Sunday, June 19, 2016

Assistant Aggravation

Burlington Admins’ Assoc. v. Burlington Bd. of School Comm'rs, 2016 VT 35

By Amy E. Davis

The issue in this case centers around whether an arbitrator acted in “manifest disregard of the law” when it concluded that Nicolas Molander, acting as interim assistant principal, was not entitled to contractual and statutory protections applicable to “regular” assistant principals. Molander and the Burlington Administrators’ Association (“the Association”) challenge the trial court’s conclusion that it had no authority to review the merits of an arbitrator’s ruling.

The undisputed facts include the following: the Assistant Principal at Burlington High School (BHS), served as Interim Principal for different schools in the district from 2010 to 2013. While the Assistant Principal was gone, BHS teacher Molander served as Interim Assistant Principal. Each school year produced a new contract for Molander to that effect. In April 2013, the Assistant Principal left his position for a new permanent position at a different school.

The school district started hiring to fill the vacancy, as well as a second assistant principal position that became open due to a retirement. The search committee interviewed five candidates, including Molander, and recommended that Molander receive one of the appointments. In May 2013, the superintendent stopped the process due to some community concerns about a lack of diversity with the candidates. Molander took another one-year contract as Interim Assistant Principal at BHS for 2013 to 2014. The selection process started again in 2014 with a larger pool of candidates. Molander received high marks and the Superintendent recommended him for a position. The Director of Diversity, Equity, and Employee Relations made a contrary recommendation. The committee ultimately did not hire Molander.

Molander filed a formal grievance claiming he was improperly denied the opportunity to continue serving as assistant principal. He argued that he was entitled to the due-process protections in the Collective Bargaining Agreement (CBA) applicable to administrators. The school board denied his grievance, concluding that these protections did not apply to Molander as an interim administrator. The Burlington Administrator’s Association, on behalf of Molander, went to arbitration.

Using the provisions of the CBA, as well as a few Vermont statutes found in Title 16, the Association argued that after serving two years as Interim Assistant Principal, Molander became a full-fledged Assistant Principal, and thus was entitled to contractual and statutory job protections.

The arbitrator disagreed and ruled in the Board’s favor. The arbitrator acknowledged that administrators do have certain procedural and due-process protections available to them, but that Molander was in an interim position, even if that position was renewed for four years. Thus, Molander was not entitled to the same protections. The arbitrator reasoned that the parties’ use of “interim administrators” in the contractual definition of administrators meant that they intended that interim administrators were to receive the same pay and benefits as regular administrators, but not necessarily the same due-process rights.

The arbitrator reasoned that the word “interim” only appears in the “recognition clause” of the CBA, and believed the term to be the same as “acting administrator”—a position that is limited in rights and tenure. The CBA governs “acting administrators” under separate provisions, reinforcing the arbitrator’s determination that acting appointments do not have the same status as administrators in a regular position. The arbitrator’s final conclusion was that Molander, as an interim appointment, was not contractually entitled to the standard of just cause or notice requirements when his employment as an Assistant Principal was not continued.

The Association moved to vacate the award in superior court arguing the following: that the arbitrator manifestly disregarded the law, exceeded his powers, and that the award violated public policy. The superior court concluded that it could not review the decision for legal errors or for “manifest disregard for the law,” and disregarded the arguments that the arbitrator exceeded his powers and that the award was against public policy. The Association appeals.

The Vermont Arbitration Act allows for a limited standard of review either by the superior court or the SCOV. The Association argues that a court may vacate an award if the arbitrator manifestly disregarded the law. It looks to a footnote in a different case where the SCOV says it does not recognize a court’s right to review an arbitrator’s decision for manifest disregard of the law, and urges the SCOV to reconsider, that position because the reasoning in the previous cases has now proven unfounded.

The SCOV skirts around the question of whether or not the court is empowered to review the arbitration award for manifest disregard, but even if it was, there was no manifest disregard in this case. First, to vacate a decision based on manifest disregard is an exceptionally high bar since the courts give considerable deference to the arbitrator’s decision. Second, the party has to show that it brought a well-defined and clear legal principle to the arbitrator and the arbitrator ignored it.

This did not happen here, for two reasons. First the CBA did not contain a clear statement to the effect that an acting or interim administrator gets the same protections as a non-interim administrator. Second, even though the Associated cited this statute, it didn't cite (and never cited) any controlling law that clearly shows that the statute extends to people acting as interim principals. The SCOV goes on to say that such a proposition is not obvious from a plain reading of the statute. Finally, there is nothing to suggest that the arbitrator appreciated the controlling legal rule, but decided to disregard it.

So “even if” the SCOV were allowed to vacate an arbitrator’s decision based on “manifest regard of the law,” it would not do so in this case. Thus, the SCOV affirms.


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