to terminate him at 3020-a both at the New York State Supreme Court and the Appellate Division, First Department! See the decision of the Appellate Division, First Department, below.
against tenured teachers by attacking the Appellate Court for putting Peter Principe back at the DOE. Shame on the News. No one over there attended Peter's 3020-a arbitration, I know, because I was there. I saw the video, which did NOT show that Peter swung anybody, nor did he put anyone in a headlock. I also spent more than two years talking with Peter when he was imprisoned at the 25 Chapel Street Rubber Room. I visited there every week as the UFT Staff Representative working out of 52 Broadway, 16th floor.
Peter was well-liked at his school, even the kids liked him. He did his job well, and was framed and thrown out without just cause. I believe that his NYSUT Attorney did not provide a sufficient defense. The shady security officer who made the charge against him was removed in handcuffs after Peter's hearing ended.
As I say below in the article posted on my website Parentadvocates.org, Arbitrator Stuart Bauchner took an instant dislike to Peter when we walked into the room to start his hearing (I was "the public"). This did not go unnoticed in the NYS Supreme Court, and was a reason for Peter's win there. By the way, what on earth is the DN saying with this:
Is that an admission that no one over at the DN read anything? In fact, I am so happy that Peter never settled with the DOE so that he can now sue them. In fact, I'm going to contact him right now with my thoughts!
Below is the article which proves incompetence by the NY Daily News (maybe the News editor should not be writing editorials at 4:05 AM?):
by Betsy Combier
Mayor
Mike Bloomberg was embarrassed in 2009-2010 by the public ridicule that
followed media coverage of one of the most ridiculous decisions of his
10-year reign as Mayor, namely to warehouse hundreds of public school
teachers in spaces throughout New York City known as
Temporary Re-Assignment Centers (TRCs) or "Rubber Rooms".
Bloomberg
was elected on a platform that promised New York City voters he would
be the "education mayor" who turned around the disastrous statistics
showing a lack of success of the largest public school system in the US.
In order to implement his agenda without opposition, he replaced the
New York City Board of Education with a new agency, the Department of
Education, where all employees are working at the pleasure of the Mayor,
without contracts.
Bloomberg decides whether you stay or go, based upon a standard of total loyalty and obedience.
As NYC has not had an elected Board of Education for more than 30
years, this was not the most shocking change made in 2003 with
Joel Klein's appointment as "Chancellor".
What concerned many people inside the education hirearchy was the puppet theater created by the Panel For Educational Policy and the
replacement of elections for the District school boards with a process
of "selecting" members for the newly named "Community Education
Councils".
Armed with total power at the district and citywide
levels, Bloomberg started the rubber rooms so that Principals would have
a place outside of the school to put employees who dared to
interfere with the Plan to dismantle public schools (especially those
with a majority of minority students), co-locate charter schools into
the buildings, and reward any scrubbing, credit recovery programs or
outright lies on scores to make the Mayor look good.
Unfortunately,
Bloomberg did not get intelligent advice on how to run the New York
City Department of Education, and by all accounts has failed dismally.
After he bought himself a third term, the previously
shocked-into-silence public, disgusted by the Mayor's power grabbing
arrogance and his "I'm not going to listen to you" attitude decided
enough is enough. Sadly the constituents and interested public were
misled into thinking that time spent begging to be heard in front of the
'new' Department of Education's panel of puppets, the Panel For
Educational Policy, was the way to bring back some form of democracy.
In 2012 Bloomberg and his third
'pretend' chancellor, Dennis M. Walcott,
became openly hostile to the process that they set up to remove
unwanted tenured employees, namely the NYC Section 3020-a arbitration
hearings. 3020-a is the only forum for disciplinary action against
tenured employees permitted by UFT contract in New York City. The panel
of arbitrators, chosen by NYSUT and the DOE, decide on a case-by-case
basis whether or not to terminate an employee brought up on charges,
thus they sometimes interfere with the Bloomberg agenda, which is to
remove all tenured employees from New York City Public Schools.
Dennis Walcott and Mike Bloomberg currently
want the "Just Cause Standard" to be removed
from 3020-a, because some arbitrators do not terminate the employee
brought to 3020-a and this infuriates the Bloomberg/Walcott group. While
the DOE has the burden of proof at 3020-a, meaning their case must
prove by a preponderance of the evidence that the charge not only
occured, but that the charged employee is such a "bad" teacher/person
that undeniable harm would result if this person were to be allowed back
into his or her classroom.
Arbitrators who are hired to fire and
do their jobs, namely terminate all employees brought before them, no
matter what the nasty deed is that caused the disciplinary action in
trhe first place, are paid alot of money and remain on the arbitration
panel. Actually, the arbitrators are not being paid right now, but they
keep hoping that the money will come soon.
As part of a campaign
to remove any lenient arbitrators from interfering with the mandate to
fire, Walcott and Bloomberg started a major media blast of the "pervs"
left in classrooms by these arbitrators, and the battle ground became
flooded with bodies of these pervs. Only many of them have decided to
fight back, as many of the people exonerated or sent back to the
classroom are simply innocent of the charge handed down in their 3020-a.
I have written some stories about teachers who were falsely accused:
The Infamous 16 Teachers Bloomberg Wants To Fire: Sir, You Are Wrong
The True Story of Teacher Christine Rubino And Her Prosecution By The New York City Department of Education
Chris
Asch , Former Librarian At Stuyvesant High School, Wins His Article
7511 Petition To Vacate The Decision of Arbitrator David Hyland
New York City Teacher Theodore "Teddy" Smith and the Perfect Storm of Injustice
One
of the "hired-to-fire" arbitrators (my opinion) currently on the
arbitration panel is a man named Stuart Bauchner. I've sat in on two
hearings where he presided, one being the 3020-a of a former Dean named
Peter Principe. When we walked in the first day of the hearing, Mr.
Bauchner took an instant dislike to Peter. It went downhill from there,
and Peter was terminated, despite his lawyer making an excellent case
for exoneration. Peter
appealed the termination decision by filing an Article 7511 in the New York State Supreme Court..
Judge Schlesinger agreed that the penalty of termination was too harsh,
and remanded the case back for a lesser penalty. The Corporation
Counsel was not going to allow this, so the New York City Law Department
appealed the Schlesinger decision to the Appellate Division, First
Department.
Peter just won there, was well:
Matter of Principe v New York City Dept. of Educ.
Share |
Matter
of Matter of Principe v New York City Dept. of Educ. 2012 NY Slip Op
02560 Decided on April 5, 2012 Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary
Law § 431. This opinion is uncorrected and subject to revision before
publication in the Official Reports.
Decided on April 5, 2012
Gonzalez, P.J., Friedman, Moskowitz, Acosta, Richter, JJ.
6289 116031/09
In re Peter Principe, Petitioner-Respondent,
v
New York City Department of Education, Respondent-Appellant.
Michael A. Cardozo, Corporation Counsel, New York (Julian L.
Kalkstein of counsel), for appellant.
Lichten & Bright, P.C., New York (Stuart Lichten of counsel),
for respondent.
Order,
Supreme Court, New York County (Alice Schlesinger, J.), entered May 19,
2010, which, to the extent appealed from as limited by the briefs,
denied respondent New York City Department of Education's (the DOE)
cross motion to deny the petition and dismiss the proceeding brought
pursuant to, among other things, CPLR article 75, and granted the
petition to the extent of vacating as excessive the penalty of
termination of petitioner's employment as a New York City schoolteacher,
and remanded the matter to the Hearing Officer for a lesser penalty,
affirmed, without costs.
Petitioner Peter Principe was the dean
of discipline of a middle school located in East New York, where many of
the students belong to criminal gangs. This proceeding arose from two
incidents that occurred between petitioner and several students in 2007.
The
first incident occurred on April 20, 2007. The Hearing Officer found
that petitioner placed MT, an 11-year-old student, in a headlock and
swung him around. At the hearing, petitioner denied placing MT in a
headlock or swinging him around. Rather, petitioner testified that,
after he received several reports of MT's misconduct from that morning
and after breaking up two lunchroom fights involving MT, he took MT out
of the lunchroom. Petitioner further testified that, as he was holding
the lunchroom door open to allow other students to exit, he had his arm
across the door to prevent MT from coming back into the lunchroom, but
MT was pushing with his chest against petitioner's arm to get back into
the lunchroom.
The second incident occurred on April 23, 2007. The
Hearing Officer found that petitioner grabbed RP, a 13-year-old student,
by the neck, threw him against a wall and requested RP and another
student to retract their statements concerning the incident. At the
hearing, petitioner testified that when he saw RP and another student in
the hallway outside their homeroom teacher's classroom, he questioned
them about their whereabouts that morning because he had learned from
their homeroom teacher that they had run out of their homeroom class
that morning, and petitioner had been unable to locate them in their
morning classes. Petitioner further testified that, as he was
questioning RP and the other student, they entered the homeroom
teacher's classroom, and RP began shouting threats at his homeroom
teacher. [*2]Petitioner testified that, as he and the two students were
leaving the classroom, RP turned to reenter the classroom and shouted
more threats at his homeroom teacher, so petitioner grabbed RP to escort
him from the room. As they turned to leave the classroom the two lost
their balance and fell into the wall. Petitioner denied asking the
students to retract their statements.
As to both incidents, the
Hearing Officer found that petitioner's testimony was not credible and
that he committed misconduct by using corporal punishment. We agree with
the motion court that the Hearing Officer had an apparent bias against
petitioner when he discredited petitioner's entire testimony based, in
part, upon respondent's mischaracterization of a portion of petitioner's
testimony in addition to petitioner's testimony that he had once filed
for bankruptcy.
We also agree with the motion court that, by
discrediting petitioner's entire testimony, the Hearing Officer failed
to consider all the circumstances, including the disciplinary histories
of the students involved, the context of the threatening environment in
which the two incidents took place and that, at the time of the two
incidents, petitioner was, as he testified, "only fulfilling [the]
demands" of his position as dean of discipline. Moreover, the Hearing
Officer appeared to give an inordinate amount of credit to a portion of a
video recording, related to the second incident, that had been altered
from its original format so that it appeared frame by frame at one
second intervals rather than its original format of a continuous video
recorded in real time. The alteration to the videotape made what
actually transpired during that incident unclear and equivocal. Although
the motion court sustained the Hearing Officer's findings, petitioner
did not cross appeal. That is understandable because petitioner
otherwise received a favorable decision from the motion court.
The
Hearing Officer also determined that termination was the appropriate
penalty in this case. However, while we accept the Hearing Officer's
findings against petitioner, we agree with the motion court that the
evidence in this case demonstrates that petitioner's actions were not
premeditated. Thus, given all of the circumstances, including
petitioner's spotless record as a teacher for five years and his
promotion to dean two years prior to the incidents at issue, we find the
penalty excessive and shocking to our sense of fairness (Matter of Pell
v Board of Educ. Of Union Free School Dist. No. 1 of Towns of Scarsdale
& Mamaroneck, Westchester County, 34 NY2d 222, 233 (1974); cf. City
School Dist. of the City of N.Y. v McGraham, 75 AD3d 445 (2010), affd
17 NY3d 917 (2011) penalty of 90-day suspension without pay and
reassignment rather than termination reinstated in light of overall
circumstances lending to the improbability of teacher engaging in
similar inappropriate behavior in the future).
Accordingly, we
find that, in determining the penalty of termination, the Hearing
Officer failed to consider all of the circumstances and relevant
evidence, leading the Hearing Officer to view the incidents in isolation
and divorcing them from the context in which they took place. Thus, we
find the Hearing Officer's view of petitioner's credibility carried
over, likely influencing his determination that petitioner should be
terminated. Lesser sanctions are available that would deter petitioner
from engaging in this conduct in the future (see Matter of Riley v City
of New York, 2010 NY Slip Op 32540 Sup Ct, New York County 2010, affd 84
AD3d 442 2011).
In this case, in view of the Hearing Officer's
apparent unfair bias against petitioner, we believe that public policy
considerations favor retention of a teacher who has a proven record of
genuinely connecting with his students and making a positive impact in
their lives (McGraham, 17 NY3d at 919 ("Courts will only intervene in
the arbitration process in those cases in which public policy
considerations, embodied in statute or decisional law, prohibit, in an
absolute sense, particular matters being decided or certain relief being
granted by an arbitrator'"), quoting Matter of Sprinzen (Nomberg), 46
NY2d 623, 631 1979). There is no evidence in the record to suggest that
petitioner was not well liked by the student body, and as the motion
court emphasized, RP, one of the students involved in the second
incident "made clear that he really liked (Principe) and that he felt
that (Principe) understood him and was really kind of rooting for him
and helping him with his difficulties."
The dissent, in reasoning
that the penalty in this case was proportionate so that it did not
shock one's sense of fairness, cites cases in which the teachers
involved engaged in conduct wholly unrelated to their employment with
the DOE (Cipollaro v New York City Dept. of Educ., 83 AD3d 543 (2011);
Matter of Rogers v Sherburne-Earlville Cent. School Dist., 17 AD3d 823
2005). Indeed, in both Cipollaro and Rogers, neither of the teachers
involved held a position similar to that of petitioner, the dean of
discipline, and in both cases the hearing officer's determination to
terminate the teachers' employment was based on fraudulent conduct
wholly unrelated to their employment with the DOE. In the case before
us, as the court below explained, petitioner "was put in the position of
Dean of the school because obviously there was confidence in his
judgment and his ability to deal with difficult situations and difficult
children, which was the situation in both of these incidents" and "he
was doing what he was supposed to be doing, which was to maintain
order."
Moreover, the dissent cites Cipollaro for the proposition
that, when determining the appropriate penalty, a hearing officer may
consider a teacher's lack of remorse. Undoubtedly, it is entirely
reasonable for a hearing officer to implement the harsher penalty of
termination following a finding of a teacher's lack of remorse for
engaging in fraudulent conduct. However, while lack of remorse is one
factor that a hearing officer may consider when determining the
appropriate penalty, here as the motion court articulated, the Hearing
Officer placed petitioner in a "very difficult situation," when he
expected petitioner to show remorse, while petitioner, in exercising his
responsibilities as dean of discipline, believed he was protecting
members of his school's student body and faculty from two threatening
situations.
Rather than considering the proportionality of
petitioner's penalty, in light of "all the circumstances," as Pell
requires, the dissent focuses on the incidents in the worst possible
light by examining them in isolation from the context in which they
occurred. Regarding the first incident, the dissent ignores the absence
of evidence corroborating MT's testimony that petitioner placed him in a
headlock. It also ignores that, in his role as dean of discipline,
petitioner believed that his actions protected students by preventing
the escalation of fights between MT and two other students. Indeed,
petitioner was aware of MT's significant history of misbehaving and
regularly fighting with other students. Regarding the second incident,
the dissent ignores that petitioner, again in his role as dean of
discipline, was attempting to deal with recalcitrant students, both of
whom had a history of violence, while he tried to protect a teacher whom
he believed the students were threatening. Moreover, the dissent urges
that the disciplinary histories of the students involved here are
irrelevant. To the contrary, the disciplinary histories of MT and RP are
relevant, because they are one factor among "all the circumstances"
that Pell calls on us to consider when we are evaluating the
proportionality of a penalty.
The dissent further attempts to
justify the penalty of termination in this case by citing to a Court of
Appeals case where the Court upheld termination for a single instance of
corporal punishment and two cases where courts have upheld the same
penalty for acts of corporal punishment (Matter of Ebner v Board of
Educ. of E. Williston Union Free School Dist. No. 2, N. Hempstead, 42
NY2d 938 (1977) (teacher terminated for dragging a student by the hair
from one class to another); Matter of Saunders v Rockland Bd. of Coop.
Educ. Servs., 62 AD3d 1012 2009 (teacher terminated for allowing a
student to be strapped to a chair without cause and for striking a
student in the chest and jaw); Matter of Giles v Schuyler-Chemung-Tioga
Bd. of Coop. Educ. Servs., 199 AD2d 613 1993 (teacher terminated for
striking a student on the hands with a book and for throwing a car jack
through a window)). However, nothing in those cases indicates that the
teachers involved engaged in their sanctioned conduct in furtherance of
their employment with the DOE. Those cases differ from the case before
us in that petitioner here, while charged with the role of dean of
discipline, engaged in conduct that he believed was appropriate to
protect members of his school's student and faculty bodies.
Accordingly,
we agree with the determination of the motion court that the penalty
imposed here was excessive and "disproportionate to the offenses, in the
light of all the circumstances" (Pell, 34 NY2d at 233) and that the
matter be remanded to the Hearing Officer for a lesser penalty
consistent with this court's decision. All concur except Friedman and
Richter, JJ. who dissent in a memorandum by Richter, J. as follows:
RICHTER, J. (dissenting)
I
respectfully dissent because I do not believe that the penalty imposed
here was so disproportionate to the two offenses as to be shocking to
one's sense of fairness. Nor do I believe that the penalty violates
public policy.
Petitioner, a dean of discipline formerly employed
by respondent New York City Department of Education, commenced this
proceeding pursuant to Education Law § 3020-a(5) and CPLR 7511 seeking
to vacate the opinion and award of an impartial hearing officer which
found petitioner guilty of two separate incidents of corporal
punishment, and ordered his termination. Supreme Court upheld the
findings of guilt but concluded that the penalty of termination was
excessive. Respondent now appeals, arguing that the court erred in
vacating the penalty. Petitioner has not cross appealed to challenge the
findings of guilt.
In the first incident, MT, an 11-year-old
student, was exiting the school cafeteria after walking away from a
verbal dispute he was having with a fellow student. As MT walked through
the cafeteria doors, petitioner placed him in a headlock, swung him
around, and told him to stop arguing. After petitioner let the child go,
MT started crying because his "head hurt." MT walked up the stairs from
the cafeteria and came upon a school safety officer. The safety officer
noticed that MT was crying and asked him what was wrong. MT told the
officer that petitioner had "choked him."
In the second incident,
petitioner saw RP, a 13-year-old student, and another student in the
school hallway. Petitioner and the two boys entered a teacher's adjacent
classroom, and petitioner asked the teacher if the students were
cutting class. When the teacher responded that they were, RP walked out
of the classroom, stating that he was tired of being blamed for things
he did not do. Petitioner followed RP out of the room, grabbed him by
the shirt and slammed him into the wall. The back of RP's head hit the
wall, and RP felt pain and dizziness. Petitioner continued to hold onto
RP's shirt collar while walking him down the hallway and into
petitioner's office. RP subsequently went to the nurse's office and got
an ice pack for the "red lump" on the back of his head, which was
several inches in diameter.
Sergeant Johnie Washington, a supervising
school safety officer, observed the hallway incident involving RP in
real time on a live video feed. He "couldn't believe" what he saw and
immediately reported the matter to the school's principal. As the
principal explained at the hearing, he viewed the video and saw no
actions that would have justified petitioner's behavior. The video
corroborated RP's account of the incident. RP prepared a written
statement, reiterating his complaint that petitioner had pushed him into
the wall. Later that day, petitioner summoned RP to his office. At that
meeting, petitioner asked RP to retract the statement he had made about
the incident.
Petitioner testified in his own defense at the
hearing. With respect to the first incident, petitioner denied putting
MT in a headlock and swinging him around. As for the second incident,
petitioner admitted grabbing RP's shoulder, but denied throwing him into
the wall. Instead, petitioner explained that RP lost his balance, and
the "momentum" caused him to "fall" into the wall.
The Hearing
Officer determined that petitioner was not a credible witness because
his testimony was internally inconsistent and was contradicted by the
credible testimony of seven other witnesses as well as a video of one of
the incidents. The Hearing Officer found that petitioner repeatedly
fabricated testimony in an effort to deny or justify his physically
abusive behavior. He further found that petitioner's unreasonable use of
physical force against the two students, who were less than half his
size, warranted the penalty of termination. Petitioner showed no remorse
for his misconduct and, indeed, argued that his actions toward RP were
proper and professional. For these reasons, the Hearing Officer
concluded that petitioner would continue to engage in similar misconduct
if returned to the classroom. As a result, the Hearing Officer found
that petitioner was unfit to perform his duties and ordered his
dismissal.
Where, as here, the parties are subject to compulsory
arbitration, a determination made after a hearing held pursuant to
Education Law § 3020-a must be in accord with due process, have adequate
evidentiary support, and cannot be arbitrary, capricious or irrational
(City School Dist. of the City of N.Y. v McGraham, 17 NY3d 917, 919
2011; Lackow v Department of Educ. (or "Board") of City of N.Y., 51 AD3d
563, 567 2008). Moreover, a penalty will not be disturbed unless it "is
so disproportionate to the offense, in the light of all the
circumstances, as to be shocking to one's sense of fairness" (Matter of
Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of
Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 233 1974).
In determining the appropriate penalty, a hearing officer may consider
the teacher's lack of remorse and failure to take responsibility for his
or her actions (Cipollaro v New York City Dept. of Educ., 83 AD3d 543,
544 2011; Matter of Rogers v Sherburne-Earlville Cent. School Dist., 17
AD3d 823, 825 2005). Moreover, although the teacher's prior disciplinary
history may also be considered, even a long and previously unblemished
record does not foreclose termination as an appropriate sanction
(Cipollaro, 83 AD3d at 544; Matter of Rogers, 17 AD3d at 824-825).
In
an effort to minimize petitioner's guilt, the majority recites
petitioner's version of the facts, which was rejected by the Hearing
Officer. Not even petitioner chose to appeal these findings, which must
be accepted as true for the purpose of determining the appropriate
sanction. The arbitrator's decision to terminate petitioner was not
arbitrary, capricious or irrational, nor does the penalty imposed shock
one's sense of fairness. The Hearing Officer came to a reasoned
conclusion that petitioner would continue to engage in similar behavior
and that termination was [*6]the appropriate penalty. Petitioner, who
served as the dean of discipline at the school, lost his temper on two
separate occasions and unleashed his anger in violent acts involving two
different students.
Moreover, as the Hearing Officer noted,
petitioner showed no remorse whatsoever for his actions, and instead
either denied or attempted to explain away his behavior. Making matters
worse, in an attempt to interfere with an ongoing investigation,
petitioner inappropriately asked one of the students to retract his
complaint. Although acting as the dean of discipline at a city school
may present its challenges, in light of the egregiousness of
petitioner's repeated misconduct, the penalty of termination should not
have been disturbed (see Cipollaro, 83 AD3d at 544).
The Court of
Appeals has upheld the sanction of dismissal where a teacher's
misconduct consisted of a single instance of corporal punishment. In
Matter of Ebner v Board of Educ. of E. Williston Union Free School Dist.
No. 2, N. Hempstead (42 NY2d 938 1977), the school board terminated a
teacher who lost her self-control and dragged a student by the hair from
one classroom to another, and the Court of Appeals found that "the
punishment was not so disproportionate as to warrant judicial
correction" (42 NY2d at 939). Other courts have similarly upheld
termination of teachers for acts of corporal punishment (see e.g. Matter
of Saunders v Rockland Bd. of Coop. Educ. Servs., 62 AD3d 1012 2009;
Giles v Schuyler-Chemung-Tioga Bd. of Coop. Educ. Servs., 199 AD2d 613
1993).
Citing the Court of Appeals' decision in McGraham (17 NY3d
917 2011), the majority argues that public policy considerations
warrant a penalty less severe than termination. McGraham, however,
actually supports upholding the Hearing Officer's decision here. In
McGraham, the Court took a narrow view of the public policy exception
and cautioned that "courts will only intervene in the arbitration
process in those cases in which public policy considerations, embodied
in statute or decisional law, prohibit, in an absolute sense, particular
matters being decided or certain relief being granted by an arbitrator"
(McGraham, 17 NY3d at 919 (internal quotation marks omitted). Thus, as
the Court emphasized, "That reasonable minds might disagree over what
the proper penalty should have been does not provide a basis for
vacating the arbitral award or refashioning the penalty" (id. at 920).
Here,
the majority suggests that the fact that petitioner has made a positive
impact on students' lives is a valid public policy consideration that
warrants reversing the penalty of termination. Although the teacher's
positive record is one factor that the Hearing Officer could consider,
it is not a public policy consideration that "prohibits, in an absolute
sense" (id. at 919) the Hearing Officer's decision to terminate
petitioner for his acts of violence against the two students.
This
Court's decision in Matter of Riley v City of New York (84 AD3d 442
[2011]), relied upon by the majority, is distinguishable. In Riley, we
concluded that a penalty of termination was disproportionate for a
teacher who, in an isolated incident, slapped a student across the face
(see Matter of Riley v City of New York, 2010 NY Slip Op 32540(U)
(2010), affd 84 AD3d 442 2011). Here in contrast, petitioner was found
guilty of two separate acts of corporal punishment committed against two
different students. Furthermore, in Riley, we focused on the fact that
the student involved sustained no physical or emotional injury as a
result of the incident. Both of the students here testified about the
physical effects of petitioner's misconduct. RP described feeling pain
and dizziness after petitioner slammed him into the wall. As a result,
RP had a several-inch-wide "red lump" on his head requiring treatment by
the school nurse. And, as MT described, his "head hurt," causing him to
cry, after petitioner grabbed him in a headlock. Finally, unlike the
teacher in Riley, petitioner attempted to influence the investigation by
asking RP to withdraw his complaint.
The majority unfairly and
incorrectly argues that the Hearing Officer failed to consider the
context in which the two incidents took place and the disciplinary
history of the students involved. The Hearing Officer's opinion
explicitly states that in reaching his conclusions, he "fully
considered" "the testimony of all witnesses," "the evidence adduced" at
the hearing, and the "positions and arguments advanced by [petitioner]
during the hearing and in . . . closing arguments." In any event, the
disciplinary history of the students is irrelevant here, especially
since there was no finding by the Hearing Officer that petitioner was
acting in self-defense or was otherwise justified in using physical
force. It is inappropriate to suggest that petitioner should have been
given more latitude in his use of force, or that he should be penalized
less severely, merely because the students involved had past
disciplinary problems. It certainly does not shock one's sense of
fairness that the Hearing Officer concluded that petitioner's use of
corporal punishment was wrong and should be severely punished,
regardless of the background of the victims.
The majority argues
that a lesser penalty is appropriate because petitioner believed that he
was protecting other students and faculty members from threatening
situations. This, however, was not petitioner's defense at the hearing.
As to the first incident with MT, petitioner flat out denied that it
ever happened. And in the second incident, petitioner offered the absurd
explanation that RP lost his balance and the "momentum" caused him to
"fall" into the wall. Petitioner's claim that the two boys had falsely
accused him was soundly rejected by the Hearing Officer and is not the
subject of this appeal.
I am troubled by the majority's belief
that petitioner's punishment should be reduced because he was acting "in
furtherance of" his role as dean of discipline. In fact, just the
opposite is true. Petitioner's acts of violence against the two students
were in blatant derogation of his duties as chief disciplinarian. The
majority implies that because petitioner was dean of discipline, he
should be treated less severely than a teacher in a classroom. This
analysis turns logic on its head. As the dean of discipline, petitioner
should be able to control verbal disruptions by students without
resorting to excessive force.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: APRIL 5, 2012
CLERK
From Betsy Combier: Could the judicial system be fed up with Bloomberg as well?
Just to expose more stupidity in the media, below is the trash article written without any valid information by the NY Post:
