Dorfsman's position still uncertain

By Ken Johnson
On January 31, 2014

The University System of New Hampshire (USNH) Board of Trustees and the University of New Hampshire filed in Strafford County Superior Court on Dec. 13, 2013, to reverse the decision of an independent arbitrator that allowed for the reinstatement of Marco Dorfsman.

Dorfsman, an associate professor of Spanish, altered student evaluations of colleague Emilie Talpin, a lecturer in French, by lowering the scores in December of 2012. Dorfsman came forward in January 2013 admitting what he had done and UNH terminated his employment on May 17, 2013.

The UNH Chapter of the American Association of University Professors (AAUP-UNH), the union for tenure-track faculty, filed a grievance that was presented to independent arbitrator Gary D. Altman, Esq.

Altman ruled that there was not just cause for termination of Dorfsman and returned the disciplinary decision back to UNH and the AAUP-UNH on Nov. 14, 2013.

On Jan. 3, 2014, Justice Kenneth C. Brown granted UNH's appeal to stay and will now hear the case. UNH has requested that the case be heard through briefs, where UNH and the AAUP-UNH files briefs and Brown will decide based on the briefs.

"The university asks the court to find that the arbitrator exceeded his authority and that the university was justified in its decision to terminate professor Dorfsman," Erika Mantz, director of UNH Media Relations, said.

UNH filed the appeal stating that Altman exceeded his power with the arbitration agreement.

"The university filed its appeal because the arbitrator lacked the authority to decide upon a lesser sanction after upholding the university's finding that professor Dorfsman's misconduct constituted moral turpitude," according to a press release from UNH.

The contract allows either party to appeal to Superior Court but that is a high bar and it is rarely done, said Deanna Wood, chapter president of the AAUP-UNH. The courts don't generally want to interfere, Wood said.

The Collective Bargaining Agreement between the USNH Board of Trustees / UNH and the AAUP-UNH in affect from July 1, 2010, to June 20, 2015, states, "The basis of the appeal shall be limited to plain mistake, whether legal or factual, fraud, corruption, or misconduct by the parties, or on the grounds that the Arbitrator exceeded his or her powers as specified in this Article."

The Collective Bargaining Agreement states, "A bargaining unit member shall not be subject to dismissal or suspension without pay except for just cause. A dismissal refers to the termination of a faculty member during the term of an appointment, or the denial of reappointment of a tenured faculty member. Just cause shall encompass professional incompetence, deliberate neglect of duty or moral turpitude."

The Collective Bargaining Agreement also states, "If charges involving moral turpitude are sustained, the bargaining unit member may be terminated immediately and the bargaining unit member shall not be entitled to receive further pay or benefits."

According to a press release from UNH, "Under the terms of the collective bargaining agreement in place between the university and the American Association of University Professors, the union that represents tenure-track, full-time faculty, a finding of moral turpitude constituted the just cause required for termination."

"The contract also states that either suspension or termination is allowable under moral turpitude," Wood said. "I'm not sure why the university thinks that they can pick just one sentence and exclude the rest but it's now in the hands of the court to decide what to do."

The AAUP-UNH has 30 days to respond to the motion after they were served, Wood said.

Wood said they were served last week and the 30-day period starts from when they were served. 

The case no longer is just about Dorfsman, Wood said.

"We are going to be in court discussing the very language of the contract and how that contract will be interpreted," Wood said. "Our contract language also rides on this decision." 

Dorfsman said he is still on administrative leave but is doing research and writing as well as presenting papers. He said that he is currently not allowed to teach.

Dorfsman is suspended with pay, Wood said. He continues to attend department meetings when invited. His only restriction is that he needs to notify Kenneth Fuld, the dean of the College of Liberal Arts, when he is in Murkland Hall. 

"We want the judge to say the arbitrator's decision stands," Wood said. "That's what the arbitration process is about. If there's a dispute as to what the contract says or how the total language of the contract can be interpreted, that's for the arbitrator to decide not the courts."

Without an answer, everything is in limbo right now, Wood said. Dorfsman can't move forward with his life and the Languages, Literatures and Cultures department can't move forward she said.

If either side doesn't like the decision the case can be appealed to the New Hampshire Supreme Court, Wood said.

"The expenses associated with the appeal of professor Dorfsman's grievance are part of the university's normal operating costs and will have no unusual impact upon student tuition," Mantz said. "The university manages all of its legal costs with due consideration of appropriate and efficient use of resources."

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