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Sunday, June 2, 2019

NYC DOE Chancellor Carranza Rules With Hate

Chancellor Richard Carranza

With special education in shambles in NYC, you would think that Chancellor Richard Carranza would want to make his massive agency, the NYC Department of Education, stand for fixing this mess.


He is giving New York a piece of his mind, namely that the horrible white supremacists who have ruled the Department and harmed kids for decades are going to pay with their jobs. While he is at it, he is taking away the test for "white" high schools - the specialized high schools - which have, he alleges, denied black and brown kids equal access.

When my youngest daughter was at PS 6, (see picture below of Carmen at PS 6, and Marielle is front center), Principal Carmen Farina told parents that her goal was to bring up all the Level 1 and 2 students to a high 2 or low 3, and bring all level 4 kids down to a Level 3, and everyone would be "equal". That is a strange definition of equity, in my opinion.

What did Carmen put in place at PS 6 to dumb down the smart kids?( Smart kids = Level 4 math) She made teachers force TERC, or "fuzzy math", onto students in all classes. Many teachers told me of their dismay, but their "hands were tied". We parents got together and taught our kids classic, rigorous math and bought Singapore Math books, then showed our kids how to make their work look like fuzzy math. Thanks are due to Elizabeth Carson and her HOLD Group.

 In 2004 I wrote an article about this for my website, and how my daughter was thrown off of the Math Team at PS 6 after her article called "Why TERC?" was published in the Riverdale Review. Her math teacher told her she was too dumb and did not belong. Quickly, I had Marielle take the test for the Johns Hopkins' Center For Talented Youth, and she was accepted in both math and English. This saved her from despair. She was then accepted into NEST+M, the best K-12 public school, in my opinion, in the NYC DOE, and she made National Honor Society before entering NYU. I am still horrified when I think about how close to an emotional break Marielle came under Carmen's dumb down program.Here are the articles:



 In reference to Mr. Barnicle’s piece “Where There’s No Will, There’s No Way To Fix Schools” (Feb. 17) and Allison Gendar’s article “Ed Board Perks Under Fire”, (Feb. 12), I, a parent of four girls all now in public schools here in New York City, want to add my outrage. The children and parents in the public school system in this city have an Enron situation with the Board of Education. Only in our case we are hoping that the “company” disintegrates quickly. The Members of the Board are  famous for never contacting anyone with a problem, much less taking any action to fix it. The shooting at Martin Luther King Jr. High School was a visible result of Chancellor Levy and the Board members turning a deaf ear to months of warnings.

On October 5, 2001, I called the Chancellor’s office to discuss a problem in a school which looked illegal, and was told by his secretary, “the Chancellor never takes telephone calls from parents. Put it in writing and fax it to him, and he will respond within 7 days.” I did what she told me to do and am still waiting to hear his reply. The situation I would have liked him to look at is now worse than I originally thought.

Another bizarre example of the educational fraud our kids are being subjected to is the $millions spent on a “fuzzy math” program which is leaving our children unable to do traditional multiplication and long division. I and my fourth daughter are furious that the system is betraying her and ignoring her passion to learn the basic skills which her sisters , who were all in private school during their elementary school years, had. She wrote her thoughts below. It’s time to do something, Mr. Bloomberg.

                                                                      Betsy Combier
by Marielle Combier-Kapel
4th Grade, PS 6

Parents are making tutors crazy calling them all the time because of TERC math. Kids don’t have time to do anything because all they do after school is get tutored in math. There is no one to have playdates with anymore!

 Citywide math scores are falling, but Board Of Education officials say that the District 2 math scores on the Standardized tests are high, therefore the TERC math curriculum is a good thing. Many District 2 parents are spending lots of money on tutoring, which brings up the scores, giving the impression that TERC is good for us kids. Tutoring is great if your parents have money to spend on this.

TERC math shouldn’t be the only kind of math schools teach to their students. Just because some students aren’t that smart, the schools are sending  flyers home to parents saying that they should not teach their child traditional math which includes long division and
algorithms. I like long division!

My mom says:
“Fuzzy math condemns our kids by not allowing them to
establish an understanding of base computations which will
empower them as they reach higher levels of problem-solving.
The Board of Education policy to implement TERC math and
ONLY this curricula is assuring our kids an immediate future of
confusion, or worse, boredom, and a long-term disability in
math achievement and academic performance in non-math
subjects as well. Learning traditional math as a reference is
similar to having a Spanish dictionary when you are trying to
write something in Spanish.”
Parents are now calling other parents to find out if they
tutor their children in math or not, and are signing up my friends.

 One of my sisters’ teachers at Stuyvesant told my mom that the math at the Freshman level may have to be changed to a lower achievement level, as kids from District 2 who are getting in are having trouble with the traditionally rigorous math program. A  teacher at my other sister’s honors program told my mom that she has never seen children in 7th grade who are not able to do long division.

What may happen is that I may be unable to compete for college places because the math teaching I have received is not teaching me what I should know. Is that fair?

Then, after I was elected PTA President of the most segregated middle school in New York, Booker T. Washington Middle School 54, I saw that the Guidance Counselor was telling parents and students of the predominantly minority (black and Hispanic) programs in 7th and 8th grades that the specialized high school test, the SHSAT, was "not for them". The kids and their parents were given applications to the Harlem high schools, not the Specialized High Schools.

I could not believe what I was hearing. I thought, this cannot be true. So, I asked parents who were on my executive board (which was very diverse in terms of race) to go with me to all the Harlem middle schools, and ask parents and students whether they were given applications for the SHSAT or not. In only one instance, a boy at one of the schools told us he had an older brother who had heard about the test, so he told the Guidance Counselor he wanted to take it, did we hear that any of the kids and/or their parents were "allowed" to take the SHSAT.

And Chancellor Carranza is digging his heels into the muck:

Carranza’s friends keep cashing in

In the vast NYC Department of Education, all kids deserve to have an equal opportunity to reach their personal best in academic achievement as well as socio-emotional growth. Carranza and his cronies need to support all colors, genders, religious beliefs, and special needs of the NYC student population, and I mean the very disabled to the profoundly gifted.

Then, we can say that we value diversity and teach tolerance.

Carranza evidently left San Francisco in a racial divide, as can be seen in a comment to NY POST reporter Michael Goodwin published June 15, 2019:

Chancellor’s racial priorities
It turns out that Chancellor Richard Carranza was counting racial beans long before he got to New York. Reader Krista Donaldson writes: “I live in San Francisco and when he came to our elementary school’s PTA meeting, he told the parents (mostly white middle class) that he didn’t care about our kids — he was there only for minority kids.
“It was shocking, especially to parents who had been working hard and fundraising to make the school better for all children.
“He had a very negative impact and our schools still suffer from the damage of his tenure.”
We believe that Richard Carranza is implementing dangerous policy decisions that harm many categories of people of all ages and leave a lethal legacy. Dangerous - because what are we, the adults in the room, telling our kids? The world is black v white, and it is good to fight, oppose, destroy, instead of heal, negotiate and respect all.

This is not equity, it is hate.

Can we get Mr. Carranza out of his job, and send him packing?

Betsy Combier
Editor, NYC Rubber Room Reporter
Editor, New York Court Corruption
Editor, National Public Voice
Editor, NYC Public Voice
Editor, Inside 3020-a Teacher Trials

Richard Carranza

Schools Chancellor Carranza On Race-Based Agenda Criticism: ‘I Will Not Be Silenced, I Will Not Be Quiet’
NEW YORK (CBSNewYork) — Schools Chancellor Richard Carranza on Monday passionately defended his race-based agenda as he unveiled the next steps in his move to diversify and desegregate city schools.
Fed up and mad as hell, Carranza unloaded.
“There are forces in this city that want me to just be quiet. There are forces in this city that want me to be the good minority and just be quiet, don’t say a word, don’t bring the race issue up. I will not be silenced. I will not be quiet,” Carranza told CBS2’s Marcia Kramer.
Furious over stories questioning his hiring practices and school diversity training, Carranza used a press conference to unveil the latest steps to make city schools more equitable to suggest his actions, unlike seven previous chancellors, are questioned because he is Mexican.
“As a man of color, you watch what the next attacks are going to be,” Carranza said.

The chancellor’s comments came as he announced he had agreed to implement 62 recommendations from a school diversity task force to better address the needs of a school population that is 70 percent minority.

“Today’s a big deal,” Carranza said.

The panel’s recommendations designed to change the three “Rs” to the five “Rs.”

* Race and enrollment
* Resources
* Relationships
* Restorative justice
* Representation

Among the new steps:
* Purchasing text books that reflect diversity
* Reducing disparities in how students are disciplined
* Creating student leadership teams
* Developing high-performing schools outside of Manhattan
* Tracking the diversity of school staff, both teachers and administrators
The chancellor offered no time frame for accomplishing all the initiatives or a price tag.
“I’m hopeful we will see substantive work every year to change the current status quo,” Carranza said.
“What today represents for all of us is a passion for a New York City where every single one of our children, they are going to get the social mobility they deserve,” said Maya Wiley of the Diversity Advisory Group.
Matthew Diaz, a high school senior from the Bronx, was also a member of the panel.
“I wanted to see curriculums that represent every community that make up the city. I wanted to see school faculty that looks like everybody in the city,” Diaz said.
The plan did not deal with enrollment changes to desegregate schools. That plan is expected to be developed and made public sometime this summer.

Carter Gwynn
“I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.”
I won’t be silenced either.

Carranza should be fixing special education instead of playing race games

, June 1, 2019
Rather than spending his time on racial flame-throwing, Schools Chancellor Richard Carranza could be working to fix some of the serious issues that plague his Department of Education — such as its massive failures in serving special-ed kids.
Last week, The City’s Yoav Gonen detailed systematic DOE dysfunction on this front, 30 years after the city made a legally binding commitment to give special-needs children the help they need.
The city now pays out hundreds of millions a year to settle thousands of cases brought over its failure to deliver services. And complaints have skyrocketed since Mayor de Blasio’s first year.
They were up 51 percent over three years by the end of the 2017-18 school year. And this year’s total, Gonen reports, topped the prior year’s in February.
Any child can be independently evaluated for special-ed needs. Each who qualifies gets an Individual Education Plan outlining what services the child should receive, such as speech therapy, a physical accommodation, limited class size, etc.
Yet the system routinely assigns kids to schools where the services listed in their IEPs aren’t even available, while schools put children in classrooms that don’t fit the specifications.
And — get this — parents filing complaints must go to Downtown Brooklyn for a hearing, which is far from a guarantee that the bureaucracy will find a solution. Some kids go years without getting the help they’re legally entitled to.
Meanwhile, Carranza devotes much of his time to attacking schools that actually work — the city’s specialized high schools, generally seen as the system’s crown jewels. His problem: A race-blind exam doesn’t produce the student racial mix that he thinks it should.
Oh, and he’s spending millions on “implicit bias” training for city teachers — who are overwhelmingly liberal but apparently need indoctrination about the “racial-advantage hierarchy.”
The chancellor loves to talk about how his “lived experiences” fuel his passion in the “fight for equity.” How about setting aside your racial and ethnic obsessions, sir, and getting to work on delivering for the city’s most vulnerable children?

Richard Carranza held ‘white-supremacy culture’ training for school admins

NY POST, May 20, 2019
City Department of Education brass are targeting a “white-supremacy culture” among school administrators — by disparaging ideas like “individualism,” “objectivity” and “worship of the written word,” The Post has learned.
A presentation slide obtained by The Post offers a bullet-point description of the systemic, supposedly pro-white favoritism that Schools Chancellor Richard Carranza claims must be eradicated from the DOE, and provides just one insight into his anti-bias training efforts.
The list — derived from “Dismantling Racism: A Workbook for Social Change Groups” by Kenneth Jones and Tema Okun — names more than a dozen hallmarks of “white-supremacy culture” that school administrators are expected to steer clear of.
“They include such dynamics as “paternalism,” a “sense of urgency” and “power hoarding,” according to the slide, which an insider said was part of mandatory training sponsored and funded by the department’s Office of Equity and Access and recently administered to principals, central office supervisors and superintendent teams.
The seminar is concurrent with Carranza’s larger push to root out “implicit bias” in the school system — an effort that some veteran DOE members blasted as creating a view of “toxic whiteness” detailed in a front-page story in Sunday’s Post.
“The training is not focused on white supremacy and white privilege,” Carranza said after a City Council budget hearing on Monday, referring to his larger campaign.
“It’s about what are our biases and how we work with them.”
The two slides were shown to top managers but were not part of a $23 million city wide implicit bias training, officials said.
The mandatory session for higher-ups included a “White Privilege Exercise” sheet in which attendees were asked to score the personal relevance of certain statements on a scale of 0 to 5.
“If a police officer pulls me over, I can be sure I haven’t been singled out because of my race,” one scenario reads.
“I can be pretty sure that if I ask to talk to ‘the person in charge,’ I will be facing a person of my race,” another says.
The DOE did not immediately respond to a request for comment about the materials used for the administrators’ training, but one adviser said that if the program’s frankness is making people uncomfortable, that’s because it’s working.
“It requires discomfort,” said Matt Gonzales, who serves as an outside adviser on the DOE’s school diversity task force and is a director of New York Appleseed, an advocacy group for school integration.
“Having to talk about someone’s own whiteness is a requirement for them to become liberated.”
Several recent attendees of the DOE’s overarching implicit-bias training sessions — mandatory for all, including teachers — have bristled at the program’s emphasis on the inherent insidiousness of “white” culture.
White employees who object when accused of harboring deep-seated bias are branded “fragile” and “defensive,” one insider who received the training has said.
But Carranza said on Monday that such skeptics often don’t realize their own biases until they are forced to confront them and that they are likely the ones who need the training the most.
“It’s good work. It’s hard work,” Carranza said. “And I would hope that anybody that feels that somehow that process is not beneficial to them, I would very respectfully say they are the ones that need to reflect even harder upon what they believe.”
Carranza also waved off allegations by at least four white DOE administrators who are poised to sue the department over their claims that, under his watch, they were demoted or stripped of duties in favor of less qualified persons of color.

“It’s always been my experience that anyone that comes in as a CEO of an organization takes a look at the organization and, based on their experience, makes some changes,” he said. “This is no different.”
The schools boss insisted that there was room on his staff for people of any race who share his emphasis on equality.
“I have some deputy chancellors that are white, but have an incredible equity lens as well . . . for making sure that historically underrepresented communities are being served,” Carranza said.
But one Manhattan middle school teacher who underwent mandatory implicit-bias training in December said she left feeling as though everything she had learned about “colorblindness” was being uprooted.
“I say they’re my students whether they’re green, purple, orange or black,” the educator, who asked not to be identified, told The Post. “We’re being told if you’re not recognizing students as African American, Haitian, Puerto Rican, Dominican, et cetera, you’re wrong.”
“It feels like I’m in a dystopian novel where all of a sudden being white is bad. All of a sudden, I’m the enemy.” 

Appealing a Discontinuance Is a Challenge

Mayor Bill de Blasio

When a probationary teacher is discontinued, the argument must be made on Appeal that there is "bad faith" or the decision is unlawful.

A probationary teacher is an employee at will. This is a serious challenge to anyone who wants to get his/her job back after being discontinued/terminated, because the employer, the NYC Department of Education, has the 'right', if the employee is on probationary status, to terminate for any reason other than the two general issues cited above and in the Hawkins Appeal below: an unlawful reason, or decision was made in bad faith.

To enlarge the arguments made by a person appealing his/her termination as a probationary employee, the dissent I posted below in the decisions In the Matter of Myron Duncan and In the Matter of Turner v Horn may serve to do that.

Betsy Combier
Editor, NYC Rubber Room Reporter
Editor, New York Court Corruption
Editor, National Public Voice
Editor, NYC Public Voice
Editor, Inside 3020-a Teacher Trials

Matter of Hawkins v Fariña
2019 NY Slip Op 03141 [171 AD3d 624]
April 25, 2019
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, May 29, 2019

 In the Matter of Carl Hawkins, Appellant,
Carmen Fariña et al., Respondents.

Wolin & Wolin, Jericho (Alan E. Wolin of counsel), for appellant.
Zachary W. Carter, Corporation Counsel, New York (Julie Steiner of counsel), for respondents.
Judgment (denominated an order), Supreme Court, New York County (John J. Kelley, J.), entered on or about May 10, 2018, denying the petition to annul a determination of respondent New York City Department of Education (DOE) to terminate petitioner's probationary employment, and dismissing the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.
A probationary employee may be terminated without a hearing for any reason or no reason at all, as long as the dismissal was not unlawful or in bad faith (see e.g. Matter of Duncan v Kelly, 9 NY3d 1024 [2008]). Here, petitioner alleges no facts to show that his termination was for an illegal or an improper reason, and, absent such allegations, his characterization of his termination as having been in bad faith is purely speculative (Matter of Turner v Horn, 69 AD3d 522 [1st Dept 2010]). Rather, the record shows that petitioner was terminated on grounds of misconduct and violations of applicable regulations (see e.g. Matter of Lambert v Kelly, 78 AD3d 554 [1st Dept 2010]). His arguments on appeal amount to an assertion that DOE erred in reaching these determinations, but such assertion does not raise issues of fact as to bad faith (see Matter of Green v New York City Hous. Auth., 25 AD3d 352 [1st Dept 2006]), nor does the record support such a conclusion.
Furthermore, petitioner complains that DOE's Office of Special Investigations failed to interview one particular student and to turn over investigatory materials. These alleged irregularities in the process, however, without more, do not constitute bad faith or a deprivation of a substantial right (see Matter of Leka v New York City Law Dept., 160 AD3d 497 [1st Dept 2018]).
We have considered petitioner's remaining arguments and find them unavailing. Concur—Sweeny, J.P., Manzanet-Daniels, Tom, Kapnick, Moulton, JJ.
Matter of Duncan v Kelly
2007 NY Slip Op 06408 [43 AD3d 297]
August 9, 2007
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, October 3, 2007
In the Matter of Myron Duncan, Appellant,
Raymond W. Kelly, as Police Commissioner of the City of New York, et al., Respondents.
[*1] Worth, Longworth & London, LLP, New York (Howard B. Sterinbach of counsel), for appellant.
Michael A. Cardozo, Corporation Counsel, New York (Marta Ross of counsel), for respondents.
Order and judgment (one paper), Supreme Court, New York County (Doris Ling-Cohan, J.), entered October 26, 2005, dismissing this proceeding seeking to annul respondents' determination that terminated petitioner's employment, affirmed, without costs.
The facts have been set forth by the dissent and need not be repeated here.
It is well settled that a probationary employee may be discharged for any or no reason, absent a showing that such dismissal was in bad faith, for a constitutionally impermissible purpose or in violation of law (see Matter of Swinton v Safir, 93 NY2d 758, 762-763 [1999]). Petitioner failed to meet his burden of proving dismissal in bad faith (see Matter of Brown v City of New York, 280 AD2d 368 [2001]). We reject the claim that his termination on December 18, 2003 was procedurally improper as based on prehiring conduct, over which exclusive authority would be vested in the Department of Citywide Administrative Services (cf. Matter of Umlauf v Safir, 286 AD2d 267 [2001]). To the contrary, it was petitioner's posthiring conduct, in making false and misleading statements to members of the Internal Affairs Bureau (IAB) concerning a crime he was allegedly involved in prior to his employment as a police officer, that provided ample basis for his termination. The dissents' adoption of petitioner's argument and the conclusion that respondents "summarily deem[ed] petitioner's answer to be lies," is unsupported by the record. The determination was based on an IAB investigation (which actually absolved petitioner of two other crimes); a redacted copy of the investigation report was provided to the court for review. These findings were reviewed by the Chief of Personnel of the New York Police Department and subsequently approved by the First Deputy Commissioner and the Police Commissioner and are entitled to substantial deference. No basis exists to disturb respondent's findings of credibility (Matter of Berenhaus v Ward, 70 NY2d 436 [1987]; Matter of Alvarez v Kelly, 2 AD3d 219 [2003]). These findings are entitled to great deference (Matter of Batista v Kelly, 16 AD3d 182 [2005]).
The motion court correctly distinguished this from action taken for prehiring conduct. Concur—Saxe, J.P., Marlow, Nardelli and Sweeny, JJ.
Catterson, J., dissents in a memorandum as follows: Because I believe the court below ignored precedent and allowed the Police Commissioner and the New York City Police Department (hereinafter referred to as NYPD) to circumvent Civil Service Law § 50 (4), I must respectfully dissent. In upholding the NYPD's determination to terminate petitioner as a probationary police officer on the grounds that he made false statements about a preemployment incident, the court's decision was in direct contravention to our rulings in Matter of Umlauf v Safir (286 AD2d 267 [1st Dept 2001])and Borges v McGuire (107 AD2d 492 [1st Dept 1985]). We found in Umlauf and Borges that statutory authority for investigation and termination for preemployment conduct as occurred here is vested in an independent body, the New York City Department of Citywide Administrative Services (hereinafter referred to as DCAS). (See Borges, 107 AD2d at 499; Umlauf, 286 AD2d at 268.)
In this case, NYPD's Internal Affairs Bureau (hereinafter referred to as IAB) conducted an interview with petitioner about a prehiring credit card incident that implicated his cousin in criminal activity. When petitioner denied knowledge of any such criminal activity, the IAB summarily determined that petitioner had lied and terminated him for making false statements.
Petitioner was appointed as a probationary officer with the NYPD on July 2, 2001, and he was assigned to patrol duties with the 122nd Precinct on Staten Island. In or about March 2003, the IAB opened an investigation into petitioner's background after a lead from a Staten Island cold case squad suggested that the petitioner "might have been" involved with guns and drug dealing prior to his employment, allegations ultimately deemed "unsubstantiated." However, as a result of this investigation, an incident involving a fraudulent use of a credit card to obtain merchandise in or about April 2000—approximately one year before petitioner joined the Police Department—came to light.
Petitioner was interviewed by IAB pursuant to section 206-13 of the NYPD Patrol Guide on or about July 15, 2003, regarding these allegations. Petitioner acknowledged that he had been present on the day of the incident but denied knowledge of attempted fraudulent credit card use. Petitioner stated that he was asked by his cousin to help him bring home a DVD player that his cousin had purchased at a Sears department store. Shortly after his cousin gave the Sears employee the receipt for the DVD player, two police officers came over to speak with him. His cousin was then chased by the police officers and store employees when he ran from the store. Petitioner told the IAB investigator that he did not know what had happened and no one from the Police Department or the store questioned him about the incident. Petitioner left Sears and proceeded to purchase a shirt from another store in the mall.
In response to a question during the IAB interview, petitioner stated that he did not change into the newly-purchased shirt and that he left the store with the new shirt in a shopping bag. He also stated that he saw his cousin some months later but never asked about the incident. In a subsequent letter addressed to the Chief of the Department of the NYPD, petitioner wrote "[s]ome time [sic] later when we finally saw each other again, I did not ask him what actually happened to him on that day or why the cops were chasing him. I don't know what happened to him because of this event nor did I ask. I didn't want to be apart [sic] of anything that was going [*2]to hurt my future so I left that day." As a result of the interview, petitioner was placed on modified assignment on or about July 15, 2003.
On July 31, 2003 the IAB commanding officer wrote to the Police Commissioner with a request that charges be brought against petitioner for making false statements. The letter stated that investigators were able to prove that petitioner was a "willing participant" in the crime "in that when police arrived [petitioner] discreetly walked away from the service counter so as not to be detected by police" (emphasis added). Further, the letter stated that petitioner's statement about not changing his shirt was a false statement because "investigators [had] strong incriminating evidence that [petitioner] did in fact change his shirt to avoid apprehension" (emphasis added). There is, however, nothing in the record indicating what the "strong incriminating" evidence is for either the claim that petitioner changed his shirt or that petitioner did so specifically to avoid apprehension.
Subsequently, in a memorandum dated November 25, 2003, NYPD's Chief of Personnel, Rafael Pineiro, recommended that petitioner's employment be terminated because of the false statements. Pineiro noted that petitioner had received an overall grade point average at the Academy of 80.25, received eight demerit cards, and received one command discipline for the accrual of so many demerit cards. However, the reasons given for termination were that petitioner had "lied to the Internal Affairs Bureau during his official Patrol Guide 206-13 hearing" and "gave false and misleading statements." Pineiro's recommendation was approved by the First Deputy Commissioner and Police Commissioner Kelly. By a letter from the Employee Management Division of the NYPD dated December 18, 2003, petitioner was terminated as of that date.
On or about March 16, 2004, petitioner commenced this CPLR article 78 proceeding seeking, among other things, to annul respondents' determination terminating his employment as a probationary officer. Petitioner argued that his termination was arbitrary and capricious and that the NYPD had no statutory authority to terminate him for prehiring conduct as this power vests exclusively with DCAS.
By a written decision dated October 25, 2005, Supreme Court denied the petition and dismissed the proceeding in its entirety. Without citing to any legal precedent or statutory authority, the court dismissed petitioner's claim that the NYPD's termination for preemployment conduct was procedurally defective and determined that "the NYPD's IAB is the proper body to investigate allegations of criminal conduct by a police officer prior to joining the Department." The lower court also rejected petitioner's contention that Umlauf and Borges are relevant precedent in this action.
In my opinion, petitioner correctly asserts that the NYPD was without authority to terminate his employment for the reasons given. Civil Service Law § 50 (4) (h) provides that: "the state civil service department or appropriate municipal commission may investigate the qualifications and background of an eligible after he has been appointed from the list, and upon finding facts which if known prior to appointment, would have warranted his disqualification, or upon a finding of illegality, irregularity or fraud of a substantial nature in his application, examination or appointment, may revoke such eligible's certification and appointment and direct that his employment be terminated . . . ." In this case the "appropriate municipal authority" is the Commissioner of DCAS pursuant to New York City Charter § 811. It provides that the Commissioner "shall have all the powers and [*3]duties of a municipal civil service commission provided in the civil service law or in any other statute or local law." Moreover, as already noted, it is well-settled in this jurisdiction that termination for prehiring conduct statutorily rests solely with DCAS. (See Matter of UmlaufsupraBorges v McGuiresupra.)
I believe the lower court erred in attempting to distinguish Umlauf and Borges. In Umlauf, the petitioner was terminated for statements made at a posthiring interview regarding thefts that occurred preemployment. The NYPD determined that the petitioner in that case was not suited for the police force because of the way he had characterized these incidents as childish pranks. On appeal, this Court determined that "contrary to respondent's assertions, . . . petitioner was terminated [by respondent Police Commissioner] for his pre-hiring conduct and that [that] . . . was error." (Matter of Umlauf, 286 AD2d at 267.)
Supreme Court found that Umlauf was distinguishable because the officer there admitted that he was involved in prior incidents and so had not made any false statements concerning those incidents during his posthiring interviews. However, this distinction is clearly not germane to the holding of Umlauf. Rather, Umlauf stands for the proposition that only DCAS is vested with the statutory authority to terminate a police officer for prehiring conduct. In that case, we observed that DCAS "is required to provide a written explanation of the reasons for termination and to afford the terminated employee an opportunity to submit an explanation and facts in opposition." (Umlauf, 286 AD2d at 268.) The NYPD cannot circumvent this process by creating a posthiring reason for termination that is solely based upon prehiring conduct as it did here by summarily deeming petitioner's answers to be lies about that prehiring incident. (See also Borges, 107 AD2d at 499 [finding that "the authority to inquire into the misconduct attributed to petitioner prior to her appointment as a police officer is squarely vested by Civil Service Law § 50 (4) (h)"].)
Moreover, all of the cases relied on by respondents are wholly inapposite since they involve situations where termination resulted from an incident occurring during employment as opposed to preemployment. Indeed, citation to these cases is nothing short of disingenuous because not a single case involves prehiring conduct. (See Matter of Lomando v Kelly, 33 AD3d 510 [1st Dept 2006] [upholding dismissal of the petitioner from his position as a probationary employee because of false and misleading statements made to police psychologists and to a ranking officer during his employment with the NYPD]; see also Matter of Alvarez v Kelly, 2 AD3d 219 [1st Dept 2003] [confirming dismissal of the petitioner from his position as a police officer upon findings that he made a false 911 call of a burglary in progress while off duty and made false statements concerning the call in his departmental interview]; see also Matter of Castro v Safir, 277 AD2d 123 [1st Dept 2000] [confirming dismissal of the petitioner from his position as a police sergeant because of deliberate false statements designed to protect a fellow officer made during an investigation];see also Matter of Swinton v Safir, 93 NY2d 758 [1999] [upholding dismissal of the petitioner from his position as a probationary police officer because petitioner had misrepresented the facts in responding to questions during the investigation of an incident that occurred during his employment]; see also Matter of Rainey v McGuire, 111 AD2d 616 [1st Dept 1985] [confirming the petitioner's dismissal based on findings that petitioner had made false statements regarding unauthorized and prohibited off-duty [*4]employment at a tavern]; see also Matter of Donofrio v City of Rochester, 144 AD2d 1027 [4th Dept 1988], lv denied 73 NY2d 708 [1989] [confirming dismissal of petitioner from his position as a police officer for making deliberate false statements at a formal investigatory hearing concerning petitioner's arrest during his employment as a police officer].)
In the view of the foregoing, I believe that the lower court erred in denying the petition and dismissing the proceedings. In my view, the petition should be granted to the extent of reinstating petitioner as a probationary officer. [See 9 Misc 3d 1115(A), 2005 NY Slip Op 51558(U).]

Matter of Turner v Horn
2010 NY Slip Op 00565 [69 AD3d 522]
January 26, 2010
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, March 10, 2010

In the Matter of Lakeisha Turner, Appellant,
Martin F. Horn, Correction Commissioner of the New York City Department of Correction, et al., Respondents.
[*1] Robert Ligansky, New York, for appellant.
Michael A. Cardozo, Corporation Counsel, New York (Janet L. Zaleon of counsel), for respondents.
Order and judgment (one paper), Supreme Court, New York County (Emily Jane Goodman, J.), entered January 15, 2009, which denied the petition for a judgment annulling respondents' determination to terminate petitioner's probationary employment and dismissed the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.
A probationary employee may be discharged without a hearing or a statement of reasons, in the absence of a demonstration that her termination was made in bad faith, for a constitutionally impermissible purpose, or in violation of statutory or decisional law (see Matter of York v McGuire, 63 NY2d 760, 761 [1984]; Matter of Cipolla v Kelly, 26 AD3d 171 [2006]). Respondent terminated petitioner's probationary employment following an investigation which concluded, based on substantial evidence in the record, that she had failed to comply with departmental rules and regulations pertaining to "undue familiarity" with current or former inmates (see Matter of Medina v Sielaff, 182 AD2d 424, 427-428 [1992]). In this proceeding, petitioner submitted evidence challenging the investigators' conclusion, but did not submit any evidence raising a substantial issue as to respondents' bad faith in investigating the alleged violation or in deciding to terminate her employment, which would require a hearing (see Matter of Bradford v New York City Dept. of Correction, 56 AD3d 290 [2008], lv denied 12 NY3d 711[*2][2009]). Accordingly, there is no basis to interfere with respondents' determination and no issue requiring a hearing. Concur—Tom, J.P., Saxe, Nardelli, Renwick and Freedman, JJ.