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

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Can a 3020-a decision be reversed as too lenient?

Yes. Douglas Coleman, a 25 year tenured Social Studies teacher employed by the Dundee Central School District was charged with various specifications characterized as conduct unbecoming a teacher and insubordination. Dundee alleged that Coleman had given an exam in one of his classes which, among other things, “contain[ed] inappropriate and suggestive vocabulary words including “yu dick”, “grandma dick” and “Mrs. Dick” …. The second group of charges is that one of the students in the aforementioned class was a student with a disability of high-functioning Asperger’s Syndrome, and on her test, Coleman had captioned two cartoon figures of aliens, with the student’s name by one figure and her personal tutor’s name by the other . The third group of charges is that in September of 2007, Coleman attempted to bypass the established District procedure with respect to the utilization of movies within his class” when he showed the movie, “Attica.”

Coleman had been given counseling memos when these incidents occurred and the hearing officer, having found that these incidents were not repeated, dismissed the charges since the school district had already decided how to deal with these infractions. The hearing officer, based on other charges then decided to suspend Coleman for 6 months but required that the District continue to pay for his medical insurance. The District appealed to State Supreme Court.

Justice W. Patrick Falvey of Yates County Supreme Court ruled that the suspension with medical insurance was not valid under 3020-a since the statute contemplated suspensions with no payments. Additionally it was wrong for the hearing officer to dismiss the charges as the District did not waive its right to serve charges where counseling memos were previously utilized.

Justice Falvey remitted the matter back to the District to reconsider the dismissed charges and penalty.

Upon remand the hearing officer dismissed many of the charges again but this time found Coleman guilty of a few of the formally dismissed charges. He imposed the same penalty.

Justice Falvey found that ” the Hearing Officer’s decision regarding penalty lacks a rational basis, due to his improper reliance on the premise that Dundee had to prove Coleman repeated the misconduct that gave rise to the counseling memoranda, before he would consider Dundee’s request for a penalty.”

Coleman 1, In the Matter of the Application of the Board of Education of the Dundee Central School District, Petitioner, against Douglas Coleman Respondent, 2010-0248,  SUPREME COURT OF NEW YORK, YATES COUNTY, 2010 NY Slip Op 51684U; 29 Misc. 3d 1204A; 2010 N.Y. Misc. LEXIS 4689

 

Coleman II, Board of Education of the Dundee Central School District, Petitioner, against Douglas Coleman, Respondent, 2011-0011, SUPREME COURT OF NEW YORK, YATES COUNTY, 2011 NY Slip Op 21157; 2011 N.Y. Misc. LEXIS 1999,  April 29, 2011, Decided