RE: the Appeal of Suzanne Varriale, Who Did Not Testify At Her 3020-a Case

Automatic termination. That's the penalty in any case where the Respondent does not testify.

Why?This leaves no appeal, as an Article 75 Petition filed in the Supreme Court to overturn a 3020-a arbitrator's decision is called. The arbitrator in her case had nothing to look at about whether or not the charges were untrue.

I don't know of any 3020-a decision won by a Respondent(charged employee) who did not testify. All the cases I have show termination.

In the case of J.S., who filed an Article 75 to overturn his arbitrator's decision but he did not testify, New York State Supreme Court Judge Alice Schlesinger reprimanded him for not testifying. She told us that she needed something from the Petitioner at the 3020-a to use if she denied the Corporation Counsel's Motion To Dismiss. I was in her chambers, invited by her after I went with J.S. to his oral argument. She told us that she had to sustain the termination, even though she didn't want to, because J.S. had a witness who testified that he was an excellent teacher. She dismissed the Petition.

In sum, do not go to a 3020-a and not testify. Give your side of the story.

Betsy Combier
betsy.combier@gmail.com
Editor, NYC Rubber Room Reporter
Editor, Parentadvocates.org
Editor, New York Court Corruption
Editor, National Public Voice
Editor, NYC Public Voice
Editor, Inside 3020-a Teacher Trials

2017 NY Slip Op 02513

IN RE SUZANNE VARRIALE, Petitioner-Appellant,

v.

CITY OF NEW YORK, ET AL., Respondents-Respondents.

3572, 652189/14.

Appellate Division of the Supreme Court of New York, First Department.

Decided March 30, 2017.

Order, Supreme Court, New York County (Lynn R. Kotler, J.), entered November 10, 2015, which, after a hearing, denied the petition to vacate the determination of respondent New York City Board of Education, dated July 7, 2014, which terminated petitioner's employment as a tenured school teacher, and dismissed the proceeding, unanimously affirmed, without costs. Although petitioner was a thirteen-year employee with no prior disciplinary history, and no charges had ever previously been preferred against her, in light of the seriousness of the allegations herein, the penalty of termination was not shocking to one's sense of fairness (see Altsheler v Board of Educ. of Great Neck Union Free School Dist., 62 NY2d 656, 657 [1984]). The record showed that petitioner strayed from her duties as a school teacher by deliberately escalating a confrontation with a student by yelling expletives and threatening him with violence. Even after security personnel defused the situation by removing the student from the classroom, petitioner subsequently confronted him again, later that day, yelling at least six times that her husband, an armed police officer, would kill him. Petitioner then brought her husband to school the following morning, to the student's scheduled class in the gymnasium, although the student, having been suspended from school, was not there (compare Riley v City of New York, 84 AD3d 442 [1st Dept 2011]). Further, as noted by the hearing officer, had the student been in class that morning, the possibility of violence occurring was very real, and petitioner conveyed a message to other students that she could not rely upon school authorities to control threats of violence against a teacher by a student.

Glass Krakower LLP, New York (Bryan D. Glass of counsel), for appellant.

Zachary W. Carter, Corporation Counsel, New York (Kathy Chang Park of counsel), for respondents.

Before: Tom, J.P., Moskowitz, Feinman, Gische, Kapnick, JJ.

Petitioner also showed no remorse nor appreciation for the seriousness of her conduct (see e.g. Matter of Villada v City of New York, 126 AD3d 598, 599 [1st Dept 2015]) to support a finding that she would not engage in similar conduct if faced with such circumstances in the future. Petitioner declined to take the stand, and thus, the hearing officer was permitted to draw the strongest inference against her permitted by the record (Matter of Carangelo v Ambach, 130 AD2d 898, 900 [3d Dept 1987], appeal denied 70 NY2d 609 [1987]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ADVOCATZ and Eisner & Associates, P.C., Stop The NYC Department of Education From Charging Teachers More Than 3 Years After the Alleged Misconduct

ADVOCATZ and the excellent law firm of Eisner & Associates, P.C., have won a precedent-setting decision in the NY State Supreme Court and the First Department Appellate Division prohibiting the NYC DOE from serving 3020-a charges on a Respondent which cite alleged misconduct taking place more than 3 years before the Specifications were served.

David Suker

David Suker's daughter was accepted into an Upper West Side school although he was not a resident in the area, more than 5 years before Theresa Europe of the Gotcha Squad tried to frame David's act as criminal. The school never had a problem. The Gotcha Squad made it one 5 years later.

I attended the 3020-a of teacher David Suker, and I was appalled by the lack of defense of NYSUT Attorney Steve Friedman and the horrific, insulting, and improper yelling of Gotcha Squad Attorney Nancy Ryan as she made David into a criminal.

Due to Attorney Steve Friedman's disastrous performance as David's attorney, Eleanor Glanstein, herself a biased and narrow-minded arbitrator, in my opinion, sympathized with Nancy Ryan's theatrics and argument that David was a criminal for getting his daughter accepted into this school on the Upper West Side when he did not live in the catchment. Arbitrator Glanstein ignored the 3-year time bar for charges, and terminated David. He appealed to the NYS Supreme Court and won:

Here is the decision of New York State Supreme Court Judge Alice Schlesinger (July 25, 2013)

and here is the recent ruling by the First Department, after the NYC DOE Appealed Judge Schlesinger's decision:

Matter of Suker v New York City Board/ Dept. of Educ.

2015 NY Slip Op 04940

Decided on June 11, 2015

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 June 11, 2015 
Tom, J.P., Renwick, Manzanet-Daniels, Kapnick, JJ.

15398 103742/12 
[*1] In re David Suker, Petitioner-Respondent, — 

v

The New York City Board/ Department of Education, Respondent-Appellant.

Zachary W. Carter, Corporation Counsel, New York (Julie Steiner of counsel), for appellant.

Eisner & Associates, P.C., New York (Maria L. Chickedantz of counsel), for respondent.

Order and judgment (one paper), Supreme Court, New York County (Alice Schlesinger, J.), entered August 23, 2013, which, in this proceeding brought pursuant to CPLR article 75, granted the petition to vacate a hearing officer's award to the extent of annulling the portion of the award that sustained the third set of charges against petitioner and imposed the penalty of termination of his employment as a tenured New York City public school teacher, and remanded the matter to respondent New York City Department of Education (DOE) for the imposition of an appropriate lesser penalty, unanimously affirmed, without costs.

 

There is no evidence in the record to support petitioner's claims that his due process rights were violated, since he was

provided with the third set of charges more than 10 days before he offered testimony with respect to those charges, and he did not object to DOE's request for consolidation of all of the charges against him. Even though DOE did not specify the precise sections of the Penal Law allegedly violated, the allegations in the three specifications fairly apprised petitioner of the basis of the alleged misconduct (see Duncan v New York City Dept. of Educ., 124 AD3d 463, 464 [1st Dept 2015]).

Nevertheless, Supreme Court did not exceed its authority in finding that the third set of charges against petitioner was time-barred. Education Law § 3020-a(1) requires that disciplinary charges against a teacher be brought within three years from the date of the alleged misconduct, unless the alleged misconduct constituted a crime when committed. Petitioner was not required to raise the statutory time limitation set forth in Education Law § 3020-a(1) as a defense in the disciplinary proceeding. Where, as here, "a statute creates a right unknown at common law, and also establishes a time period within which the right may be asserted, the time limit is . . . a condition attached to the right as distinguished from a [s]tatute of

[l]imitations which must be asserted by way of defense" (Lincoln First Bank of Rochester v Rupert, 60 AD2d 193, 196 [4th Dept 1977]). Accordingly, DOE had the burden of establishing that it met the time requirement set forth in Education Law § 3020-a(1) or that the crime exception to the time requirement applied (see Matter of Aronsky v Board of Educ., Community School Dist. No. 22 of City of N.Y., 75 NY2d 997, 999-1000 [1990]). DOE failed to meet its [*2]burden. The record shows that the alleged misconduct, petitioner's submission of false documentation to DOE in order to improperly obtain his daughter's admission to DOE schools for which she was not zoned, occurred more than three years before DOE brought the third set of charges against petitioner. Although DOE requested that the Hearing Officer take judicial notice of two sections of the Penal Law and repeatedly characterized petitioner's conduct as "criminal," the Hearing Officer never found that the conduct constituted a crime, and there is no basis for making such a finding. Accordingly, the third set of charges were time-barred.

As the DOE essentially conceded at the disciplinary hearing, the first and second set of charges against petitioner do not

support the penalty of terminating petitioner's employment with DOE. Accordingly, Supreme Court correctly remanded the matter to DOE for the imposition of an appropriate lesser penalty.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JUNE 11, 2015

CLERK
Below is my previous post about David's win in the NYS Supreme Court:

Monday, September 30, 2013

NYC Teacher David Suker Fought The Gotcha Squad - Department of Education in NYC - and Wins His Case in Court by Betsy Combier

David Suker

re-posted from Parentadvocates.org

David was fired from his teaching position at his "teacher trial" or 3020-a, by the deadly team of Arbitrator Eleanor Elovich Glanstein, Department Attorney Nancy Ryan, and New York State United Teachers (NYSUT) Attorney Steven Friedman. This lethal team violated David's due process and, writes New York State Supreme Court Judge Alice Schlesinger, the law, and then she vacates the termination.

Theresa Europe's email to OSI Director Regina Loughran

 From the desk of Betsy Combier:

David Suker taught for 14 years at Offsite Educational Services which transitioned into GED Plus, without ever being brought to 3020-a prior to the proceeding described here, namely the 3020-a arbitration hearing, which was brought against him by the New York City Department of Education in 2012. I knew David from the Rubber Room at 25 Chapel Street in Brooklyn, New York. I started walking into this room with David Pakter around 2004, and talked with teachers who were there and followed their stories (see Steve Ostrin and Polo Colon, for example). 

David Suker was and is an excellent teacher and a cult hero among students. He was a leader of Occupy Wall street, and had a run-in with the police which became misconduct charged against him. He had the very unfortunate circumstance of taking NYSUT's offer of representation, and not hiring a private attorney. NYSUT Assistant General Counsel Claude Hersh appointed Senior Attorney Steven Friedman. Steve worked in a deadly partnership with Attorney Eleanor Elovich Glanstein and DOE prosecuting Attorney Nancy Ryan. Why do I call this threesome "deadly"? Because their goal was to terminate those people brought before them. See the case of  Nicola De Marco). Recently, sources tell me, Eleanor Glanstein was fired or removed from the UFT-DOE Panel. Nancy Ryan and Steve Friedman were moved to other Arbitrators. Thank goodness this team was broken up. I was fortunate enough to watch the three of them for several years, and, most recently, see how Nancy Ryan destroyed a Department of Labor Unemployment Hearing in August 2013. More about that in a later post.

Eleanor Glanstein is a very small woman who shrugs off violations of law and contract. She dismisses Nancy Ryan, a constant screamer and hysteric, as part of the order of business. Everything Nancy says is what Eleanor writes in her decision at the end of the 3020-a. Eleanor had a lot of power and was able to get away with her irrational rulings because her brother Larry Elovich was a political Somebody out on Long Island. 

The way the Ryan-Friedman-Glanstein termination process worked was as follows: Nancy Ryan would pursue any and all charges with a vengeance that left everyone in the room stunned. Her attacks are personal and vicious, and she continues now, only with a new arbitrator. There are no rules, laws, or contracts that she cares about. Indeed, these are always discarded as wrongly placed barriers to getting to the core of the case, namely, terminating a "criminal" (the poor employee/victim). Nancy must be a very unhappy person to be so malicious. All allegations against a person are "facts", which Nancy defends with her lifeblood. Steve Friedman basically plays along to get along. His defense is the worst of any NYSUT Attorney whom I have observed since I started attending 3020-a hearings in 2003-4. He has none. Steve presents some evidence, but he really would like his client to resign, retire, or go away. He permits, by doing nothing to stop her, Nancy's hysterics. While Steve sits there not doing much of anything and Nancy is screaming that the teacher/employee is criminally insane, Eleanor shrugs off Nancy but almost always terminates the charged employee. Eleanor refuses to concern herself with any issues of probable cause and procedural error. It is good that she is no longer on the panel. No one will miss her....except maybe Nancy.

David was brought up on three sets of charges, the first two sets were unsubstantiated and/or minor, but Eleanor Glanstein found almost all specifications were valid. Then Steve allowed Nancy and Terri Europe to bring forth a third set of charges about David's daughter's school to which she had been admitted more than 7 years earlier, and Eleanor consolidated this set with the previous two. Former Director of the Administrative Trials Unit, the Gotcha Squad, Theresa ("Terri") Europe, heard from Nancy that David had placed his daughter in an upper west side elementary school and then gave an address for himself which was not supposedly in the district (he did not have a permanent address at the time). According to A-101, the Department of Education had 30 days to investigate. David was not told of any investigation. By the time he was charged with 3020-a, his daughter was in high school, where residence did not matter. David's daughter's mother lived in Bronx the entire time. In other words, this issue was a non-issue. 

3020-a charges may go back only 3 years, unless the act charged was a crime when committed. David was not accused of a crime when his daughter started school. Thus, when Nancy told Terri that she had discovered the misconduct of David ten years earlier, Terri told Regina Loughran, Deputy Commissioner of the Special Commissioner of Investigation (SCI)  that she wanted an investigation of David, but this violated 3020-a law. 

This type of targeting is a violation of law. Yet, Eleanor Glanstein, with Steve Friedman's permission, charged David with the "misconduct" and David was terminated for fraudulently putting his daughter in a school without living in the district of the school.

David asked us at Advocatz to help him appeal this decision. We gladly contributed. At 3020-a, the Department, "Respondent" , had the burden of proof, and failed to provide a minimum amount of evidence that could justify the determination of termination as a just and equitable award. Certainly there was a clear failure to provide "preponderance of the evidence", which is the required standard pursuant to Education Law Section 3020-a. 

Glanstein's irrational conclusion was that Petitioner's acts were deliberately planned to throw his long and successful career as a tenured teacher out the window. In other words, Glanstein made a determination reeking of bad faith where she ignored the testimony of David Suker, "Petitioner", that he knew nothing about any residency requirement for Columbia Secondary, and that his satisfactory teaching performance showed he was an excellent teacher, to find that David inexplicably committed fraud on his employer. This made no sense. To be fraudulent, a false statement must be made with the intent to deceive the victim. And, the false statement must be made with the intent to deprive the victim of some legal right, and the victim's reliance on the false statement must be reasonable. Therefore, it would have been reasonable for Columbia Secondary School to question/investigate/address Petitioner's residency within the 30-day period cited in the Regulation, A-101, but not have the NYC DOE Office of Legal Services charge him five(5) years later. 

When David filled out the admission forms to Columbia Secondary School for his daughter he gave the address at which he and his daughter were staying in 2007. He did not lie. No one from the school ever questioned him about this address, and the only requirement for the school admissions is that first consideration goes to those students who live above 96th street. Students in the school population come from throughout the New York City area. Here, David never intended any fraud. No misconduct existed then or now, and no notice was given to David about possible wrong-doing, so he could address the issue, until it was "too late", and he was charged by Theresa Europe with 3020-a.

Ms. Europe had no authority, as the Attorney for the Department and Supervisor of the Administrative Trials Unit, to charge David five years after Columbia Secondary accepted his daughter. David invoked the doctrine of laches. From Wikipedia: "Laches is an "unreasonable delay pursuing a right or claim...in a way that prejudices the (opposing) party." When asserted in litigation, it is an equitable defense, or doctrine. The person invoking laches is asserting that an opposing party has "slept on its rights," and that, as a result of this delay, circumstances have changed such that it is no longer just to grant the (Petitioner's) original claim. Put another way, failure to assert one’s rights in a timely manner can result in a claim being barred by laches. Laches is a form of estoppel for delay.

Ironically, while David was charged with filling out erroneous records for his daughter, the Department refused to give him the requested records of the students whose complaints in 2009 led to some of his charges. Here is an excerpt from the transcript:
"Mr. Friedman: Okay, Madam Hearing Officer, pursuant to your previous ruling, I now call for production of any counseling records, disciplinary records, attendance records and anything else that would have been from December of 2008 to April of 2009 and again, pursuant to your prior ruling, I reserve the right to recall this witness in the event that anything in those documents turns up to be material relevant in this case.

Ms. Ryan: I have already asked for those documents, that's what he got...That's the extent of what they have...Yeah, what do you think I asked for. You think I asked them to pick out three papers?" (Transcript, "T" pp. 127-128)

Mr. Friedman: "If I understand correctly, there's absolutely no record of that student being in the program then. Nothing. No test results, no applications, no records that she shows" (T146)
Hearing Officer: "I've heard you both...but I will not strike the student's testimony. The application is denied" (T146-147).

Mr. Friedman: " Then can I respectfully request then that the Hearing Officer take notice that we are very, very hampered in our defense?" (T147)

Glanstein didn't care.

But luckily, New York State Supreme Court Judge Alice Schlesinger did care. She threw out the third set of charges about David's daughter and her admission to the West Side school, and remanded back to the Department for a penalty that was less than termination. Schlesinger mentioned Nancy Ryan in her decision:

"However, in the two-month period between the dates that Mr. Suker was informed of these two Charges, a related but somewhat unusual communication occurred. Nancy Ryan, the attorney prosecuting the matter for the Administrative Trials Unit of the Office of Legal Services (ATU) contacted Theresa Europe, Deputy Counsel to the Chancellor for the NYC Department of Education, and gave her “interesting” information relating to Mr. Suker’s daughter which Ms. Ryan had noted while preparing the case.*
...Ms. Europe ended her letter: “Can you open an investigation? We are scheduled to start trial but I can try to put it off if your office will investigate. Let me know and thanks.”....The findings from this investigation then formed the predicate for the final Charge, notice of which was sent to Mr. Suker on April 20, 2012, after the 3020-a hearing had begun...I thus find that all of the acts in this Charge, in all three Specifications, are time-barred; because the conduct has not been proven to specifically constitute a “crime when committed,” the acts fall outside the three-year limitations period for disciplinary charges under § 3020-a."

Last week, the New York Law Department filed an Appeal with the Appellate Division. David remains off the payroll until the resolution of this appeal.

See more about Regina Loughran below:

Law and Disorder: Special Victims Unit

Investigators say the city's independent schools watchdog has often failed to bark

 Tom Robbins


published: December 06, 2005 Back in 1997 police arrested a man named Ronald Taylor, who worked as an assistant public school principal in Harlem. Taylor, 50 years old at the time, easily ranked as a parent's worst nightmare. His arrest came after the mother of a student walked into a local police precinct and reported that Taylor had lured her 15-year-old son to his apartment with an offer to play with his video game collection. He then proceeded to sexually molest him. When cops went to investigate they found Taylor had tricked up his West Harlem apartment as a kids' game room. They also found some 400 X-rated videos.


illustration: Glynis Sweeny
Details:
See also:

Too Hot to Handle
How a crooked congressman got a pass from school probers
by Tom Robbins , Village Voice
LINK

Unlike a score of school-personnel sex-abuse cases from that era, Taylor's arrest got little news play. The Times ran a short item on an inside page and the Daily News carried one as well, on page 79. The lack of attention was partly because the arrest did not emanate from the efficient publicity machine of Edward Stancik, the late special commissioner for investigation for city schools.

For 12 years until his death in 2002, Stancik's gaunt features were a staple on TV newscasts as he told of corrupt bureaucrats and twisted sex abusers nailed by his office. Such cases made Stancik wildly unpopular in the teachers' union offices and the old Board of Education headquarters on Livingston Street in Brooklyn, where he was viewed as a merciless inquisitor, a publicity hound whose investigations were measured mainly for their TV and news-ink potential.

On the other hand, many politicians, journalists, prosecutors, and parents adored him, viewing Stancik as a valiant warrior against an intractable bureaucracy. So what if he knew how to use the media? What better way to send a message to the public and bad guys alike that wrongdoing won't be tolerated? When Stancik died at age 47 of heart failure in March 2002, there were some misgivings expressed about his occasional overzealousness. But the editorial call was to make sure the watchdog office he'd led didn't lose its fangs.

But a few months after Stancik's death, something unusual in the world of law enforcement happened. A former top investigator in his office, an ex-detective who had been a supervisor there for five years, sat down and wrote two lengthy letters to city officials alleging that a top Stancik deputy named Regina Loughran had dropped the ball in several important cases, either delaying arrests or letting the bad guys get away altogether. In some instances, it was alleged, Loughran had changed cases from being "substantiated" to "unsubstantiated."

The complaints were investigated by city attorneys, and several were confirmed. Yet Loughran today remains as powerful as ever, serving as the $151,000 number two official in the special investigators' office. Former and current investigators, both men and women, who spoke under condition of anonymity, told the Voice they were puzzled by the inaction. "If we had caught someone in the education system behaving this way, they'd be long gone," said one former investigator.

Among the cases the investigators cited was that of Ronald Taylor.

According to the former detective and others familiar with the case, nearly a year before Taylor's arrest by police, investigators in Stancik's office had asked permission to launch a probe of the school official. The request was made after a prison social worker contacted the investigations office to say that an inmate was claiming to have been sexually abused by Taylor, his former teacher. Investigators initially dismissed the charge as one more prisoner trying to reduce his sentence. But the details of the story were disturbingly precise: Taylor had asked the student, then 15 years old, to carry a crate of milk up to his apartment. Once he got him inside, Taylor had sexually assaulted him. The inmate described the apartment in detail.

Investigators drove to upstate Green Haven Correctional Facility to interview the inmate, who convinced them that a sexual predator was loose in the schools. The statute of limitations had expired on the earlier assault, but the inmate said he was willing to wear a recording device to a meeting with Taylor to see if he could get him talking about other victims. The investigators relayed that offer to Loughran, then the attorney-in-charge of the child sexual-abuse unit and a key figure in the office. Loughran refused.

"The issue for her seemed to be, 'Why spend the time and money to get this kid out of jail and wire him up for a case that's too old,' " a former investigator told the Voice. "We argued that if we have this one person there are probably others out there at risk."

Loughran was adamant. But the investigators, most of them retired NYPD detectives who lived by chain of command, declined to appeal the decision over her head. The case was closed. Nine months later, the outraged mother of another victim filed her complaint with police. Taylor was immediately arrested and later sentenced to serve up to three years in prison. Under questioning, he said something that chilled both cops and school investigators. He said he was HIV-positive.

Ed Stancik's public posture was of a manager with a stern "the buck stops here" policy. But according to the former detective and others, the often ailing commissioner ceded wide authority to Loughran, a hardworking former sex-crimes prosecutor whose ability to turn out clearly written reports was highly prized by Stancik and his successor.

Investigators said Loughran was also often tempestuous, given to sudden rages and sulks. What made their jobs most difficult, however, was her apparent skittishness about dealing directly with outside prosecutors who were needed for any criminal referrals. "She just seemed intimidated or something," said one veteran ex-detective who worked in the office for years. "If we had a tape we needed to get to the D.A. she would have you drop it off with the officer in the lobby, rather than make a call to the prosecutor personally."

As a result, the investigators said, the case of the predatory assistant principal was just one of the instances in Stancik's old office where the system simply broke down.

There was the case of the art instructor accused of having displayed nude photos of himself to disabled students, confiding that "what a girl wants is a big dick." (The photos weren't found, and Loughran decided the students' testimony was "problematic," ordering investigators to change their findings from "substantiated" to "unfounded." When Board of Ed administrators asked for investigators to testify against the teacher to bar him from further employment, Loughran refused to allow it.)

There was the 48-year-old male teacher who admitted driving a 17-year-old female student to a funeral home parking lot in the Bronx and asking her, "What if I told you I wanted to go down on you?" (The teacher said he was trying to help her learn to fend off improper advances. The principal vouched for the teacher, and the girl later admitted she'd neglected to say they were also drinking beer at the time. Loughran said her testimony was inconsistent and ordered the case dropped.)

And there was Paul Kerner, a 61-year-old teacher at Sheepshead Bay High School who romanced an 11th-grade girl, taking her to Atlantic City casinos and a motel where he coerced her into performing fellatio and other sex acts. The investigator on the case urged Loughran to make a quick criminal referral to prosecutors, but the deputy balked. "I don't know what to do, let's hold off," she said, according to a report of the incident.

The office dithered so long that the victim called the investigator, complaining that Kerner was now stalking her, and asking why he hadn't been arrested yet. The investigator asked Loughran for permission to take the case to a friend at the FBI. Loughran expressed skepticism that the bureau would be interested, but reluctantly agreed. But when the FBI came seeking the backup documents for the case, Loughran balked again, forcing agents to get a grand jury subpoena. (Kerner was eventually convicted in federal court, where he received a 33-month sentence. Annoyed at the investigator who had called the bureau, Loughran allegedly had him transferred out of the sex-crimes unit.)

Yet another disturbing case posed an investigative challenge, one that Stancik's former detectives readily accepted, given the stakes, but which Loughran flat-out rejected. In that instance, a former city high school student, now a grown man and a member of the Army Reserves, called the office to say that his former principal had repeatedly sexually abused him a few years earlier. According to his story, he had been a fatherless youngster whom the principal had taken under his wing, bringing him on camping trips to Lake George and elsewhere where he had repeatedly molested him. On the advice of his therapist, the man had decided to confront and report his abuser. Once he did, the principal immediately resigned.

The Stancik investigators were able to get a consensually recorded telephone conversation in which the principal admitted his sexual abuse of the former student. Like the Ronald Taylor case, however, the acts were too old to prosecute. But investigators said the ex-principal (a Boy Scout troop leader who still lived with his mother) fit the profile of "a classic pedophile," and they believed he had to have preyed on others.

The next step, they proposed to Lough-ran, would be to wire up the ex-student and have him meet with the former principal to see if they could pick up leads on other victims. They would also talk to teachers and students at the principal's school to find out if other boys had been similarly "befriended." Loughran wouldn't hear of it. According to two former investigators, she said, "He is out of the system. Shut it down." (Loughran has denied using those words.)

In an effort to try to breathe new life into the case, one of the investigators reached out to a federal prosecutor he knew who was familiar with sex-crime statutes to ask if there was any other law the ex-principal might have violated. Loughran later said she was "upset" and "embarrassed" by the call, which she said duplicated her own research and had been made without her permission. Investigators said it was much more dramatic than that. "She was livid," said one of them. When the investigator was asked why the call had been made, he responded: "Because I'm trying to catch the son of a bitch."

According to the investigators, Lough-ran retaliated by shifting one of the two probers who had worked the case, considered one of the office's most productive teams, out of the sex unit. Loughran later insisted the assignment change had been made by Stancik, not her.

But it still wasn't over. The former principal, concerned at possible civil liabilities, offered to purchase a $250,000 house for the victim in exchange for a promise not to pursue further legal action. When Loughran learned of the offer, she allegedly said that the victim might be arrested for extortion, a suggestion that appalled the investigators. (As it happened, the deal fell through.)

"He had been a principal for 20 years, he had such power," said one of the investigators recently. "All he had to do was find another weak kid. We felt there had to be other victims. It was so egregious to shut it down. Pedophiles don't do it once and then go home. You don't have to be Columbo to figure that out."



The two letters detailing the complaints about the bungled past cases landed on the desk of city department of investigations commissioner Rose Gill Hearn in early 2003.

Hearn technically oversees the schools investigation unit (its offices are located in the same Maiden Lane building as DOI), but because of its sensitive mission it operates largely independently. Still, Hearn took the complaints seriously, assigning a pair of senior attorneys to look into them. Over the course of several months, the attorneys interviewed 10 current and former employees of Stancik's old special commissioner's office, including Loughran. During the interviews, the attorneys turned up another instance, in which a complaint about a Bronx teacher accused of sodomizing several young male students had been confirmed by the Stancik office but had somehow never been referred to prosecutors.

Those findings were in turn forwarded to Stancik's successor, Richard J. Condon, a former police commissioner who in the past headed investigative squads for the Manhattan and Queens district attorneys. When Condon took over in June 2002, he retained Loughran, bumping her up a notch to first deputy commissioner. A DOI spokesperson, Emily Gest, said the office hadn't ordered any changes or discipline for Loughran, but had "shared the facts and findings of its investigation, for Commissioner Condon to take any necessary remedial actions."

Condon said that he too took the complaints seriously, spending hours wading through old investigative files. "I was not a witness to this history," he said. "Most of these things happened years before I got here."

The standard he used in examining the cases, Condon said, was whether Loughran had had a "rational basis" for her decisions. In two instances—that of the art instructor who had shown the nude photos, and the teacher who had posed the obscene remarks to the student—Condon said he disagreed with Loughran's actions, but cautioned that even this conclusion was "probably unfair."

As for the failure to make a criminal referral in the Bronx sodomy case, Condon said the explanation was simple. "She screwed up. It happens." He noted that the office had handled a total of 1,800 cases during the period under review. Loughran also later told DOI's inquiry that she was "baffled" how she had failed to make the referral, but said if she was to blame so were her former bosses, Stancik and Robert Brenner, who served as Stancik's first deputy commissioner. (Brenner, now with the investigations firm Kroll Inc., did not return calls.)

At the end of the day, however, Condon said he chalked up the complaints to honest disagreements. "I am used to investigators and prosecutors arguing over whether cases should be prosecuted," he said.

Condon told the Daily News' Kathleen Lucadamo, who asked about the probe last month, that he considered Loughran "one of the straightest, most hardworking prosecutors I have ever worked with."

He told the Voice that he'd encountered none of the erratic behavior by Loughran described by the investigators. "I have been here three and a half years working next door to this woman and I have never seen the behavior these people describe," he said.

In a letter to DOI, however, Condon said he had changed office procedures to make sure he personally reads all complaints that come into the office and examines "every substantiated and unsubstantiated case."

Loughran, who declined to speak to the Voice, wrote Condon a lengthy defense of her actions, insisting that her decisions at the office had been "common-sense based and not capricious by any rational standard."

The investigators, past and current, remain unconvinced. "This isn't just disagreeing over cases," said one. "Yeah, there's always tension [in other investigative offices] between the investigators and the prosecutors. But it's always motivated by respect, and everyone understands they're a team. Here, you don't get that. And they're supposed to be about helping the kids."

The Two Parts of 3020-a: Evidence/proof of Charges, and Penalty - Case of Jay Dubner

Re-posted from
 "Inside 3020-a"

Thursday, October 2, 2014

Appeals of 3020-a: the Case of Jay Dubner v New York City Department of Education

A trier of fact in 3020-a, the Arbitrator, has actually two decisions to make in each and every case. One is, what was proven by the preponderance of evidence, and the Department of Education has this burden throughout the hearing. Two, what penalty shall be given for the proven Specifications?

When deciding penalty in 3020-a, all Arbitrators must look at prior history (this is for "progressive discipline") of the employee/Respondent, credibility of witnesses, and what is on the record as evidence. All arbitrators must take into consideration of the educator's remorse for what happened, and what he/she did to undo and bad acts in the past (did he/she go to class for pedagogical improvement? Did he/she go to rehabilitation if there was an alcohol/drug issue?)

Looking through appeals of 3020-a cases which, before 1994, went before the New York State Commissioner of Education, I found the case below, Jay A. Dubner v NYC DOE, where Dubner successfully appealed his termination as too harsh:

Appeal of JAY A. DUBNER from a determination rendered by a hearing panel convened pursuant to Education Law '3020-a concerningcharges brought against him by the Board of Education of the City School District of the City of New York.

Decision No. 13,021

(October 15, 1993)

Neal Howard Rosenberg, Esq., attorney for petitioner

Lawrence E. Becker, Esq., attorney for respondent, Katie R. Raab, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals the determination of a hearing panel convened pursuant to Education Law '3020-a finding him guilty of conduct unbecoming a teacher and prejudicial to the good order, efficiency and discipline of the service, and authorizing termination from his position. The appeal must be sustained to the extent indicated.

Petitioner is a tenured teacher of special education. He has been employed by respondent City School District of the City of New York ("respondent") for nearly 15 years and, at the time of the events giving rise to this appeal, was serving in a non-classroom position in Community School District No. 17.

On May 8, 1989, petitioner was arrested, and by indictment filed May 25, 1989 in Supreme Court, Kings County, was charged with multiple felony counts of sale and possession of controlled substances. Petitioner was reassigned to a position with the Central Based Support Team (CBST).

On June 19, 1990, petitioner pled guilty in Supreme Court to criminal sale of a controlled substance in the third degree, a class B felony. On July 20, 1990, he was sentenced to an indeterminate sentence of 2 to 6 years in prison.

On November 30, 1990, the Chancellor submitted a charge to the board of education reciting the above conviction, alleging that it constituted conduct unbecoming a teacher and conduct prejudicial to the good order, efficiency, and discipline of the service, and that it constituted substantial cause rendering petitioner unfit to continue as an employee. On December 5, 1990, the board found probable cause for such charge.

A hearing panel convened on May 24, 1991, pursuant to Education Law '3020-a, and heard testimony for a total of 8 days, concluding on February 27, 1992. The panel produced a record of approximately 800 pages of testimony. On April 1, 1992, the panel found petitioner guilty of the charge and authorized his dismissal, by a vote of 2-1. Petitioner was dismissed by formal action of the board of education on May 20, 1992.

This appeal was commenced on June 18, 1992, by service of the petition upon respondent board of education, and petitioner requested a stay of his dismissal. That stay was denied on June 30, 1992.

There can be little doubt as to the seriousness of the underlying offense. The superseding indictment charges petitioner with criminal possession and sale of cocaine on two separate occasions (both sales would be class A-II felonies punishable by 8 1/3 years to life in prison) and criminal possession of cocaine on a third occasion. Petitioner pled guilty to a single count of criminal sale of a controlled substance in the third degree, a class B felony, and received a sentence of 2 to 6 years in prison.

Petitioner contends that he was addicted to cocaine prior to his arrest, that his crime was directly related to his addiction and that he entered into a program of treatment. He claims that his treatment was successful, he has been successfully rehabilitated and has indeed performed his assigned work duties with respondent following his rehabilitation. He further claims that his dismissal violates '504 of the Rehabilitation Act of 1973. Petitioner asks that I reverse the hearing panel's finding as to guilt, and that I grant such other relief as may be proper under the circumstances.

Respondent contends that the disciplinary proceeding was in all respects correctly conducted and the penalty of termination of services is proper. Respondent claims that because of substantial adverse publicity at the time of petitioner's arrest and sentencing, it would be impossible for petitioner to discharge the duties of a teacher. Respondent further claims that the record does not establish that petitioner was addicted prior to his arrest, nor that his condition was in any way caused by addiction. Respondent further contends that the Rehabilitation Act is not applicable to the circumstances of this case.

Petitioner asks that I reverse the hearing panel's finding as to guilt. I decline to do so. There is no question that petitioner is guilty of the underlying criminal charge. The record contains both the minutes of petitioner's plea on June 19, 1990, to a class B felony and a certificate of disposition duly executed by the Supreme Court Clerk. Conviction of this felony clearly constitutes conduct unbecoming a teacher and conduct prejudicial to the good order, efficiency, and discipline of the service. Accordingly, there is no basis for reversing the panel's determination as to guilt.

With respect to the issue of penalty, Appeal of Board of Education of Community School District 19 (32 Ed Dept Rep 354), decided while this appeal was pending, is on point. In that case, I set forth a number of factors which must be considered when a respondent claims that his criminal offense was a result of an alcohol or drug-related problem. The factors are: (1) whether or not the drug-related arrest and conviction that formed the basis of the charges were the manifestation of respondent's substance abuse problem; (2) whether or not respondent has acknowledged his problem; (3) whether or not respondent has successfully undergone treatment for his problem; and (4) whether or not respondent demonstrates a capacity to carry out his duties due to his progress in the treatment program (32 Ed Dept Rep 354 at p. 357).

With respect to the first question, whether or not petitioner was addicted to drugs prior to his arrest, the record contains the testimony of fourteen persons, including petitioner. The critical time period, of course, is the time immediately prior to the arrest. With respect to that time period, only petitioner testified directly, and respondent produced no rebuttal of his claim that he was addicted then. Although petitioner arguably failed to produce certain relevant witnesses who could have bolstered his testimony, there is some question whether those witnesses were within his control, and I, therefore, decline to draw any unfavorable inference because of their failure to testify. Accordingly, there is sufficient evidence in the record to convince me that petitioner had a substance abuse problem prior to his arrest.

With respect to the second factor discussed in Community School District 19, the record offers sufficient evidence that petitioner acknowledged his drug addiction. On May 31, 1989 following his May 8, 1989, arrest, petitioner voluntarily entered a six-week inpatient drug treatment program at Gracie Square Hospital. Although petitioner admits initially denying he had a substance abuse problem, he later fully acknowledged and accepted his condition. This was validated by the testimony of a physician and a licensed drug counselor. Both testified that such denial is typical of patients new to recovery. According to these professionals, recovering addicts have a tendency to deny the existence of a substance abuse problem during the early stages of recovery in an attempt to minimize the severity of their condition. Once petitioner accepted his condition, he began to participate actively in treatment.

Petitioner makes the claim that his treatment has been successful, the third factor set forth in Community School District 19. That treatment consisted of not only a six-week inpatient drug treatment program, but participation for one year in an after-care program at the same hospital as an outpatient. During his incarceration, which lasted approximately 3 1/2 months, petitioner was involved in the Alcohol and Substance Abuse Treatment (ASAT) program sponsored by the New York State Department of Corrections, which consisted of group therapy and participation in Narcotics Anonymous meetings. Petitioner maintains that he attends Cocaine and Narcotics Anonymous meetings three or four times per week. As of January 1992, petitioner was enrolled in courses to become a drug and alcohol substance abuse counselor to assist other addicts in recovery. Based upon these facts, petitioner has demonstrated an earnest desire to be rehabilitated.

With respect to the question of petitioner's present capacity to carry out his duties, the record contains testimony from four of petitioner's current colleagues and supervisors in the administrative offices of the board of education. Witnesses referred to petitioner as an excellent employee. He was further described as very good at his job and on task prior to and following his May 8, 1989 arrest. Additional testimony revealed that petitioner performed duties as required, was very organized, focused, rarely absent and arrived for work on time. According to a supervisor, prior to petitioner's arrest, petitioner trained an assistant and overall, left the office in a better condition than he found it.

Following his May 1989 arrest and subsequent job reassignment in September 1989, petitioner testified he was only absent once. Petitioner further reveals that he worked when it was not required, often stayed late and worked on holidays and during summer vacations. At his position with the CBST, petitioner carried a case load approximately double that of his co-workers and also was assigned to special projects.

The primary purpose of a disciplinary hearing is not punitive, but rather, to determine a teacher's fitness to teach and carry out professional responsibilities (Matter of Bott v. Bd of Educ., 41 NY2d 265). After careful review of the lengthy testimony and numerous exhibits, I am unable to conclude that petitioner is unfit to teach. Moreover, petitioner has confronted his drug addiction and has, thus far, demonstrated success in overcoming it. Finally, there is no basis to conclude that the underlying conduct that resulted in the charge will recur.

With respect to the nature of the penalty imposed, it is well settled that the Commissioner may substitute his judgment for that of a hearing panel regarding the penalty imposed (Shurgin v. Ambach, 83 AD2d 665, 442 NYS2d 212). This requires an assessment of the measure of discipline and whether it is proportionate to the offense (Matter of Mockler v. Ambach, 79 AD2d 745, 434 NYS2d 809, lv to app den 53 NY2d 603, 439 NYS2d 1026; Matter of Kloepfer v. Commissioner, et al., 82 AD2d 665, affd 56 NY2d 700; Shurgin v. Ambach, supra). It is within the Commissioner's authority to reduce a penalty (Matter of Board of Education of the Center Moriches UFSD, 22 Ed Dept Rep 113). In that case, the Commissioner determined that despite a panel's finding of incompetence, termination was not necessary as recommended by the hearing panel. In Appeal of the Board of Education of the Malverne UFSD (29 Ed Dept Rep 363, affd sub nom Matter of Malverne UFSD v. Sobol, 181 AD2d 371), I substituted my judgment for that of the panel, reducing the penalty imposed.

In the case before me, the panel has recommended that petitioner be terminated. However, the record supports the conclusion that petitioner suffered from drug addiction prior to his arrest, acknowledged his problem, sought treatment that has been successful and is capable of carrying out his professional responsibilities. Termination of petitioner's services under these circumstances would be unduly harsh.

I find that a penalty of two years' suspension without pay is more appropriate than termination and will be sufficient to impress upon petitioner the seriousness of his actions and to serve as a deterrent to any future similar actions.

Finally, petitioner's reliance on '504 of the Rehabilitation Act (20 U.S.C. '794) is misplaced. Assuming without deciding that petitioner qualifies as an "individual with a disability" as defined by 20 U.S.C. '706(8), and that '794 is otherwise applicable, it is clear that the disciplinary action taken here by respondent was not taken "solely by reason of his or her disability." Disciplinary action was taken as a result of petitioner's commission of a class B felony. Where an employee is disciplined for criminal activity, the Rehabilitation Act has no application (Richardson v. United States Postal Service, 613 F. Supp. 1213; Franklin v. United States Postal Service, 687 F. Supp. 1214). Where a teacher commits a crime, one may also question whether that teacher is an "otherwise qualified individual" for purposes of 20 U.S.C. '794, but such speculation is unnecessary given the circumstances of the case.

In view of this disposition, it is unnecessary to consider or discuss the other contentions of the parties.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that petitioner be suspended without pay for a period of two (2) years, commencing May 20, 1992, and terminating May 19, 1994.

END OF FILE