BACKGROUND

Petitioner is a tenured teacher who moves, pursuant to Article 75 of the CPLR, to vacate the decision of a New York City Department of Education hearing officer that resulted in petitioner's suspension of one year from respondent's employ, without pay, for conduct unbecoming a teacher. Petitioner alleges that the hearing officer exceeded her authority, that the punishment shocks the conscience, and that the decision violates public policy, all because he had no notice that his conduct was unlawful or improper. Respondent has cross-moved, pursuant to CPLR 7511, 404 (a) and 3211 (a) (7), to dismiss the petition and to confirm the arbitrator's award.

Petitioner was charged with the following five specifications:

Specification 1: On or about December 4, 2006 through

January 4, 2007, [petitioner] went beyond the appropriate

teacher/student relationship in that he acted inappropriately towards Student A* by making approximately

39 phone calls to her.

Specification 2: On or about December 4, 2006 through

January 4, 2007, [petitioner] went beyond the appropriate

teacher/student relationship in that he acted inappropriately towards Student A by leaving the following

voice messages on her phone which stated in sum and

substance:

a) You don't like to hear my voice.

b) You are special to me.

c) I miss you. Please call me. I would like to

adopt you as my third daughter.

d) You don't want to pick up the phone? Call me, [*2]

I miss you.

Specification 3: On or about December 5, 2006 through

January 4, 2007, [petitioner] went beyond the appropriate

teacher/student relationship in that he acted inappropriately towards Student A by sending approximately

8 text messages to her; including a message sent at

approximately 4:12 am on or about December 21, 2006.

Specification 4: On or about December 5, 2006 through

January 4, 2007, [petitioner] sent a text message to

Student A stating in sum and substance that I think of

you every day.

Specification 5: On or about December 24, 2006 [petitioner]

went beyond the appropriate teacher/student relationship in

that he acted inappropriately towards Student A when he:

a) Approached Student A at her place of employment

and responded to her request as to how many sugars

he wanted in his coffee by saying words to the

effect of you think I am here for the coffee.

b) Sat across from Student A at her place of employment

and stared at her for approximately several hours.

Petitioner has admitted to the conduct appearing in Specifications 1 and 2, and part of the charges in Specification 3. Petitioner denies the charges of Specification 4, and states, with respect to Specification 5, that he did go to the McDonald's where Student A works, but alleges that he was surprised to see her there, and that he only stayed long enough to drink his coffee.

Petitioner maintains that the list of "serious misconduct" set forth in the collective bargaining agreement between respondent and petitioner's union does not specify the actions complained of in the instant matter, that the items only refer to sexual misconduct, and that he was never given any notice that his actions would be deemed inappropriate. Respondent notes that the section of the collective bargaining agreement quoted by petitioner only relates to "serious misconduct" which permits respondent to suspend a teacher, without pay, prior to a determination on the charges, and this provision was not at issue in petitioner's case. Moreover, respondent maintains that the collective bargaining agreement does not define the parameters of all prohibited conduct for which a teacher may be suspended, with pay.

A pre-hearing conference on the matter was held on January 11, 2008, and hearings were held on May 13, 16, 28, 29, 2008, June 3, 2008, and November 18, 2008. Petitioner was represented by counsel at these hearings. The hearing officer rendered her decision on January 13, 2009.

In her decision, the hearing office indicates that, with respect to Specification 1, petitioner stated that he made the [*3]calls to Student A in reference to the student's college application essay and his concern for her after he read a letter that she gave him that referred to the college essay. Based on the telephone records introduced in evidence, the hearing officer concluded that the urgency with which petitioner made the calls, exemplified by his calling the student six times on one day, and 12 times on the following day, went beyond an appropriate teacher/student relationship.

With respect to Specification 2, the hearing officer concluded that the nature of the voice mail messages, which were admitted to by petitioner, went beyond an appropriate teacher/student relationship.

The hearing officer found that the T-Mobile records for petitioner, admitted into evidence at the hearings with respect to Specification 3, contradicted petitioner's testimony regarding the text messages sent, and the hearing officer did not find petitioner's account of the messages to be credible.

Student A testified that the message forming the charge of Specification 4 made her very uncomfortable, and the hearing officer credited her testimony as credible. Petitioner testified that he could not remember sending this message.

Finally, with respect to Specification 5, the hearing officer heard testimony from petitioner, Student A, and the assistant manager of the McDonald's who was present at the time that the alleged incident took place. The assistant manager corroborated Student A's account of the incident, as it appears in the Specification, and the hearing officer found their testimony to be more credible than petitioner's denial.

DISCUSSION

Education Law § 3020-a (5) limits a court's review of an arbitration award to the grounds set forth in CPLR 7511. CPLR 7511 provides for the vacatur of an award in arbitration where "an arbitrator ... exceeded his power or so imperfectly executed it that a final and definite award upon the subject submitted matter was not made... ." CPLR 7511 (b) (1) (iii). The scope of judicial review of arbitration awards is extremely limited. Matter of Brown & Williamson Tobacco Corporation v Chesley, 7 AD3d 368 (1st Dept 2004). Where a party to arbitration claims that the arbitrator exceeded his or her powers, "[s]uch an excess of power occurs only where the arbitrator's award violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on the arbitrator's power." Matter of New York City Transit Authority v Transport Workers' Union of America, Local 100, AFL-CIO, 6 NY3d 332, 336 (2005); see also Matter of United Federation of Teachers, Local 2, AFT, AFL-CIO v Board of Education of City School District of City of New York, 1 NY3d 72 (2003).

In cases in which the parties are compelled by law to [*4]arbitrate, the courts must also review whether "the award [is] in accord with due process and supported by adequate evidence in the record [citations omitted]." Matter of Bernstein v Norwich City School District Board of Education, 282 AD2d 70, 73 (3rd Dept 2001), lv dismissed 96 NY2d 937 (2001). Education Law § 3020-a (4) lists the possible penalties an arbitrator may impose. They are: a written reprimand, fine, suspension for some fixed time without pay and dismissal. In addition, the arbitrator may direct the employee to participate in "remedial action" such as a leave of absence with or without pay, continuing education, counseling or medical treatment.

Petitioner's motion to vacate the determination of the hearing officer is denied.

"Petitioner was charged with making [certain] statements,

and the record supports the hearing officer's conclusions

that he made them. Whether the making of the statements,

individually or in the aggregate, justified petitioner's

[suspension] is a separate issue."

Lackow v Department of Education (or "Board") of City of New

York, 51 AD3d 563, 567-568 (1st Dept 2008).

The court has read and reviewed the entire transcript of the hearings in question, and finds that there is sufficient credible testimony and evidence to support the hearing officer's findings of facts.

"It is basic that the decision by an Administrative Hearing Officer to credit the testimony of a given witness is largely unreviewable by the courts, who are disadvantaged in such matters because their review is confined to a lifeless record." Berenhaus v Ward, 70 NY2d 436, 443 (1987). Further, the court's review of the complete transcript "does not support the inference that the witnesses upon whose testimony the hearing officer relied were incredible as a matter of law." Lackow v Department of Education, 51 AD3d at 568.

Petitioner's main objection is that because no sexual conduct was alleged or charged, as defined under the collective bargaining agreement, petitioner had no notice that his conduct was unlawful or improper. However, assuming that the collective bargaining agreement did not give petitioner notice that his conduct was prohibited, Education Law §3012 (2) provides notice that a tenured teacher may be removed for reasons including "conduct unbecoming a teacher"—the charge against petitioner. Petitioner is not alleging that the statute itself is void for vagueness. Accordingly, the only question is whether it was arbitrary or capricious for the arbitrator to have determined that the conduct was unbecoming, and, as noted above, the determination was not arbitrary and was supported by the record. Moreover, petitioner complains that he had no notice that his conduct was improper, essentially because he was not charged with [*5]sexual misconduct, as defined by the collective bargaining agreement. However, petitioner has no cause to complain as it appears that petitioner could have been so charged, given that the collective bargaining agreement defines sexual misconduct to include "action that could reasonably be interpreted as soliciting a sexual relationship." In any event, petitioner's notice argument is bizarre. It is incredible that any adult—let alone a teacher— would not know that the conduct is and was improper.

Petitioner has also argued that the penalty imposed, a suspension without pay for one year, is beyond the scope of the hearing officer's authority, and is against public policy. However, pursuant to Education Law § 3012 (2), a hearing officer may impose a penalty of suspension without pay on a teacher after substantiating charges of conduct unbecoming a teacher. Therefore, the court finds petitioner's argument on these points to lack merit or legal substantiation.

Finally, petitioner asserts that the penalty of a one-year suspension without pay should be vacated because it shocks the conscience, given his unblemished record. Green v New York City Department of Education, 17 AD3d 265 (1st Dept 2005).

"It is now well settled that an administrative penalty

is not to be set aside ... unless it is so clearly

disproportionate to the offense and completely

inequitable in light of the surrounding circumstances

as to be shocking to one's sense of fairness [internal

quotation marks and citations omitted]"

Matter of Board of Education of City School District of City of New York v Mills, 250 AD2d 122, 126 (3d Dept 1998).

However, this argument is unavailing. The penalty is not shocking given the conduct. Further, courts have held that even dismissal may be an appropriate sanction, in certain circumstances, regardless of a teacher's past unblemished record. Matter of Rogers v Sherburne-Earlville Central School District, 17 AD3d 823 (3d Dept 2005). Also, as indicated above, the Education Law permits the penalty imposed by the hearing officer here, and the award of an arbitrator need not conform to the relief that a court might grant. Board of Education of Central School District No. 1 of Towns of Niagara, Wheatfield, Lewiston & Cambria v Niagara-Wheatfield Teachers Association, 46 NY2d 553 (1979). While not requested by the New York City Department of Education, it is the view of this Court that petitioner should be required to undergo mental health examinations/treatment before being allowed to teach again. Also, upon motion, this Court would have the authority to issue an Order of Protection.

CONCLUSION

It is hereby

ORDERED and ADJUDGED that the petition to vacate the hearing [*6]officer's decision is denied and the proceeding is dismissed; and it is further

ORDERED that respondents' cross motion to dismiss the petition is denied as moot.

This Constitutes the Decision, Order and Judgment of the Court.

Dated: September 8, 2009

ENTER:______________________

Emily Jane Goodman, J.S.C.