New York Appellate Court Permits Interlocutory Appeal From Arbitrator's Dismissal of Disciplinary Charge

October 3, 2013

By: Richard S. Finkel

A recent decision issued by the Appellate Division, Second Department, in Matter of Board of Education of Hauppauge Union Free School District v. Hogan, provides a valuable reminder to school districts and other public employers that an arbitrator’s interlocutory ruling in a disciplinary proceeding against an employee may not really be an interlocutory ruling at all, and in some circumstances, may be subject to immediate judicial review.  The decision makes clear, at least under the circumstances of that case, that a court has authority to review an “interlocutory award” which dismisses a misconduct charge in a disciplinary proceeding commenced pursuant to Education Law Section 3020-a.  In justifying its review, the Court distinguished between an arbitrator’s interlocutory ruling on a procedural matter, which is generally not reviewable, and the dismissal of a misconduct charge, which it deemed to be “a final determination subject to review under CPLR 7511.” In 2006, Hogan (the individual who was the subject of the disciplinary proceeding) submitted an application to the school district seeking employment as a physical education teacher.  In 2010, more than three years after he submitted the application, the school district preferred charges against him alleging that Hogan had knowingly failed to disclose on his application that he had resigned from a previous probationary teaching position after being confronted with allegations that he had engaged in corporal punishment and being advised that he would not receive tenure. The first disciplinary charge, which formed the subject matter of the litigation, alleged misconduct in the knowing presentation for filing of a false and incomplete application.  The school district alleged that such conduct was in violation of Penal Law Section 175.30 -- Offering a False Instrument for Filing in the Second Degree.  Hogan filed a pre-hearing motion to dismiss the first charge, maintaining that it was time barred by the three-year limitations period contained in Education Law Section 3020-a.  The arbitrator granted the motion and dismissed the charge, finding that the school district had not pled sufficient facts to establish that Hogan had violated the Penal Law, and thus, could not invoke the exception to the three-year limitations period applicable when the charged misconduct constitutes a crime. The school district immediately commenced a proceeding in New York State Supreme Court pursuant to CPLR Article 75 and Education Law Section 3020-a, seeking to vacate the arbitrator’s decision to dismiss the disciplinary charge as arbitrary and capricious.  Hogan argued that the arbitrator's decision was an "interlocutory award" that was not subject to immediate appeal.  The Supreme Court rejected Hogan's argument, granted the petition, and restored the disciplinary charge. The Second Department affirmed.  It held that the disciplinary charge at issue was the only one preferred which constituted misconduct, and if dismissed, would prevent the school district from “adducing evidence in support of the alleged misconduct at the hearing.”  As such, the arbitrator’s award was deemed to be final and reviewable. In addition to finding the arbitrator's decision reviewable, the Court affirmed reinstatement of the disciplinary charge.  It noted that an arbitrator’s determination is subject to greater judicial scrutiny when the obligation to arbitrate arises by statute, and that an award in a compulsory arbitration such as an Education Law Section 3020-a hearing must have evidentiary support.  The Court held that the arbitrator’s determination was arbitrary and capricious, and that the facts alleged by the school district, if proven, would constitute the crime of offering a false instrument for filing in the second degree.