Pro se petitioner Dr. Leonard Brown (Brown) moves, pursuant to CPLR 7511, for an order vacating and overturning the January 28, 2010 Opinion and Award (the Opinion) issued by Hearing Officer Bonnie Siber Weinstock (Hearing Officer or Weinstock) on the grounds that the act in question was accidental, the punishment was excessive, the decision was arbitrary and capricious, and that the Hearing Officer engaged in misconduct, was not impartial, and failed to follow proper procedure, despite Brown's continuing objections to the defects.

Respondent New York City Board/Department of Education, formally the Board of Education of the City School District of the City of New York (the DOE) cross-moves, pursuant to CPLR 7511, 404 (a) and 3211 (a) (7), for an order: (a) dismissing the petition for failure to state a cause of action, and (b) confirming the arbitration award. Respondent requests that, if the cross motion is denied, it be permitted to serve and file an answer within 30 days from the date of service of the order with notice of entry.

The DOE brought charges against Brown, a tenured teacher employed by the DOE for approximately 20 years, based on an incident that occurred in his seventh-period physics class on November 14, 2006. The charges alleged that Brown engaged in misconduct, verbal abuse, physical abuse and conduct unbecoming a teacher. The DOE sought as a penalty Brown's dismissal from service. [*2]

The three Specifications at issue in the matter relate to an incident that occurred during a physics demonstration in front of the class on November 14, 2006: 1) while student "SB" was standing up in class, Brown inappropriately touched her chest area; 2) while SB was still standing, and right after the event described in Specification 1, Brown told SB to push him back, and when she did, Brown again inappropriately touch her chest area; and 3) after the events described in Specifications 1 and 2, Brown made inappropriate comments to SB.

Brown spent more than three years at a Teacher's Reassignment Center (TRC) in Queens while the matter was being investigated. A series of eight hearings on the incident and the charges was held between December 12, 2008 and June 12, 2009. On January 28, 2010, the Hearing Officer issued the 32-page Opinion, which stated that Brown's penalty would be suspension without pay for the remainder of the 2009-2010 school year. Brown explains that the punishment resulted in a loss to him of approximately $47,000 in salary. He contends that the court should overturn and vacate the Opinion because it is not warranted in the record, is excessive, arbitrary and capricious, and shows a level of partiality and prejudice.

The Opinion points out that Brown denied that he engaged in the misconduct alleged. He explained that, on the day in question, he was demonstrating Newton's third law of motion, as he had done many times before. Brown stated that he gently pushed on SB's shoulders or collarbone, but he denied touching other areas. Brown did not recall saying the comments as alleged, although he acknowledged it was possible he did, but if so, he was talking about the demonstration. Brown pointed out that he has an exemplary career as a science teacher, with no prior charges or discipline. Brown maintained that the DOE did not have cause for disciplining him, and he asked to be returned to the classroom.

The Hearing Officer found that there was ample, credible testimony, including testimony from several students who were in the classroom that day, from which she could glean what happened during the physics class. She found that Brown engaged in a demonstration of a physics principle that he had done many times, but that this time, it went awry. The Opinion stated that the incident occurred because Brown did not want SB to return to her seat. He failed, however, to use any words to stop her, but instead used his hands. The Hearing Officer found that Brown made a serious error in judgment by continuing the demonstration with SB without first having her agree to be a willing participant.

The Hearing Officer was "completely persuaded that there was nothing nefarious" in Brown's choosing of SB to be the student to participate in the demonstration. Opinion, at 22. The Opinion stated that the demonstration went wrong because Brown did not inform SB of her part in the demonstration, but rather, for the "sake of spontaneity," he touched her inappropriately and embarrassed her. Id. The Hearing Officer was not persuaded that there was anything sexual in the touching. She found, however, that there was a touching on SB's chest that startled and embarrassed SB. The Hearing Officer further found that Brown said inappropriate words to SB which also embarrassed her. Weinstock stated that Brown did not seem to be a "lecherous or predatory man. Nevertheless, his thought that his comments were a display of his sense of humor clearly was misguided." Opinion, at 26. The Hearing Officer further found that Brown exhibited extremely poor judgment, and she asserted that, if a demonstration had the possibility of such inadvertent touching, the student should be informed of the demonstration and be given the choice of whether to participate.

Weinstock found that Brown violated Chancellor's Regulation A-421, which defines verbal abuse as language that subjects a student to ridicule. She found that there was more than [*3]ample proof in the record that Brown engaged in the misconduct and conduct unbecoming a professional alleged in specifications 1, 2 and 3, all of which she sustained in the Opinion. The Opinion stated that, while Weinstock agreed with Brown's assertion that he is not a predator, "predatory practices are not the only conduct proscribed by the Chancellor's Regulations." Id. at 29. The Opinion found that Brown's "conduct was not poorly intentioned, but the demonstration that went awry caused extreme embarrassment to the student, which was engendered as much by the inappropriate touching as by the ridiculous comments made by Dr. Brown in the aftermath." Id. The Hearing Officer therefore held that discipline was appropriate. She stated that termination was not the appropriate penalty, for several reasons, including that the touching was not of a sexual nature, and that Brown had a prior good record over his 20 years of service.

The Hearing Officer stated that Brown's removal from the classroom, a necessary step while the charges were being investigated and adjudicated, had kept him away from teaching students for three years. During that time, the students who were in his physics class on November 14, 2006 had graduated from the school. Weinstock determined that Brown should be suspended without pay for the remainder of the 2009-2010 school year. She described the suspension as a "very substantial penalty designed to impress upon [him] that even if the experiment going awry was unintentional, it was avoidable by conferring with any students who are asked to participate in such demonstrations and letting them know what will happen." Id. at 31. In that way, she noted, a student could also decline to participate. Weinstock noted that Brown "compounded the mishap in his demonstration by his crass remarks, and the suspension is assessed in substantial part for those remarks." Id.

Brown argues that the Opinion should be vacated, pursuant to Education Law § 3020-a and CPLR 7511. He asserts that the Opinion, at best, hands out an excessive punishment and relies on hearsay and inference rather than facts. At worst, according to Brown, the Opinion violates lawful procedure, was affected by material and prejudicial errors of law, is an unauthorized assertion of power, is malicious, violates procedural and substantive due process rights, and violates the state and federal constitutions, the collective bargaining agreement between the DOE and Brown's union, and the chancellor's regulations. Brown seeks relief in the form of his immediate return to a New York City public school and dismissal of the Opinion in its entirety.

Brown maintains that the Opinion is unfair, that the penalty is not equitable and that it may lead to disastrous consequences for teachers in a science classroom, where hands-on experiments are necessary, and upon which Brown has relied throughout his stellar career in the New York City public schools. According to Brown, the Opinion will have a chilling effect upon the profession of teaching, where teachers who accidentally touch a child in the performance of their duties will be stigmatized, removed from their classrooms, ridiculed and tarnished. Brown points out that in the incident in question, he had no intent to harm and he committed no malicious acts.

Pursuant to Education Law § 3020-a (5), a court must apply the standard set forth in CPLR 7511 to its review of a hearing officer's decision. Thus, a petitioner must show misconduct, bias, excess of power or procedural defects in order for an award to be vacated. Austin v Board of Educ. of City School Dist. of City of NY, 280 AD2d 365, 365 (1st Dept 2001). In a case such as this one,

where the parties have submitted to compulsory arbitration, judicial scrutiny is stricter than that for a determination rendered where the parties have submitted to [*4]voluntary arbitration. The determination must be in accord with due process and supported by adequate evidence, and must also be rational and satisfy the arbitrary and capricious standards of CPLR article 78. The party challenging an arbitration determination has the burden of showing its invalidity.

Brown maintains that there were inconsistencies, conflicts and contradictions in the testimony of virtually all of the DOE's witnesses and that Weinstock never addressed these issues. He states that SB's account of what occurred on that date in his class does not hold up when compared to Brown's testimony, or to the testimony of SB's classmates. According to Brown, this is an error and a violation of his due process rights, and another example of Weinstock's bias and prejudice against him. The DOE contends that the Opinion is not arbitrary and capricious. It notes that the Opinion reviews, at length, the evidence presented to the impartial hearing officer over a period of eight hearing dates. The DOE points out that the Opinion separately considers each of the three specifications brought against Brown, and cites to evidence in the record supporting each charge in finding him guilty of all three specifications.

The court finds that the Opinion contained a thorough discussion and description of the testimony of the various individuals who testified at the hearings. While the Opinion notes some inconsistencies in certain details of the matter, the Hearing Officer found enough similarity and corroboration of the key elements of the incident for her to feel she could accurately glean and assess what transpired. It is not the role of the court to second guess the weight and the credibility the Hearing Officer gives to the testimony of the various individuals. A hearing officer's credibility determinations are "largely unreviewable" because she, unlike the court, observes the witnesses and can make judgments based thereon. Lackow, supra, at 568. The court finds that the Hearing Officer's determination as to what occurred on November 14, 2006 is based on adequate evidence in the record.

Thus, the next question is whether the punishment meted out by the Opinion is appropriate, as the DOE contends, or is excessively harsh under the circumstances, as Brown maintains. Brown contends that he should not have been suspended because the Hearing Officer found that he did not act deliberately. He argues that Weinstock exceeded her power by awarding excessive punishment for a teaching demonstration gone awry, with no corporal punishment or ill intent on his part. Brown maintains that vacatur of the award, and replacing it with a more suitable penalty, such as a modest fine, are fair and equitable remedies for his alleged misconduct in this proceeding.

Brown argues that the Opinion is shocking to the conscience because it excessively punishes an act of alleged touching that, indisputably, was neither corporal punishment nor sexual misconduct. He notes that the penalty of six months without pay or medical coverage set forth in the Opinion followed the more than three years he spent at the TRC. Brown contends that the penalty is excessive and unreasonable for an accidental brief touch during a science experiment.

The DOE contends, by contrast, that, given the seriousness of the charges, the Hearing Officer should be considered lenient in not terminating Brown. The DOE opines that Weinstock gave Brown the benefit of the doubt in relying on his record as a teacher and the non-sexual nature of the "inappropriate touching" and alleged "humorous" nature of his remarks. The DOE argues that the penalty of suspension without pay is proportionate to the offenses at issue and [*5]does not come close to shocking the conscience. The DOE notes that a reviewing court will not second guess the evidence or substitute its judgment for that of the hearing officer.

The standard a court applies in reviewing a the penalty rendered after § 3020-a hearing is whether it was "so disproportionate to the offenses as to be shocking to court's sense of fairness." Lackow, 51 AD3d at 569. The court does not find that Brown's punishment meets that high standard. The Hearing Officer did not follow the DOE's recommendation that Brown be terminated. Instead, she acknowledged both the seriousness of what took place, in terms of the touching and the follow-up comments, as well as Brown's exemplary teaching history, and her view that the touching was not sexual. She determined that a serious penalty, though one far less severe than termination, was appropriate. The court's sense of fairness is not shocked by her approach and her desire to balance these various factors.

The remaining issues are whether there are other bases, as argued by Brown, upon which the Opinion should be vacated. These include questions as to the Hearing Officer's impartiality, her decision to close the hearings to outside observers when SB and the other students testified, and the gap in time between the date of the final hearing and the date on which the Opinion was rendered.

The DOE points out that, in accordance with procedures set forth at Education Law § 3020-a (3) (c) (i), Brown was represented by counsel at the hearing, he cross-examined DOE witnesses, he called witnesses of his own, and he was permitted to offer evidence. The DOE notes that it called eight witnesses, four of whom were students, who were referred to only by initials on the record, and who witnessed the incident. Brown, in addition to his own testimony, called three other witnesses to testify, including two former students.

Brown argues that the Hearing Officer was not impartial. He points out that, during a break in SB's testimony, Weinstock walked with SB to the bathroom, and she was observed chatting in a very friendly manner with SB both entering and leaving the women's bathroom area, in violation of protocol and impartiality. The DOE argues that, in order to vacate an arbitration award due to partiality or misconduct on the part of an arbitrator, a petitioner must meet a heavy burden of establishing partiality by clear and convincing evidence. According to the DOE, Brown has failed to establish, by clear and convincing evidence, that the Hearing Officer was a biased or partial arbitrator. The DOE maintains that Brown's allegation that Weinstock and SB walked into the bathroom at the same time cannot suffice to show bias, prejudice or impropriety. The DOE further asserts that Brown has not alleged anything that would prove prejudice or bias by the Hearing Officer.

This court finds that, while it may have been wiser for the Hearing Officer to avoid interacting with SB outside of the context of the hearing, so as not to raise any such issue, nonetheless, there is no evidence or allegation that the "chatting in a very friendly manner" that Brown described involved a discussion of testimony, of the incident at the core of the hearings, or of anything related thereto. A casual, brief interaction once during the course of eight hearings does not constitute "clear and convincing evidence" of bias on the part of the Hearing Officer, which is the standard that Brown must meet to show partiality. Zrake v New York City Dept. of Educ., 41 AD3d 118, 118-119 (1st Dept 2007). "[T]he mere inference of partiality ... is not sufficient to warrant interference with the arbitrator's award." Rose v Lowrey & Co., 181 AD2d 418, 419 (1st Dept 1992).

Brown alleges corruption, fraud and misconduct, pointing out that the Hearing Officer refused to allow an outside observer to be present during the testimony of the student witnesses, [*6]all of whom are currently over 18, even though Education Law § 3020-a permits this to be an open and public hearing. The DOE states that Brown's complaint about the Hearing Officer's alleged refusal to allow an outside observer to be present during the testimony of the student witnesses lacks merit because the privacy of students is a matter of serious concern to the DOE and is also a matter of federal law. The DOE further points out that, in any case, Brown did not object to the closing of the hearings for student testimony.

SB and the other students who witnessed and testified about the incident in question had graduated from high school by the time they gave testimony at the hearings. Pursuant to Education Law § 3020-a (3) (c) (i), the employee charged has the discretion to decide whether the hearings are public or private. The court need not decide whether Brown was entitled to have an outside observer be present during the students' testimony under such circumstances, because the record shows that he did not object to the hearings being closed while SB and the other former students were testifying. See Transcript of December 2, 2008 hearing, at 6-10.

Brown points out that closing arguments for this case were on June 12, 2009. He states that, pursuant to Education Law § 3020-a (4), and the collective bargaining agreement between his union and the DOE, a written decision must be rendered within 30 days of closing arguments. The Opinion, however, was not rendered until January 28, 2010. Brown states that he languished in the TRC during those seven months, and he argues that such time should be erased from his penalty. The DOE points to CPLR 7507, which states that "the award shall be in writing, signed and affirmed by the arbitrator making it within the time fixed by the agreement ... . A party waives the objection that an award was not made within the time required unless he notifies the arbitrator in writing of his objection prior to the delivery of the award to him."

The court does not wish to minimize the mental and emotional impact of waiting or, as Brown describes it, "languishing," at a TRC during the seven months from the date of the final hearing until the date the Opinion was rendered. Pursuant to CPLR 7507, however, Brown is not entitled to now object to the lack of timeliness, given that he did not do so prior to receiving the Opinion.

Brown has not satisfied his heavy burden of establishing that the Opinion should be vacated. See Rose v Lowrey & Co., 181 AD2d at 419. The petition is, therefore, denied, and the cross motion, seeking dismissal of the petition and confirmation of the Opinion, is granted.

Accordingly, it is

ORDERED AND ADJUDGED that the cross motion is granted, and the petition is dismissed and the underlying arbitration award is confirmed.

Dated: February 10, 2011ENTER:

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J.S.C.