In re the Arbitration between Binghamton City School District & Peacock
Pursuant to
The Hearing Officer also found that, although respondent at-
Ultimately, during final exams, respondent left school eаrly without permission and took the student to his home in his car at a time when he knew his wife was out of town. With the window blinds closed, respondent spent six hours alone with the student in his home. This incident was observed and reported to petitionеrs by their investigator, and they immediately informed the student‘s mother that her daughter was at respondent‘s home rather than where she had told her mother she would be. The student‘s mother and another relative then went to respondent‘s hоme and pounded on his door several times, insisting that the student come out. The relative observed respondent and the student in a second story window. Eventually, the student emerged alone. The Hearing Officer declined to find that there had been any sexual contact because the student had both admitted and denied such contact in her various statements. Although her mother testified that the student had said that respondent loved her and he would leavе his wife to be with her when she was 18 years old, the Hearing Officer concluded that no romantic relationship had been proven.
Based on the foregoing, the Hearing Officer found respondent guilty of the charges of insubordinatiоn for failing to heed an administrative order, neglect of duty for leaving school early without permission and conduct unbecoming a teacher because “he engaged in an inappropriate personal relationship with [the student].” He also found that respondent showed no remorse for his conduct, was insensitive to the impact of the relationship on the student and the concerns of her family, and had “arrogantly” betrayed petitioners’ trust in him. Based upon these findings, the Hearing Officer imposed a penalty of suspension without pay for one year. Petitioners then commenced this
We begin with the observation that Supreme Court‘s authority to vacate an award is limited to acts in excess of the arbitrator‘s power and the other grounds set forth in
We find such an exception here because of New York‘s explicit and compelling public policy to protect children from the hаrmful conduct of adults (see e.g.
Here, the Hearing Officer found that respondent engaged in an improper, intimate and clandestine relationship with a minor female student. Moreover, respondent showed no remorse for the conduct proven by petitioners, disobeyed administrative direction to cease his relationship with the student and not transport her in his car, and continued to contact her even after disciplinary charges were brought against him. Given these circumstances, the award fails to adequately protect students in the future and, thus, viоlates a strong public policy (see Matter of Board of Educ. of E. Hampton Union Free School Dist. v Yusko, 269 AD2d 445, 446 [2000], supra). Accordingly, we decline to disturb Supreme Court‘s ruling.
Cardona, P.J., and Carpinello, J., concur.
Mugglin, J. (dissenting). In this case, although we would not hesitate to affirm the penalty оf dismissal if that had been imposed against respondent and if that were the issue, we must, for the reasons hereinafter expressed, respectfully dissent from the majority holding that an arbitrator exceeds his or her authority by imposing a too lenient penalty, thereby violating the public policy of this state against inappropriate teacher-student relationships.
First, we concede that our colleagues in the Second Department so held (see Matter of Board of Educ. of E. Hampton Union Free School Dist. v Yusko, 269 AD2d 445, 446 [2000]). We do not regard this case as persuasive authority, however, for the reasons hereinafter expressed and because it cites only three cases brought pursuant to
It is settled law that “courts may vacate an arbitrator‘s award only on the grounds stated in
To invoke the public policy exception (as the majority does here), “the court must be able to examine an arbitration agreement or an award on its face, and conclude that public policy considerations, embodied in either statute or decisional law, prohibit (1) arbitration of the particular matters to be decided, or (2) certain relief being granted” (Board of Educ. of City of N.Y. v Hershkowitz, 308 AD2d 334, 336 [2003], lv dismissed 2 NY3d 759 [2004]). In performing this examination, a court “must focus on the result only, and can vacatе the award if the arbitration agreement itself violates public policy; if the award intrudes into areas reserved for others to resolve; or if, because of its reach, the award violates an explicit law of this [s]tаte. Our analysis cannot change because the facts or implications of a case might be disturbing, or because an employee‘s conduct is particularly reprehensible” (Matter of New York State Correctional Officers & Police Benevolent Assn. v State оf New York, 94 NY2d 321, 327 [1999]). Judicial intervention concerning the relief granted—i.e., the penalty assessed—can only be justified if “the award itself ‘violate[s] a well-defined constitutional, statutory or common law of this [s]tate‘” (Matter of New York City Tr. Auth. v Trаnsport Workers Union of Am., Local 100, AFL-CIO, 99 NY2d 1, 11 [2002], quoting Matter of New York State Correctional Officers & Police Benevolent Assn. v State of New York, supra at 328). The court‘s task is to identify an existing public policy “‘embodied in statute or decisional law, [which] prohibit[s] in an absolute sense’ the arbitrator from imposing the penalty of one year‘s suspеnsion without pay” (Matter of New York City Tr. Auth. v Transport Workers Union of Am., Local 100, AFL-CIO, 99 NY2d 1, 11-12 [2002], supra [emphasis omitted], quoting Matter of Sprinzen [Nomberg], 46 NY2d 623, 631 [1979]). This task cannot successfully be
Crew III, J., concurs.
Ordered that the judgment is affirmed, without costs.