The Appellate Division, First Department recently upheld an arbitrator’s decision to terminate the respondent, a tenured teacher, for making death threats towards an arbitrator. The decision is In re Smith v. NYC Dept. of Education, 2013 NY Slip Op 05765 (Sept. 3, 2013).
Initially, the court held that the arbitrator’s decision to terminate the petitioner was made in accord with due process, supported by adequate evidence, rational and not arbitrary and capricious. It confirmed that hearsay evidence can support an administrative determination and that the arbitrator’s credibility findings are entitled to deference.
The court then rejected petitioner’s First Amendment argument, finding that petitioner’s statements were exempt from protection because they were “true threats.” Petitioner’s former attorney (who was allegedly present when petitioner made the threats) only disclosed the threats because he believed that petitioner’s increasingly erratic behavior rendered him genuinely dangerous. It could not be argued that petitioner’s speech implicated matters of public concern, nor could it be disputed that petitioner’s death threats disrupted the initial arbitration proceeding.