Canty v NYC DOE: Government Action Must Be Grounded on Established Legal Principles and Have a Rational Factual Basis

There has to be a rational factual basis or a reasonable justification for governmental action.  So, if observation reports do not contain "statistical or factual tabulations or data," then where's the "factual" basis or the "justification," let alone, "rational" or "reasonable", for teacher dismissals or adverse ratings based on the contents of lesson observation reports??? 

Canty v Board of Education

CANTY v. BOARD OF EDUCATION, CITY OF NEW YORK 312 F.Supp. 254 (1970) Leslie CANTY, Jr., Plaintiff,v.The BOARD OF EDUCATION, CITY OF NEW YORK, Defendant. No. 70 Civ. 303. United States District Court, S. D. New York. May 4, 1970. Leslie Canty, Jr., pro se. J. Lee Rankin, Corp. Counsel, New York City, for defendant; Charles D. Maurer, Asst. Corp. Counsel, of counsel. OPINION MacMAHON, District Judge. Plaintiff moves for a preliminary injunction under Rule 65, Fed.R.Civ.P., which would direct defendant, the Board of Education of the City of New York, to reinstate him as a teacher in Junior High School 136 and to pay him the entire amount of his salary that has not been paid since his dismissal on October 10, 1969. This action is erroneously brought under the Civil Rights Act of 1968, Title I, Section 2B, a statute concerned with fair housing, riots and civil obedience. In substance, however, the complaint charges a denial of the constitutional right to due process and presumably seeks money damages and a permanent injunction directing defendant to reinstate plaintiff. The action is, therefore, cognizable under 42 U.S.C. § 1983 and jurisdiction is based on 28 U. S.C. § 1343. Plaintiff's present motion for the extraordinary remedy of a preliminary injunction is directed to the sound discretion of the court. The court's exercise of discretion usually turns on four factors: (1) the probability of success on the merits; (2) the immediate and irreparable harm to plaintiff if the preliminary injunction is denied; (3) the injury to defendant if the preliminary injunction is granted; and, if applicable, (4) the affect the decision will have on the public.1 The party seeking the motion for a preliminary injunction has the burden of establishing a likelihood of success on the merits, that is, of raising "questions going to the merits so serious, substantial, difficult and doubtful, as to make them a fair ground for litigation and thus for more deliberate investigation."2 The latter three criteria are satisfied if the moving party can demonstrate that the harm inflicted by denying the injunction is immediate and irreparable and outweighs the harm that will be caused by denying the injunction. We turn, now, to consider if plaintiff has made a sufficient showing of a likelihood of ultimate success. Plaintiff's claim in this action is rather narrow. He does not allege that the dismissal procedures or any applicable state statutes or local ordinances per se violate due process. Nor does he allege an irrational classification under the equal protection clause. Rather he limits his claim to the allegation that his dismissal was arbitrary and capricious [ 312 F.Supp. 256 ] and hence violated his right to due process. The terms "arbitrary" and "capricious" embrace a concept which emerges from the due process clauses of the Fifth and Fourteenth Amendments of the United States Constitution and operates to guarantee that the acts of government will be grounded on established legal principles and have a rational factual basis. A decision is arbitrary or capricious when it is not supported by evidence or when there is no reasonable justification for the decision.3 Thus, in order for plaintiff to establish a likelihood of success on the merits, he must be able to demonstrate to the extent, at least, of a reasonable probability that the decision to dismiss him was without evidentiary support. The affidavits and exhibits presented by defendant, however, indicate that there was substantial, if not overwhelming, evidentiary support for the Board's dismissal. Plaintiff was a substitute teacher from early September 1969 to October 10, 1969 at Junior High School 136 in Manhattan. He was dismissed on October 10, 1969, and the school principal, in a letter sent to plaintiff dated October 14, 1969, explained the reasons for the dismissal. According to the principal, there were complaints from parents protesting plaintiff's holding children in class after hours and claiming that he physically abused one particular young girl. The principal, himself, on complaints from certain of plaintiff's pupils, attempted to observe plaintiff's class-room conduct on September 17, 1969. Plaintiff was not, however, in the class and was instead found sleeping in the teachers' room. Plaintiff was also absent on October 6 and 7, 1969 without giving any prior notice or subsequent explanation. The crucial event occurred on October 10, 1969 when some of plaintiff's pupils brought to the principal's office a young girl in tears, the same one who previously complained of being physically abused by plaintiff. The young girl now claimed that plaintiff pushed her and consequently injured her. The other youngsters corroborated her claim. The principal then went to plaintiff's classroom, which he found to be in total disorder, and relieved plaintiff of his duties. Plaintiff, after being informed of the specific reasons for his dismissal, initiated grievance proceedings pursuant to the applicable collective bargaining agreement. At the hearing, held on November 7, 1969, plaintiff claimed that he should not have been immediately dismissed because the situation was not an emergency. The principal, in response to a question by a teacher representing plaintiff at the hearing, stated that he considered the situation an emergency because of the complaints of physical abuse and the disorder he personally observed in plaintiff's classroom. The young girl who charged plaintiff with physical abuse testified and the statements of the two pupils who accompanied her to the principal's office were read. The principal, on November 10, 1969, mailed plaintiff a memorandum in which he summarized the evidence presented at the hearing and decided that the claim of "no emergency" was unjustified. The principal also notified plaintiff that he now had a right to appeal to the local Deputy Superintendent. Plaintiff, then, took such an appeal and another hearing was held on November 18, 1969, before Edwin J. Haas, the Acting District Superintendent. Mr. Haas, in a letter dated November 21, 1969, informed plaintiff that he upheld the dismissal particularly because of the [ 312 F.Supp. 257 ] evidence as to plaintiff's "difficulty in maintaining class control." He did not, however, completely agree that an emergency existed and therefore awarded plaintiff ten days' additional salary. The record is unclear as to whether or not plaintiff presently has a right to appeal to the Superintendent of Schools, but for the purpose of this motion, we will assume that he does not and that he has, therefore, exhausted all available administrative remedies. Considering the foregoing reasons defendant presents and particularizes for dismissing plaintiff, it is highly unlikely that plaintiff can prove that his dismissal was so irrational and so lacking in evidentiary support as to be arbitrary and capricious. Plaintiff's rambling and at times rather unintelligible statement, and a fellow teacher's equally confusing letter submitted in support of the motion do not offer a sufficient basis for finding that it is reasonably probable that plaintiff can establish that his dismissal violated constitutionally guaranteed due process. Since plaintiff has failed to meet his burden of establishing a likelihood of success on the merits,4 his motion for a preliminary injunction is properly denied without having to balance the harm inflicted on plaintiff by denying the injunction against the harm inflicted on defendant and on the public by granting the motion. Were we to weigh the potential harm to both sides, however, it is far from clear that the scale would tip in plaintiff's favor. Plaintiff claims a denial of federal constitutional rights and this has often been held to establish automatically immediate and irreparable harm.5 This is offset, however, by the potential harm to defendant and to plaintiff's pupils if we were to reinstate plaintiff pending the outcome of this action. The equitable balance leans even further in defendant's favor when we consider that plaintiff is seeking mandatory relief on this motion, almost identical with the ultimate relief he would obtain if he were to prove his case on the merits, namely, reinstatement and back pay. Finally, plaintiff, if he does eventually succeed in establishing his claim will be reinstated and obtain money damages reflecting his entire loss of earnings, and thus is not irreparably injured, at least in a professional and financial sense, by denial of this motion. The foregoing constitutes the court's findings of fact and conclusions of law, as required by Rule 52(a), Fed.R.Civ.P. Accordingly, plaintiff's motion for a preliminary injunction is denied. So ordered. Footnotes 1. See Unicon Management Corp. v. Koppers Company, 366 F.2d 199, 204-205 (2d Cir. 1966); Hosey v. Club Van Cortlandt, 299 F.Supp. 501, 503 (S.D.N.Y. 1969). Back to Reference 2. Unicon Management Corp. v. Koppers Company, supra; Hamilton Watch Co. v. Benrus Watch Co., 206 F.2d 738, 740 (2d Cir. 1953). Back to Reference 3. O'Boyle v. Coe, 155 F.Supp. 581, 584 (D.C.Dist.1957); East Tex. Motor Freight Lines v. United States, 96 F.Supp. 424, 427 (N.D.Tex.1951); Ford Motor Co. (Delaware) v. United States, 97 Ct.Cl. 370, 47 F.Supp. 259 (1942). Back to Reference 4. Brass v. Hoberman, 295 F.Supp. 358 (S.D.N.Y.1968). Back to Reference 5. Henry v. Greenville Airport Comm'n, 284 F.2d 631 (4th Cir. 1960); Brass v. Hoberman, supra, 295 F.Supp. at 361.

A Select Few Make A Profit Off of the California Vergara Lawsuit on the End of Tenure Rights For Teachers

Sunday, July 20, 2014

Bill Raden and Gary Cohn: The End of Tenure in California Brings Financial Benefits To A Select Few

National Public Voice

Editor Betsy Combier

Bonanza! Silicon Valley Sees Gold in Corporate-Driven School Reforms

LINK
By Bill Raden and Gary Cohn

July 17, 2014 in California Expose

When Los Angeles Superior Court Judge Rolf Treu struck down the tenure rights of the state’s public school teachers last month in Vergara v. California, his decision was hailed by Theodore J. Boutrous Jr., lead attorney for the plaintiffs, as “a terrific, wonderful day for California students and for the California education system.”

The lawsuit, which had been brought on behalf of nine California schoolchildren, argued that the retention of “grossly ineffective” teachers through five due-process statutes violated the students’ civil rights.

Vergara lawsuit backer David Welch

The suit and its accompanying public relations blitz had been bought and paid for by Silicon Valley entrepreneur David Welch under the umbrella of Students Matter, Welch’s personal Menlo Park education reform nonprofit. Welch made his fortune designing large-capacity fiber optic transmission systems for the global service-provider market.

“I have not devoted my career to education policy,” Welch admitted when launching the  Vergara campaign last summer, “but I do believe I’m an expert on what you need in an environment to get the most out of people.”

Welch’s obsession with restructuring public education hardly marks him as an outlier among Silicon Valley tycoons. Reed Hastings, CEO of Netflix, sits on the boards of Microsoft, KIPP and CalCharters (the California Charter School Association), and is a founding funder of Green Dot and a co-founder of NewSchools.org, Aspire Public Schools and EdVoice.net. Hastings summed up his vision for transforming education last March, when the newly minted billionaire called for the end of locally elected school boards and announced a goal of moving 90 percent of America’s public school kids into charter schools over the next 30 years. That’s a tall order, especially in light of a 2009 Stanford University study showing that when averaged across all schools, the impact of attending a charter has a slight — but statistically significant — negative impact on both math and reading gains.

Netflix’s Reed Hastings

Judge Treu’s decision not only marked a significant legal victory against teachers and their unions. It was also an important public affirmation for Welch, Hastings and other well-heeled Silicon Valleyites and their revisionist narrative of progressive public education. By placing the blame on teachers for poor student outcomes, the Vergara ruling ignored decades of research establishing families’ socioeconomic background as the predominant factor affecting how children perform in school — research that also singles out small class size and experienced teachers as being directly beneficial to learning.

The reasons why tech titans like Welch and Hastings have decided that they know how public education can best be “fixed,” and why they are backing those hunches with big money, have been a matter of some speculation. In celebrating Vergara’s nullification of public school teacher job protections, however, Los Angeles schools superintendent John Deasy may have inadvertently dropped a clue when he declared, “Every day that these laws remain in effect represent an opportunity denied.”

The precise nature of that opportunity was immediately grasped by those who stand to gain the most from Vergara. In an ecstatic, post-verdict op-ed piece published on TechCrunch, the online news site that serves Silicon Valley’s tech-startup community, writer Danny Crichton gloated over what he described as “a key opening for startups to begin thinking about grade school in a post-tenure world” now that teachers were out of the way.

When they speak to the general media, Silicon Valley ed reformers sound much like Welch, talking altruistically about the underserved and the right of the state’s children to a quality education. But when they speak to each other they are more apt to talk in the language of money – that is, about the potential gold rush represented by the $638 billion spent on K-12 education between 2009 and 2010 by American taxpayers.

The stakes are high. For Silicon Valley venture capitalists and “ed tech” prospectors, mining the high-grade ore of the U.S. public education market is only the beginning, a test bed to develop a tech-based education model capable of tapping the real mother lode  — the emerging middle classes of China, India and Africa. That’s a global ed tech market, estimates venture capitalist Jon Sakoda of New Enterprise Associates, currently worth $4-6 trillion.

Ground zero for this ed tech bonanza may well be Oakland’s NewSchools Venture Fund, a nonprofit venture capital fund known for its financing of both ed tech startups and charter school management organizations (CMOs), including Aspire Public Schools, KIPP and Redwood City-based Rocketship Education. The fund has drawn money from high-profile foundations created by Eli Broad, Bill Gates and the Walton family, as well asfrom Welch’s own David & Heidi Welch Foundation and Reed Hastings’ Hastings/Quillin Fund.

Rocketship co-founder John Danner

In its 2012 annual report, NewSchools speaks of its mission as investing “in education entrepreneurs who can transform public education in America.” What that murky intersection of entrepreneurship and altruism looks like in action might best be exemplified by Rocketship Education. The smart money began pouring into “blended learning” charters — whose classroom time is split between traditional teachers and online learning — earlier this century. By the late aughts, blended learning’s rising star was the K-5 Rocketship Education.

Co-founded in 2006 by online ad-surfing mogul John Danner, Rocketship quickly rose to national prominence by claiming stellar test scores from poor and immigrant students in San Jose through its near-exclusive focus on reading and math, and a model that replaces teachers with online learning and digital applications for a significant portion of the day. Danner also announced aggressive plans to expand Rocketship into a national online school district with an ambitious goal of enrolling one million students in 50 cities — rivaling New York City’s public school system, the nation’s largest. (Rocketship did not respond to requests for comments for this article.)

Reed Hastings was impressed enough with Rocketship to put his money down on both the nonprofit and on the for-profit ed tech company, DreamBox Learning, which supplies Rocketship’s computer labs with their “adaptive learning” math games.

Brett Bymaster is a Silicon Valley electrical engineer who, through his website Stop Rocketship Education Now!, has been fighting Rocketship’s planned 30-school expansion into San Jose’s low-income neighborhoods.

“One of the things that’s going on behind the scenes,” Bymaster explains, “is that it’s getting harder and harder to get [new] big-growth businesses in Silicon Valley. It’s getting harder and harder to get the big wins that [investors] need. And [these] people are starting to look towards [public] education, because there’s a tremendous amount of money to made in education, but it’s all locked up in teachers. The districts are spending85 percent of their budget on teachers.”

According to Bymaster, the big secret to making charters profitable is reducing teacher costs. “If you’re going to break that market open,” he says, “you have to run a high student-teacher ratio. And so if you look at the Rocketship model, it’s completely built around this 40-to-one student-teacher ratio. And they want to increase it. They wanted to take it to 50-to-one. The ugly side of that is that it’s really clear that these high student-teacher ratio models are not good for kids.”

Rocketship CEO Preston Smith

Alicia Serrano was a San Jose Unified School District veteran when Rocketship co-founder (and now CEO) Preston Smith recruited her as a first grade math teacher for Rocketship #1 for the 2007-08 school year.

“This was something that was full of innovation,” Serrano recalls. “It was different. It was thinking outside of the box and it was exciting to be a part of that.”

Her excitement was short-lived. By the following year, as Danner put his expansion plans into overdrive, what began as a modest laboratory for innovation had changed.

“It started becoming a monster that I could not connect with on a personal or professional level,” says Serrano. “And I started to see things that just did not square with who I am as a person and what is right for children.”

What Serrano found was that Rocketship’s rigidly test-focused culture had eliminated the “human part” of education.

“Preston or the principals,” says Serrano, “would stop kids randomly [and ask] ‘What’s your test score? What did you get on test? What did you get on your benchmark test?’ Instead of connecting with the child in terms of, ‘What did you do yesterday when you got home from school?” or ‘What sports do you like to play?’ or ‘What do you do with your family on Sunday afternoon?’ or any other question to get to know kids. It was all about the number. It was all about the test score.”

The pressure to produce scores was felt by both students and teachers, whose salaries are directly tied to test scores. “I would see so many young teachers,” Serrano remembers, “even some that were TFA [Teach for America] teachers — and this was their second year — that were just crying in their classrooms. It wasn’t a happy place.”

Those indications that the Rocketship edifice might be unsound were confirmed last month when Smith announced that due to plummeting test scores, Rocketship would be scaling back its expansion. “We didn’t deliver,” the CEO admitted.

John Danner had already jumped Rocketship last year to devote himself full-time to his latest venture, which this time sidesteps teachers entirely — a smartphone ed-app startup based in Palo Alto called Zeal, which Danner’s Twitter site describes as “putting school on a phone.”

But if blended learning suffered a black eye, Bymaster cautions that the model of pairing large-scale CMO nonprofits with the for-profit companies that supply them with their education software and lease them their classrooms is not about to go away.

“People need to understand,” he says, “that there’s tons of money in nonprofits, first of all. Second, nonprofits can kind of become containers for for-profit organizations . . . and a lot of that is tax money going into rich people’s pockets.”

Anthony Russo Vacates His 3020-a Termination. The Star Chamber Loses Another Frivolous Case As "Shocking To The Court's Conscience"

The 3020-a Arbitrator in the Russo case was Lawrence Henderson Esq.

DOE Attorney: Jade Fuller Esq.
Respondent's Attorney: NYSUT Attorney Eric Chen; then, private Attorney Charles Maurer
Decision: termination

Mr. Russo wrote his own Article 78, pro-se

Matter of Russo v New York City Dept. of Educ.

Matter of Matter of Russo v New York City Dept. of Educ. 2014 NY Slip Op 05032 Decided on July 3, 2014 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 July 3, 2014 
Tom, J.P., Friedman, Sweeny, Saxe, Freedman, JJ. 
12032 103000/12 

[*1] In re Anthony J. Russo, Petitioner-Appellant, 

v

New York City Department of Education, Respondent-Respondent. 

Anthony J. Russo, appellant pro se.

Jeffrey D. Friedlander, Acting Corporation Counsel, New York (Christina Chung of counsel), for respondent.

Order, Supreme Court, New York County (Geoffrey D. Wright, J.), entered January 14, 2013, which, in this proceeding pursuant to Education Law § 3020-a(5) and CPLR 7511, to vacate an arbitration award finding petitioner guilty of incompetence and imposing a penalty of termination, denied the petition and granted respondent's cross motion to dismiss the petition, modified, on the law, to deny the cross motion, and to grant the petition to the extent of remanding the matter to respondent, New York City Department of Education (DOE), for imposition of a lesser penalty, and otherwise affirmed, without costs.

Petitioner was a licensed common branches and special education teacher and had been employed as such by respondent for more than 21 years when he was terminated in 2011. In 2005, he was assigned to PS/IS 377 in Brooklyn. He received satisfactory ratings at that school for three years, as he had in his previous years as a teacher. In 2008-2009, petitioner was assigned to a self-contained special education class comprised of 12 students who were chronologically fourth, fifth, sixth, graders, but who were functioning at two and three years below grade level.

After 18 years of satisfactory ratings, in 2009, the principal of the school rated petitioner unsatisfactory. Petitioner asked to either be assigned to another class or be assigned an aide or assistant, as was the usual practice for classes of special education students, but neither request was granted. Petitioner was assigned the same class with the same group of students for three consecutive years, until the older students completed the eighth grade. Petitioner was rated as unsatisfactory all three years he taught this class based in part on his inability to control the classroom and his inability to plan and effectively execute certain lessons. While petitioner's requests to be assigned to a different class were repeatedly denied, various teachers and administrators purported to advise him as to how to improve his performance.

At the disciplinary hearing, petitioner's principal and several other witnesses testified as to petitioner's deficiencies in preparing his classroom, planning and implementing the curriculum, and managing the unruly students. Included among the specified charges were allowing students to eat in the classroom, not adequately controlling disruptive behavior, and not engaging all of the students in the prescribed curriculum. Petitioner was criticized for failing to [*2]follow the Teacher's College Workshop Model lessons, even though the Workshop Model made no provisions for students with learning disabilities.

The Hearing Officer determined that petitioner was guilty of seven out of nine of the specified charges spanning a three-year period. While the Hearing Officer acknowledged that petitioner had attempted to improve his performance by working with a mentor and participating in the Peer Intervention Plus Program (PIP Plus), which involved the assignment of an impartial teacher to assist petitioner, the Hearing Officer deemed petitioner's performance to be unsatisfactory.

Petitioner avers that the remediation efforts were inadequate in that he never received organized or consistent lessons from his peers and that they usually consisted of rushed, disorganized, and informal hallway meetings. Petitioner also contends that the assistance he received from the assistant principals was uncoordinated and often contradictory. In one instance petitioner sought help designing a lesson from one assistant principal but when a different assistant principal observed the lesson that the first assistant principal had prepared with petitioner, the second one rated it as unsatisfactory because the lesson failed to follow a specific structure established by written guidelines.

Petitioner also contends that the PIP Plus program was conducted in a haphazard and undirected manner, giving him little opportunity to improve his performance. Although the PIP Plus professional concluded that petitioner's performance was unsatisfactory in the core instructional responsibilities, the professional acknowledged that it was his first assignment as a PIP Plus consultant. It was also his first time testifying. According to petitioner, the consultant also testified that he had never held any supervisory position, failed to follow PIP Plus protocols, and failed to inquire as to what resources were available at the school to help petitioner. Despite the limited guidance that petitioner received through the program, the consultant testified and the Hearing Officer found that petitioner made progress in several areas, including reducing behavioral problems in the classroom.

Petitioner further argues that his unblemished 18 years as a teacher prior to the assignment at issue should have been considered. Petitioner points out that he did not begin receiving unsatisfactory evaluations until he was assigned the same special needs class starting in 2008 for three consecutive years.

While we do not dispute the specific findings of the Hearing Officer concerning petitioner's deficiencies in the management of this one special education class, we find that under the circumstances presented here the penalty of termination shocks our sense of fairness (see Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 234 [1974]).

While the dissent finds that petitioner had a "long-term pattern of inadequate performance," that "pattern" involves the same class from which petitioner sought a transfer. In actuality, petitioner had a lengthy unblemished record prior to being assigned that class, which consisted of students at their most difficult age. Petitioner asked for a transfer, and at least for an aide to be assigned. His requests were ignored and instead he was kept with the same students for three years without an aide, even though the principal found his ability to handle that specific group of students unsatisfactory. The dissent notes that petitioner's spotless record for the previous 18 years is not determinative, but it is still an important factor to be considered (see Matter of Riley v City of New York, 84 AD3d 442 [1st Dept 2011] [termination disproportionate where student was not injured and the petitioner had a 15-year unblemished record]). Moreover, [*3]remediation efforts that were made proved unsuccessful at least in part because the advice given was neither consistent nor adequately targeted.

Although the dissent provides a litany of incidents in which petitioner failed to control the class, most of these incidents occurred in petitioner's first year with the class. The remainder of the incidents occurred the second year, and there were no incidents in the third year. Of the seven charges of which petitioner was found guilty, petitioner improved his management of the class so that the types of incidents underlying six of the charges did not recur in his final year with the class. His control of the class improved dramatically, as did the quality of his instruction and his compliance with DOE guidelines. The incident, of which petitioner was not aware, in which students were observing pornography on a computer in petitioner's classroom in the first year occurred because respondent's filters did not block the sites as petitioner had a right to expect. We note that all of petitioner's students were promoted after the 2008-2009 school year.

Respondent cites Matter of Curtis v Black (2012 NY Slip Op 30457[U] [Sup Ct, NY County 2012]) and Matter of Ebewo v New York, City Dept. of Educ. (2011 NY Slip Op 32384[U] [Sup Ct, NY County, 2011]) for the proposition that incompetence can be the basis of termination. In Curtis the Hearing Officer determined that termination was necessary to ensure the students' safety because the teacher's courses involved dangerous tools and equipment. There is no evidence here that petitioner's continued employment would endanger the safety and well-being of his students. In Ebewo the Hearing Officer determined that the teacher should be terminated because he was incompetent and was not making any improvements. Here, the Hearing Officer, PIP Plus professional, and others found that petitioner was improving despite the substantial challenges that his students presented.

In conclusion, we reiterate that it is troubling to see respondent's apparent determination to terminate petitioner, a 21-year veteran with 18 years of satisfactory ratings, because of his difficulty with one class in which he was kept for three years.

Accordingly, we find the Hearing Officer's decision to dismiss the teacher to be manifestly disproportionate to petitioner's conduct and remand the matter for the imposition of a lesser penalty.

All concur except Tom, J.P. and Sweeny, J. who dissent in a memorandum by Sweeny, J. as follows:

SWEENY, J. (dissenting)

The majority agrees that the Hearing Officer's determination that petitioner was guilty of the seven specified charges spanning a three-year period, was supported by adequate evidence (see Lackow v Department of Educ. [or "Board"] of City of N.Y., 51 AD3d 563, 567 [1st Dept 2008]). However, because they find that the Hearing Officer's recommendation of termination as a penalty for those offenses is disproportionate and remand for consideration of a lesser penalty, I must dissent.

The majority credits petitioner's assertion that the assistance given to him by his supervisors and colleagues was inadequate. The record reveals however, that petitioner appealed his unsatisfactory ratings for school years 2008-2009 and 2009-2010 and those appeals were denied. Petitioner received 14 observations from his principal and assistant principals containing recommendations for the improvement of his performance. The school's administration also prepared three different "Plans of Assistance" for him each year after he was warned that he was [*4]in danger of receiving an unsatisfactory rating. His principal recommended that petitioner participate in the Peer Intervention Plus Program, and a mentor was assigned to work with petitioner.

The majority minimizes the nature and extent of petitioner's shortcomings. The charges that were sustained by the Hearing Officer, and not disputed by the majority, involved more than simply an inability to control his classroom in the face of a difficult group of students. They include allegations of neglect and disregard for student health, safety and well-being, failing to timely and/or properly manage his classroom, failing to properly and/or adequately engage students in instruction, failure to attend mandated faculty meetings, failure to properly, adequately and/or effectively plan and/or execute lessons, failure to timely, properly, adequately and/or effectively update, draft and/or implement his students' Individualized Educational Plans (IEPs), and failure to implement professional development recommendations. Significantly, petitioner did not dispute some of the more serious charges made by respondent. For example, he did not testify regarding two incidents where students were entering and leaving the classroom without permission and where students were rolling around on the floor. Nor did he testify regarding the allegation that he took no action when students were observed by another teacher viewing pornographic material on a school computer, as well as an allegation that he failed to prepare his classroom properly because it lacked, among other things, bulletin boards, charts, information about reading and writing, and a daily schedule. With respect to the other charges, the Hearing Officer found more than adequate testimony, supported by contemporaneous records, to sustain those charges. Additionally, despite petitioner's claims to the contrary, the Hearing Officer found that his colleagues repeatedly entered his classroom to assist with student instruction, control student behavior, model lessons for him, and assist him with IEPs. The record does not support petitioner's claims that these remediation efforts were, as the majority finds, "neither consistent nor adequately targeted." In fact, the Hearing Officer's findings were supported by evidence which showed, among other things, that petitioner received observations, both formal and informal, beyond the required amount, which served to provide him with guidance and feedback as to his performance, as well as suggestions for improvement. Importantly, he participated in pre-observation conferences during which he was advised of his supervisors' expectations.

The Hearing Officer's credibility findings in favor of respondent's witnesses are entitled to deference and neither petitioner nor the majority has advanced any reason to disturb those findings (Matter of Colon v City of N. Y. Dept. of Educ., 94 AD3d 568 [1st Dept 2012]; Matter of Douglas v New York City Bd./Dept. of Educ., 87 AD3d 856, 857 [1st Dept 2011]).

In determining the appropriate penalty, the Hearing Officer properly considered, at petitioner's request, the efforts that respondent made to provide remediation, and his conclusion that those efforts were adequate is supported by the record. Petitioner received feedback and suggestions for improvement through observation reports and pre-observation conferences, plans of assistance and support from his colleagues, and he participated in the Peer Intervention Plus program (see Education Law § 3020-a[4]).

The standard for reviewing a penalty imposed after a hearing pursuant to Education Law § 3020-a is whether the punishment of dismissal was so disproportionate to the offenses as to be shocking to the court's sense of fairness (Matter of Harris v Mechanicville Cent. School Dist., 45 NY2d 279, 285 [1978]; 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]). Contrary [*5]to the majority's conclusion, the record here supports the Hearing Officer's determination that termination is appropriate.

While it is true that petitioner has an unblemished record prior to the 2008-2009 school year, that factor alone is not determinative (see e.g. Matter of Ajeleye V New York City Dept. of Educ., 112 AD3d 425, 425-426 [1st Dept 2013] [termination "does not shock one's sense of fairness" where the petitioner was found guilty of insubordination, neglect of duty and conduct unbecoming his position, after a 14 year unblemished record]). In light of the Hearing Officer's findings of a long-term pattern of inadequate performance by petitioner and that sufficient attempts at remediation had been unsuccessful, the penalty of termination is not disproportionate to the offenses (see Lackow, 51 AD3d at 569). "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" (City School Dist. of the City of N. Y. v McGraham, 17 NY3d 917, 920 [2011]).

I would therefore affirm the order and confirm the arbitration award.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JULY 3, 2014

DEPUTY CLERK