Beit Din decision overturned

NYS Supreme Court calls verdict on HAFTR teacher ‘irrational’

By Michael Orbach

Issue of Jan. 9, 2009 / 13 Teves 5769

The New York State Supreme Court has overturned a decision by the Beth Din of America, shocking both the rabbinical and civil legal communities. In a Dec. 18 decision, Justice Bruce M. Balter of Kings Country Supreme Court found that a verdict concerning a teacher at the Hebrew Academy of the Five Towns and Rockaway, rendered by the beit din, was “irrational” and “violative of public policy.”

Left unappealed, the ruling could impact future beit din verdicts.

The case concerns a rebbe named Nachum Brisman. He began teaching at HAFTR in 1991 and was let go at the end of the 2005 academic year due to differences in hashkafa (religious outlook) with the school. He had received tenure over the course of his employment, though tenure was canceled school-wide in 2005. A din Torah (trial) before a panel consisting of Rabbi Mordechai Willig of Yeshiva University, Rabbi Steven Pruzansky of Congregation Bnai Yeshurun of Teaneck, and Rabbi Ronald Warburg found in Brisman’s favor and awarded him $50,000 in back pay. The beit din also doubled his salary to $100,000, reinstated his tenure and ruled that any future termination of Brisman must go through the beit din itself even though the original arbitration agreement granted such jurisdiction for just one year.

Marvin Neiman, Brisman’s lawyer, stressed the nature of the compromise.

“It was a good compromise because it made everyone unhappy,” Neiman told The Jewish Star. He also explained that the beit din salary award was lower than Brisman’s total 2005 compensation which, according to Neiman, was mainly built through overtime.

A HAFTR official said that the school would have no comment about a pending legal matter.

While Neiman believed that HAFTR would honor the beit din’s decision, he sought to confirm the award with the New York State Supreme Court, which is a common step after arbitration. The overturning of an arbitration verdict is relatively rare and considered unusual.

While arbitration verdicts are not enforceable, the decisions are given weight in court. According to a 2006 precedent, an arbitration decision cannot be vacated, even if there is a factual error in the case, unless there is a suspicion of fraud, irrationality, or a harm to public policy.

There is no suspicion of fraud in the case. Nonetheless, the Supreme Court refused to confirm the verdict.

Justice Balter found that the decision should be voided on the grounds that the decision was irrational, the beit din specifically went beyond its enumerated authority and that the verdict violated public policy.

The decision was irrational on two counts, Balter found.

The tenure contract expired in 2005 and the beit din decision forced an “at will” private employer to employ someone against its will. The salary, set well beyond Brisman’s previous base salary, was “burdensome, unrealistic, and wholly irrational,” and would be “counterproductive to a harmonious environment.”

Secondly, by retaining indefinite jurisdiction, the beit din exceeded limitations agreed to by both parties.

Finally, and perhaps most importantly, the beit din’s ruling, according to Balter, violates public policy since it would set a precedent that would, in his words, “impact and limit the ability of private schools to make and enforce routine employment decisions,” and have far reaching consequences.

However, a law professor that The Jewish Star spoke with said that this may not fall under the rubric of public policy, which is defined in arbitration as those aspects of the law in the State of New York that cannot be waived by the consensus of both parties.

Balter noted that HAFTR had offered to pay a “chodesh l’shana” severance — the month of salary for every year worked that is mandated by Jewish law — as part of Brisman’s termination package, but Brisman had refused.

Rabbi Shlomo Weissman, director of the Beth Din of America, declined to comment; Rabbi Basil Herring of the Rabbinical Council of America, which is affiliated with the Beth Din of America, declined to comment as well.

The court’s decision shocked Neiman. “Normally, the court grants an arbitration award unless it’s outrageous,” he explained. “If the decision was based on Jewish law, how could the court reverse it and decide what’s irrational in the course of Jewish law?”

Reached by phone on Tuesday morning, Rabbi Pruzansky told The Jewish Star that the most striking facet based on the judgment is that, according to Justice Balter, there is no tenure in a parochial school.

“That’s very ominous,” he said. “Any yeshiva would have the right to say at the end of any contract — and most teacher contracts are annual contracts — even to tenured teachers, ‘you’re gone.’ I think that’s an error both according to New York law and halacha.”

Rabbi Pruzansky praised HAFTR and said the school had acted “very admirably” in regard to abiding by the halachic psak.

Rabbi Michael Broyde, a dayan (judge) on the Beth Din of America who is also a Professor of Law at Emory University, said that given the unusual nature of the move, Balter’s opinion will likely be subject to an appeal.

“And,” he said, “I suspect that it will not survive that appeal.”