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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Will a one year suspension for verbal abuse to fellow staff members, parents and students be upheld?

Yes. Leslie Drucker is a tenured special education teacher at Unity High School with previous employment as an OSI investigator. She was served 3020-a charges for various verbal abuse allegation as well as “knowingly and inappropriately inject[ing] herself into a confidential investigation by the Commissioner of Special Investigations.

The arbitrator found against Drucker on 4 of the 5 charges and suspended her, without pay, for one year after taking into consideration her satisfactory employment history and evidence that she had voluntarily helped students.

Although Drucker raised issues concerning the failure of the DOE to vote for probable cause and the alleged bias of the arbitrator, Justice Barbara Jaffe found no due process violations and found her one year suspension did not shock the conscience of the Court. The petition was dismissed.

In the Matter of the Application of LESLIE DRUCKER, Petitioner, for a judgment pursuant to Article 75 of the C.P.L.R. -against- THE NEW YORK CITY BOARD/DEPARTMENT OF EDUCATION, Respondent. 112638/10 SUPREME COURT OF NEW YORK, NEW YORK COUNTY, 2011 NY Slip Op 31313U; 2011 N.Y. Misc. LEXIS 2366, May 13, 2011, Decided

Will the court sustain a 3020-a award when it is based on an allegation of an English translation of a Spanish word?

A court’s review of a 3020-a award is very limited. The statute provides that the court may only review issues that go to the fundamental foundation of the award such as whether there was fraud or corruption or whether the arbitrator exceeded her lawful authority. Given the limit of review it is rare that 3020-a award will be modified or reversed.

Carlos Garcia taught at the High School of International Business and Finance. During the 2008 – 2009 school year he was accused, by the principal, of using inappropriate language with his students. The gravamen of the petition was that arbitrator Martin Schienman inappropriately utilized an interpreter as an expert witness to define the Spanish word, “coňo,” a word he allegedly directly at his students. Garcia argued that the meaning of the word ranged from an expletive to a familiar greeting depending upon the particular Spanish country or culture as well as the context it was used.

Sheinman, although rejected the DOE lawyer’s demand for Garcia’s termination found a violation of Chancellor’s Regulation 421-a and fined Garcia $15,000. Garcia appealed to the Supreme Court.

In analyzing Garcia’s argument Justice Jaffe utilized the Article 78 standard of arbitrary and capricious and was unpersuaded. She did find the fine to be excessive and lowered it $1,000.

3020-a hearing appeals are guided by Article 75 of the Civil Practice Law and Rules and not by Article 78. Had Jaffe used Article 75 instead of the less restrictive standard of Article 78 it is unclear whether she would have the authority to reduce the fine. There is currently no record of any appeal.

CARLOS GARCIA vs. THE NEW YORK CITY DEPARTMENT OF EDUCATION, 2011 NY Slip Op 31045U; 2011 N.Y. Misc. LEXIS 1908, Index No. 113595/10, SUPREME COURT OF NEW YORK, NEW YORK COUNTY, April 20, 2011