NYC Mayor de Blasio Fires Department of Investigation Commissioner Mark Peters, And All Hell Breaks Loose

Mark Peters and Bill de Blasio
photo: Natan Dvir; Brigitte Stelzer

The firing of Department of Investigations Commissioner sure looks like the exact same scenario as when Governor Andrew Cuomo disbanded the Moreland Commission, set up to look at corruption. The Governor stopped The Moreland Commission and disbanded the group after they subpoenaed Cuomo's personnel and records.
Wikipedia posts what happened next:

After the commission was disbanded, the governor and the commission were criticized by government watchdogs, New York prosecutors and the United States Attorney for the Southern District of New York, Preet Bharara. Bharara opened an investigation into the commission, the possible interference by the governor's office, and into the targets of the commission's own incomplete investigations. He also instructed legislators and the governor's office to retain any documents related to the commission.^[6][9] In 2015, investigations by Bharara's office resulted in the arrest and conviction of Assembly speaker Silver and Senate majority leader Skelos. Then in January 2016 the U.S. Attorney announced the end of his investigation into the closing of the commission.^[10]

In March 2017, President Donald Trump fired Bharara in the midst of an investigation concerning Trump appointees. Bharara later tweeted: "By the way, I know what the Moreland Commission must have felt like."^[11]

De Blasio Fires Investigations Chief, Citing Abuse of Power

By William K. Rashbaum and William Neuman

• Nov. 16, 2018

LINK

Mayor Bill de Blasio on Friday took the extraordinary step of firing his embattled investigations commissioner, Mark G. Peters, the culmination of a fierce rivalry between the two powerful men.

It was a rare and consequential action by a mayor to remove an investigations commissioner: The position is understood to come with a large degree of independence that allows impartial scrutiny of all areas of government, including the executive branch.

But the relationship between Mr. Peters and the mayor had severely deteriorated over time, and the last straw was an independent investigator’s report that found that Mr. Peters had abused his power and mistreated underlings, and said that he was “cavalier with the truth.”

Mr. Peters had produced numerous investigative reports that exposed significant failings in city agencies that were highly embarrassing to Mr. de Blasio, including lapses in performing lead paint inspections at the New York City Housing Authority, and the lifting of deed restrictions on a Lower East Side nursing home that permitted its sale to a developer of luxury condominiums.

Mr. de Blasio on Friday said those investigations did not influence his decision.

“D.O.I. is meant to be critical of city agencies,” Mr. de Blasio said at a news conference, before delineating the “mistakes and abuses of power” detailed in the independent report on Mr. Peters. “The D.O.I. commissioner is supposed to be the most pristine of all.”

Mr. de Blasio said that he was not influenced by any continuing investigations. Mr. Peters had begun an investigation into whether City Hall sought to influence a review of the educational quality at some Jewish religious schools.

He also said, however, that he regretted hiring Mr. Peters in the first place.

Mr. Peters said in a brief statement that he would issue a fuller written response to his firing in coming days. He said that under his direction the department “exposed corruption and misconduct and forced serious systematic reforms in multiple agencies.”

He wrote that he did not want his staff to take the firing as a defeat, “but rather as proof that the excellent work you do makes a difference — indeed, so much of a difference that “it appears the mayor felt compelled to act.”

The City Charter says the mayor has the power to remove the investigation commissioner, as long as he gives an accounting of his reasons for the firing and allows the commissioner “an opportunity of making a public explanation.”

It said Mr. Peters’s removal would take effect after three business days, a period ending Wednesday that is apparently intended to allow time for Mr. Peters to make the public explanation mentioned in the City Charter.

Mr. Peters fell far and hard. A longtime friend of the mayor, he served as the treasurer for Mr. de Blasio’s 2013 mayoral campaign. When Mr. de Blasio appointed him as the commissioner of the Department of Investigation, the choice was greeted with skepticism, with critics asking whether someone so close to the mayor would be independent enough to pursue investigations into the administration.

Mr. de Blasio often took issue with the findings and defended agency heads who came under Mr. Peters’s scrutiny.

But Mr. Peters finally overreached: Earlier this year, he staged a takeover of an independent office that conducts investigations of the school system. When the head of the office, Anastasia C. Coleman, resisted the takeover, Mr. Peters fired her.

She then filed a whistle-blower complaint, which led to the appointment of an independent investigator: James G. McGovern, a former federal prosecutor.

Mr. de Blasio had considered firing Mr. Peters at the time but decided against it; city officials seemed leery of the possible backlash over firing an investigator who had taken a critical look at the mayor’s governance.

The McGovern report, which was completed in early October, finally gave the mayor the impetus and evidence to force Mr. Peters out.

The City Council was a strong ally of Mr. Peters in his clashes with the mayor’s office, especially under the current Council speaker, Corey Johnson. But the whistle-blower report undermined that support, including the allegations that Mr. Peters had misled the Council.

Mr. Johnson provided a statement on Friday that credited Mr. Peters for exposing “significant issues” at the housing authority and in other agencies, but said “the McGovern report raised questions about his ability to continue in his role.”

But the chairman of the Council’s committee on oversight and investigations, Ritchie Torres, praised Mr. Peters for his independence, adding that he “strongly disagreed” with the firing.

Mr. de Blasio, in a statement released after the dismissal, thanked Mr. Peters for his service but saved his praise for Ms. Garnett.

“Margaret has spent decades protecting the public’s interest, prosecuting criminals both inside and outside of government,” he said.

 

De Blasio's Peters principle: When the mayor moved to boot his top watchdog
NY Daily News, September 21, 2018

Never has a mayor of New York dared fire the anti-corruption watchdog who guards City Hall.

With seven pages drafted by his lawyers earlier this year to deliver the justifications the law says he must, Mayor de Blasio this spring came to the brink of firing Mark Peters as commissioner of the Department of Investigation — and still has the papers on file.

As if he could ever have gotten away with canning the top cop on the beat exposing his administration’s grievous breakdowns and mandating reforms.

Lead paint poisoning children at NYCHA. Swiss cheese child abuse investigations that left other kids dead. Smuggling into city jails, and top Correction brass’ rampant use of city vehicles for personal trips. The sheer incompetence behind the Rivington House nursing home debacle.

Compare that record to the reasons the drafters of the mayor’s memo give to justify firing Peters.

Peters moved to fold into his office the formerly independent Special Commissioner of Investigation for the Department of Education; no one disputes that. De Blasio alleges, and he’s technically likely right, that Peters had no authority to make that move — and badly botched his job offer to the woman in charge, then fired her after she complained about a reorganization.

And that, separately, Peters threw a snit about office space for his staff, supposedly invoking that he had “people with guns in the room” with the power to make arrests. And used similarly heated language when throwing his weight around with then-budget director Dean Fuleihan.

That’s it? That’s it.

That de Blasio keeps the means close at hand to eject his onetime friend and campaign treasurer lays bare two ugly possibilities about his motives.

The mayor is either ready to rid himself of the source of probes that are forcing correction of calamitous mistakes by his administration — or wildly overreactive to Peters’ admittedly brash, at times obnoxious leadership style.

Two years into de Blasio’s first term, the Daily News called for Peters’ resignation on the view — well justified by early investigations that failed to name names or specify sufficient remedial actions — that his close personal relationship with de Blasio precluded the intensive probes this mayor merited.

Peters has since well proven his independence and zeal. The mayor in his target sights has evidently noticed.

Betsy Combier
betsy.combier@gmail.com
Editor, Advocatz.com
Editor, NYC Rubber Room Reporter
Editor, Parentadvocates.org
Editor, New York Court Corruption
Editor, National Public Voice
Editor, NYC Public Voice

One of the many scandals that Bill de Blasio will be "famous" for:

De Blasio: Miscommunication over lead paint exposure ‘has been addressed’

Rich Calder, NY Post, July 31, 2018

Mayor Bill de Blasio claimed Monday night that any previous miscommunication between the city’s Housing Authority and Health Department over children’s exposure to lead paint in public housing is no longer an issue.

“The problem you raised is unacceptable,” de Blasio told NY1. “It is and has been addressed.”

He was responding to questions about a Department of Investigation probe into how his administration has handled positive lead tests of kids living in public housing.

Hizzoner admitted there was a “gap” between how information was previously gathered by the Health Department and then communicated with the New York City Housing Authority. However, he claimed the problem dated back to the administration of former Mayor Michael Bloomberg — and that he has fixed it.

“The Health Department and NYCHA are on the same page …,” de Blasio said. “We have now caught up. Regular inspections, regular remediation … and that will continue from this point on.”

DOI has requested records from the Health Department about the tests, which showed that as many as 820 kids over five years were exposed to levels of lead that the federal Centers for Disease Control and Prevention considers dangerous.

The DOI investigation is one of at least two probes into the Health Department’s actions.

–– ADVERTISEMENT ––

City Comptroller Scott Stringer previously announced this month that his office was reviewing the health agency.

Fraud Will Get You Terminated at 3020-a

Evan Mirenberg

Evan Mirenberg, considered an excellent teacher and winner of the 2013 PASCO STEM Awards,  was charged with 16 absences for the  2013-2014 school year:

SPECIFICATION 1: On or about and between September 9, 2013 and June 27, 2014, Respondent,  while
assigned to The Michael E. Berdy School for The Arts, was excessively absent from work
approximately sixteen (16) times on the following dates:

DAY DATE

 1) Monday September 23, 2013*
2) Tuesday October 22, 2013
3) Tuesday November 12, 2013
4) Wednesday November 13, 2013
5) Tuesday January 21, 2014*
6) Wednesday January 22, 2014*
7) Monday February 3, 2014*
8) Monday February 10, 2014
9) Monday March 3, 2014*
10) Friday March 21, 2014*
11) Monday April 7, 2014*
12) Monday April 28, 2014*
13) Monday May 12, 2014*
14) Tuesday May 13, 2014*
15) Wednesday May 21, 2014

SPECIFICATION 2: Approximately on or about between November 1, 2011 and September 2, 2014, Respondent, while assigned to The Michael E. Berdy School for The Arts, was paid for the days he claimed to be sick knowing that he was not entitled to receive said money when he submitted a false or a fraudulent document to explain his absences from work approximately nineteen (19) times on the following dates:

  DAY DATE

1. Tuesday November 1, 2011
2. Wednesday November 2, 2011
3. Monday December 19, 2011*
4. Monday March 12, 2012*
5. Thursday May 10, 2012
6. Friday May 11, 2012
7. Monday December 10, 2012*
8. Monday March 4, 2013*
9. Tuesday November 12, 2013*
10. Wednesday November 13, 2013*
11. Tuesday January 21, 2014*
12. Wednesday January 22, 2014*
13. Friday March 21, 2014*
14. Monday April 7, 2014*
15. Monday April 28, 2014*
16. Monday May 12, 2014*
17. Tuesday May 13, 2014
18. Wednesday May 21, 2014
19. Thursday June 19, 2014

SPECIFICATION 3: Approximately on or about and between November 1, 2011 and September 2, 2014, Respondent, while assigned to the Michael E. Berdy School for The Arts, was paid for the days he claimed to be sick, knowing he was not entitled to receive said money when he submitted a false or a fraudulent document to explain his absences from work, in the amount of approximately $3556.90.

SPECIFICATION 4: During the conduct as stated in Specifications 1, 2 and/or 3 above, Respondent did offer a False Instrument for Filing, in that Respondent, knowing that a written statement contains a false statement or false information, did offer or present it to a public office or public servant with the knowledge or belief that it will filed with, registered or recorded in or otherwise become a part of the records of such public office or public service.

 SPECIFICATION 5: Dismissed

Mr. Mirenberg made a mistake. In order to cover his excessive absences, he handed in altered doctor's notes. He claimed he was in panic mode. Arbitrator Michael Lazan terminated him after looking at all the prior decisions of arbitrators handed in by the Department with similar complaints about the teacher charged with fraudulently handing in doctor's notes and violating the 'honor code' for teachers who take absences for supposedly some kind of illness.
 
The NYC Department of Education cited Penal Law Sect. 170.00(4):
A person "falsely makes" a written instrument when:he makes or draws a complete written instrument in its entirety, or an incomplete written
instrument, which purports to be an authentic creation of its ostensible maker or drawer, but
which is not such either because the ostensible maker or drawer is fictitious or because, if real,
he did not authorize the making or drawing thereof.

Arbitrator Michael Lazan in his 3020-a decision in this case:

"It is regrettable that a teacher capable of good performance put himself in this situation, and it is certainly sad that the students in New York City will have lost a teacher with special expertise. Still, in a case like this, I must conclude that Respondent's actions constitute "conduct unbecoming a teacher," and that there is just cause for terminating Respondent from his position as a teacher for the New York City Department of Education."
Supreme Court Judge Lucy Billings originally had this case on Appeal (Article 75) and denied the DOE's Motion To Dismiss for insufficient supporting evidence. The case was transferred to the Part of Judge Carmen Victoria St. George, who granted the DOE's Motion To Dismiss and denied Mr. Mirenberg's Petition to vacate his termination.

The lesson here is that no DOE employee should create fake documents because he/she, if charged with 3020-a, will be terminated.

Below is the decision:

MATTER OF MIRENBERG v. NEW YORK CITY DEPT. OF EDUC.
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653846/2015.

Cited Cases

2018 NY Slip Op 50670(U)

IN THE MATTER OF THE APPLICATION OF EVAN MIRENBERG, Petitioner, v. NEW YORK CITY DEPARTMENT OF EDUCATION, Respondent.

Supreme Court, New York County.

Decided May 9, 2018.

---

Attorney(s) appearing for the Case

The Charrington Firm, P.C., Karen H. Charrington , One Cross Island Plaza, Suite 212, Rosedale, NY 11422, for Petitioner.

Corporation Counsel, Shirley W. Bi , 100 Church Street, New York, NY 10007-2601, for Respondent.

---

CARMEN VICTORIA ST. GEORGE, J.

In this proceeding, petitioner seeks an order which reverses Arbitrator Michael Lazan's November 11, 2015 decision sustaining certain specifications and charges against him. Petitioner further seeks a declaration that the penalty, the termination of his employment as a special needs teacher, was disproportionate and shocking to the conscience; a modification of the award to include a lesser penalty; reinstatement with back pay and full credit for the period of his allegedly wrongful termination for the purposes of retirement benefits; and removal of petitioner from the ineligible list.

Initially, respondent the New York City Department of Education (DOE) filed a pre-answer cross-motion to dismiss the petition, and petitioner moved for a preliminary injunction in lieu of notice of petition. On May 17, 2017, Justice Lucy Billings, who previously presided over the case, issued the order which denied the cross-motion and the request for injunctive relief. As to the cross-motion, Justice Billings ruled that without the full record of the administrative proceedings respondent did not sustain its burden. As to the request for preliminary relief, the judge concluded that although petitioner had set forth cognizable legal claims he had not shown a likelihood of success on the merits. Following the issuance of Justice Billings' order, respondent answered the petition and the parties filed additional papers. The matter subsequently was transferred to this Part, and this Court heard oral argument. At the end of the argument, this Court requested letter briefs on recent Court of Appeals cases and on the pertinent concurring opinions. The Court has considered all the material before it, including the subsequent letter briefs, and incorporated its conclusions into this decision. After careful consideration, this Court dismisses the petition.

Petitioner became a certified special education teacher in 2004 and he worked for respondent until his termination in 2015. Throughout his employment with the DOE respondent, he received positive performance evaluations, received awards and praise as a Science, Technology, Engineering, and Math (STEM) educator, including a STEM Educator Award in 2012 and a Brooklyn Borough President's Proclamation regarding his work involving LEGO education. LEGO named him "teacher of the month" in June 2013, and Scholastic Educator Magazine featured him in its article, "Super Cool Teacher" in March 2014.

According to petitioner, he has suffered from an anxiety disorder as well as attention deficit syndrome since high school. Petitioner alleges that for a period of eight years he was treated for this disorder by Dr. Dean F. Giannone without success. He states that now he is treated by Dr. Judy Scher, and under her care he successfully manages these disabilities. Currently, petitioner teaches at a private school. Before his disorder was under control, and while he was an employee of respondent, he missed several days of work annually due to his disability. Like all teachers, petitioner was entitled to take a maximum of ten sick days per year from his cumulative absence reserve (CAR). A doctor's note is not required for these absences, although employees are encouraged to submit such notes whenever possible. Furthermore, a teacher can take "self-treatment" days when he or she does not treat with a doctor; this must relate to a teacher's illness or disability for a condition for which self-care is approved. Finally, more than ten additional absences — other than days for jury duty, funerals, and other exceptions — is considered excessive.

The charges which led to petitioner's termination relate to petitioner's work at two schools. Petitioner spent seven years as a special education classroom teacher at the first of these schools, P.S. 188. During his eighth year, the 2013-2014 school year, he piloted the school's STEM and robotics program. Around June 5, 2014, Principal Frederick Tudda, discussed petitioner's high number of absences for the 2013-2014 school year. Petitioner informed the principal that he had kidney problems. The principal wrote a letter to petitioner's file about this conversation, including the comment that his absences were excessive. Furthermore, although petitioner provided lesson plans for the days he was absent from P.S.188, only one other teacher at the school knew how to teach robotics and it would not have been feasible to have that teacher cover petitioner's classes during all his absences.¹

Petitioner resigned from P.S. 188 in 2014 and in September 2014 he commenced a new job, as a magnet resource specialist at P.S. 307K. He obtained this position pursuant to a $1.8 million grant which enabled the school to develop into a STEM magnet school. The school hired one other magnet resource specialist at petitioner's level as well as a senior magnet resource specialist. The job required him to instruct third, fourth, and fifth grade students regarding STEM and to train the other teachers at the school so that they also could teach STEM. Petitioner was absent twice in mid-September, his first month at P.S. 307K, and he provided a medical note to the principal. Principal Roberta Davenport's secretary pointed out that the note looked suspicious, and the principal contacted Dr. Giannone, who purportedly authored the note. The doctor stated that he did not write the note.

After she received the doctor's response, Principal Davenport met with petitioner. Petitioner, who was accompanied by his union representative, reiterated the statement he made to Principal Tudda at P.S. 188, that he had kidney problems. He added that he had undergone an MRI on one of the dates in question. On October 13, 2014, Principal Davenport notified the Office of the Special Commissioner of Investigation for the New York City School District (SCI) of the incident. SCI undertook an investigation, determined petitioner had committed fraud, recommended that petitioner be terminated from his position, and referred the matter to the Kings County District Attorney's (DA) office for review. In addition, SCI made similar findings and made a subsequent referral to the DA when, after further investigation, Principal Davenport discovered fifteen similar notes in petitioner's personnel file.

Respondent commenced two cases seeking petitioner's termination. The cases include the following specifications, which relate to petitioner's work at The Michael E. Berdy School for The Arts (P.S. 188) and at Daniel Hale William, The Magnet School for Science, Technology, Engineering and Mathematical Studies (P.S. 307K):

CASE No. 26,748
SPECIFICATION 1: On or about and between September 9, 2013 and June 27, 2014, [petitioner], while assigned to The Michael E. Berdy School for The Arts, was excessively absent from work approximately sixteen (16) times on the following dates:DAY DATE 1) Monday September 23, 2013*² 2) Tuesday October 22, 2013 3) Tuesday November 12, 2013 4) Wednesday November 13, 2013 5) Tuesday January 21, 2014* 6) Wednesday January 22, 2014* 7) Monday February 3, 2014* 8) Monday February 10, 2014 9) Monday March 3, 2014* 10) Friday March 21, 2014* 11) Monday April 7, 2014* 12) Monday April 28, 2014* 13) Monday May 12, 2014* 14) Tuesday May 13, 2014* 15) Wednesday May 21, 2014 16) Thursday June 19, 2014

SPECIFICATION 2: On or about September 16 and/or September 17, 2014, [while] assigned to [P.S. 307k] [petitioner] submitted and/or caused to be submitted a false and/or fraudulent doctor's note to the Department stating that he had seen a doctor in order to excuse his absences from work.

SPECIFICATION 3: On or about September 16 and/or September 17, 2014, while assigned to [P.S. 307K], [petitioner] was paid for the day he claimed to be sick knowing that he was not entitled to receive said money when he submitted a false or fraudulent document to explain his absences from work.CASE # 27,238

SPECIFICATION 1: Approximately on or about between November 1, 2011 and September 2, 2014, [petitioner], while assigned to [P.S. 188], submitted and/or caused to be submitted a false and/or fraudulent doctor's notes to the Department stating that he had seen a doctor in order to excuse his absences from work approximately (19) times on the following dates:DAY DATE 1. Tuesday November 1, 2011 2. Wednesday November 2, 2011 3. Monday December 19, 2011* 4. Monday March 12, 2012* 5. Thursday May 10, 2012 6. Friday May 11, 2012 7. Monday December 10, 2012* 8. Monday March 4, 2013* 9. Tuesday November 12, 2013* 10. Wednesday November 13, 2013* 11. Tuesday January 21, 2014* 12. Wednesday January 22, 2014* 13. Friday March 21, 2014* 14. Monday April 7, 2014* 15. Monday April 28, 2014* 16. Monday May 12, 2014* 17. Tuesday May 13, 2014 18. Wednesday May 21, 2014 19. Thursday June 9, 2014

SPECIFICATION 2: Approximately on or about between November 1, 2011 and September 2, 2014, [petitioner], while assigned to [P.S. 188], was paid for the days he claimed to be sick knowing that he was not entitled to receive said money when he submitted a false or fraudulent document to explain his absences from work approximately nineteen (19) times on the following dates:DAY DATE 1. Tuesday November 1, 2011 2. Wednesday November 2, 2011 3. Monday December 19, 2011* 4. Monday March 12, 2012* 5. Thursday May 10, 2012 6. Friday May 11, 2012 7. Monday December 10, 2012* 8. Monday March 4, 2013* 9. Tuesday November 12, 2013* 10. Wednesday November 13, 2013* 11. Tuesday January 21, 2014* 12. Wednesday January 22, 2014* 13. Friday March 21, 2014* 14. Monday April 7, 2014* 15. Monday April 28, 2014* 16. Monday May 12, 2014* 17. Tuesday May 13, 2014 18. Wednesday May 21, 2014 19. Thursday June 9, 2014

SPECIFICATION 3: Approximately on or about between November 1, 2011 and September 2, 2014, [petitioner], while assigned to [P.S. 188], was paid for the days he claimed to be sick knowing that he was not entitled to receive said money when he submitted a false or fraudulent document to explain his absences from work, in the amount of approximately $3556.90.SPECIFICATION 4: During the conduct as stated in Specifications 1, 2 and/or 3 above, [petitioner] did offer a False Instrument for Filing, in that Respondent, knowing that a written statement contains a false statement or false information, did offer or present it to a public office or public servant with the knowledge or belief that it will [be] filed with, registered or recorded in or otherwise become a part of the records of such public office or public service.

SPECIFICATION 5: Approximately on or about between November 1, 2011 and September 2, 2014, [petitioner], while assigned to P.S. 307K . . ., was paid for the days he claimed to be sick knowing that he was not entitled to receive said money when he submitted a false or fraudulent document to explain his absences from work approximately nine (9) times on the following dates:DAY DATE 1. Tuesday September 16, 2014 2. Wednesday September 17, 2014 3. Monday September 29, 2014 4. Friday November 14, 2014 5. Monday November 17, 2014 6. Monday January 12, 2015 7. Tuesday January 13, 2015 8. Monday March 2, 2015 9. Tuesday April 21, 2015

The Foregoing Constitutes:

Just cause for disciplinary actions under Education Law Sect. 3020-a;Conduct unbecoming [petitioner's] position, and conduct prejudicial to the good order, efficiency, or discipline of the service;Fraud;Conduct that could Constitute a Crime;Substantial cause rendering [petitioner] unfit to perform his obligations properly to the service;Violation of Chancellor's Regulations;Violation of the by-laws, rules and regulations of the Chancellor, Department School or District;Neglect of duty; andJust cause for termination*Denotes a day before or after a weekend and/or holiday

(In re New York City Department of Education v Mirenberg, SED File Nos. 26,748/27, 238, Exh. A [NYSCEF doc No. 5] [DOE v Mirenberg], at pp 3-7).

Petitioner and respondent appeared before Arbitrator Michael S. Lazan, Esq. to determine what, if any, penalty was appropriate for the charges above (see Education Law § 3020-a). Arbitrator Lazan held numerous prehearing conferences between April 9, 2015 and July 9, 2015. The hearing began on July 9, 2015 after the prehearing conference, and it continued on July 22, July 23, August 12, August 13, September 17, September 25, and September 30. During the hearings, the arbitrator listened to the testimony of several witnesses including petitioner, the principals of the two schools, Dr. Giannone, and petitioner's father.

In its opening statement on July 9, 2015, respondent³ stated that there were two reasons petitioner should be terminated from his job: 1) he had been excessively absent from school, and 2) he had submitted fraudulent sick notes over the course of several years to justify some of those absences. Petitioner's counsel presented her opening statement on July 22, 2015. Counsel stated that petitioner suffered from a kidney condition and from anxiety. She noted that under the Americans With Disabilities Act (ADA), petitioner's anxiety disorder qualifies as a protected condition. She pointed out that despite his allegedly excessive absences, he received positive or satisfactory ratings during the periods in question; and that, while Principal Tudda discussed petitioner's absences he did not discipline him. Thus, petitioner's absences had not interfered with his job as a teacher.

In his November 2015 determination, Arbitrator Lazan considered the parties' positions. The decision noted that petitioner admitted to altering sixteen medical notes but claimed he did not receive extra pay for the dates in question because he was entitled to ten self-treated days for which no note was required. He stated that he was not excessively absent during the 2014-2015 school year. He finally argued that he altered the medical notes under the influence of his panic attacks and his anxiety disorder. Petitioner claimed that his disorder had prevented him from teaching on the dates he was absent, and his embarrassment about his condition had caused him to lie. He stressed that now, with proper care, he no longer is hampered by his disability.

In response, respondent argued that petitioner defrauded the school system, and that he additionally lied to two school principals about his fabricated kidney condition.⁴ His misconduct was compounded by the fact that petitioner has never taken responsibility for submitting the notes but instead has attempted to excuse them. They stressed that many of the absences were on Mondays and Fridays, thus extending his weekends, that he repeated this pattern on a regular basis — all of which undercut petitioner's argument that these actions were impulsive and caused by his panic attacks. They noted that Dr. Giannone's progress notes did not support petitioner's position that his anxiety was disabling. They argued that the affidavit of petitioner's current treating therapist, Dr. Scher, is of no probative value as petitioner did not produce her as a witness.

The arbitrator first evaluated petitioner's claim that he is insulated from any adverse employment action under the Americans with Disabilities Act of 1990 (the ADA) (42 U.S.C. §§ 12101 et seq), which prevents employers from discriminating against individuals with disabilities that do not interfere with their work performance. He determined that, even if petitioner showed the existence of an anxiety disorder,⁵ he did not show that it had a major limiting impact on his life or his ability to perform his job. Dr. Giannone, the arbitrator noted, testified at the hearing that petitioner could perform normal activities despite his anxiety disorder. The arbitrator further noted that Dr. Scher's affidavit, the sole evidence on which petitioner relied to support this claim, merely stated that petitioner has an anxiety disorder which, during stressful times, impaired his decision-making ability. Relying on federal case law such as Cody v County of Nassau (577 F.Supp.2d 623, 639 [EDNY 2008]), Arbitrator Lazan stated that Dr. Scher's affidavit was insufficient to establish discrimination.

Next, the arbitrator noted that teachers are given the benefit of an honor system as to their self-treated days. Medical documentation is not required for the first ten days of such absences, and — with notice — three of those days may be used for personal business. Arbitrator Lazan concluded that, "[b]y altering the sick notes from Dr. Giannone, [petitioner] effectively sidestepped the Department's policy on `allowing' ten `self-treated' days. Even aside from the fact that [petitioner] committed fraud on [respondent], [petitioner] gave himself permission to take an extra six days of absence without having to provide any medical backup" (DOE v Mirenberg, at p 16). Arbitrator Lazan rejected petitioner's argument that sixteen days of absence is not excessive, relying on Principal Tudda's statement that after ten days, a teacher's absences might be considered excessive and on P.S.188's faculty conference notes, in evidence, which stated as much. The arbitrator further agreed with respondent that because of petitioner's fraud, all of the challenged absences were improper. He stated that, contrary to petitioner's argument, his absences had an impact on the school in 2013-2014. Thus, he sustained the first specification, which related to petitioner's work at P.S.188.

Arbitrator Lazan next sustained the second specification which related to petitioner's actions while he was at P.S.307K. He determined that petitioner falsified the doctor's notes he submitted for September 16 and 17, 2014. As for specification three, the arbitrator found that petitioner improperly accepted payment for these days as he had not submitted any evidence establishing that he was ill, and his then-treating physician credibly testified his anxiety was not disabling and provided progress notes which refute petitioner's statements about his mental health during specified periods. Arbitrator Lazan found that petitioner was not credible, pointing out that he changed his testimony on several occasions when confronted with evidence contradicting his contentions. He further found that petitioner was not credible based on the record, which established that he lied about his purported kidney problems.

The arbitrator also considered the claims in the second case. He sustained specification one, relating to his nineteen falsified doctor's notes at P.S.188. Although, as petitioner argued, an arbitrator generally cannot rule on claims relating to conduct over three years before the filing of the specifications, he had the power to do so here because fraud (a crime) was involved (Educ. Law § 3020-a [1]). He rejected petitioner's arguments that he did not mean to defraud respondent and he found petitioner's contention that he had intended to reveal that he was ill without specifying his condition was of no avail. He stated that, under Aronsky v Department of Education (75 N.Y.2d 997, 1000 [1990]), respondent had satisfied the fraud by the applicable substantial evidence standard.

In addition, the arbitrator sustained specification two in the second case. The specification also relates to the nineteen days for which petitioner submitted fraudulent doctor's notes. As with a similar charge in the first case, Arbitrator Lazan found that petitioner improperly accepted payment for the nineteen days in question. The arbitrator reiterated that "[petitioner's] testimony was inconsistent and at times hard to believe" (DOE v Mirenberg, at p 25) — using, as an example, petitioner's statement that Dr. Giannone knew petitioner was writing altered doctor's notes. Arbitrator Lazan again reviewed Dr. Scher's affidavit and viewed it unpersuasive, noting that she stated petitioner suffered panic attacks in 2007, when he missed very few days of class, and that she did not indicate petitioner's condition prevented him from working. Because he sustained specification two, he sustained specification three, which stated that petitioner improperly accepted money for the days in question. He sustained specification four, which required him to consider whether petitioner violated the penal law. He rejected petitioner's argument that he lacked authority to rule on this issue, concluding that he only considered it only because it was necessary to determine whether he could rule on claims that were over three years old (see Educ. Law § 3020-a [1]).

Finally, the arbitrator dismissed specification five in the second case. This charge alleged that petitioner was excessively absent during his year at P.S.307K. He noted that "the pattern and practice [of respondent] appears to be that more than ten absences in the school year are required for a teacher's absences to be deemed `excessive'" (DOE v Mirenberg, at p 29), and pointed to testimony and evidence supporting his conclusion. He rejected respondent's position that the two fraudulent notes from September transformed his absences from excusable to excessive.

Based on all the aforementioned findings, Arbitrator Lazan concluded that petitioner's termination was justified. He noted that petitioner concededly altered doctor's notes, and that he only stopped doing so when "he was caught by a sharp-eyed secretary and an attentive principal" (id., at p 31). He rejected petitioner's statements that he repented of his wrongdoing, partially on the basis that he didn't acknowledge his wrongdoing and repent of it before he was caught — even after Principal Tudda reprimanded him for his excessive absences. He noted that, notwithstanding petitioner's claim of panic attacks, he was not under the influence of an attack when he turned in the falsified documents. He noted that petitioner's statement that he is now rehabilitated was self-serving and lacked evidentiary support, and that the only witness who supported petitioner's claims was one of his parents. The arbitrator noted that the record supports petitioner's claim that he is a good teacher, but concluded that "dishonesty on this scale cannot be tolerated in the workplace" (id., at p 33). He pointed out that petitioner

submit[ted] cases in support of his position, but not a single case where similar fraud by a teacher results in an arbitrator levying a penalty less than termination. The Department, on the contrary, presents case after case where where teachers submitted fraudulent medical notes and were terminated by arbitrators. See, e.g., New York City Dep't of Educ. v. S.B., Case #5,215 (2006) (Bauchner, Arb.).

Based on the above, Arbitrator Lazan found that respondent had shown — and petitioner had failed to refute — that termination was an appropriate penalty on the facts of the case.

DISCUSSION

Education Law § 3020-a sets forth the procedures and penalties for disciplinary actions against tenured teachers. Subsection five of that statute authorizes judicial review of aarbitrator's decision. That review is limited to grounds set forth in Section 7511(b) (1) of the Civil Practice Law and Rules: 1) corruption, fraud or misconduct in the award's procurement, 2) bias on the part of the arbitrator, 3) a decision which shows the arbitrator exceeded his power or failed to clearly resolve the case, and 4) failure to follow the procedural guidelines. Where parties have submitted to compulsory arbitration, this Court applies a stricter standard of review than it does in voluntary arbitrations (See, e.g., Lackow v. Dep't of Educ., 51 A.D.3d 563, 567 [1st Dept 2008]). The arbitrator's decision must accord with due process, be supported by adequate evidence, and be rational and satisfy the arbitrary and capricious standards under Article 78 of the Civil Practice Law and Rules (id.) An arbitrator's credibility determinations, however, are "largely unreviewable" (id. at 568). Petitioner bears the burden of proof in challenging the arbitrator's decision under these standards (id.). Moreover, as the Court of Appeals stressed recently in Matter of Bolt v New York City Department of Education (30 N.Y.3d 1065, 1068 [2018]), even if a court disagrees with the severity of the penalty imposed, this "does not provide a basis for vacating the arbitral award or refashioning the penalty."

The Court has set forth the underlying arguments in detail above. In brief, the petition states that the arbitrator was biased, committed legal errors, and reached an arbitrary, irrational conclusion. Petitioner challenges the arbitrator's credibility determinations. He notes the above-cited standard of review and cites to his protected status as a tenured teacher. He also states that in cases involving employees with prior good service, courts have deemed termination too harsh and suspended the teachers instead.

After careful consideration, the Court concludes that there is no merit to Petitioner's contentions in the instant application. The arbitrator's determination, as set forth herein, was rational (Matter of Grassel v Department of Education of the City of New York, 158 A.D.3d 501, 501 [1st Dept 2018]). As in Matter of Berkley v New York City Department of Education,there was ample evidence in the record that supported the arbitrator's decision (see ___ AD3d ___, ___, 2018 NY Slip Op 01669 [1st Dept 2018] [Berkley], at p 3). Petitioner cites to no specific examples of the arbitrator's alleged bias (see Grassel, 158 AD3d at 501), and does not indicate that the arbitrator committed any specific legal error.

Petitioner's argument that the arbitrator did not consider Dr. Scher's affidavit lacks merit. Contrary to petitioner's contention, Arbitrator Lazan considered and discussed the affidavit of Dr. Scher and provided a cogent analysis (see supra, at pp 9, 11), but did keep in mind that she did not appear and was not subject to cross-examination. The arbitrator did not ignore, but commented upon, petitioner's merit as a teacher. He simply concluded that the charges here were serious enough to overshadow petitioner's talent and warrant termination. The arbitrator's credibility findings are "largely unreviewable" (Matter of Board of Education of the City School District of the City of New York v Ostrin, 120 A.D.3d 1105 [1st Dept 2014]), and petitioner has not shown evidence sufficient to justify deviation from this deferential standard.

Moreover, the penalty of termination is not disproportionate, as fraud is a serious allegation and petitioner failed to correct his misconduct after his discussion with Principal Tudda (see Berkley, 2018 NY Slip Op 01669, at p 3). As the Court of Appeals found in Bolt, "the penalties imposed are not irrational and do not shock the conscience" (Bolt, 30 NY3d at 1068). The Article 78 proceedings to which petitioner cites in are distinguishable. Bovino v Scott (22 N.Y.2d 214 [1968]), for example, is a 1968 Court of Appeals case under Article 78, not Article 75, and it evaluates the penalty imposed by the Fire Commissioner on a firefighter. Mitthauer v Patterson (8 N.Y.2d 37 [1960]), is a 1960 Court of Appeals decision which also arose under Article 78. In that case, the court affirmed an appellate court decision which modified the penalty imposed on a petitioner, who had an unblemished twenty-year record and then was found to have taken three passengers' fares for herself.⁶ The First Department's 1958 decision, under Article 78, vacated the dismissal of a Public Works official with a long history of civil service who, during a period of serious illness and numerous surgical procedures, failed to timely complete an examination which the Commissioner of Investigation initiated under the Security Risk Law. The 1971 Court of Appeals case, Picconi v Lowery (28 N.Y.2d 962[1971]), also related to the termination of a firefighter. In addition, the arbitrator did not act irrationally in rejecting petitioner's argument that he submitted the fraudulent doctor's notes due to his disability. Rather, in that case, the arbitrator reasonably found that petitioner's actions were not caused by the disability, both based on petitioner's own testimony that he was not disabled when he submitted the doctor's notes and on the failure of petitioner to submit any supporting evidence.

The Court has considered the parties' other arguments, even if they are not discussed specifically in this order, and they do not alter this conclusion. Therefore, it is

ORDERED that the petition is dismissed.

FootNotes

1. Arbitrator Lazan states this based on the hearing he held and the documents before him. This Court discusses the arbitration supra at page 7.

2. This is a verbatim copy of the specifications. As stated at the end of the charges, the asterisk "Denotes a day before or after a weekend and/or holiday."

3. In the arbitration, respondent here was the "petitioner" and petitioner here was the "respondent." For the sake of clarity, however, the Court uses the titles they have in this proceeding.

4. At times, petitioner's attorney alludes to the fact that petitioner did have kidney issues. The arbitrator found no information tying his absences or his decision to submit fraudulent doctor's notes to his kidney problems.

5. The arbitrator did not decide that petitioner was disabled, but assumed it for the sake of his analysis.

6. She collected the fees and told them not to go through the turnstile.

See also: 

Dep’t of Education v. Brust OATH Index No. 2280/07 (Sept. 29, 2008), adopted, Chancellor’s Decision (Oct. 22, 2008), appended

 Betsy Combier
betsy.combier@gmail.com
Editor, Advocatz.com
Editor, NYC Rubber Room Reporter
Editor, Parentadvocates.org
Editor, New York Court Corruption
Editor, National Public Voice
Editor, NYC Public Voice

Former Hempstead Deputy Superintendent Sues For Wrongful Termination

 Dr. McDonald feels that he was wrongfully terminated under the Civil Service Law 75-B whistleblower statute. This will be interesting.

Betsy Combier
betsy.combier@gmail.com
Editor, Advocatz.com
Editor, NYC Rubber Room Reporter
Editor, Parentadvocates.org
Editor, New York Court Corruption
Editor, National Public Voice
Editor, NYC Public Voice

Varleton McDonald, seen in November 2017, was deputy superintendent of the Hempstead school
district. Photo Credit: Daniel Goodrich

Ex-Hempstead deputy superintendent files wrongful termination suit

Varleton McDonald alleges the school board's majority targeted him because he disclosed information about "rampant and corrosive corruption, waste, and gross illegalities" in the district

By Keshia Clukey
keshia.clukey@newsday.com
Updated November 5, 2018 9:55 PM

Former Hempstead schools Deputy Superintendent Varleton McDonald is suing the district and several members of its board, alleging he was wrongfully terminated after blowing the whistle on corruption in the system.

The civil complaint, filed Oct. 10 in federal court in Central Islip, alleges members of the school board's majority “retaliated” against McDonald and terminated his employment after he disclosed information about “rampant and corrosive corruption, waste, and gross illegalities” in the district. According to the complaint, he spoke with the state Education Department and was questioned by the FBI about issues in the district.

McDonald, terminated Jan. 17, was brought to the district by embattled Superintendent Shimon Waronker, with whom he previously worked in New York City — an association that contributed to his firing, said Mark Goidell, the Garden City-based attorney for McDonald.

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 Read the lawsuit

Waronker, on paid administrative leave since Jan. 9, also is suing the district regarding his removal.

McDonald's lawsuit names the district and board members David Gates, Randy Stith and LaMont Johnson, who made up the majority when the board voted in favor of terminating his employment.
The lawsuit “has no merit whatsoever," said Jonathan Scher, the Carle Place-based attorney for the district and board members.

“The complaint contained allegations that are wholly fictitious and warrant the board asserting a character claim for defamation,” Scher said. He said making “scandalous accusations in an attempt to try to manufacture a claim is not excusable and establishes the level of maliciousness that exposes a plaintiff to liability for defamation even where the claims are made against a public figure.”

The Scher Law Firm, where Scher is a partner, on Oct. 30 asked permission from the court to file a motion to dismiss. The court has not ruled.

Board members cannot comment on pending litigation, Scher said.

"Everyone likes to sue the Hempstead school district. It seems to be the thing to do," Stith said. "What if we, the district, started to sue those who have taken from the schools, who have taken from the students, and who have taken from the district? Everything will soon come to light."

Gates and Johnson could not be reached for comment.

The board, under a different majority, hired McDonald in a 3-1 vote on Sept. 28, 2017, to "provide instructional and operational support for the persistently struggling schools," with an annual salary of $180,000, according to meeting minutes.

McDonald’s appointment was part of Waronker’s efforts to turn around the district, which has been struggling for decades and criticized by state officials for its low test scores and graduation rates, as well as factionalism among board members. Hempstead is the largest K-12 system in Nassau County.

According to the complaint, McDonald was approached in December 2017 by FBI investigators, with whom he shared information about alleged wrongdoing in the district. McDonald in December also told state Education Department officials and school board members about the findings, according to the complaint.

The Education Department had no comment.

The FBI’s New York office did not immediately return a request for comment Monday.

"The disclosures related again to widespread corruption, significant financial improprieties," Goidell said. "It’s my understanding that while I'm not at liberty right now to discuss the specifics of those matters, it's my understanding that they very well may become the subject of public disclosure in the very near future."

Relations between Waronker, who started in the district on June 2, 2017, began to sour last fall. After a change in its majority, the board on Jan. 9 voted 3-2 to place Waronker on paid leave, appointing longtime Hempstead administrator Regina Armstrong as acting superintendent.

McDonald’s employment was terminated in a 3-2 vote during a Jan. 17 meeting, according to meeting notes. Then-board president Maribel Touré and vice president Gwendolyn Jackson, who made up a minority bloc on the panel, voted against his dismissal.

Touré said the board majority terminated the employment of other administrators brought in under Waronker, so they saw McDonald’s termination coming.

“He’s not the only one talking to the Department of Education,” she said, adding that she, too, has spoken to the department about alleged corruption in the district.

Jackson could not immediately be reached for comment. She and Touré both lost their re-election bids in May.

Scher said he could not comment on the reasoning for McDonald’s termination.

“Mr. McDonald has strayed far from the truth in a certain few of his allegations, and the board will need to decide whether to hold him liable for that with a defamation counterclaim,” Scher said about the accusations. “Certainly, they have a legal basis for pursuing that.”

McDonald’s lawsuit is seeking monetary damages for "wrongful" termination and effects on his reputation, Goidell said, noting that McDonald has not been able to obtain employment.

No dollar amount was specified and no further court appearances have been scheduled, according to court documents.