Shango Blake Loses His Appeal After Being Terminated

Mr. Shango Blake was Principal of I.S. 109, and was accused of stealing money, assaulting a child, even running into two teachers with his car. He was terminated by the New York City Department of Education, and then he appealed to New York State.
Below is the decision of Commissioner Mills - who says no, you are not getting your job back.

Appeal of SHANGO BLAKE, from the determination of Joel I. Klein, Chancellor of the New York City Department of Education, to implement an arbitrator’s decision to terminate him as Principal of I.S. 109.

Decision No. 15,856
(December 18, 2008)

Bernbach Law Firm PLLC, attorneys for petitioner, Jeffrey M. Bernbach, Esq., of counsel

Michael A. Cardozo, Esq., Corporation Counsel, attorney for respondent, Robert Katz, Esq., of counsel

MILLS, Commissioner.--Petitioner (also referred to as “appellant”) appeals the determination of Joel Klein, Chancellor of the New York City Department of Education (“the Chancellor” or “respondent”), implementing an arbitrator’s decision to terminate petitioner from his position as Principal of I.S. 109. The appeal must be dismissed.

In January 2000, the New York State Legislature amended Education Law §3020 by adding a new subdivision three, which authorizes the City School District of the City of New York (“District”) and any employee organization representing employees or titles that are or were covered by any memorandum of agreement executed by the District and the Council of Supervisors and Administrators of the City of New York (the “Council”), on or after December 1, 1999, to negotiate agreements that modify or replace the procedures set forth in Education Law §§3020-a and 2590-j(7). It further provides that the Commissioner shall review any appeals brought according to the terms of such agreements.

Pursuant to Education Law §3020(3), on December 16, 1999, the Council and the District entered into an initial agreement providing for modified disciplinary procedures. The parties then entered into a successor agreement (the “Agreement”), dated April 20, 2007, covering July 1, 2003 through March 5, 2010. For allegations of misconduct with respect to principals, the parties, in Article VII(J)(4)(a) of the Agreement, established modified disciplinary procedures. Specifically, the Agreement provides that at the principal’s option, allegations of misconduct may be presented to an impartial arbitrator who will decide whether just cause exists for the proposed action. Thereafter, the Chancellor may, at the request of the principal, review the arbitrator’s decision. If the Chancellor implements the arbitrator’s decision against the principal, the principal may then apply to the Commissioner for review of the arbitrator’s decision.

Pursuant to the Agreement, a written notice of specifications of misconduct and proposed adverse action was prepared and served on petitioner, alleging that petitioner engaged in conduct unbecoming his position, neglect of duties, and criminal conduct. Petitioner was charged with 14 specifications of misconduct including, but not limited to, allegations of financial wrongdoing, an allegation of corporal punishment against a student, failing to report an incident, hindering an investigation and causing widespread negative publicity to the District.

An arbitration hearing was subsequently conducted on several dates in February, March, April, May and June 2008, and the arbitrator rendered his final decision on September 30, 2008. The arbitrator found petitioner guilty of the charges alleged in specifications 2(b), (c), (d), (e), (f) and (g), 4(e) and (f), 5(a) and (b), 6(a) and (b), 7(a) and (b), 8(a) through (h), and 11 [throwing or pushing a student into a radiator, threatening the student by stating words to the effect of “don’t you f****** say something about my son or I’ll break your neck” and punching and choking the student], but not guilty as to the remaining specifications. He concluded that petitioner should be terminated from his position as Principal of I.S. 109, based on the corporal punishment of the student.

Upon receipt of the decision, petitioner requested the Chancellor’s review of the arbitrator’s findings and conclusion that petitioner should be terminated from his position for inflicting corporal punishment on a student.

By decision dated October 24, 2008, the Chancellor agreed with the arbitrator’s determination and decided to implement it.[1] Petitioner then commenced this appeal by serving the Community Superintendent and the Chancellor on October 30 and 31, respectively, at their offices. Petitioner requests that I reverse the Chancellor’s decision and the arbitrator’s determination to terminate petitioner from employment, for inflicting corporal punishment on a student, on the grounds that they are irrational, arbitrary and capricious and unsupported by substantial evidence.

Initially, I must address whether service of this appeal was proper. Section 281.6 of the Commissioner’s regulations specifically addresses the service requirements for appeals to the Commissioner pursuant to Education Law §3020(3). Section 281.6 provides, in pertinent part, that an appellant shall institute an appeal to the Commissioner by effecting personal service of a copy of the appeal upon;

1. the chancellor, or a person designated to accept service on behalf of the chancellor; and
2. the community school district superintendent who initiated the arbitration proceeding, or a person in the office of such superintendent who has been designated to accept service.

In this case, the affidavits of service reflect that petitioner served the appeal on Monica Davis, a clerk to the Chancellor, and Camelia Brogdan-Cruz, the District Family Administrator for District 29. Respondent maintains that these persons are not authorized or designated to accept service on behalf of the Chancellor or the superintendent, and that the only agent authorized to accept service on their behalf is the New York City Law Department. It is undisputed that petitioner failed to serve the Law Department. Therefore, I am constrained to dismiss the appeal for improper service (Appeal of Tchoukanine, 47 Ed Dept 334, Decision No. 15,715; Appeal of Harmon, 43 id. 478, Decision No. 15,057; Appeal of Malley, 31 id. 149; Decision No. 12,601).

Even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits. The issues in this appeal are whether the arbitrator’s finding of guilt on the corporal punishment charge is supported by the record and whether that finding warrants termination. I find that the record supports both the finding of guilt and the penalty.

This case turns on the credibility of petitioner, the student and the other witnesses who testified before the arbitrator. The Commissioner will not ordinarily substitute his judgment for that of a hearing officer with respect to the credibility of witnesses (Appeal of Morrison, 39 Ed Dept Rep 675, Decision No. 14,346; Appeal of Grihin, 38 id. 399, Decision No. 14,064; Appeal of Bd. of Ed. of Community School District #22, 30 id. 238, Decision No. 12,448). In order for the Commissioner to substitute his judgment for that of a hearing officer, there must be clear and convincing evidence that the hearing officer’s determination of credibility is inconsistent with the facts, or that the hearing officer’s decision is contrary to the weight of evidence and the hearing officer has not adequately explained his rejection of otherwise convincing testimony (Appeal of Morrison, 39 Ed Dept Rep 675, Decision No. 14,346; Appeal of Gibbs, 33 id. 684, Decision No. 13,196; Appeal of the Bd. of Ed. of Community School District No. 2, 32 id. 391, Decision No. 12,864). Upon my review of the record, I find no reason to substitute my judgment for the arbitrator’s determinations regarding the witnesses’ credibility or his factual findings based thereon.

The arbitrator heard testimony from a number of witnesses for both sides, including petitioner. A review of the arbitrator’s 68-page decision reveals that he assessed and evaluated the testimony of all witnesses, including petitioner, and provided detailed reasons for crediting certain testimony and not others. The arbitrator’s decision summarized each party’s position, discussed every specification individually, outlined both sides’ arguments and referred to specific pages of the more than 3,300-page transcript to support his determination.

With respect to the corporal punishment charge, the arbitrator credited the testimony of the student and the District’s witnesses. The student testified that on June 26, 2006, petitioner pushed the student’s hat off his head and threw it to the floor, that “he pulled [him] to the radiator and ... choked [him]”. The student then testified that petitioner told him “‘you say anything about my son again, I’m going to break your neck,’ and he started punching [him] with his arms.” According to the student, petitioner then punched him in the chest. After the incident, the student testified that he looked at the two other eye-witnesses, Troy Edwards (“T.E.”) and James Holder (“J.H.”), and said “‘you’re not going to do anything about this?’” and petitioner said to T.E. and J.H., “‘did you see anything’” and both replied, “‘no, I didn’t see nothing. I don’t have a problem.’” When the student returned home that day, he testified that he noticed red marks on his neck. The student’s written statement supports his testimony to the extent he indicates that petitioner threw him into the radiator, punched him in the chest and choked him.

In addition, the student’s recollection of the events that day was corroborated by other witnesses. Linette Edwards (L.E.), petitioner’s secretary, was seated at her desk outside the principal’s conference room and she testified that she heard petitioner say to the student “‘if you threaten my son, I’ll break your damn neck’”. After they exited the conference room, L.E. also heard petitioner say “‘I didn’t see or hear anything, [J.H.], did you” even before the student made any accusation that petitioner had punched or choked him. When the student heard J.H. say he didn’t say or hear anything, L.E. testified that the student asked J.H. how he could lie and stated, “‘you know you saw [petitioner] choke me.’” She further testified to observing fingerprint marks on the student’s neck.

Ernest Alvarez, the program director at Project HOPE, a program that the student attended regularly, testified that when the student arrived at the program on June 26th, he observed fingerprints on the student’s neck and when he asked the student “what happened to your neck?”; the student told him that petitioner grabbed him.

Moreover, two other employees at the school testified that petitioner admitted that he choked the student. Susan Druss, the Purchasing Secretary at the school, testified that two days after the incident petitioner called her into a conference room and brought up the incident with the student. At this time, petitioner told her that he lost it and blacked out and that he “put [the student] up against the wall, and ... choked him until he couldn’t breathe.” In addition, Tesha Forbes, the School Treasurer, testified that on June 30, 2006, petitioner called her into the main office and raised the incident and explained that “he didn’t realize it, but he went off on [the student] ... [and] started to choke him”.

Even though petitioner denies pushing, punching or choking the student and two other eye-witnesses, J.H. and T.E., deny that petitioner had any physical contact with the student, the arbitrator chose to credit the testimony of the student and the District’s witnesses, and upon my review, I find no basis to disturb the arbitrator’s determination, which I find to be supported by the preponderance of the evidence.

Moreover, I find no merit to petitioner’s argument that the Chancellor improperly relied upon the arbitrator’s decision because the arbitrator made two erroneous statements in his determination. While I agree that the arbitrator misstated that T.E. testified that petitioner “screamed he would break [the] student’s neck”[2] and that petitioner testified that he “was not angered by [the student] when he threatened [petitioner’s] son”, I find that these misstatements did not affect his overall findings, and any error in the language of the decision was de minimis.

In determining whether to substitute my judgment for that of hearing officer, the standard is whether the discipline imposed is proportionate to the offense (Matter of Mockler v. Ambach, 79 AD 2d 745, lv to app den 53 NY 2d 603; Appeal of the Bd. of Educ., Wellsville CSD, 35 Ed Dept Rep 523, Decision No. 13,620; Appeal of the Bd. of Ed., City School District of the City of New York, 35 id. 35, Decision No. 13,455). An appropriate penalty should underscore the inappropriateness of the conduct and serve as a warning against future improper conduct (Appeal of the Bd. of Educ., Greenburgh CSD No. 7, 34 Ed Dept Rep 506, Decision No. 13,397). The verbal and physical abuse of a student by an administrator is wholly inappropriate and intolerable. In light of the seriousness of petitioner’s conduct, I find that termination of his employment is warranted, and I will not substitute my judgment for the penalty imposed by the arbitrator and Chancellor (see Matter of Pell v Bd. of Educ., 34 NY2d 222, 233; Appeal of Blumenblatt, 33 Ed Dept Rep 249, Decision No. 13,041).

In light of the foregoing disposition, I need not address the parties’ remaining contentions.

THE APPEAL IS DISMISSED.

END OF FILE
[1]I note that the Chancellor’s decision refers to the prior collective bargaining agreement entered into on December 16, 1999; however, a review of that agreement and its successor agreement reveal that the terms of both agreements relating to modified disciplinary procedures for principals are substantially the same.

[2]The entire statement reads “[Petitioner’s] own witness Troy Edwards confirmed [petitioner] was angry in the face of [the student’s] threat. Troy Edwards agrees [petitioner] screamed he would ‘break [the student’s neck’, if [the student] threatened his son.”

More on Blake:

New York City Board of Education Reports That Principal Shango Blake Misused School Funds and Punched a Student


October 14, 2007
Queens Village
The Two Shango Blakes
By EMILY BRADY, NY TIMES

ONE of the unusual works at last year’s Tribeca Film Festival was a rap video titled “Tuck That Shirt In” that was written, produced and performed by the students, parents and staff of Intermediate School 109 in Queens Village.

The star of the video is Shango Blake, the school’s 37-year-old principal. Mr. Blake, who is built like an N.F.L. linebacker, is seen bobbing down a school hallway, dressed in a sharp black suit and gold tie, rapping about the school uniforms he established when he took over in 2003.

The uniforms — pastel shirts neatly tucked into navy blue pants or skirts — symbolize the changes Mr. Blake has been credited with bringing to the school. After his arrival four years ago, reading and math scores increased, and new programs, like the one that used the production of rap videos as a learning tool, were introduced.

As one student raps at the end of the video, “Mr. Blake changed the school we call 109; now we look like the school where it’s time to shine.”

In the two years since the video was made, Mr. Blake’s professional role has continued off camera — and lately it has taken a dark turn.

In a report issued Aug. 13, the Office of Special Investigations of the city’s Department of Education found that Mr. Blake had mismanaged more than $30,000 in school funds, most of which had been collected from parents and students for school lunches, class trips and graduation events. The report, which followed an 18-month investigation, also said that Mr. Blake had punched and choked a 13-year-old student who had made negative remarks about Mr. Blake’s son.

After the findings were issued, Schools Chancellor Joel Klein — who made a cameo appearance in “Tuck That Shirt In” — suspended Mr. Blake and began proceedings to fire him.

The story might have ended there were it not for a large group of parents, community leaders and elected officials who are rallying around Mr. Blake and demanding that he be reinstated and allowed to defend himself.

“We take pride in Shango,” Archie Spigner, a former city councilman from southeast Queens, said this month. “He’s to be commended, not condemned.”

And Representative Gregory Meeks of Queens is so supportive of Mr. Blake that he honored him with an Educator’s Award at an Oct. 5 fund-raising dinner in Queens Village at which Gov. Eliot Spitzer was the guest speaker. Before an audience of 800 that included two dozen I.S. 109 students, Mr. Blake was given a plaque and a standing ovation.

“We don’t know what the facts are, other than he turned the school around, the parents love him and want him back, the kids love him and want him back and the community loves him and wants him back,” Mr. Meeks said after the event. “He’s worth fighting for.”

These feelings are shared by many other local officials, seven of whom, including Mr. Meeks, sent a joint letter to Mr. Klein on Sept. 13 saying Mr. Blake had been denied due process and should be reinstated immediately.

Jeffrey Bernbach, Mr. Blake’s lawyer, described the charge involving the misuse of funds as “absolutely untrue.” As for the accusation of assaulting a student, Mr. Bernbach said, “He doesn’t deny he became angry and yelled at the kid, but he never laid a hand on him.”

According to Dina Paul Parks, a spokeswoman for the Department of Education, Mr. Blake will have a chance to defend himself at a disciplinary hearing. No date for the hearing has been set.

Meanwhile, with a new interim principal in place at I.S. 109, many parents are afraid that changes instituted under Mr. Blake will disappear.

“We don’t see the same vigilance now,” said Kangela Moore, president of the school’s Parents’ Association and the mother of a seventh grader. In recent weeks, Ms. Moore said, the number of fights outside the school has increased; she attributes the increase to Mr. Blake’s not being there to patrol the block as he used to.

An emergency parents’ meeting was held after a fight in a school hallway on Oct. 5 left one student with a concussion, Ms. Moore said, and two seventh graders were subsequently arrested.

In response, Ms. Parks said that while she understands parents’ concerns, she is confident in the acting principal, Miatheresa Tate.

Ms. Moore said that she had faxed to the chancellor’s office letters from 600 parents in support of Mr. Blake, and that more than 400 parents showed up at a prayer vigil held in the principal’s honor at the Embury United Methodist Church in Jamaica.

“The overwhelming sentiment was that we need him to come back to the school,” Ms. Moore said. “We needed him back, like, yesterday.”

'SKIMMING' KIDS' MILK MONEY
By YOAV GONEN, New York Post
LINK

August 14, 2007 -- A flamboyant Queens principal who has been hailed by Chancellor Joel Klein once used students' lunch money to help foot the bill for limos to the premiere of a school-produced rap video, investigators charged yesterday.

School probers said the funds were among more than $30,000 misappropriated by Shango Blake, the four-year principal of IS 109.

Blake, 37, of Queens, allegedly misused funds he had collected from students and parents for school lunches, snacks and graduation expenses between May 2005 and June 2006.

"Shango Blake's financial mismanagement and inappropriate conduct makes it clear that he has no place in New York City public schools," concluded the report by the Office of the Special Commissioner of Investigation.

The report found that even as the school was accumulating more than $18,000 in debts to the Office of School Food, its treasurer was handing Blake up to $600 in cash per week to pay various other expenses. There is no indication he used any of the funds for himself.

When education officials asked Blake about the lack of payments, he reportedly said he had spent money on limousines to shuttle students to the premiere of the hip-hop video, "Tuck That Shirt In."

The video was screened at the 2006 Tribeca Film Festival.

Investigators found nearly $11,500 in expenses tied to that school digital production, as well as another.

Department of Education spokeswoman Dina Paul Parks said the agency was taking steps to ax Blake.

Reached by phone, Blake's wife declined to comment.

Officials also charge that the principal is a bully.

Blake, who was once cited by Klein for improving school safety, punched, choked and threatened a 13-year-old student last year for making remarks about his son, who also attended IS 109, officials said.

According to the report, the unidentified student told investigators that after being confronted by Blake about a discipline problem, he made a passing remark about Blake's son that set the principal off.

The student claimed that in the presence of two school employees, Blake threw him against a radiator and threatened to break his neck if he mentioned his son again.

When Blake challenged him to repeat the remark, the student did - leading Blake to punch him in the chest three times, grab his neck and choke him, the student said. While Blake and the two employees refuted the student's version of events, investigators found witnesses who corroborated the account.

Additional reporting by John Mazor and Erin Calabrese

yoav.gonen@nypost.com

Principal To Be Removed After Beating, Theft Accusations
By ELIZABETH GREEN, Staff Reporter of the Sun | August 14, 2007
LINK

A Queens principal accused of using corporal punishment against a student who insulted his son and misusing thousands of dollars in students' lunch money is being removed from his middle school weeks before school starts, the Department of Education said yesterday.

The student who was allegedly attacked, a 13-year-old male, was first sent to his principal's office for using "the �f' word" over a cafeteria sound system late last June, the report said. While walking out of the office after being reprimanded, the 13-year-old told investigators he said to the principal, Shango Blake, "Have a good life you and your son."

He said Mr. Blake then punched him three times in the chest and choked him, leaving fingernail marks on his neck that were observed by several witnesses, according to the report.

Mr. Blake's son also attended the middle school, the Jean Nuzzi Intermediate School, or I.S 209, in Queens, the investigators wrote. Of the four people who were in Mr. Blake's office at the time - the principal, the student, and two staff members - only the student claimed an attack occurred. Mr. Blake, whose attorney did not respond to a request for comment, denied that any abuse occurred during an interview conducted under oath, calling the student an "emotionally disturbed kid" who "had lied in the past," the report said.

Investigators cited several other witnesses who confirmed the 13-year-old's report. One, a secretary, said she heard through a conference room door Mr. Blake threatening to break the student's neck and then watched the student walk out with marks on his neck. A school treasurer said Mr. Blake told her he pushed the student up against an air-conditioner in his office and choked him "until he heard the boy gasping for air." The investigators, who work for the Department of Education's special commissioner of investigation, Richard Condon, also alleged that Mr. Blake had misappropriated $30,000 in funds � money students turned in to pay for school lunches, snacks, and graduation expenses � between May 2005 and June 2006.

A Department of Education spokeswoman, Dina Paul Parks, said the city is pursuing Mr. Blake's termination and will discipline the two other staff members in the room that day.