Government Lies, Corruption and Mismanagement
NYC Mayor Mike Bloomberg And Public School CEO Dennis Walcott Want To End Tenure Rights of Teachers, Take "Just Cause" Out of Teacher Trials
...so they obtain the assistance of editors of the NY Daily News, The New York Post, Newsday and New York Times, who publish stories about the "pervs" in the classrooms without any facts or evidence. Trash journalism at its' best. But sometimes there are successes, as in the case of Peter Principe.
NYC 3020-a Arbitration Scam: The Good News is, The Courts Dont Always Agree The Arbitrators Make Decent Decisions
Betsy Combier, NYC Rubber Room Reporter
Congratulations to Peter Principe for winning his vacatur of the decision of Arbitrator Stuart Bauchner to terminate him at 3020-a both at the New York State Supreme Court and the Appellate Division, First Department! See the decision of the Appellate Division, First Department, below.
The NY Daily News showed their prejudice against tenured teachers by attacking the Appellate Court for putting Peter Principe back at the DOE. Shame on the News. No one over there attended Peter's 3020-a arbitration, I know, because I was there. I also spent more than two years talking with Peter when he was imprisoned at the 25 Chapel Street Rubber Room. I visited there every week as the UFT Staff Representative working out of 52 Broadway, 16th floor
Peter was well-liked at his school, even the kids liked him. He did his job well, and was framed and thrown out without just cause. I believe that his NYSUT Attorney did not provide a sufficient defense. The shady security officer who made the charge against him was removed in handcuffs after Peter's hearing ended.
As I say below in the article posted on my website Parentadvocates.org, Arbitrator Stuart Bauchner took an instant dislike to Peter when we walked into the room to start his hearing (I was "the public"). This did not go unnoticed in the NYS Supreme Court, and was a reason for Peter's win there. By the way, what on earth is the DN saying with this:
"Principe, mind you, hadn’t disputed a single fact in the case."
Is that an admission that no one over at the DN read anything? In fact, I am so happy that Peter never settled with the DOE so that he can now sue them. In fact, I'm going to contact him right now with my thoughts!
Below is the article which proves incompetence by the NY Daily News (maybe the News editor should not be writing editorials at 4:05 AM?):
Even corporal punishment isn’t a firing offense for a teacher
An arbitrator ruled that IS 218 dean Peter Principe should go, but a court said no
NEW YORK DAILY NEWS
Tuesday, April 10, 2012, 4:05 AM
So high are the hurdles for removing bad apple New York City teachers that physical assault of multiple students won’t get you the boot.
And even when supervisors and arbitrators agree that an instructor is unfit to be around kids, yet another insane protection can rear its head: the state court system.
Consider the case of Peter Principe. Dean of discipline at Intermediate School 218 in Brooklyn, Principe was ordered fired by an arbitrator after two incidents in April 2007.
In one, he put an 11-year-old in a headlock and swung him around after the boy had a lunchroom argument with another student. Three days later, Principe took a 13-year-old who’d cut class by the neck and threw him against the wall. The school nurse had to ice the lump on his head.
Seven witnesses, including a supervising school safety officer who had watched the second incident on a live video feed, testified against Principe. Video evidence backed their story.
The arbitrator decided Principe’s version of events was not credible and ruled for termination.
But that wasn’t enough.
Principe sued, and on Thursday, judges from the Appellate Division, 1st Department, threw out the decision.
Principe, mind you, hadn’t disputed a single fact in the case. But the court found that the penalty of termination was “excessive and shocking to our sense of fairness.”
The only thing shocking is a system that keeps people like him in positions of trust, in front of kids.
Peter Principe Wins Vacatur Of The Decision of Arbitrator Stuart Bauchner To Terminate Him at 3020-a
by Betsy Combier
Mayor Mike Bloomberg was embarrassed in 2009-2010 by the public ridicule that followed media coverage of one of the most ridiculous decisions of his 10-year reign as Mayor, namely to warehouse hundreds of public school teachers in spaces throughout New York City known as Temporary Re-Assignment Centers (TRCs) or "Rubber Rooms".
Bloomberg was elected on a platform that promised New York City voters he would be the "education mayor" who turned around the disastrous statistics showing a lack of success of the largest public school system in the US. In order to implement his agenda without opposition, he replaced the New York City Board of Education with a new agency, the Department of Education, where all employees are working at the pleasure of the Mayor, without contracts. Bloomberg decides whether you stay or go, based upon a standard of total loyalty and obedience. As NYC has not had an elected Board of Education for more than 30 years, this was not the most shocking change made in 2003 with Joel Klein's appointment as "Chancellor". What concerned many people inside the education hirearchy was the replacement of elections for the District school boards with a process of "selecting" members for the newly named "Community Education Councils".
Armed with total power at the district and citywide levels, Bloomberg started the rubber rooms so that Principals would have a place outside of the school to put people/ employees who dared to interfere with the Plan to dismantle public schools (especially those with a majority of minority students), co-locate charter schools into the buildings, and reward any scrubbing, credit recovery programs or outright lies on scores to make the Mayor look good.
Unfortunately, Bloomberg did not get intelligent advice on how to run the New York City Department of Education, and by all accounts has failed dismally. After he bought himself a third term, the previously shocked-into-silence public, disgusted by the Mayor's power grabbing arrogance and his "I'm not going to listen to you" attitude decided enough is enough. Sadly the constituents and interested public were misled into thinking that time spent begging to be heard in front of the 'new' Department of Education's panel of puppets, the Panel For Educational Policy, was the way to bring back some form of democracy.
In 2012 Bloomberg and his third 'pretend' chancellor, Dennis M. Walcott, became openly hostile to the process that they set up to remove unwanted tenured employees, namely the NYC Section 3020-a arbitration hearings. 3020-a is the only forum for disciplinary action against tenured employees permitted by UFT contract in New York City. The panel of arbitrators, chosen by NYSUT and the DOE, decide on a case-by-case basis whether or not to terminate an employee brought up on charges, thus they sometimes interfere with the Bloomberg agenda, which is to remove all tenured employees from New York City Public Schools.
Dennis Walcott and Mike Bloomberg currently want the "Just Cause Standard" to be removed from 3020-a, because some arbitrators do not terminate the employee brought to 3020-a and this infuriates the Bloomberg/Walcott group. While the DOE has the burden of proof at 3020-a, meaning their case must prove by a preponderance of the evidence that the charge not only occured, but that the charged employee is such a "bad" teacher/person that undeniable harm would result if this person were to be allowed back into his or her classroom.
Arbitrators who are hired to fire and do their jobs, namely terminate all employees brought before them, no matter what the nasty deed is that caused the disciplinary action in trhe first place, are paid alot of money and remain on the arbitration panel. Actually, the arbitrators are not being paid right now, but they keep hoping that the money will come soon.
As part of a campaign to remove any lenient arbitrators from interfering with the mandate to fire, Walcott and Bloomberg started a major media blast of the "pervs" left in classrooms by these arbitrators, and the battle ground became flooded with bodies of these pervs. Only many of them have decided to fight back, as many of the people exonerated or sent back to the classroom are simply innocent of the charge handed down in their 3020-a. I have written some stories about teachers who were falsely accused:
The Infamous 16 Teachers Bloomberg Wants To Fire: Sir, You Are Wrong
The True Story of Teacher Christine Rubino And Her Prosecution By The New York City Department of Education
Chris Asch , Former Librarian At Stuyvesant High School, Wins His Article 7511 Petition To Vacate The Decision of Arbitrator David Hyland
New York City Teacher Theodore "Teddy" Smith and the Perfect Storm of Injustice
One of the "hired-to-fire" arbitrators (my opinion) currently on the arbitration panel is a man named Stuart Bauchner. I've sat in on two hearings where he presided, one being the 3020-a of a former Dean named Peter Principe. When we walked in the first day of the hearing, Mr. Bauchner took an instant dislike to Peter. It went downhill from there, and Peter was terminated, despite his lawyer making an excellent case for exoneration. Peter appealed the termination decision by filing an Article 7511 in the New York State Supreme Court.. Judge Schlesinger agreed that the penalty of termination was too harsh, and remanded the case back for a lesser penalty. The Corporation Counsel was not going to allow this, so the New York City Law Department appealed the Schlesinger decision to the Appellate Division, First Department.
Peter just won there, was well:
Matter of Principe v New York City Dept. of Educ.
Matter of Matter of Principe v New York City Dept. of Educ. 2012 NY Slip Op 02560 Decided on April 5, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on April 5, 2012
Gonzalez, P.J., Friedman, Moskowitz, Acosta, Richter, JJ.
In re Peter Principe, Petitioner-Respondent,
New York City Department of Education, Respondent-Appellant.
Michael A. Cardozo, Corporation Counsel, New York (Julian L.
Kalkstein of counsel), for appellant.
Lichten & Bright, P.C., New York (Stuart Lichten of counsel),
Order, Supreme Court, New York County (Alice Schlesinger, J.), entered May 19, 2010, which, to the extent appealed from as limited by the briefs, denied respondent New York City Department of Education's (the DOE) cross motion to deny the petition and dismiss the proceeding brought pursuant to, among other things, CPLR article 75, and granted the petition to the extent of vacating as excessive the penalty of termination of petitioner's employment as a New York City schoolteacher, and remanded the matter to the Hearing Officer for a lesser penalty, affirmed, without costs.
Petitioner Peter Principe was the dean of discipline of a middle school located in East New York, where many of the students belong to criminal gangs. This proceeding arose from two incidents that occurred between petitioner and several students in 2007.
The first incident occurred on April 20, 2007. The Hearing Officer found that petitioner placed MT, an 11-year-old student, in a headlock and swung him around. At the hearing, petitioner denied placing MT in a headlock or swinging him around. Rather, petitioner testified that, after he received several reports of MT's misconduct from that morning and after breaking up two lunchroom fights involving MT, he took MT out of the lunchroom. Petitioner further testified that, as he was holding the lunchroom door open to allow other students to exit, he had his arm across the door to prevent MT from coming back into the lunchroom, but MT was pushing with his chest against petitioner's arm to get back into the lunchroom.
The second incident occurred on April 23, 2007. The Hearing Officer found that petitioner grabbed RP, a 13-year-old student, by the neck, threw him against a wall and requested RP and another student to retract their statements concerning the incident. At the hearing, petitioner testified that when he saw RP and another student in the hallway outside their homeroom teacher's classroom, he questioned them about their whereabouts that morning because he had learned from their homeroom teacher that they had run out of their homeroom class that morning, and petitioner had been unable to locate them in their morning classes. Petitioner further testified that, as he was questioning RP and the other student, they entered the homeroom teacher's classroom, and RP began shouting threats at his homeroom teacher. [*2]Petitioner testified that, as he and the two students were leaving the classroom, RP turned to reenter the classroom and shouted more threats at his homeroom teacher, so petitioner grabbed RP to escort him from the room. As they turned to leave the classroom the two lost their balance and fell into the wall. Petitioner denied asking the students to retract their statements.
As to both incidents, the Hearing Officer found that petitioner's testimony was not credible and that he committed misconduct by using corporal punishment. We agree with the motion court that the Hearing Officer had an apparent bias against petitioner when he discredited petitioner's entire testimony based, in part, upon respondent's mischaracterization of a portion of petitioner's testimony in addition to petitioner's testimony that he had once filed for bankruptcy.
We also agree with the motion court that, by discrediting petitioner's entire testimony, the Hearing Officer failed to consider all the circumstances, including the disciplinary histories of the students involved, the context of the threatening environment in which the two incidents took place and that, at the time of the two incidents, petitioner was, as he testified, "only fulfilling [the] demands" of his position as dean of discipline. Moreover, the Hearing Officer appeared to give an inordinate amount of credit to a portion of a video recording, related to the second incident, that had been altered from its original format so that it appeared frame by frame at one second intervals rather than its original format of a continuous video recorded in real time. The alteration to the videotape made what actually transpired during that incident unclear and equivocal. Although the motion court sustained the Hearing Officer's findings, petitioner did not cross appeal. That is understandable because petitioner otherwise received a favorable decision from the motion court.
The Hearing Officer also determined that termination was the appropriate penalty in this case. However, while we accept the Hearing Officer's findings against petitioner, we agree with the motion court that the evidence in this case demonstrates that petitioner's actions were not premeditated. Thus, given all of the circumstances, including petitioner's spotless record as a teacher for five years and his promotion to dean two years prior to the incidents at issue, we find the penalty excessive and shocking to our sense of fairness (Matter of Pell v Board of Educ. Of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 233 (1974); cf. City School Dist. of the City of N.Y. v McGraham, 75 AD3d 445 (2010), affd 17 NY3d 917 (2011) penalty of 90-day suspension without pay and reassignment rather than termination reinstated in light of overall circumstances lending to the improbability of teacher engaging in similar inappropriate behavior in the future).
Accordingly, we find that, in determining the penalty of termination, the Hearing Officer failed to consider all of the circumstances and relevant evidence, leading the Hearing Officer to view the incidents in isolation and divorcing them from the context in which they took place. Thus, we find the Hearing Officer's view of petitioner's credibility carried over, likely influencing his determination that petitioner should be terminated. Lesser sanctions are available that would deter petitioner from engaging in this conduct in the future (see Matter of Riley v City of New York, 2010 NY Slip Op 32540 Sup Ct, New York County 2010, affd 84 AD3d 442 2011).
In this case, in view of the Hearing Officer's apparent unfair bias against petitioner, we believe that public policy considerations favor retention of a teacher who has a proven record of genuinely connecting with his students and making a positive impact in their lives (McGraham, 17 NY3d at 919 ("Courts will only intervene in the arbitration process in those cases in which public policy considerations, embodied in statute or decisional law, prohibit, in an absolute sense, particular matters being decided or certain relief being granted by an arbitrator'"), quoting Matter of Sprinzen (Nomberg), 46 NY2d 623, 631 1979). There is no evidence in the record to suggest that petitioner was not well liked by the student body, and as the motion court emphasized, RP, one of the students involved in the second incident "made clear that he really liked (Principe) and that he felt that (Principe) understood him and was really kind of rooting for him and helping him with his difficulties."
The dissent, in reasoning that the penalty in this case was proportionate so that it did not shock one's sense of fairness, cites cases in which the teachers involved engaged in conduct wholly unrelated to their employment with the DOE (Cipollaro v New York City Dept. of Educ., 83 AD3d 543 (2011); Matter of Rogers v Sherburne-Earlville Cent. School Dist., 17 AD3d 823 2005). Indeed, in both Cipollaro and Rogers, neither of the teachers involved held a position similar to that of petitioner, the dean of discipline, and in both cases the hearing officer's determination to terminate the teachers' employment was based on fraudulent conduct wholly unrelated to their employment with the DOE. In the case before us, as the court below explained, petitioner "was put in the position of Dean of the school because obviously there was confidence in his judgment and his ability to deal with difficult situations and difficult children, which was the situation in both of these incidents" and "he was doing what he was supposed to be doing, which was to maintain order."
Moreover, the dissent cites Cipollaro for the proposition that, when determining the appropriate penalty, a hearing officer may consider a teacher's lack of remorse. Undoubtedly, it is entirely reasonable for a hearing officer to implement the harsher penalty of termination following a finding of a teacher's lack of remorse for engaging in fraudulent conduct. However, while lack of remorse is one factor that a hearing officer may consider when determining the appropriate penalty, here as the motion court articulated, the Hearing Officer placed petitioner in a "very difficult situation," when he expected petitioner to show remorse, while petitioner, in exercising his responsibilities as dean of discipline, believed he was protecting members of his school's student body and faculty from two threatening situations.
Rather than considering the proportionality of petitioner's penalty, in light of "all the circumstances," as Pell requires, the dissent focuses on the incidents in the worst possible light by examining them in isolation from the context in which they occurred. Regarding the first incident, the dissent ignores the absence of evidence corroborating MT's testimony that petitioner placed him in a headlock. It also ignores that, in his role as dean of discipline, petitioner believed that his actions protected students by preventing the escalation of fights between MT and two other students. Indeed, petitioner was aware of MT's significant history of misbehaving and regularly fighting with other students. Regarding the second incident, the dissent ignores that petitioner, again in his role as dean of discipline, was attempting to deal with recalcitrant students, both of whom had a history of violence, while he tried to protect a teacher whom he believed the students were threatening. Moreover, the dissent urges that the disciplinary histories of the students involved here are irrelevant. To the contrary, the disciplinary histories of MT and RP are relevant, because they are one factor among "all the circumstances" that Pell calls on us to consider when we are evaluating the proportionality of a penalty.
The dissent further attempts to justify the penalty of termination in this case by citing to a Court of Appeals case where the Court upheld termination for a single instance of corporal punishment and two cases where courts have upheld the same penalty for acts of corporal punishment (Matter of Ebner v Board of Educ. of E. Williston Union Free School Dist. No. 2, N. Hempstead, 42 NY2d 938 (1977) (teacher terminated for dragging a student by the hair from one class to another); Matter of Saunders v Rockland Bd. of Coop. Educ. Servs., 62 AD3d 1012 2009 (teacher terminated for allowing a student to be strapped to a chair without cause and for striking a student in the chest and jaw); Matter of Giles v Schuyler-Chemung-Tioga Bd. of Coop. Educ. Servs., 199 AD2d 613 1993 (teacher terminated for striking a student on the hands with a book and for throwing a car jack through a window)). However, nothing in those cases indicates that the teachers involved engaged in their sanctioned conduct in furtherance of their employment with the DOE. Those cases differ from the case before us in that petitioner here, while charged with the role of dean of discipline, engaged in conduct that he believed was appropriate to protect members of his school's student and faculty bodies.
Accordingly, we agree with the determination of the motion court that the penalty imposed here was excessive and "disproportionate to the offenses, in the light of all the circumstances" (Pell, 34 NY2d at 233) and that the matter be remanded to the Hearing Officer for a lesser penalty consistent with this court's decision. All concur except Friedman and Richter, JJ. who dissent in a memorandum by Richter, J. as follows:
RICHTER, J. (dissenting)
I respectfully dissent because I do not believe that the penalty imposed here was so disproportionate to the two offenses as to be shocking to one's sense of fairness. Nor do I believe that the penalty violates public policy.
Petitioner, a dean of discipline formerly employed by respondent New York City Department of Education, commenced this proceeding pursuant to Education Law § 3020-a(5) and CPLR 7511 seeking to vacate the opinion and award of an impartial hearing officer which found petitioner guilty of two separate incidents of corporal punishment, and ordered his termination. Supreme Court upheld the findings of guilt but concluded that the penalty of termination was excessive. Respondent now appeals, arguing that the court erred in vacating the penalty. Petitioner has not cross appealed to challenge the findings of guilt.
In the first incident, MT, an 11-year-old student, was exiting the school cafeteria after walking away from a verbal dispute he was having with a fellow student. As MT walked through the cafeteria doors, petitioner placed him in a headlock, swung him around, and told him to stop arguing. After petitioner let the child go, MT started crying because his "head hurt." MT walked up the stairs from the cafeteria and came upon a school safety officer. The safety officer noticed that MT was crying and asked him what was wrong. MT told the officer that petitioner had "choked him."
In the second incident, petitioner saw RP, a 13-year-old student, and another student in the school hallway. Petitioner and the two boys entered a teacher's adjacent classroom, and petitioner asked the teacher if the students were cutting class. When the teacher responded that they were, RP walked out of the classroom, stating that he was tired of being blamed for things he did not do. Petitioner followed RP out of the room, grabbed him by the shirt and slammed him into the wall. The back of RP's head hit the wall, and RP felt pain and dizziness. Petitioner continued to hold onto RP's shirt collar while walking him down the hallway and into petitioner's office. RP subsequently went to the nurse's office and got an ice pack for the "red lump" on the back of his head, which was several inches in diameter.
Sergeant Johnie Washington, a supervising school safety officer, observed the hallway incident involving RP in real time on a live video feed. He "couldn't believe" what he saw and immediately reported the matter to the school's principal. As the principal explained at the hearing, he viewed the video and saw no actions that would have justified petitioner's behavior. The video corroborated RP's account of the incident. RP prepared a written statement, reiterating his complaint that petitioner had pushed him into the wall. Later that day, petitioner summoned RP to his office. At that meeting, petitioner asked RP to retract the statement he had made about the incident.
Petitioner testified in his own defense at the hearing. With respect to the first incident, petitioner denied putting MT in a headlock and swinging him around. As for the second incident, petitioner admitted grabbing RP's shoulder, but denied throwing him into the wall. Instead, petitioner explained that RP lost his balance, and the "momentum" caused him to "fall" into the wall.
The Hearing Officer determined that petitioner was not a credible witness because his testimony was internally inconsistent and was contradicted by the credible testimony of seven other witnesses as well as a video of one of the incidents. The Hearing Officer found that petitioner repeatedly fabricated testimony in an effort to deny or justify his physically abusive behavior. He further found that petitioner's unreasonable use of physical force against the two students, who were less than half his size, warranted the penalty of termination. Petitioner showed no remorse for his misconduct and, indeed, argued that his actions toward RP were proper and professional. For these reasons, the Hearing Officer concluded that petitioner would continue to engage in similar misconduct if returned to the classroom. As a result, the Hearing Officer found that petitioner was unfit to perform his duties and ordered his dismissal.
Where, as here, the parties are subject to compulsory arbitration, a determination made after a hearing held pursuant to Education Law § 3020-a must be in accord with due process, have adequate evidentiary support, and cannot be arbitrary, capricious or irrational (City School Dist. of the City of N.Y. v McGraham, 17 NY3d 917, 919 2011; Lackow v Department of Educ. (or "Board") of City of N.Y., 51 AD3d 563, 567 2008). Moreover, a penalty will not be disturbed unless it "is so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one's sense of fairness" (Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 233 1974). In determining the appropriate penalty, a hearing officer may consider the teacher's lack of remorse and failure to take responsibility for his or her actions (Cipollaro v New York City Dept. of Educ., 83 AD3d 543, 544 2011; Matter of Rogers v Sherburne-Earlville Cent. School Dist., 17 AD3d 823, 825 2005). Moreover, although the teacher's prior disciplinary history may also be considered, even a long and previously unblemished record does not foreclose termination as an appropriate sanction (Cipollaro, 83 AD3d at 544; Matter of Rogers, 17 AD3d at 824-825).
In an effort to minimize petitioner's guilt, the majority recites petitioner's version of the facts, which was rejected by the Hearing Officer. Not even petitioner chose to appeal these findings, which must be accepted as true for the purpose of determining the appropriate sanction. The arbitrator's decision to terminate petitioner was not arbitrary, capricious or irrational, nor does the penalty imposed shock one's sense of fairness. The Hearing Officer came to a reasoned conclusion that petitioner would continue to engage in similar behavior and that termination was [*6]the appropriate penalty. Petitioner, who served as the dean of discipline at the school, lost his temper on two separate occasions and unleashed his anger in violent acts involving two different students.
Moreover, as the Hearing Officer noted, petitioner showed no remorse whatsoever for his actions, and instead either denied or attempted to explain away his behavior. Making matters worse, in an attempt to interfere with an ongoing investigation, petitioner inappropriately asked one of the students to retract his complaint. Although acting as the dean of discipline at a city school may present its challenges, in light of the egregiousness of petitioner's repeated misconduct, the penalty of termination should not have been disturbed (see Cipollaro, 83 AD3d at 544).
The Court of Appeals has upheld the sanction of dismissal where a teacher's misconduct consisted of a single instance of corporal punishment. In Matter of Ebner v Board of Educ. of E. Williston Union Free School Dist. No. 2, N. Hempstead (42 NY2d 938 1977), the school board terminated a teacher who lost her self-control and dragged a student by the hair from one classroom to another, and the Court of Appeals found that "the punishment was not so disproportionate as to warrant judicial correction" (42 NY2d at 939). Other courts have similarly upheld termination of teachers for acts of corporal punishment (see e.g. Matter of Saunders v Rockland Bd. of Coop. Educ. Servs., 62 AD3d 1012 2009; Giles v Schuyler-Chemung-Tioga Bd. of Coop. Educ. Servs., 199 AD2d 613 1993).
Citing the Court of Appeals' decision in McGraham (17 NY3d 917 2011), the majority argues that public policy considerations warrant a penalty less severe than termination. McGraham, however, actually supports upholding the Hearing Officer's decision here. In McGraham, the Court took a narrow view of the public policy exception and cautioned that "courts will only intervene in the arbitration process in those cases in which public policy considerations, embodied in statute or decisional law, prohibit, in an absolute sense, particular matters being decided or certain relief being granted by an arbitrator" (McGraham, 17 NY3d at 919 (internal quotation marks omitted). Thus, as the Court emphasized, "That reasonable minds might disagree over what the proper penalty should have been does not provide a basis for vacating the arbitral award or refashioning the penalty" (id. at 920).
Here, the majority suggests that the fact that petitioner has made a positive impact on students' lives is a valid public policy consideration that warrants reversing the penalty of termination. Although the teacher's positive record is one factor that the Hearing Officer could consider, it is not a public policy consideration that "prohibits, in an absolute sense" (id. at 919) the Hearing Officer's decision to terminate petitioner for his acts of violence against the two students.
This Court's decision in Matter of Riley v City of New York (84 AD3d 442 ), relied upon by the majority, is distinguishable. In Riley, we concluded that a penalty of termination was disproportionate for a teacher who, in an isolated incident, slapped a student across the face (see Matter of Riley v City of New York, 2010 NY Slip Op 32540(U) (2010), affd 84 AD3d 442 2011). Here in contrast, petitioner was found guilty of two separate acts of corporal punishment committed against two different students. Furthermore, in Riley, we focused on the fact that the student involved sustained no physical or emotional injury as a result of the incident. Both of the students here testified about the physical effects of petitioner's misconduct. RP described feeling pain and dizziness after petitioner slammed him into the wall. As a result, RP had a several-inch-wide "red lump" on his head requiring treatment by the school nurse. And, as MT described, his "head hurt," causing him to cry, after petitioner grabbed him in a headlock. Finally, unlike the teacher in Riley, petitioner attempted to influence the investigation by asking RP to withdraw his complaint.
The majority unfairly and incorrectly argues that the Hearing Officer failed to consider the context in which the two incidents took place and the disciplinary history of the students involved. The Hearing Officer's opinion explicitly states that in reaching his conclusions, he "fully considered" "the testimony of all witnesses," "the evidence adduced" at the hearing, and the "positions and arguments advanced by [petitioner] during the hearing and in . . . closing arguments." In any event, the disciplinary history of the students is irrelevant here, especially since there was no finding by the Hearing Officer that petitioner was acting in self-defense or was otherwise justified in using physical force. It is inappropriate to suggest that petitioner should have been given more latitude in his use of force, or that he should be penalized less severely, merely because the students involved had past disciplinary problems. It certainly does not shock one's sense of fairness that the Hearing Officer concluded that petitioner's use of corporal punishment was wrong and should be severely punished, regardless of the background of the victims.
The majority argues that a lesser penalty is appropriate because petitioner believed that he was protecting other students and faculty members from threatening situations. This, however, was not petitioner's defense at the hearing. As to the first incident with MT, petitioner flat out denied that it ever happened. And in the second incident, petitioner offered the absurd explanation that RP lost his balance and the "momentum" caused him to "fall" into the wall. Petitioner's claim that the two boys had falsely accused him was soundly rejected by the Hearing Officer and is not the subject of this appeal.
I am troubled by the majority's belief that petitioner's punishment should be reduced because he was acting "in furtherance of" his role as dean of discipline. In fact, just the opposite is true. Petitioner's acts of violence against the two students were in blatant derogation of his duties as chief disciplinarian. The majority implies that because petitioner was dean of discipline, he should be treated less severely than a teacher in a classroom. This analysis turns logic on its head. As the dean of discipline, petitioner should be able to control verbal disruptions by students without resorting to excessive force.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: APRIL 5, 2012
Could the judicial system be fed up with Bloomberg as well?