petition, that ground is not relied upon by respondent on appeal.

***This Court has repeatedly rejected claims that an arbitration award is a nullity if the arbitrator does not adhere to a specified time limit in issuing the award, and untimeliness of a decision is not a basis to vacate the arbitrator's decision in the absence of showing of prejudice resulting from the untimeliness. Jones v. Progressive Casualty Insurance Co., 237 AD2d 358 (2d Dept. 1997); Security Unit Employees v. New York State Correctional Services, 36 AD2d 546 (2d Dept. 1997); Bermudez v. New York City Transit Authority, 186 AD2d 738 (2d Dept. 1992); Akers v. New York City Transit Authority, 172 AD2d 749, 751 (2d Dept. 1991); Rockland Community College Federation of Teachers v. Board of Trustees of Rockland Community College, 142 AD2d 732, 733 (2d Dept. 1988) appl. dism. 73 NY2d 974 (1989). In any event, petitioner does not pursue this issue on appeal.

**** There is little doubt that the panel correctly concluded that petitioner would continue to teach as before. Even taking into account petitioner's pro se status, requiring him to fill the dual role of advocate and party, his brief to the Court is instructive in this point. "In my mind, these observations served no legitimate purpose and simply confirmed what was apparent from the first four observation reports: the Principal and I have different ideas about teaching. The Principal considers my teaching to be inferior whereas I consider my teaching to be innovative and superior." (Appellant's Brief, p. 9). "The idea that I would give up my method of teaching in an effort to please the Principal is unrealistic (Id. p. 18). "I came to the conclusion that it would be wrong to go to the post-observation conferences because they served no lawful purpose." (Id. p. 19). "The evidence, in other words, not only supports my contention that I was a competent teacher but supports the claim that I was an outstanding teacher. It is absurd and irrational for an innovative teacher who experiences such success in the classroom to be charged with incompetence and terminated." (Id. p. 29)

*****An administrative proceeding to terminate a tenure teacher's employment meets due process standards if a fair forum is provided with rights to notice of charges, assistance of counsel, cross-examination, and presentation of evidence. See Atencio v. Board of Education of Penasco Independent School District, 658 F.2d 774, 780 (10th Cir. 1981). Section 3020-a provides all of these safeguards. As previously discussed, Section 3020-a disciplinary hearings are neither contractual nor mandatory arbitration, but contractual disciplinary arbitration meets due process standards when the employee is afforded notice of the charges and an adequate opportunity to present his position. See Murphy v. Wack, 177 AD2d 382, 383, 384 (1st Dept. 1991) appl. dism. 79 NY2d 977 (1992); De Clara v. Metropolitan Transportation Authority, 748 F. Supp. 92, 96 (S.D.N.Y. 1990) affd 930 F.2d 911 (2d Cir. 1991) (table) cert. den. 502 U.S. 866 (1991); Pedersen v. South Williamson School District ;677 F.2d 312, 315, 316, (3rd Cir. 1982) cert. den. 459 U.S. 972 (1982). Furthermore, judicial review of an administrative determination is not necessarily an element of due process. See Guralnick v. Supreme Court of New Jersey, 747 F. Supp. 1109, 1113 (D. NJ. 1990) affd 961 F. 2d 209 (3rd Cir. 1992) (table): sustaining the constitutionality of mandatory arbitration of attorneys fees, without judicial review. The Court stated: 747 F. supp. at 1113: "But [d]ue process is not necessarily judicial process. Reetz v. Michigan, 188 U.S. 505, 507, 23 S.Ct. 390, 391,47 L.Ed. 563 (1903). The due process clause of the fourteenth amendment does not guarantee a trial to a litigant. No court has interpreted the fourteenth amendment to include a fundamental right to a trial. As the Supreme Court noted in Reetz, '[n]o provision in the Federal Constitution . .. forbids a state from granting to a tribunal, whether called a court or a board of registration, the final determination of a legal question.' Id. The Court continued, ' [n]either is the right of appeal essential to due process of law.' Id. at 508, 23 S.Ct at 392."; Fulton v. New Enqland Teamsters and Teaching Industry Pension Fund, 762 F.2d .1124, 1132-1133 (1st Cir. 1984) en banc 762 F. 2d 1137, 1144 (1st cir. 1985): statutory compulsory arbitration of pension fund withdrawal liability with court proceedings available after arbitration, with a presumption of correctness of the arbitrator's findings of fact, did not deny Fifth Amendment right of access to the Courts.



New York, New York
June 30, 1999