This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




Lesley F. Clark, petitioner,



Independent School District 834, Stillwater,


Filed April 14, 1998


Mulally, Judge*

* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.

Washington County District Court

File No. C4-96-4918

Philip G. Villaume, Anita J. Jehl, Philip G. Villaume and Associates, 7900 International Drive, Suite 675, Bloomington, MN 55425 (for appellant)

Joseph E. Flynn, Marie C. Skinner, Knutson, Flynn, Deans & Olsen, 1900 Minnesota World Trade Center, 30 East Seventh Street, St. Paul, MN 55101-4900 (for respondent)

Considered and decided by Randall, Presiding Judge, Willis, Judge, and Mulally, Judge.



In this certiorari appeal, Lesley F. Clark challenges a district court judgment confirming an arbitrator's award approving appellant's dismissal from his teaching position for refusing to submit to psychiatric testing. We affirm because we find no merit to appellant's claims that the arbitrator exceeded her authority, that the arbitration award was obtained by fraud, or that the arbitrator's evidentiary decisions denied his constitutional due process rights.


Arbitrator's Authority.

Appellant claims that the arbitrator exceeded her authority by receiving hearsay evidence that was not disclosed prior to the arbitration. See Minn. Stat. § 572.19, subd. 1(3) (1996) (if arbitrator exceeds power, court shall vacate award). Under appellant's teaching contract, the arbitration hearing "shall be" de novo, but "neither party shall be permitted to rely on any evidence, testimony or argument not disclosed to the other party at least five days prior to the hearing." Although appellant concedes that the arbitrator was not bound by the rules of evidence, he claims that the arbitrator should have prohibited any hearsay testimony regarding his interactions with his peers, including their fear of him, because an affidavit they allegedly signed, "Affidavit A," was not disclosed prior to the arbitration. See Minn. Stat. § 125.12, subd. 9a(c) (1996) (teacher arbitration proceedings governed by Minn. Stat. §§ 572.11-.17); Minn. Stat. § 572.12(b) (1996) (arbitrator must allow parties to present "evidence material to the controversy"). Because of appellant's objection, "Affidavit A" was not considered at the arbitration.

We conclude that, to the extent that the arbitrator admitted any such testimony, that action did not amount to exceeding the arbitrator's authority. First, appellant was aware that his behavior with his peers was the basis for the school board's questioning his mental capacity. Thus, the fact that this issue would be included in the arbitration was disclosed prior to the arbitration. Second, the arbitrator offered a plausible explanation for her admission of hearsay testimony. As she noted, "[t]he teachers in [appellant's] department were unwilling to testify because of fears for their safety." The arbitrator also noted that appellant had the opportunity to rebut any hearsay testimony by calling his peers to testify, but he did not do so. Thus, her interpretation of the disclosure rule was reasonable in light of the circumstances of the case. Finally, even if the arbitrator erroneously admitted hearsay testimony, this does not amount to her exceeding her authority. See State, Office of State Auditor v. Minnesota Ass'n of Prof'l Employees, 504 N.W.2d 751, 755 (Minn. 1993) (arbitration award vacated only if arbitrator "clearly exceeded" powers granted in labor contract) (citation omitted); National Indem. Co. v. Farm Bureau Mut. Ins. Co., 348 N.W.2d 748, 750 (Minn. 1984) (same). School administrators who based their non-hearsay testimony on personal interactions with appellant offered other testimony at the arbitration that supported the outcome reached by the arbitrator. Under these circumstances, the arbitrator's admission of hearsay testimony did not exceed the scope of her authority. See State Auditor, 504 N.W.2d at 756 (court must affirm arbitrator's decision where decision "draw[s] its essence" from labor contract) (citation omitted).

Due Process Claim.

Appellant claims he was denied due process because the arbitrator failed to compel disclosure of Affidavit A, even though the affidavit was not considered at the arbitration due to appellant's objection. Arbitrators have broad authority in determining whether to admit evidence. See Minnesota State Patrol Troopers Ass'n v. State, Dep't of Pub. Safety, 437 N.W.2d 670, 676-77 (Minn. App. 1989), review denied (Minn. May 24, 1989). Even where an arbitrator considered illegally obtained evidence in an arbitration concerning discharge of a state trooper, this court declined to vacate the award because other evidence supported the award. Id. at 678. In the same case, the court concluded that the evidence was obtained illegally but found no statutory grounds to vacate the award, stating, "if anything, the arbitrator heard too much evidence." Id. Similarly in this case, there was sufficient admissible evidence of appellant's behavior from which the arbitrator could conclude that appellant's testing requirement and eventual termination were proper. Thus, appellant's due process rights were not violated because the arbitrator declined to compel disclosure of Affidavit A.

Fraud Claim.

Finally, appellant claims the arbitration award should be vacated on the grounds of fraud. See Minn. Stat. § 572.19, subd. 1(1). Appellant argues that the arbitrator failed to credit the testimony of the two witnesses testifying on his behalf and that the arbitrator failed to address the administration's extreme action in requiring his psychiatric evaluation and the alleged procedural irregularity of the school's "tardy compilation of affidavits" that were prepared after he was suspended, but before the April 27, 1995, school board resolution directing him to undergo the evaluation. These allegations do not establish that the award was procured by fraud within the meaning of Minn. Stat. § 572.19, subd. 1. The arbitrator in this case was entitled to be the final judge of the facts. See David Co. v. Jim W. Miller Constr., Inc., 444 N.W.2d 836, 840 (Minn. 1989). In determining the facts, the arbitrator did not commit fraud merely because she determined the facts contrary to the facts as alleged by appellant. Further, procedural questions are to be determined by the arbitrator. See FSC Secs. Corp. v. Freel, 14 F.3d 1310, 1312 n.2 (8th Cir. 1994). Thus, appellant's allegations do not amount to fraud for the purposes of vacating the arbitration award. See Component Sys., Inc. v. Murray Enters. of Minn., Inc., 300 Minn. 21, 25-26, 217 N.W.2d 514, 516 (1974) (arbitration award not procured by fraud, even though arbitrator was at one time attorney for both parties and failed to conduct hearing prior to making award).