City School Dist. of City of NY v Hershkowitz

[*1] City School Dist. of City of NY v Hershkowitz 2005 NY Slip Op 50569(U) Decided on April 19, 2005 Supreme Court, New York County Acosta, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 19, 2005
Supreme Court, New York County

City School District of the City of New York, Petitioner,

against

Cary Hershkowitz, Respondent.



402951/04



Michael A. Cardozo

Corporation Counsel of the City of New York

100 Church Street, Room 22-300

New York, NY 10007

Eric Eichenholtz

Assistant Corporation Counsel

Attorneys for Petitioner

James R. Sander, Esq.

52 Broadway, 9th Floor

New York, NY 10004

Stuart I. Lipkind

Of Counsel

Attorneys for Respondent

Rolando T. Acosta, J.

The petition is granted to the extent of vacating the August 31, 2004 arbitration award, and remanding the case for a new hearing before a different hearing officer.

Background [FN1]

In 1999, respondent, a tenured teacher employed by the City School District of the City of New York, was charged with twelve specifications outlining inappropriate conduct of a sexual nature with a student along with other inappropriate interaction with other students. Specifications 1 through 6 were as follow: Specification 1: During the Spring semester of 1998, Respondent E-mailed computer messages to student S.B, writing words to the effect, "they could get past the student/teacher relationship."Specification 2: During the Spring semester of 1998, Respondent E-mail computer messages to student S.B. writing words to the effect, "that he liked her hair" and "when was she going to stop by his office?"Specification 3: During the Spring semester of 1998, by the Respondent's own admission, Respondent E-mailed student S.B. inappropriate computer messages. The Respondent [*2]submitted a written statement indicating among other things, the following:". . . Some of the messages did get into specifics concerning a future sexual relationship wherein the topic of masturbation came up, including the idea of oral sex, talking about, "if she ever did it" or "explored her own body" and "if we could touch each other if we got together; proper usage of genitalia, such as vagina, penis, breast; and no vulgar terms were used such as pussy, dick, etc. I had asked, without any actual desire or intent to act, whether she would want to have sex; both with others and me."Specification 4: In a written letter by the Respondent dated June 4, 1998, Respondent admitted to setting up an E-mail address for student S.B. so that student S.B.'s mother would not know she was chatting with a teacher.Specification 5: During the Spring semester of 1998, by the Respondent's own admission, Respondent called student S.B.'s home from his cellular phone approximately two to three times to be reminded of her voice.Specification 6: On or about April 6, 1998, student S.B.'s mother intercepted a telephone call from Respondent to her daughter wherein student S.B.'s mother told Respondent not to call back. Within minutes, Respondent called back a second time and stated to student S.B.'s mother that he did not want to "get the media involved" and that he did not want his call to "be a big deal."

A copy of the e-mails introduced at the hearing are attached to the petition as Exhibit C. Respondent's two page written statement dated June 4, 1998, is attached to the petition as Exhibit D. In the statement, respondent admitted to communicating with student S.B. through instant messages; that S.B. used the online "screen name" CUTEE101 and respondent used HershkoC; that he created a new "screen name," IB4UALONE, to ensure that S.B's mother would not be aware of their sexually explicit exchanges; that he asked S.B. whether she would want to have sex with him; and that he discussed masturbation and "the idea of oral sex," and how he and S.B. would touch each other if they got together.

The Board of Education brought a disciplinary action against respondent pursuant to Education Law 3020-a, but the hearing officer suppressed respondent's June 4, 1998 statement, finding that the statement was taken in violation of the collective bargaining agreement between the Board of Education and the United Federation of Teachers, and dismissed all charges against respondent. Petitioner brought an Article 75 proceeding in Supreme Court, New York County, to vacate the hearing officer's award. The court (Kapnick, J) granted the petition, finding that the hearing officer exceeded his power within the meaning of CPLR § 7511(b)(1)(iii), and directed the hearing officer to conduct a new hearing in which respondent's previously excluded written statement could be considered. The judgment was affirmed by the Appellate Division, First Department, in Board of Education of the City of New York v. Hershkowitz, 308 AD2d 334 (1st Dept. 2003), appeal dismissed, 2 NY3d 759 (2004). [*3]

A new hearing was conducted on May 14, 2004, where petitioner introduced respondent's written statement. On August 31, 2004, having to consider respondent's statement, the hearing officer issued a new award where he found that petitioner had proven Specifications 1 through 6. As a penalty, the hearing officer imposed a one-year suspension without pay.

Petitioner commenced the instant Article 75 proceeding alleging that the hearing officer's award was affected by bias and that it violated a strong public policy or was irrational. Respondent denied these allegations, and argued that petitioner lacked capacity and standing to bring this proceeding and that the petition was made in the wrong forum.

Analysis

Judicial review of the hearing officer's award is limited by Education Law § 3020-a(5) to the grounds set fourth in CPLR § 7511. Austin v. Board of Education of the City School District of the City of New York, 280 AD2d 365 (1st Dept. 2001). CPLR § 7511 provides in relevant part: (b) Grounds for vacating.1. The award shall be vacated on the application of a party who either participated in the arbitration or was served with a notice of intention to arbitrate if the court finds that the rights of that party were prejudiced by [inter alia]:(ii) partiality of an arbitrator appointed as a neutral, except where the award was by confession; or(iii) an arbitrator, or agency or person making the award exceeded his power or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made.

"[B]asic fundamental principles of justice require complete impartiality on the part of the arbitrator and mandate that the proceeding be conducted without any appearance of impartiality." Kern v. 303 East 57 Street Corp., 204 AD2d 152, 153 (1st Dept. 1994), quoting In Re Application of Fisher, 106 AD2d 315, 315 (1st Dept. 1984)(Kassal, J., concurring). Thus, courts are duty bound to preserve the integrity of the arbitration process. Goldfinger v. Lasker, 68 NY2d 225 (1986); Vincent C. Alexander, Practice Commentaries, McKinney's Consolidated Laws of New York, Book 7B, C7511:4, p. 775.

Vacatur under subsection (b)(1)(iii) requires a showing that the arbitrator (hearing officer) exceeded a specifically enumerated limitation on his authority; the decision is totally irrational; or the award is violative of a strong public policy. Board of Education of the Dover Union Free School District v. Dover-Wingdale Teachers' Ass'n, 61 NY2d 913 (1984). The latter two grounds are relevant to the facts of this case.

An award that is inherently inconsistent can be deemed totally irrational. Spear, Leads & Kellogg v. Bulseye Sec., Inc., 291 AD2d 255, 256 (1st Dept. 2002). Moreover, notwithstanding Austin v. Board of Education of the City School District of the City of New York, 280 AD2d 365 (1st Dept. 2001)(less stringent standard for Article 78 cases does not apply to Education Law § 3020(a)(5) cases), there is support for this Court to provide a closer scrutiny of the hearing [*4]officer's award given that the hearing procedure is compulsory. Indeed, as Vincent C. Alexander notes in his commentary [Practice Commentaries, McKinney's Consolidated Laws of New York, Book 7B, C7511:5, p. 780], '[t]he scope of review is enhanced somewhat in cases of compulsory arbitration, as for example . . . employer-employee relations in the public sector. If the parties are required by statute to arbitrate their dispute, due process requires 'closer judicial scrutiny of the arbitrator's determination. [The Court of Appeals] described the standard as follows: '[A]n award in a compulsory arbitration proceeding must have evidentiary support and cannot be arbitrary and capricious' Motor vehicle Accident Indemnification Corp v. Aetna Casualty & Surety Co, 89 NY2d 214, 223 (1996) . . . . . The [Court] appears to have borrowed the "arbitrary and capricious" standard from CPLR 7803(3), which applies to the review of certain forms of administrative determinations;" see also Cigna Property & Casualty v. Liberty Mut. Ins. Co., 12 AD3d 198 (1st Dept. 2004)(vacatur of an arbitration award is strictly limited to the reasons stated in CPLR 7511(b), but where the parties have submitted to compulsory arbitration, the award must have evidentiary support and cannot be arbitrary or capricious if it is to be upheld); Hegarty v. Board of Education, 5 AD3d 771 (2nd Dept. 2004)(where parties are force to engage in compulsory arbitration pursuant to Education Law § 3020-a(5), the award must have evidentiary support in the record).

An award is violative of a strong public policy when "public policy considerations, embodied in statute or decisional law, prohibit, in an absolute sense, particular matters being decided or ceratin relief being granted by an arbitrator. . . . [T]he court must be able to examine an arbitration agreement or award on its face, without engaging in extended fact finding or legal analysis, and conclude that public policy precludes its enforcement." Sprinzen v. Nomberg, 46 NY2d 623, 631 (1979). This basis for vacating an award does not encompass "vague or attenuated considerations of a general public interest." New York State Correctional Officers and Benevolent Association, Inc. v. State of New York, 94 NY2d 321, 327 (1999).

Applying these principles to the facts of this case, it is clear that the hearing officer's award dated August 31, 2004, must be vacated on several grounds. First, the hearing officer exceeded his powers inasmuch as the award was totally irrational. The hearing officer was constrained by order of the Appellate Division, First Department, to consider a statement where, as noted above, respondent admitted to outrageous sexual misconduct, including that he asked S.B. whether she would want to have sex with him and discussed masturbation and how he and S.B. would touch each other's genitalia if they got together. Based on this statement along with the other evidence submitted by petitioner, the hearing officer found that respondent was guilty of specifications one through six. Having found respondent guilty of improper sexual conduct toward a young high school student, the hearing officer inexplicably allowed respondent back in the class room after a one year suspension.

A one year suspension, however, not only defies logic given the seriousness of respondent's admitted sexual misconduct (which incidently came to light only because S.B.'s mother intercepted respondent's phone call to S.B.), but it is offensive to the disciplinary process negotiated by petitioner and respondent's union. Indeed, to suspend respondent for one year actually tells him and everybody else that these perverted and insidious acts are not serious. Importantly, it also tells S.B. and her mother that S.B.'s resolve and her mother's courage used in withstanding and reporting respondent's persistent and improper advances were for naught. In [*5]fact, S.B's resolve is being used against her by those responsible for ensuring her safety as an attempt to minimize the heinous nature of respondent's acts and attempt to get S.B to deceive her parents. This Court simply cannot countenance such attempt. Instead, this Court chooses to call this teacher's acts for what they are an abuse of trust of the most serious kind; one that warrants forfeiture of the privilege to share his knowledge with those more vulnerable.

A careful analysis of the hearing officer's reasoning demonstrates that the penalty he imposed was "totally irrational." The hearing officer essentially cites three reasons for imposing a one-year suspension: that respondent never "crossed the line" because there was never any actual contact with the student; that Department of Education of the City of New York v. Siebert, SED No.4, 163 (February 28, 2003) is distinguishable from the facts of the present case, because in Siebert, although the teacher did not "cross-the line," the child was in elementary school and the teacher did not acknowledge that he was misguided, unlike the present case where the child was in high school and respondent acknowledged that his behavior was inappropriate; that respondent can be rehabilitated, "particularly, if his counsel's assertion that he has not engaged in computer chat with S.B. or any one else during the past six years is accurate"; and, respondent's 25 years of service without any prior discipline.

The hearing officer, however, failed to appreciate the harm that respondent's behavior may have on a child, both presently and in the future, by his inappropriate conduct even if he did not "cross the line" and have physical contact with S.B.[FN2] The [*6]Court understands, particularly in light of recently reported cases, that there are acts of sexual misconduct more serious than those present here, such as one involving sexual intercourse or forcible rape. Outrage at a teacher's sexual misconduct such as the one here, however, is appropriate, especially given the fact that the teacher actually instructed S.B. how to deceive her mother to hide his misconduct. Sexual contact is only the culmination of an insidious process which inevitably causes damage to a young mind entrusted to a teacher's care.

To be sure, the fact that physical contact apparently did not occur here and respondent did not "cross the line" should not mitigate in respondent's favor; it is a tribute to the student's resolve, not respondent's exercise of restraint. For his part, it is clear that he tried. Indeed, he asked the student to visit him in his office and asked her to have sex with him, and if S.B.'s mother had not intercepted respondent's telephone call, respondent's misconduct would have probably continued. To reward him for failing in his quest defies logic.

Second, the fact that student S.B. was in high school as opposed to elementary school does not take away the fact that respondent violated a special trust. Parents should feel safe in sending their children to school regardless of their age.

Third, the hearing officer's assertion that respondent could be rehabilitated was based [*7]on the possible accuracy of respondent's own counsel's claim that respondent had not engaged in any inappropriate conduct for the past six years. This assertion is not only speculative and unsustainable, it is unworthy of credence. The hearing officer admittedly does not know that counsel's assertion is accurate. And, even if true, respondent has been confined to administrative duty for the past six years. Thus, the fact that he has allegedly not engaged in any inappropriate conduct is not telling. Indeed, it is to petitioner's credit, not respondent, that respondent has been kept away from children.

Last, considering the seriousness of respondent's conduct, a one year suspension is not justified by the fact that respondent had a clean record prior to this incident. Given the specifications that were sustained, respondent simply has no business being around children. Respondent is every parent's worst nightmare. He not only tried extremely hard to seduce S.B. into a clandestine and inappropriate relationship, but systematically dismantled the systems a parent puts in place to protect her daughter, namely honesty and open communication. Indeed, it requires us to suspend reason in order to find that respondent engaged in serious sexual misconduct with a child entrusted to his care a child he taught to keep the misconduct secret, and by the same token allow the teacher to go back into the class room after one year. Spear, Leads & Kellogg v. Bulseye Sec., Inc., supra, 291 AD2d at 256 (inconsistent award is totally irrational).

Suspending respondent for one year rather than terminating him also runs against New York's strong public policy of protecting children. In Re Marino S., 100 NY2d 361 (2003)(Article 10 of the Family Court Act and Social Services Law §384-(b) "implement New York's strong public policy of . . . protecting the health and safety of children.")(emphasis added); New York City Board of Education Chancellor's Regulation A-830, Attachment 1, p. 2 (prohibiting sexual harassment by teachers toward students); see also, Shurgin v. Ambach, 56 NY2d 700 (1982)(terminating teacher for exposing students to pornographic material); Katz v. Ambach, 99 AD2d 897 (3rd Dept. 1984)(terminating teacher for making sexual comments and putting his arm around students is an appropriate penalty "in view of the potentially harmful effect upon the young minds entrusted to a teacher's care.")[FN3]; Department of Education of the City of New York v. Siebert, SED No.4, 163 (February 28, 2003). These cases, as well as common sense, dictate that it is a strong public policy of this state that a teacher, tenured or otherwise, who engages in sexual misconduct with a student, such as in this case, may not return to a class room.

It also appears that the internal inconsistency between the hearing officer's findings and the penalty which he imposed was caused, in part, by his reluctance to follow the Appellate Division's mandate to consider respondent's statement admitting serious misconduct. Inasmuch as this Court is duty bound to protect the integrity of the arbitration proceeding, Goldfinger v. Lasker, 68 NY2d 225; Kern v. 303 East 57 Street Corp., supra, 204 AD2d at 153, the award [*8]must be vacated under CPLR § 7511(b)(1)(ii) as well.

Respondent's argument that only the Chancellor could bring an appeal of a hearing officer's award is not supported by Education Law § 3020-a(5), which states that "the employing board may make an application to the New York [S]tate [S]upreme court to vacate or modify the decision of a hearing officer. . . ."

Furthermore, the fact that petitioner commenced this action under a separate index number, see CPLR § 7502(a)(iii)("[n]otwithstanding the entry of judgment, all subsequent applications shall be made by motion in the special proceeding or action in which the first application was made[,]"), is not fatal. See Wicks Construction, Inc. v. Green, 295 AD2d 527 (2nd Dept. 2002)(failure to comply with non-jurisdictional requirement did not prejudice respondent). As the Court noted in In Re Gleason (Michael Vee, Ltd), 96 NY2d 117, 121-22 (2001), the purpose of amending former section 7502(a) was "to promote judicial economy and prevent forum shopping" by providing that all applications pertaining to an arbitration be made within same action or proceeding. Here, respondent is not prejudiced in any manner, and petitioner, who won the previous proceeding before Judge Kapnick, had no reason to shop a more favorable forum.

Accordingly, the hearing officer's award dated August 31, 2004, is vacated and the matter remanded before a different hearing officer.

This constitutes the Decision and Judgment of the Court.

Dated: April 19, 2005 _____________________________

ROLANDO T. ACOSTA, J.S.C. Footnotes

Footnote 1:1. This decision was edited for publication

Footnote 2:2.See, e.g., U.S. Department of Education, Office of the Under Secretary, Educator Sexual Misconduct: A Synthesis of Existing Literature, 2004 [http://www.ed.gov/rschstat/research/pubs/misconductreview/. ]. While the report was criticized for not distinguishing between sexual abuse and sexual misconduct, it nevertheless sheds light on the impact of adults in a special relationship of trust sexualizing such relationship. The report found: 9.1Effects on targeted students: Academic, emotional and developmental. Reanalysis of . . . data indicates that targets of educator sexual misconduct report that they suffer emotional, educational, and developmental or health effects. At least a third of students report behaviors that would negatively affect academic achievement: Avoid the teacher or other educator (43 percent). Do not want to go to school (36 percent). Do not talk much in class (34 percent). Have trouble paying attention (31 percent). Stayed home from school or cut a class (29 percent). Found it hard to study (29 percent). About a quarter of students who were targets of educator sexual misconduct report academic or discipline repercussions that they attribute to the incident. Thought about changing schools (19 percent). Changed schools (6 percent). Received a lower grade on a test or assignment (25 percent). Received a lower grade in a class (25 percent). Got into trouble with school authorities (25 percent). Felt less likely to get a good grade (23 percent). Health effects such as sleep disorder and appetite loss were reported by 28 percent of students. A substantial number of students report negative feelings of self worth because of the abuse. Felt embarrassed (51 percent). Felt self conscious (39 percent). Less sure of self or less confident (37 percent). Felt afraid or scared (36 percent). Felt confused about identity (29 percent). Doubted whether could ever have a happy romantic relationship (29 percent). For most children, being the victim of sexual misconduct does damage that lasts well into adulthood, and for most it is never fully repaired (Kendell-Tackett, 1993). Child sexual abuse targets lose trust in adults and authority figures, suffer physical ailments and lowered immune systems, and do less well in school (Finkelhor & Brown, 1985)CS. They often drop out of or avoid school. Sexually abused children are more likely than children who are not sexually abused to be substance users as adults and to have difficulty forming intimate relationships (Finkelhor, 2001). David Finkelhor (2001), the premier researcher of child sexual abuse, notes that the same sense of betrayal and shame that attaches to incest is found in sexual abuse by teachers where the pseudo parental relationship that the teacher plays has been sexualized.

Footnote 3:3. The fact that the legislature amended Education Law § 3020-a in 1994 by eliminating both the Commissioner's jurisdiction to entertain appeals and the Article 78 procedure for review and providing for Article 75 review instead, did not, as respondent would have this court believe, overrule the holding in the pre-1994 cases.