On March 2, 2007, cars were parked along the curbside on Wenwood Drive in front of the Woodland Middle School (the "school") in East Meadow, New York. The curbside on Wenwood Drive is typically used as the "drop off" location for children who are driven to school in the mornings from 7:30 a.m. to 7:55 a.m. Although teachers are provided with their own parking spaces in a different area on school property, on March 2nd, several teachers parked their cars along this "drop off" area on the curbside as an activity "intended to achieve a new collective bargaining agreement" (Ex. "B" to Petition at p. 3). Respondent Board of Education of the East Meadow Union Free School (the "District") alleges that on that date, because of rain, heavy traffic, and the presence of parked cars on both sides of Wenwood Road, parents were forced to drop off their children in the middle of the street.

On March 15, 2007, the District preferred disciplinary charges against Petitioner Barbara Lucia ("Lucia") and three other teachers who allegedly parked their cars along the curbside on March 2nd.^[FN1] The charge against Lucia alleged the following:

SPECIFICATION 1: On or about March 2, 2007, [Lucia] intentionally created a health and safety risk by purposely situating her vehicle alongside the curb on Wenwood Drive in front of the Woodland Middle School in order to preclude children from being dropped off at curbside. The action resulted in children being dropped off in the middle of the street which resulted in an otherwise avoidable and unnecessary health and safety hazard (Ex. "C" to Petition).

Pursuant to Education Law § 3020-a, a hearing was held before Hearing Officer Josef Sirefman (the "Hearing Officer") on October 10, 2008 and May 27, 2009. In his January 7, 2011 decision following the hearing, the Hearing Officer concluded that the District had sustained its burden of proof on the charge. Acknowledging that protected union activity may lose its status

by the manner in which it was conducted, the Hearing Officer stated, in relevant part:

Based upon the finding that [her] actions created a safety hazard for the children, I do not find that [her] actions . . . were protected activity. . . . It is foreseeable that where so many cars are parked at that location it would delay the drop off of students . . . . Albeit a lapse in judgment, [Lucia's] [*2]actions took place outside the school, and there is no evidence that they had any impact on her role as a teacher with considerable experience. A fine of one thousand ($1,000) dollars should serve to remind her that her actions that morning were inappropriate

(Ex. "A" to Petition).

Lucia then brought the instant petition for an order pursuant to CPLR 7511 vacating the decision of the Hearing Officer on the grounds that it was "irrational, arbitrary and capricious, and not based upon adequate or substantial evidence, in violation of public policy and not in accord with due process" (Petition at ¶ 1).

For the reasons that follow, the petition must be denied.

Education Law § 3020-a(5) provides that an employee seeking to modify or vacate a hearing officer's determination is limited to the grounds set forth in CPLR 7511. Where "the parties are forced to engage in compulsory arbitration, judicial review under CPLR article 75 requires that the award be in accord with due process and supported by adequate evidence in the record'" (Hegarty v Board of Education of the City of New York, 5 AD3d 771 [2d Dept 2004] [citations omitted]). However, an arbitration award can be vacated "on only three narrow grounds: if it is clearly violative of a strong public policy, if it is totally or completely irrational, or it manifestly exceeds a specific, enumerated limitation on the arbitrator's power" (Shnitkin v Healthplex IPA, Inc., 71 AD3d 979 [2d Dept 2010] quoting Matter of Erin Construction & Development Co., Inc, 58 AD3d 729 [2d Dept 2009]; CPLR 7511 [b]).

Contrary to Lucia's contention, the Hearing Officer's determination did not violate a strong public policy, was not totally or completely irrational, and did not exceed a specific enumerated limitation of the Hearing Officer's power.

With respect to the public policy exception as a ground for vacating an arbitrator's award, the court notes that it is mindful of the fact that Lucia, and other similarly situated teachers, have a constitutionally protected right to engage in union activity. Notwithstanding, the scope of the public policy exception is "extremely narrow" (United Federation of Teachers, Local 2, AFT, AFL-CIO v Board of Educ. of the City School District of the City of New York, 1 NY3d 72 [2003]) and the exercise of teachers' free assembly and speech rights are circumscribed to the extent that such exercise endangers the safety of children (see Kay-Fries, Inc. v Martino, 73 AD2d 342, 352 [2d Dept 1980] ["Although certain union activities are protected by Federal law, the State has the power to enjoin breaches of the peace and threats to public safety"]; Triangle Finishing Corp. v Textile Workers Union of America, 145 NYS2d 614, 616 [Sup Ct Fulton County 1955] ["public peace and safety are superior to the rights of labor when these rights are abused . . . . [A]cts which tend to be a breach of the peace can and must be enjoined. This is [*3]fundamental in our society and both our Federal and State courts have so held time and again"]).^[FN2]

Furthermore, it cannot be concluded that the decision of the Hearing Officer was totally irrational or that it otherwise exceeded his authority (Shnitkin v Healthplex IPA, Inc., 71 AD3d at 981, supra; Saunders v Rockland Bd of Cooperative Educational Services, 62 AD3d 1012 [2d Dept 2009][when reviewing compulsory arbitration in education proceedings, the court should accept the arbitrator's credibility determinations, even where "room for choice exits"]). In this regard, there was testimony from which the Hearing Officer could reasonably conclude that Lucia parked her car on the street as part of a demonstration calculated to disrupt the student "drop-off" area and which created a safety hazard to the children. Significantly, Terrence Chase, the Dean of Students at the school, was present at the school on March 2, 2007 and testified that he saw Lucia's car parked along the curbside that morning and that there was "no doubt it was definitely her car" (Chase Deposition at Ex. "C" to Petition at p. 130). Chase was "one hundred percent" "certain" that it was Lucia's car that he saw parked that morning along the curbside (Chase Deposition at Ex. "C" to Petition at p. 154). There was also testimony at the hearing that parents were unable to leave their children at curbside and that the failure to do so was a "health and safety issue for the students exiting their parents cars" (DeAngelo Deposition at Ex. "C" to Petition at p. 28). Additionally, the principal of the school testified that he called the police because he was afraid for the safety of the children who were being dropped off in the middle of the street (Lethbridge Deposition at Ex. "C" to Petition at pp. 76, 78).^[FN3]

Accordingly, it is hereby ordered that the petition for an order and judgment pursuant to Education Law § 3020-a(5) and CPLR 7511 vacating the determination of Hearing Officer is denied and the petition is dismissed.

This constitutes the decision and order of the court.

Dated: July 1, 2011

_____________________________

Hon. Vito M. DeStefano, J.S.C.