* Subsequent History: Matter of Zeimer v Elia; Supreme Court, Albany County (Connolly, J.); Judgment dismissed petition to review; April 15, 2019. *

Appeal of NADAV ZEIMER with respect to a disciplinary proceeding brought by the New York City Department of Education, pursuant to Education Law §3020.

Decision No. 17,468

(July 31, 2018)

Glass Krakower LLP, attorneys for petitioner, Jordan F. Harlow, Esq., of counsel

Zachary A. Carter, Esq., Corporation Counsel, attorney for respondent, Diana M. Murray, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals from the determination of Richard A. Carranza, Chancellor of the New York City Department of Education, to implement an arbitrator’s decision to suspend him as principal of Harlem Renaissance High School without pay.  The appeal must be dismissed.

In January 2000, the New York State Legislature amended Education Law §3020 by adding a new subdivision three, which authorizes the City School District of the City of New York (“District”) and any employee organization representing employees or titles that are or were covered by any memorandum of agreement executed by the District and the Council of Supervisors and Administrators of the City of New York (the “Council”), on or after December 1, 1999, to negotiate agreements that modify or replace the procedures set forth in Education Law §§3020-a and 2590-j(7).  It further provides that the Commissioner shall review any appeals brought in accordance with such agreements.

Pursuant to Education Law §3020(3), the Council and the District entered into an agreement providing for modified disciplinary procedures (the “Agreement”).[1]  For allegations of misconduct with respect to principals tenured as of July 1, 2000, Article VII(J)(4)(a)(3) of the Agreement provides that, at the principal’s option, allegations of misconduct may be presented to an arbitrator who will decide whether just cause exists for the proposed action.  Upon issuance of the arbitrator’s decision and at the request of the principal or community school district superintendent, the Chancellor of the City School District of the City of New York (“Chancellor”) shall review the arbitrator’s decision within 15 days.  Article VII(J)(4)(a)(6) of the Agreement further provides that “[t]he employee shall be provided with written notice of the outcome of the Chancellor’s review.”  If the Chancellor implements the arbitrator’s decision against the principal, the principal may then appeal to the Commissioner for review of the arbitrator’s decision.

Pursuant to the Agreement, a written notice of charges and specifications of misconduct and proposed adverse action was prepared and served on petitioner.  This notice alleged that, during the 2015-2016 and 2016-2017 school years, petitioner engaged in neglect of duty; conduct unbecoming of his position; a violation of the by-laws, rules, and regulations of the Chancellor, the New York City Department of Education (“NYCDOE”), school, and/or District; misconduct; and insubordination.  Petitioner was charged with nine specifications of misconduct including, but not limited to, allegations of wrongdoing, conflicts of interest, and false representations.  He was suspended without pay, effective June 22, 2017. 

An arbitrator was appointed, and a hearing was conducted on several dates in August, September, and October 2017. 

On December 5, 2017, the arbitrator issued an opinion and award sustaining specifications 1(1) and 1(4) and dismissing specifications 1(2), 1(3) and specifications 2 through 9 based on insufficient evidence.  The arbitrator determined that the appropriate penalty for the charges which were sustained was suspension without pay for the period which petitioner had already served during the pendency of the proceeding.  The arbitrator further ordered petitioner reinstated, effective immediately.

By letter dated December 15, 2017, petitioner requested that the Chancellor review the arbitrator’s December 5, 2017 decision.  Specifically, petitioner sought “back pay stemming from his suspension without pay on June 22, 2017” and stated that “subject to and without waiting [his] right to challenge the substantiated specifications in a later proceeding, to the extent that the Chancellor determines that [petitioner] should be granted some form of back pay, [petitioner] is not challenging the substantiated findings.”  Moreover, other than a conclusory statement that “none of the specifications or sub-specifications should have been substantiated, and no penalty should have been rendered,” petitioner’s request for the Chancellor’s review included no specific claims or allegations regarding the substance of the specifications themselves.

Pursuant to Article VII(J)(4)(a)(6) of the Agreement, the Chancellor was required to review the arbitrator’s decision within 15 days and render a written decision.  The record indicates that petitioner did not receive any response to the December 15 letter.  Thereafter, on or about January 18, 2018, petitioner commenced an appeal from the arbitrator’s determination (Appeal of Zeimer, 57 Ed Dept Rep, Decision No. 17,357).[2]  I dismissed this appeal for lack of jurisdiction and ordered the Chancellor to review the arbitrator’s decision and provide petitioner with written notice of the outcome of such review within 15 days.

By decision dated May 3, 2018, the Chancellor upheld the arbitrator’s determination to suspend petitioner without pay.  Thereafter, on or about June 1, 2018, petitioner commenced the instant appeal pursuant to Education Law §3020(3).  On July 12, 2018, the Chancellor and the Community School District Superintendent (“respondents”) issued a joint response in accordance with 8 NYCRR §281.7.  Respondents further transmitted the record of proceedings which was thereafter received on July 16, 2018.

Petitioner requests that I reverse the Chancellor’s decision upholding the arbitrator’s determination to suspend him without pay.  Petitioner asserts that the arbitrator erred in sustaining specifications 1(1) and 1(4) and in holding that she was without authority to direct respondent to issue petitioner back pay.  Petitioner seeks an award of back pay “as of the date he was suspended” and, in the alternative, that the matter be remanded to the arbitrator “for the appropriate penalty.”

I must first address several issues concerning the scope of my review.  Petitioner asserts that the Chancellor failed to issue a written decision within 15 days of petitioner’s request for review of the arbitrator’s decision in violation of Article VII(J)(4)(a)(6) of the Agreement and my order in Appeal of Zeimer (57 Ed Dept Rep, Decision No. 17,357).  As a result of this noncompliance, petitioner requests that I “disregard the Chancellor’s [d]ecision and consider [petitioner’s appeal letter] a direct appeal of the Arbitration Decision.”

As noted above, by decision dated May 3, 2018, the Chancellor issued a determination with respect to petitioner’s December 5, 2017 appeal, well over the 15 days required by both Article VII(J)(4)(a)(6) of the Agreement and my order in Appeal of Zeimer (57 Ed Dept Rep, Decision No. 17,357).  This is not the first time that the Chancellor has missed this statutory deadline (see Appeal of Chou, 55 Ed Dept Rep, Decision No. 16,848).  Indeed, respondents cite Appeal of Chou (55 Ed Dept Rep, Decision No. 16,848) for the proposition that “the Commissioner previously authorized a decision by the Chancellor despite the delay in its issuance” to support consideration of the Chancellor’s late determination herein. 

The Chancellor’s unexplained delay is particularly egregious because the record shows that NYCDOE filed a proceeding under Article 75 of the Civil Practice Law and Rules (“CPLR”) contesting the arbitrator’s reinstatement of petitioner, and that this proceeding was fully submitted on April 27, 2018, six days prior to the Chancellor’s determination at issue herein, which was required to be timely rendered by the Agreement and by my March 26, 2018 decision and order in Appeal of Zeimer (57 Ed Dept Rep, Decision No. 17,357).  I admonish respondents to review the provisions of the Agreement and its legal obligation to ensure that the Chancellor renders a determination within 15 days of an arbitrator’s determination pursuant to Article VII(J)(4)(a)(6) of the Agreement.  Nevertheless, in light of the lack of demonstrated prejudice to petitioner and in the interests of justice, I decline to strike the Chancellor’s determination in this case.  Respondents are cautioned, however, that future noncompliance may warrant additional corrective measures.

Next, I find that, on this record, petitioner has waived his ability to challenge the arbitrator’s findings with respect to specifications 1(1) and 1(4).  Petitioner did not challenge such substantiated specifications in his December 5, 2017 request to the Chancellor.  Instead, as noted above, petitioner specifically indicated in his December 5, 2017 request to the Chancellor  that: “subject to and without waiving [his] right to challenge the substantiated specifications in a later proceeding, to the extent that the Chancellor determines that [petitioner] should be granted some form of back pay, [petitioner] is not challenging the substantiated findings [emphasis supplied].”  Moreover, other than a conclusory statement that “none of the specifications or sub-specifications should have been substantiated, and no penalty should have been rendered,” petitioner’s request for the Chancellor’s review included no specific claims or allegations regarding the substance of the specifications themselves. On this record, I do not find that petitioner’s purported conditional reservation of rights preserved the specific challenges to specifications 1(1) and 1(4) which he now attempts to raise on appeal.  Therefore, petitioner’s challenge to the substantiated specifications has not been preserved for review and is not properly before me.

Next, petitioner asserts that respondents have waived their right to appeal the arbitrator’s determination to reinstate petitioner to his last appointed position at Harlem Renaissance High School and seeks “confirmation” of the portion of the arbitrator’s decision that directs the NYCDOE to reinstate petitioner.  The record indicates that on December 15, 2017, NYCDOE filed a CPLR Article 75 proceeding challenging the arbitrator’s reinstatement of petitioner to Harlem Renaissance High School.  According to respondents,[3] briefing in the matter has been fully submitted and a final decision is pending.

While the record does not indicate that any party has requested that the Chancellor review the arbitrator’s decision in this regard pursuant to Article VII(J)(4)(a), nor does it appear that the Chancellor has done so on his own initiative (see Appeal of New York City Department of Education, 46 Ed Dept Rep 199, Decision No. 15,482), it would be contrary to the orderly administration of justice for the Commissioner to decide an issue which both petitioner and respondents acknowledge has been raised and briefed and is currently pending before a court of competent jurisdiction (see Appeal of V.S., 57 Ed Dept Rep, Decision No. 17,171; Appeal of a Student with a Disability, 49 id. 180, Decision No. 15,991; Appeal of T.G. and R.G., 46 id. 95, Decision No. 15,451).  To do so would “present[s] the specter of inconsistent ... judgments” between the judicial proceeding and the instant matter (Town of Burlington v. Dep't of Ed. of Com. of Mass., 655 F2d 428).  Therefore, to the extent petitioner requests that I “confirm” the arbitrator’s decision in this regard, under the circumstances presented herein, I decline to entertain jurisdiction over this claim (see Appeal of New York City Department of Education, 46 Ed Dept Rep 199, Decision No. 15,482).[4]

Turning to the merits, petitioner argues that the arbitrator erred by denying him back pay representing the amounts which he was not paid during the pendency of the arbitration.  Petitioner’s argument is two-fold: (1) that he is entitled to an award of back pay due to the “delayed issuance” of the arbitrator’s decision; and (2) that the arbitrator failed to properly exercise her arbitral authority to award back pay.   

With respect to his first contention, petitioner explains that he is not asserting that the arbitrator’s decision is unenforceable or otherwise objectionable based on the delay.  Rather, petitioner “appeals ... out of fairness and equity that the penalty be so modified in consideration for the delayed decision.”  Therefore, petitioner contends, CPLR 7507, which provides that a party waives the objection that an award was not made within the time required unless he or she notifies the arbitrator in writing of his objection prior to the delivery of the award to him or her, does not apply where, as here, the objection is not “to the validity of the arbitration decision as a whole.”

I disagree.  Here, the record indicates that on or about November 21, 2017, the arbitrator requested a one-week extension to issue her decision based upon personal illness.  Neither party objected to this request.  Therefore, on this record, I cannot find that petitioner is entitled to an award of back pay based upon a one-week extension to which neither party objected (see Matter of United Fed’n of Teachers, Local II, 135 AD2d 638 [“the arbitrator committed no procedural error in taking additional time to reach his determination; not only were the parties’ consents to an extension obtained, but the petitioner failed to timely object to the delay”]; see also In re Schriebman v. The New York City Dept. of Educ., 2005 N.Y. Slip Op. 30594[U] [Trial Order] [Sup. Ct., New York County, 2005] [“lengthy duration of the disciplinary hearing ... is cause for considering the statute’s language [sic] need not be strictly interpreted when justifying circumstances exist to extend the duration of the hearing process”]).  Petitioner knew he was not being paid during the pendency of the arbitration and knew or should have known the consequences of consenting to an extension of time (see Tr. p. 10 [at an August 8, 2017 prehearing conference, counsel for petitioner stated that petitioner “has been suspended without pay since the date the [c]harges were served a little over a month ago”]).  In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).  While petitioner appears to claim that he is entitled to back pay based on the delay because he is not challenging the arbitration decision or its enforceability “as a whole,” he is nevertheless requesting modification of the arbitration decision.  Other than his assertion that he has “experienced real, tangible damages – monetary loss – as a result of the delay,” however, petitioner has provided no factual or legal basis upon which to grant the relief he seeks and has therefore not carried his burden of proof with respect to this claim.

Petitioner next asserts that the arbitrator erred by failing to award him back pay in light of her statement that “the appropriate penalty, on this record, would not have involved a suspension without pay.”  This statement, however, must be viewed within its context.  With respect to penalty, the arbitrator stated:

In view of the nature of the established misconduct, the circumstances surrounding the filing of the charges against [petitioner] as well as his previous exemplary record, generally, the appropriate penalty, on this record, would not have involved a suspension without pay.  Nonetheless, I recognized that [petitioner] was suspended without pay as per the terms of the collective bargaining agreement negotiated by the parties and that the record before me might not contain all of the factors that were considered by the Department when he was suspended without pay.  As such, it would be inappropriate and outside the scope of my authority to grant [petitioner]’s requested relief related to his suspension without pay.  For these reasons, I find, the appropriate penalty is the suspension without pay already served by [petitioner].

The arbitrator’s decision is supported by the evidence in the record.  Article VII(J)(A)(3) of the Agreement indicates that “[u]pon receipt of a written notice of allegation of misconduct and proposed adverse action, a principal may be removed from his or her position without pay or demoted with reduced pay pending an arbitrator’s decision ....”  Thus, the Agreement leaves the decision of whether to suspend without pay or demote with reduced pay during an arbitration proceeding to principals’ superiors, and there is no indication that such determination may be the subject of an arbitration concerning allegations of misconduct.  Moreover, I note that Article X of the Agreement contains a grievance procedure whereby “a supervisor covered by this Agreement” may complain “that there has been as to him/her a violation, misinterpretation or inequitable application of any of the provisions of this Agreement.”  Accordingly, on this record, I find no basis to overturn the arbitrator’s finding that she lacked jurisdiction to determine whether petitioner should have received back pay during the pendency of the arbitration.

In light of the foregoing disposition, I need not address the parties’ remaining contentions.

THE APPEAL IS DISMISSED.

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