cox got the facts wrong in this case we believe that this appeal goes really to the responsibility of the courts to be protectors of the public's interest and to determine what does and what does that it's the elena course and now the traders that have responsibility for protecting the public interest and i note that your honors have read the the briefs and therefore i know that you are familiar with not they were right reviewing whether you had three correct right it our position is that the you know the c t a just charged mr gibson the case went to arbitration pursuant to the collective bargaining agreement work terminations the testimony in the case was that because of the nature of his responsibilities as a bus driver because of the safety aspects because of his his route include driving best schools that given all those facts together that the c t a felt that this indeed was a circumstance that warranted termination for the violate for the rule violation of having a felony conviction so it's not automatic that you get can that you are terminated if you have a felony conviction but you know it depends on the factors in this case the c said that mr gibson still had passed the required polygraph test with regard to whether or not he was telling the truth in terms of whether he had engaged in what was referred to as problematic behavior so that was a piece of paper  mr gibson presented to the c t a at the time you know that they thought that they'd learned of this conviction well i can certainly appreciate the concern of the c t a no question that what i'm laboring with is with facts sifting and regardless of whether or not you know other public bodies you know choose to appeal on that basis i feel very very strongly and the c t a feels very very strongly that this is one of those cases where it needs to be righted and i think you know i think this again just get to that the heart of what might of what my position is on the public policy here is if they're convicted sex offender was able i'm not saying i agree he didn't have a responsibility to report this but because he was able to to hide this from the c t a because he was never informed the c t a of his probation conditions which among other things required that he not be alone unsupervised with children  have both but in this case from the very beginning this is this is what i call a splitting of the baby decision and i'm a trader should they do that all of the time but you can't split the baby in a public policy case you can't say ok you know we'll we'll we won't give you a back pay for two and a half years because you fuck after you were finally caught and after you took an appeal and after we were in arbitration they had you know then you went and you and you got a at a summit to evaluate you and said you're ok and even though i think you're ok i'm still going to require you concurrently to finish a sex offender program to me that it's in it's inconsistent with the deal more does your rational in that regard it's inconsistent and this is not the kind of case that can be compromised i knows rick i know those grounds and i think that's what arbitrator cox is doing here and i he had concerns which are there set out in the in the factual basis but i will say it with regard to that the psychologists whom i i believe that there was that there was no need for the arbitrator ever get there i think that you know the starting point was whether the c t a had cause to fire the sky and and i think everything pointed to the fact that they did and and the arbitrator relied on these psychologists one of whom and this is the one of the points i was trying to make in terms of not two thousand and six gifts mr gibson didn't even have this additional evaluation that showed he was  not not harm any more let's say until after this grievance an arbitration process started i mean this case should be judged on the facts that existed at the time that they were presented to the c t a and i don't think that required lou was holographs i thought was sort of my question before can the arbitrator see you see today was right but now he's ok to return to work and the arbitrator says i think that that that would violate public policy hiring practices retaining practice how does it affect the c t a just briefly well i think outrigger arbitrator cox on in his opinion which is yet yet another highlight of your reaction on that he said something to the effect that the c t a has every reason to fear substantial liability by by hiring by bringing back someone who is a is a sex offender that that's certainly one thing i mean you know i'm not saying that mr gibson would offend again and i don't have a crystal ball and if you read and you know you just have to read the newspapers and watch the television and see you know that there are that there are current labor strikes going on i think it would send a terrible message if this court  to submit their disputes to an arbitrator if the arbitrators obligation his responsibility to review this case and the facts and to decide number one if terminations was appropriate and number two if it wasn't what's the appropriate remedy the we give the arbitrator the ability and the authority to fashion the appropriate remedy in this case while arbitrator cracks did touch on public policy he did so because he had to that's what the supreme court told arbitrators in the the both case said when you're dealing with these kinds of issues these are the things you have to look at and these are the kind of factual findings and conclusions you need to draw so that we can his probation the letter that was for beijing the sunday night in terms of the probation and that's i would argue if you read the decision in your read that the the evidence that that was it they didn't say you didn't complete your probation because you didn't take the polygraph they said this is of the trial he failed multiple polygraphs question his continued sort of criminal sexual or theories with minors failed to complete his mandatory treatment program by way of his probation by driving a bus with unaccompanied minors this is it's not a completely unsupervised setting where bus operators are reviewed sometimes on a daily basis to see what's going on on their bus so that that's the the statement about that there's no question that getting you know your question regarding you are not required to be more onto your schweder surely assured there was at some point a minor on his bus the arbitrator's decision in this case rested on the fact that he concluded there was no nexus between the criminal conviction and his job as a bus operator and that's the key i think in one in this particular case when you look at the close the bones cases with the exception of one all those cases invest misconduct by the grievance that are directly related to their job duties and that was a key element in this case is that this is conduct that occurred away from the job it had nothing to do with his job nobody there was never any complaints about the way he performed his job by any other passengers coworkers supervisors this is an employee with a good record and that was the key to the arbitrator deciding i can find that their decision to terminate him on the basis of this felony conviction is not does not meet the standards of just cause and that's what the arbitrator is supposed to do but then he went further and he said i'm a little bit i have an obligation to make sure that there are some elements that are met in returning this employee to work one of which there's a potential is there a potential of harm to third people is there has this been of his the same fashion violations of law and that's where the psychologist came into play because this arbitrator wanted to know if i return this employee to work which is within my authority and my responsibility do i have some assurances that i'm not putting the public at risk and that was the basis for taking the psychologist testimony both of them who testified extensively and he listened to them extensively and he made specific extensive findings of fact regarding the potential of harm the lack of potential  raleigh hear the c t s well aware of mr gibson's proclivities with children again maybe only related children but maybe just as nice as opposed to stepdaughter maybe only family members are or he isn't interested enough but they're on notice and i'd suggest think that confessing in a court of law are taking your punishment like a man how could they not be held liable on a what's the thanks should something go wrong i think that would be the idea negligent retention or negligent hiring is not a clickable in a situation where parties have agreed to give their dispute an arbitrator a contractual dispute and they said we will abide by that agreement and when that is they're told to reinstate someone they're not making the affirmative duty to say we're agreeing to retain you in when you know the the law and the public policy exception is really not it is everybody agrees on what the law says it's always about the facts of the particular case but we do have some guidance on the the factors that we look at in deciding before that also discuss them and those three factors are the nexus between the misconduct and the harm suffered whether or not the award in and of itself sanctions violations of law and whether or not the decision poses harm to  threat to third persons then we have already discussed the arbitrators specific findings of facts which are binding on the parties as to their the ability or that he's been rehabilitated and that there is not this threat to third per persons more importantly is a nexus there is no again it gets back to the underlying decision on the arbitration case which there is no nexus between what he did and the the conduct of the the his job both both counts number one i think it helps our position because the legislature you know they look at these things they make these decisions they study everything that's going on and they decide what are the things we need to do to to protect the children in this situation and they decided that burying them from employment with the c t s not one of those things that doesn't mean they're not concerned with the possibility of harm coming from that however when they're there they're saying that there's an odd their public polic out there with there's a public policy of allowing sex offenders to be employed it's a good thing to have people go back to work the psychologist testify to it the sex offender laws talk about it they they anticipate people are going to be employed will they that's part of the notification requirement so i think it helps i understand the concern that you can't say just because it's not in the statute doesn't mean there's not a concern however i think that is it is more favorable we don't want people the child molesters of pedophiles whatever it is driving the bus i would and that arbitrator saying it's ok for him to drive a bus which turns into a school bus i  station up to wherever it goes so you know isn't that why is that not against public or well i think it's not against public policy because when you apply the factors that the that the court has given us they're all met in this case country the courts have given it you know they've said if if it's not going to violate public policy you have to look at these three things one of which is the threat of harm to third persons and that's what the arbitrator did and that was his within his authority was within his with to make those factual findings which can't be overturned in the c t a argued that they don't fight that they're not argue with the factual findings but that is exactly what they're doing they wish this court to fight to make other decisions to say that the arbitrator was wrong that there is not a threat of harm under these circumstances with all the facts that we had at these two hearings they also did not violate or did not sink in a violation of laws this individual suffered not only the criminal penalties but at twenty seven month suspension is a severe penalty in the world of employment he says he lost over one hundred thousand dollars in pay medical benefits and pension contributions it is judge  bus with schoolchildren i don't think we're telling them they have to i think what the word says is you have to reinstate this bus operator once that occurs there are various there are various steps the c t a can take they can bargain with the with two forty one about whether they want to move into a different position that's happened in the past as one of the questions was about reassignment that was not something that was offered to this individual it's something that could happen but i don't think it's a blanket in that this means in all cases you have to let you know x person drives you know school children around but it that that could in fact happen in this case but based on the factual findings of the arbitrator i would submit there's no question about it and there are some things that i want to reiterate that my colleagues in that ring with me i'm there's a high school about four blocks from my house maybe six blocks from my house and every day in from the high school or  bus i don't know what a bus goes are you know how it functions but the buses feel the high school still seven eight nine every day so that c t a bus really is a school bus for that period of time and it just seems to me that although we have to make a decision and and that's our job we would do it it's the same for me a lot of this perhaps could have been avoided if the c t s simply has given this guy another job he's  this case remember this occurred off duty and the psychologist testified extensively about the fact that it was a situational crime that is highly unlikely to be repeated not first of all at all and second of all really highly unlikely to be repeated in the course and conduct of his job given the way did the crime occurred and in the nature of it so while i certainly understand the concern anybody would have we're not talking about taking an employee who was convicted of sexually assaulting children on a bus and saying you must remain stayed him to driving that bus this is not that situation thank you and that was  is no nexus required in these public policy cases but i think but even further if the nexus were required there certainly is a nexus here the nexus is his