SALEM - The girls' basketball coach and teacher who was dismissed from Manchester Essex Regional High School in 2005 after signing a statement saying he inappropriately touched one of his players wants another chance to regain his job.
Thomas Atwater petitioned to have his case for reinstatement heard again, saying he deserves the right to go before a judge instead of an arbitrator, such as the one who upheld his firing a year ago.
Atwater, 49, signed an affidavit in February 2005 stating he put his hands inside the clothing of the 17-year-old girl "with an intention to fondle her" as they watched the tape of a recent game at his Pine Street home.
Atwater later said the document, which the student's attorney, Joseph Orlando, gave him to sign, was not accurate. Atwater also withdrew the resignation he had offered the school.
He was dismissed in March 2005, though no reason was given by school officials.
Manchester police did not pursue criminal charges in the matter. Sgt. Kenneth Sucharski, the investigating officer, said at the time that no probable cause was found to warrant charges.
When no charges were filed, Atwater appealed his dismissal to the state Department of Education. He had taught at the school for more than two decades and coached girls' basketball since 1991.
As state law dictates, the case was heard by an arbitrator, not a judge. Five days of testimony were heard in December 2005, and the following July, the arbitrator upheld the dismissal.
During a hearing in Salem Superior Court yesterday, Garrick Cole, Atwater's attorney, argued the state law was unconstitutional, as it does not allow a teacher with a grievance to go before a court for consideration, but rather leaves the decision up to an arbitrator who has no law degree.
Cole said that the statute allowed for the "delegation of judicial power (to the arbitrator) without meaningful judicial review."
Atwater, Cole said, had a constitutional right to protect his interest in his job as a school teacher. He added that while the arbitration process may be sufficient for most grievances brought by school teachers, for more controversial ones like Atwater's, the teacher should have the option of going to court.
The arbitration case involved "a nonlawyer presiding over a proceeding that was full of legal error, prejudicially conducted, and rendered a decision adverse to my client," Cole told Judge Maureen Hogan. "The proceeding was ... fundamentally unfair, and it should be set aside and remanded to the commissioner (of education) for a hearing."
Thomas Atwater petitioned to have his case for reinstatement heard again, saying he deserves the right to go before a judge instead of an arbitrator, such as the one who upheld his firing a year ago.
Atwater, 49, signed an affidavit in February 2005 stating he put his hands inside the clothing of the 17-year-old girl "with an intention to fondle her" as they watched the tape of a recent game at his Pine Street home.
Atwater later said the document, which the student's attorney, Joseph Orlando, gave him to sign, was not accurate. Atwater also withdrew the resignation he had offered the school.
He was dismissed in March 2005, though no reason was given by school officials.
Manchester police did not pursue criminal charges in the matter. Sgt. Kenneth Sucharski, the investigating officer, said at the time that no probable cause was found to warrant charges.
When no charges were filed, Atwater appealed his dismissal to the state Department of Education. He had taught at the school for more than two decades and coached girls' basketball since 1991.
As state law dictates, the case was heard by an arbitrator, not a judge. Five days of testimony were heard in December 2005, and the following July, the arbitrator upheld the dismissal.
During a hearing in Salem Superior Court yesterday, Garrick Cole, Atwater's attorney, argued the state law was unconstitutional, as it does not allow a teacher with a grievance to go before a court for consideration, but rather leaves the decision up to an arbitrator who has no law degree.
Cole said that the statute allowed for the "delegation of judicial power (to the arbitrator) without meaningful judicial review."
Atwater, Cole said, had a constitutional right to protect his interest in his job as a school teacher. He added that while the arbitration process may be sufficient for most grievances brought by school teachers, for more controversial ones like Atwater's, the teacher should have the option of going to court.
The arbitration case involved "a nonlawyer presiding over a proceeding that was full of legal error, prejudicially conducted, and rendered a decision adverse to my client," Cole told Judge Maureen Hogan. "The proceeding was ... fundamentally unfair, and it should be set aside and remanded to the commissioner (of education) for a hearing."
Atwater has also filed a petition with the federal court system, arguing that a federal statute allowing arbitration is also unconstitutional.
Geoffrey Bok, lawyer for the school district, said Atwater's affidavits and testimony at the arbitration were sufficient to warrant his dismissal. And if Atwater lied about his actions, that would constitute a moral wrongdoing that would justify his firing as well, he said.
"Schoolteachers ... are held to an extremely high standard because they have such a critical role in the development of children," Bok said at the hearing. "Based on the affidavit and statements to police, it is unambiguously clear that this fellow did something seriously wrong."
Bok was joined by Assistant Attorney General Amy Spector, who represented the state Department of Education.
Hogan is considering the matter and will issue a judgment in the future on whether the law requiring Atwater to use an arbitrator was unconstitutional on the state level and, essentially, whether he should be granted another hearing. If Hogan rules for Atwater, it will be a first for the state and what would happen then is still undetermined.
Atwater also filed a complaint with the state Board of Bar Overseers earlier this year, citing misconduct by Orlando and accusing Orlando of making false statements, leading him to sign the affidavits.
The board chose not to pursue Atwater's complaint. According to Atwater's attorney, Cole, the courts are still considering the matter.
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