Will failure to serve the DOE in an Article 75 proceeding within the proscribed period require that the petition be dismissed?

No. Under CPLR 306-b where the statute of limitations is less than 4 months  the action or proceeding must be served within 15 days of the expiration of the statute of limitations. There is no dispute that the petition in Portnoy v. NYCDOE was served well beyond the fifteen day period and the DOE moved to dismiss the proceeding. In denying that part of the DOE’s application Justice Wooten wrote that the application to dismiss would be denied in the interests of justice and in the interest of deciding the matter on its merit.

Portnoy had been charged with multiple specifications which resulted in his termination by Arbitrator Rosario. Justice Wooten affirmed the termination finding no basis that Arbitrator Rosario’s opinion and award violated public policy or Portnoy’s due process rights.

Portnoy v. NYCDOE

Will a Court Entertain a Discovery Request in a 3020-a Proceeding Before a Final Award is Made?

No. Many times when faced with a disciplinary hearing the parties require information from each other to prepare for the case. While the Education Law provides an affirmative obligation to provide such material the guidelines for the issuance of such a discovery order from an arbitrator are not clear.

In this case the School District sought some emails from a teacher. The arbitrator refused to order the teacher to turn them over so the District went to Supreme Court to seek redress.

Justice Donald A. Greenwood ruled that a court order in such a situation was improper since the statute only allowed the court to review final arbitration determinations.

It is important in such cases to make the application on the record to preserve any issue for appeal.

In the Matter of the Application of the Jordan-Elbridge Central School District and the Board of Education thereof, Petitioners, For an Order Pursuant to Article 75 of the CPLR Vacating the Hearing Officer’s Decision, against Anonymous, a Tenured Administrator, Respondent. Sup. Ct., Onondaga County, October 16, 2012. Index No. 2012-3582.

Does an arbitrator’s ruling in a 3020-a which suspends a librarian for inappropriately touching students and taking an unauthorized trip “shock the conscience?”

Yes. Christopher Asch, an openly gay librarian at Stuyvesant High School was removed from his school after a student complained about inappropriate touching and whispering. The matter was well covered in the media.

Upon further investigation Asch was also accused of taking students to “Quiz Bowl” in Boston on an unauthorized trip.

At the arbitration hearing before David Hyland, students and faculty testified as to Asch’s exemplary work at Stuyvesant and that there was a conspiracy, brought upon by at least one student, to spread rumors and make false accusations. One of these rumors was that Asch was a member of NAMBLA, the North American Man Boy Love Association and that he inappropriately touched students arms and whispered into their ears. Asch explained the source of the rumors and testified that the touching and whispering were done to get students’ attention in a quiet place. A female librarian was not subject to such scrutiny despite the fact that she used the same practice.

Additionally the Quiz Show trip was an unofficial club trip which did not require permission slips. A student who lied to his parents and went to Boston on his own was not seen by Asch until 10 PM. Asch believed the student’s lies and had no reason to question his appearance as he was over 18 at the time.

Hyland found “Asch either did not understand or ignored appropriate boundaries as they relate to touching students, even to calm or quiet them when students become unruly or loud.” He suspended Asch for six months without pay and ordered that he attend training.

Justice Manuel Mendez held that the penalty “shocked the conscience of the Court” and lifted the suspension, ordered back pay and removed the training requirement imposed by Hyland.

Analysis:  There at least two problems in Mendez’s decision which might cause the DOE to appeal. The first has to do with a procedural matter. Appeals from 3020-a hearings to Supreme Court are brought by CPLR 7511 which has a ten period in which the petition must be filed and served. The DOE moved to dismiss the petition as untimely and the Court ruled that an extra day was allowed since the last day to file fell on a Sunday. While that does extend the time to file the DOE had made a motion to dismiss and did not fully answer Asch’s petition. The Court, nonetheless, took the DOE’s motion as its answer without giving the DOE an opportunity to respond to Asch’s allegation that the penalty shocked the conscience. Many arbitrators, even in the face of unsupported charges still make a finding. Perhaps this decision will send a message to other arbitrators to dismiss cases that should be dismissed.

In the Matter of Christopher Asche, Petitioner, against The New York City Board/ Department of Education, Respondents, 108528/10, SUPREME COURT OF NEW YORK, NEW YORK COUNTY, 2011 NY Slip Op 21224; 2011 N.Y. Misc. LEXIS 3104, June 28, 2011, Decided