Vieira-Suarez responds to 'time-out' room firing

7/25/2019 Vieira-Suarez responds to 'time-out' room firing

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STATE OF NEW YORK

SUPREME COURT ONONDAGA COUNTY

In the Matter of the Application by Laura Vieira

Suarez,

Petitioner,

for a judgment pursuant to Article 75 o f the C.P.L.R.

against the Syracuse City School District,

Respondents.

Index No.: 2016EF334

RJI

No.: 33-16-0266

Hon. Spencer Ludington, JSC

PETITIONER S MEMORANDUM OF LAW

IN

SUPPORT OF ARTICLE 7 PETITION

Respectfully Submitted,

Counsel:

Dennis

G

O Hara, Esq.

Stephen Ciotoli, Esq.

Ryan G Files, Esq.

O HARA, O CONNELL CIOTOLI

Attorneys for Petitioner

7207 East Genesee Street

Fayetteville, N Y 13066

Tel. No.: 315) 451-3810

ILED: ONONDAGA COUNTY CLERK 02/03/2016 05:27 PM INDEX NO. 2016E

YSCEF DOC. NO. 10 RECEIVED NYSCEF: 02/03/


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T BLE OF CONTENTS

PRELIMIN RY ST TEMENT 1

ST TEMENT OF

FACTS 2

Petitioner s Professional and Personal History 2

Student KP s Behaviors and the District s Responses 5

Time Out Rooms v Emergency Interventions 8

The Events

of

October 29, 2013 9

The Grandmother s Complaint. 10

The District s Investigation

ST TEMENT OF PETITIONER S C SE

A. The 3020-A Charges

B

The Hearing Officer s Determinations 12

C The Grounds for This Article 75 Appeal 13

THE L W ND RGUMENT 16

POINT I:

THE

SUBSTANTIAL EVIDENCE STANDARD, MODIFIED

TO

GIVE

EFFECT TO THE UNIQUE STATUTORY PROTECTIONS OF A

TENURE

EMPLOYEE, IS THE MINIMUM STANDARD REQUIRED FOR JUDICIAL REVIEW

OF THE DECISION 16

A. Judicial Review

of

Compulsory Arbitration Awards 16

B

Additional Levels

of

Inquiry

for

a

3020-a Decision 17

C The District s Burden of Proof 18

D

Substantial Evidence is the Appropriate Standard

of

Judicial Review 18

E

Constitutional Implications , 19

POINT

II: THE DECISION CONSISTS PRIMARILY OF

ON LUSORY

STATEMENTS NOT BASED ON THE EVIDENCE AND IS

SO

LACKING IN

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ANALYSIS AND DEVOID OF SPECIFIC FINDINGS OF FACT AS TO BE FACIALLY

DEFICIENT AND SUBJECT TO VACATURE 20

PO T

III: THE HEARING OFFICER ERRONEOUSLY FAILED TO CONSIDER

RELEVANT AND PROBATIVE EVIDENCE REGARDING EMERGENCY

INTERVENTIONS 22

A Petitioner Agrees the Room was Not an Approved Time Out Room 22

B

An Emergency Intervention was Often Necessary and Appropriate 23

C

Use of the Room for Emergency Interventions was Proper 24

PO T

IV: THE HEARING OFFICER FAILED TO CONSIDER RELEVANT AND

PROBATIVE EVIDENCE REGARDING THE UNFAIRNESS OF THE DISTRICTS

INCOMPETENT INVESTIGATION OF THE COMPLAINT BY KP s

GRANDMOTHER 27

A The Investigation was Incompetently Conducted 27

B Wade s Incompetence Prejudiced Petitioner 28

PO T

V: THE HEARING OFFICER S DETERMINATIONS REGARDING CHARGE

NO ARE NOT SUPPORTED BY SUBSTANTIAL EVIDENCE. 29

A

The Separate Allegations; Petitioner s Short Responses 29

B

Dooley s Story Regarding October 29 2013 30

C

The Credibility Conflict Between Dooley and Petitioner 31

D The Hearing Officer Failed to Properly Address the Credibility Conflict.. 32

E

Dooley s Story Re: October 29 2013 is a Fabrication .40

PO T

VI: THE HEARING OFFICER S DETERMINATIONS REGARDING CHARGE

NO 2 ARE NOT SUPPORTED BY SUBSTANTIAL EVIDENCE. .48

A The Separate Allegations; Petitioner s Short Responses .48

B

The Hearing Officer s Sparse and Irrational Decision 50

C

Substantial Evidence Does Not Support the Hearing Officer s Conclusion

Regarding the Alleged Directive 53

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D There

is

No Proof of Misrepresentations to McDonald 59

POINT VII: THE HEARING OFFICER S DETERMINATIONS REGARDING CHARGE

NO LACK ANY EVIDENTIARY FOUNDATION AND ARE NOT SUPPORTED BY

SUBSTANTIAL EViDENCE

6

A

McDonald s Testimony Disproves the Charge 62

B Petitioner Was Aware of Only One and Not Several Incidents 62

C

The Hearing Officer Ignored Specification 3 (b) 64

POINT VIII: THE HEARING OFFICER S DETERMINATIONS REGARDING CHARGE

NO 4

LACK ANY EVIDENTIARY FOUNDATION AND ARE NOT SUPPORTED BY

SUBSTANTIAL EViDENCE 65

A The Hearing Officer s Findings are Not Supported by Substantial Evidence 65

B

Dooley s Affidavit and Testimony are Not Credible 66

C

Dooley s Affidavit is Contradicted by McDonald s Testimony 68

POINT

IX

THE HEARING OFFICER S DETERMINATIONS REGARDING CHARGE

NO 5 ARE NOT SUPPORTED BY SUBSTANTIAL EVIDENCE. 70

A

Evidence Regarding the Lock has no Relevance

on

Petitioner s Credibility

7

B

The Notes and Affidavits do not Undermine Petitioner s Credibility 72

C

Differences in Recollections do not Necessarily Impact Credibility 73

POINT

X

THE PENALTY OF TERMINATION

IS

SO DISPROPORTIONATE TO ANY

OFFENSE ESTABLISHED BY THE DISTRICT AS TO BE TRULY SHOCKING TO

THE CONSCIENCE AND SHOULD BE VACATED 74

A

The Requirements Established by tter of e l

B Petitioner s Character, Exemplary Career and Background 75

SUMM RY ND ON LUSiON 76

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T LE OF UTHORITIES

ses

Aikins

v

Curtis

81 A.D.2d 1020 [4th Dep t 1981] 20

AJlesandro [State Comm. on Judicial Conducfi

13 NY3d 238 [2009] 20

ppealof Board of

Education

of

the Goshen Central School District

30

Ed

Dept. Rep.

181,187; (Decision No 12,426, November 30 1990) 28

Bd. of Educ.

of

Dundee Cent. School District [Colemanl 96 AD3d 1536 [4th Dep t.,

2012] 17

Ferraro

v

Board of

Education

32 Misc. 2d 563 [Sup. Ct NY App. Term. 2nd Dep t.

1961] 24

Gongora v NY C Dept.

of

Educ. 34 Misc.

3d

161 (Sup. Ct., NY County, 2009) 19

King

v Ne w

York State

Dep t of

Health

295 AD2d 743 [3d Dep t 2002] 31

Lackow v Department

of

Educ.

of

the

CitvofNew

York

51 A.D.3d 563 [1st Dep t 2008]

...................................................................................................................................16

Martin v Ambach 67 N.Y.2d 975 [1986] 18

Mirand

v

City

of Ne w

York

84 NY2d 44 [1994] 24

Motor

Vehicle Mfrs. Ass n

v

State

75 N.Y.2d 175 [1990] 17

Mt. St. Mary s Hospital v Catherwood 26 NY 2d 493 [1970] 6 7 19

Mulroy

94 NY2d 652 [2001] 20

MV IC etna Cas. Surety Co. 89

NY2d 214 [1996] 19

Pe l v Board of Education 34 NY2d 222 (1974) 18, 74

Puchalski v Depew UFSD, 119 AD3d 1435 [4th Dept. 2014] 1

t tutes

8 NYCRR 19.5 24

8 NYCRR 200.22 passim

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8 NYCRR 82 3 8 17 2

CPLR 78 3

Education aw 3 2

6

8

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LOSS RY

The following lists the individuals mentioned in this memorandum of law and

briefly describes their role or relevance to the charges. The witnesses

are identified by their last names

in

this Memorandum

Law.

Witness

Diane Abt ( Abt )

Anthony Bishop ( Bishop )

Josh Beardall ( Beardall )

Joann Burns ( Burns )

Kristi Cleary ( Cleary )

Student S( CS )

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Role

Relevance

Lead Secretary at LeMoyne Elementary School and

fact witness to the October 29, 2013 incident involving

student S She testified that Petitioner never left the

main office area the morning

October 29th.

Teaching Assistant at LeMoyne Elementary School.

Witness to KP s behavior and involved in the throw

up incident, the only incident Petitioner was aware

where

KP

was in the Vestibule room. Bishop was also

a witness to the October 29, 2013 incident involving

student S

Director of Staff Relations for the Syracuse City School

District. Present for a number District interviews

conducted by Lisa Wade and took notes

these

interviews.

Worked with Petitioner at the Residential Treatment

Facility (RTC). Character Witness for Petitioner.

School Psychologist at LeMoyne Elementary School.

Familiar with KP s behavior and helped develop KP s

Individual Education Plan (IEP) and Behavior

Intervention Plan (BIP).

Student at LeMoyne Elementary School. Classified as

Emotionally Disturbed. His rampage caused damage

to the Main Office on the morning October 29, 2013,

which occupied the time and attention of Petitioner,

and other school staff.

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Donna Dooley ( Dooley )

Amy Evans ( Evans )

Robert Francis ( Francis )

School Nurse at LeMoyne Elementary School. Sole

District Witness on Charge No. 1 regarding allegedly

putting

P

in the Vestibule Room on October 29, 2013

and Charge NO that Petitioner allegedly told her to

not tell the truth to the District investigators.

Assistant Director of Special Education for the

Syracuse City School District. Conducted the initial

investigation for the District based on allegation from

KP s grandmother and interviewed P

Head Custodian at LeMoyne Elementary. Dooley

claimed that Francis was present for the incident on

October 29, 2013, which Francis did not corroborate.

Daniel Lowengard ( Lowengard ) Former Superintendent of Syracuse City School

District who brought Petitioner to the District and was a

Character Witness for Petitioner.

Cheryl McDonald ( McDonald )

Kristen Moulton ( Moulton )

Susan Muehl ( Muehl )

Student P ( KP )

Julie Sheridan ( Sheridan )

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Vice Principal of LeMoyne Elementary School. Sole

District Witness

on

Charge No. 2 regarding Petitioner

allegedly directing her to use the Vestibule room for

Pand also Charge NO.3 that Petitioner allegedly told

her to not tell the truth to the District investigators.

KP s Special Education Teacher at LeMoyne

Elementary School. Witness to KP s behavior and

helped develop KP s IEP and SIP.

Teacher Assistant in KP s 8-1-1 classroom. She was in

the middle of the fight between three emotionally

disturbed students that occurred beginning at 8:45 am

on October 29,2013.

Student at LeMoyne Elementary School. Classified as

Emotionally Disturbed. The charges center on this

student s behavior and the staff s efforts to deal with

his behavior.

The Director of Faith Foundation at Most Holy Rosary

Church

in

Syracuse. Character Witness for Petitioner.

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Lisa Wade ( Wade )

Mark Warner ( Warner )

Kathleen Warren ( Warren )

Colleen Wills ( Wills )

Laura Viera-Suarez

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Assistant Director

Personnel since 2006 - Director

Employee Services since 2013. The District s lead

investigator

in

this matter who conducted and took

notes the interviews

the witnesses. Wade s

investigation and conclusions is what led the District to

bring charges against Petitioner.

Teaching Assistant at LeMoyne Elementary School.

Was present when McDonald informed Petitioner that

she had placed

in

the Vestibule room.

Assigned as KP s one-to-one Teacher Aide for the

2013-2014 school year. Witness to KP s behavior and

was with McDonald when she put

in

the Vestibule

room. Warren was also with KP the entire morning

October 29, 2013.

Special education teacher

in

the 8-1-1 classroom that

was assigned to for the 2013-14 school year

Petitioner

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PR LIMIN RY ST T M NT

Petitioner, Laura Viera-Suarez, was the tenured Principal

of

the LeMoyne

Elementary School until her employment was terminated by the Board

of

Education (the

Board ) of the Respondent Syracuse City School District (the District )

on

January 21,

2016. On July 8,2015, the Board filed charges against Petitioner pursuant to Education

Law 3020-a (the Charges ). The Charges are annexed as Exhibit B to the Petition.

On January 15 2016, the hearing officer appointed to decide the Charges posted his

opinion and award

on

a website maintained by the State Education Department

( SED ). A copy of that opinion and award (the Decision )

is

annexed as Exhibit A to

the Petition. The Commissioner of Education has not yet served a copy

of

the Decision

on Petitioner

as

required by Education Law 3020(4)(a). See also, Puchalski

Depew UFSD 119 AD3d 1435 [4th Dept. 2014]),

As required by Education Law 3020 (5)(a), this proceeding seeking to vacate

the opinion and award of the hearing officer has been commenced pursuant to CPLR

Article 75.

The affirmation of Dennis G O Hara,

Esq

identifies and incorporates the

transcript

of

the testimony and the exhibits accepted into evidence at the 3020-a

hearing. (The transcript of the 3020-a hearing testimony has been submitted

electronically to the Court

as

Exhibit C to the affirmation, and references to the

transcript are identified by the letter

T

followed by the appropriate page number. The

District s hearing exhibits are Exhibit and Petitioner s hearing exhibits are Exhibit E

to the affirmation). This Memorandum of Law is submitted

in

support of the Petition.

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ST TEMENT OF F CTS

Petitioner s Professional and Personal History

Petitioner was a successful educator for

36

years prior to the termination her

employment. A significant portion of her personal and professional life has been

devoted to educating and caring for emotionally disturbed young men with a

commitment that extended far beyond what can be reasonably expected. T 1700

1705).

Petitioner has worked closely with children with severe emotional problems

throughout her career. Petitioner s first employment after graduation from school was

in

1979 with Oneonta Job Corps, which was

an

alternative to incarceration for youth.

Petitioner taught and also worked on the development of the program and GED

programs.

T

1699). Petitioner then worked

in

a Putnam County residential psychiatric

treatment center an RTC ) where she taught emotionally disturbed students for 7

years, and held several administrative positions, starting as the clinical curriculum

coordinator and then Vice Principal, followed by

3

years as Principal of the RTC. T

1700-1702). In Utica, New York, Petitioner was principal of an alternative education

program operated by the Oneida-Herkimer-Madison SOCES for students with behavior

problems. The SOCES serviced nine component districts and had several sites for

children that could not be maintained

in

their home schools. T 1703). Thereafter,

Petitioner worked for the Utica City School District

as

the Principal of the Liberal Arts

Academy at Proctor High School. T 1703-1704). Petitioner has been employed by the

Syracuse City School District (the District ) since 2005, beginning

as

Principal

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Fowler High School from 2006-2009 and then Director of English as a Second

Language, ESL Bilingual and Languages other than English from 2009-2012.

T.

1705).

Petitioner has an Associate s Degree

in

Early Childhood Education from

Farmingdale University. Petitioner completed her Bachelor s Degree in Education and

began to work on her Master s Degree at SUNY Oneonta and completed her Master s

Degree and Professional Diploma in Special Education in School Administration at

Fordham University. T. 1704-1705). Petitioner s Certifications are in Special Education,

Early Childhood Education, School Administrator/Supervisor Certification and School

District Administrator.

T.

1704-1705).

As Principal of LeMoyne Elementary School for the 2012-2013 and 2013-2014

school years, she supervised 100 staff members and more than 500 students. T.

1728-1729; Exhibit E-58). Special education students constituted 19.3 (over 100)

the entire student population of LeMoyne Elementary (Exhibit E-58) and several

emotionally disturbed students placed incredible management demands on the staff.

See,

Joint Exhibit

4

Exhibits E-1-4, and E-9). Amongst her colleagues and superiors,

Appellant has been widely praised and commended for her nurturing demeanor and

unwavering commitment to all of her students.

See, testimony of Moulton [T. 286],

Cleary [T. 371], Dooley [T. 620], McDonald [T. 800], Wade [T.1385], Abt [T. 1574],

Lowengard

[T.

1490-1491] and Warren

[T.

1906]).

Petitioner s husband is employed by the Roman Catholic Archdiocese

Syracuse as the program director of after-school programs. T. 1706-1707). By

profession, he is a counselor who also spent most of his career working with severely

emotionally disabled students. For over 20 years, Petitioner and her husband have

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been scrutinized by case workers, law guardians and others whose job is to protect the

welfare vulnerable children. (T. 1712-1713). These individuals have been in and

about the Suarez household for decades because Petitioner and her husband have

entered foster parent relationships and closed adoptions with xseverely emotionally

disabled children who they have raised to adulthood.

The first child adopted by Petitioner and her husband was a resident the RTC.

Before coming to that facility, he had been hospitalized for a year with multiple burns

and other injuries inflicted by his birth father. They adopted this young man when he

was seven years old. (T. 1710-1711). The next two adopted children were brothers who

were placed in foster care with Petitioner and her husband when they were 13 and 14

years old. Petitioner had counseled one the boys at the RTC. His brother came

directly from Rockland Psychiatric hospital with a diagnosis early onset

schizophrenia. Both boys had ODD (Oppositional Defiant Disorder), and one was

diagnosed with ADHD and as a pathological liar.

T

1717).

The fourth child was borderline mentally retarded, with ADHD and ODD. He also

had a congenital heart condition. He was adopted by Petitioner and her husband when

he was 8 years old and he died from the heart condition when he was 33 years old.

This young man also came from the RTC and had been severely abused and

abandoned as a child. T 1719-1720). The fifth adopted child came to the family as a

13-year-old. He was a resident of St. Mary s Group Home on Long Island and his father

was a drug addict.

T

1715).

The most recent addition to the Suarez family was adopted when he was eight

years old. He was also one Petitioner s resident students at the RTC, diagnosed with

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ODD, ADHD and a bipolar disorder. 1. 1723).

n

addition, a court has granted

Petitioner and her husband custody

of

their grandson. As a consequence, law

guardians and other case workers still frequently inspect and evaluate the Suarez family

setting. 1. 1712-1713).

Student

KP s Behaviors

and th e District s

Responses

The student at the center of the Charges KP)

is

emotionally disturbed and prone

to extremely hostile behavior and outbursts that create serious safety risks for everyone

around him. He presents constant and almost insurmountable behavioral problems that

endanger himself, his teachers and fellow students.

See,

Joint Exhibit 4 which contains

32 Disciplinary Referrals for the 2013-2014 school year for KP and Exhibits E-1-4, and

E-9).

His documented behaviors included running throughout the school and hiding

wherever he can; screaming, cursing, and dumping over trash cans; physically and

without provocation attacking younger students; hitting a pregnant teacher

in

the

abdomen; slamming doors to classrooms; throwing wastebaskets; climbing on stair

railings; banging on

windows and walls; scratching the face

of

st af f members; and

kicking, punching and tantruming on

an

almost daily basis. Staff members testified that

KP s typical behaviors were

extremely unsafe

1. 748-749) and frequently required

him to be physically restrained

in

order to effectively protect himself, others and school

property. 1. 246 [Moulton], 762-763 [McDonald], 1246, 1316-1317, 1342-1353 [Wade]

and 1858 [Petitioner];

ee

Exhibit 0-14 for 1-18-12,3-1-13 twice), 3-4-13, 3-13-13 4

24-13, 4-26-13 and 9-27-13). Sometimes, that response required immediate restraint

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using reasonable physical force at a location near his outburst. T. 1341-1342, 2281

2282).

KP frequently had to be restrained to protect himself, others and school property.

Vice Principal McDonald told Wade, the District s lead investigator

in

this matter, she

has

to restrain [KPJ - when he strikes out at people

and that her

biggest fear - he will

hurt a bigger kid and they retaliate. (See, Exhibit 0-24). Teaching Assistant, Bishop,

provided similar testimony

T

2258-2282), and KP s private therapist agreed that

restraint was necessary.

T

754-786).

In

fact, Wade observed one out-of-control

situation where KP had to be restrained by the substitute Principal. T.1353). These

dangerous behaviors were confirmed by testimony other staff members.

(See,

T.199-200 [Moulton],

T

305 [Cleary],

T

447, 508 and

521

[Dooley], T.909-910, 939-940

and 1268 [Wade],

T

1886-1887, 1894-1895 and 1900 [Warren] and

T

1574-1576

[Abt]).

Warren

is

Assigned

as

KP s One-on-One Teacher Aide.

Warren was assigned to be KP s one-to-one Teacher Aide to help control his

behaviors. She was with him throughout every day T 284), usually chasing him

throughout the building and attempting to restrain him.

T

246, 1246, 1858). She

would meet

KP

at the front of the building every morning and escort him to breakfast

either

in

the cafeteria, if he could put up with that stimulus or, more often,

in

Petitioner s

office. T.1905-1906).

2 KP s Placement at LeMoyne was Inappropriate.

The LeMoyne staff did not think that LeMoyne was the proper placement for KP

and believed that the McCarthy program would be more appropriate.

T

763-764). The

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McCarthy program was a separate school operated for students with serious emotional

issues. (See, e.g., T. 1270). KP

had

a 45-day trial run at McCarthy in spring 2013.

(T.1762-1763). However, his grandmother refused to let him stay

in

the program

because it dismissed too early

in

the day and she had other things to do. T. 242, 764

765, 1270-1271). Despite the unquestioned severity of KP s issues, the LeMoyne staff

received little help in response to numerous requests made to both the District s Special

Education office and KP s family. (Exhibit 0-38, Pg. 3 of 5 . The Special Education

department ignored pleas by the staff to transfer him to McCarthy or another more

appropriate setting.

KP was Runner.

It is uncontested that one of KP s typical behaviors was to

run

into various

spaces throughout all floors of the school building. The school nurse, Donna Dooley

( Dooley ) testified that he would run to any unlocked area and hide. T. 518). Bishop

also testified that

KP

would run through the halls. He -- he would run out

the building.

He has jumped out a window and when he s running through the halls he s trashing

and he s hitting students. n the scariest part

is

when he stands

up

on the railings in

the second floor and looks down the stairs.

In

Bishop s opinion, KP s behaviors

absolutely constituted a danger to himself and to other students. T. 2258).

Warren told Wade There is a place he goes to - Mr Bishop would meet him in

area - right

in

there - he would get sick and throw

up in

the room . (Exhibit 0-40).

Petitioner testified that KP frequently worked himself into such an agitated state that he

would throw up. (He would throw up often. He -- his temper tantrums were such that

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he would temper tantrum to point where he would

--

he would gag and make himself

throw up. ). T. 1785).

Also, the Committee

on

Special Education noted

in

his December 18, 2013 IEP

that KP ran around the school and that an adult s usually with him t all times to try to

help him be successful throughout the day with his peers and academics, ut most of all

to be safe. (See, Exhibit 0-3, p. 3 of

8 .

The hearing officer found that one of KP s

typical behaviors was running away from class and hiding throughout the School.

(Decision,

p. 7 .

As it relates specifically to the Charges, McDonald testified that

KP

actually open[ed] the door to the Vestibule room one time after he had run to that

location.

T.

803).

Whenever KP bolted from the classroom, Warren or one of the classroom

teachers immediately pursued him.

T.

230). If the adults

in

the classroom faced a

situation they could not handle, they contacted the Main Office for assistance via an

intercom system. T. 757). In that event, McDonald normally responded. T. 757).

McDonald testified that when

KP

got angry, he would

run

he would hit, he would kick,

he would spit, and that she dealt with KP s behaviors on a almost a daily basis.

(T.664-665).

Time

Out

Rooms

v. mergency Interventions

There was some confusion throughout the hearing regarding the difference

between using a Time Out Room for reflection (see, 8 NYCRR 200.22[c]) and

employing an Emergency Intervention to prevent

an

out-of-control student from

harming himself, others or destroying District property. (See, 8 NYCRR 200.22[d]).

These two concepts were the subject of significant focus at the hearing as it related to

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responding to KP s behaviors. POINT III, infra, discusses the confusion over the

distinction between these two concepts in more detail.

The Events

October

9

2 3

Charge No 1 alleges that on October 29, 2013, Petitioner personally

placed

KP

in the Vestibule room. Petitioner denies that she ever placed KP or any other student in

the Vestibule room and also produced substantial evidence that she was involved in

responding to a major crisis

in

the Main Office suite during the half hour period when

Dooley claims Petitioner was at the Vestibule room the morning October 29, 2013.

October 29, 2013 According to Dooley.

Dooley claims she saw Petitioner struggling with and being kicked by an

agitated KP

in

the school hallway at 9:00 a.m.

on

October 29, 2013. (T. 447).

Petitioner and KP were alone in the hallway with no staff or students in the vicinity and

his one-on-one Teaching Assistant, Warren, was nowhere

in

the area. (T. 508-509,

635). Dooley claims Petitioner asked her to help get

KP

to the Vestibule room and,

after they got him there, Petitioner held the door shut while KP screamed for four

minutes from inside the room.

Dooley also claims that Francis, the building s custodian, came by the Vestibule

room on October 29th while KP was screaming inside the room, and that Francis then

took Dooley and Petitioner inside the room to show them that there was no lock on the

inside door. Dooley claims the three them had a discussion about the lock.

See,

Exhibit 0-15, and see also, T 455-457, 493-494, 549). When he testified, Francis

denied any recollection of this incident.

T

1953). The Decision fails to address

Francis failure to corroborate Dooley s story.

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October 29, 2 13 According to Petitioner

Petitioner denies that the incident claimed by Dooley ever occurred. In addition,

from approximately 8:45 am to at least 10:15 am

on

October 29, 2013, she was

involved responding to a serious fight between three emotionally disturbed students that

resulted

in

personal injury and significant property damage, including injury to Petitioner.

The Main Office area was trashed during this incident and one student was taken to the

hospital. Several staff members responded to the incident, including Dooley who treated

injuries to the student and Petitioner. Police officers and representatives of Onondaga

Case Management ( OCM ) were also called to assist, as was an ambulance with EMS

personnel.

Discipline Referral

and

accident reports that were contemporaneously prepared

by several individuals are exhibits in the record. Dooley documented her treatment of an

injury suffered by the student (CS) when he kicked in a panel to the office door.

T.

1816). She prepared that note at 9:43 that morning. (Exhibit E-64). Dooley examined

the students ankle injury, called

911

to have him transported to St. Joseph s Hospital,

immobilized his right lower leg to the knee with a splint, applied ice packs to the leg, and

determined that

he

was

in

stable condition when he left for the hospital

in an

ambulance with his grandmother. (Exhibit E-65). She also attended to Petitioner s injury

and signed the accident report. (Exhibit E-17).

The Grandmother s omplaint

On June 11, 2014,

KP

was again out of control banging on the glass windows in

the hallway outside Dooley s office. When Dooley tried to stop him, KP kicked and

punched her

in

the abdomen. Dooley telephoned KP s grandmother to inform her that

{W0274748.1}


20/89

the school had called 9 to transport him to

Pep

at St. Joseph s Hospital for a

psychiatric evaluation. See Exhibit 0-14, pp. 4-5). KP s aunt was the first family

member to arrive at the school in response to that call. She reacted angrily to the

situation and claimed that

KP

was acting out because the school was locking him

in

a

closet

in

the basement (T. 1849-50). The aunt also called the District s Special

Education office to make the same complaint. (Exhibit 0-6).

The District s Investigation

Lisa Wade ( Wade ) from the District s personnel office ( Office of Talent

Management ) was then assigned to investigate the complaint that KP had been locked

in a closet in the basement of the school building. She conducted several interviews

of

school personnel before suspending Petitioner, McDonald and Warren on June 18,

2014. The 3020-a charges against Petitioner were not filed for another 13 months (on

July 8 2015).

STATEMENT OF PETITIONER S CASE

The 3020-A Charges

The essence of the first group of Charges is that, between 9:00 and 9:30 a.m. on

October 29, 2013, Petitioner personally placed an emotionally disturbed student (KP) in

a room for Time Out purposes although that room (the Vestibule room) was not

authorized to be used for that purpose and did not comply with the requirements

of

8

NYCRR 200.22(c), his Individual Education Plan ( IEP )

or

Behavior Intervention Plan

( BIP ). Dooley was the sole witness against Petitioner relative to this Charge.

The essence of the second group of Charges is that Petitioner directed the Vice

Principal, McDonald, to place KP in the Vestibule room for purposes of subjecting him to

{W0274748.1}

11


21/89

a Time Out. McDonald was the sole witness who claimed that Petitioner had given

her such a direction.

Both Charges allege that KP was subjected to physical abuse by being placed

in the Vestibule room. Finally, they allege that Petitioner s responses to Wade, the

District employee who investigated the complaint of KP s family that he had been

locked in a closet in the basement of the school, were not truthful and, also, that

Petitioner requested Dooley and McDonald to make false statements to Wade

relative to her investigation.

The Hearing Officer s eterminations

The hearing officer found Petitioner guilty of personally placing

KP

in the

Vestibule room

on

October

9

2013,

as

claimed by Dooley. He also found Petitioner

guilty of directing McDonald to place

KP

in the Vestibule room for Time Out

purposes, as claimed by McDonald. He found that the District had failed to prove that

KP had

suffered physical abuse

as

a consequence of being placed

in

the Vestibule

room. Finally, he determined that Petitioner had not truthfully answered questions

posed to her

by

Wade during the investigation, and that she had requested Dooley

and McDonald to make false statements to Wade relative to her investigation.

The hearing officer determined that there was just cause to Impose the penalty

of discharge based

on

his findings that Petitioner had

placed caused to be placed

a

disabled male student KP)

[the Vestibule room]

violation

of

his IEP and BIP, h

personally given false accounts

to

Wade and had wrongfully relied on

her

position as

a building principal to influence others to falsely testify to Wade.

{W0274748.1}


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c

The Grounds for This Article Appeal

Petitioner seeks to vacate the award on the following multiple grounds:

1

This case presented a critical distinction between the use of

an

approved Time

Out room for a special education student to reflect on behaviors in accordance

with his Behavior Intervention Plan ( BIP ), as authorized by 8 NYCRR

200.222(c), and an Emergency Intervention to prevent an out-of-control

student from harming himself or others, destroying school property or interfering

with the educational program, as authorized by 8 NYCRR

200.222(d). This

distinction was

an

important and potentially dispositive issue. Petitioner agrees

that it would be improper to use the Vestibule room as a Time Out room, at

least until the Board passed a policy approving the use

time out rooms and

the Vestibule room was modified to bring it into compliance with 8 NYCRR

200.22(c). She adamantly denies placing

KP

in

the Vestibule room or directing

anyone else to do so An additional defense is that 8 NYCRR

200.22(d)

authorizes the use of that room for

an

appropriate Emergency Intervention (Le.,

with an adult inside with the student and the door open), and such use should not

be the subject of charges. Petitioner contends that it was unjust for the District to

conflate the formalities for Time Out rooms with the Emergency Intervention

Regulation. However, the hearing officer ignored this testimony and did not say

one word about Emergency Interventions. This was a failure to consider all the

evidence that resulted

in

discipline without just cause.

2

Due process and Education Law 3020-a(4)(a) require that the hearing officer s

Decision set forth findings fact on each charge [and] his ... conclusions with

regard

each charge based on said findings. The hearing officer made only

minimal findings of fact on disputed material issues that are relevant on the

merits of the Charges, and some of these were erroneous. He also failed to

make any findings of fact on significant evidence. As a consequence the

Decision consists primarily of conclusory statements that lack any evidentiary

foundation.

3

The hearing officer s conclusory findings regarding Charge

No

1 are based

on

an erroneous standard of proof. After creating a bizarre and incomplete

timeline of events on October 29 2013, the hearing officer found that there is

an unaccounted gap between the initial disciplinary referrals of 8:45 am and

Respondent s injury at 10:00 am

which does not make the alleged EMR incident

with KP an impossibility. This analysis erroneously required Petitioner to prove

that Dooley s version was impossible. Conversely, it changed the District s

{W0274748.1}


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burden of establishing Charge

No.

1 by a fair preponderance of the credible

evidence to simply showing that it was a possibility. Thereafter, the hearing

officer stated that his finding was based on a. preponderance of the credible

record evidence without citing to

y

evidence.

4.

The hearing officer s conclusory findings regarding Charge

No.

1 are not

supported by substantial evidence and Dooley s version the events of October

29, 2013 is not worthy of belief

in

light of overwhelming credible evidence to the

contrary.

(a) Dooley claims that Francis was at the Vestibule room

on

October 29 2013

and would corroborate her story. Francis was subpoenaed by Petitioner

and he did not corroborate her testimony. Also, Warren testified that she

was with KP in the classroom the entire morning so he could not possibly

have been at the Vestibule room. The hearing officer, however, failed to

make any mention of the testimony of either Francis or Warren.

(b) Abt, the building secretary, testified that Petitioner did not leave the Main

Office suite between 9:00 and 9:30 on October 29, 2013. As with the

testimony of Francis and Warren, the hearing officer failed to make any

mention of Abt s testimony.

(c) Petitioner was occupied in the Main Office area, away from the Vestibule

room, for most of the morning responding to a brawl between three

emotionally disturbed young men that resulted in personal injury to

Petitioner and one student, major physical damage to the Main Office

suite, hospitalization of one student and involvement of the police,

Onondaga Case Management (OCM) personnel, an ambulance and EMS

personnel and parents or guardians of the students involved in the fight.

(d) Overwhelming documentary evidence that was contemporaneously

created in connection with the student melee establishes that Petitioner

was

in

the Main Office area from at least 8:45 until

10:15

the morning

October 29, 2013.

e

The evidence also confirms that Dooley responded to the student fight

on

October 29, 2013. This fact makes it highly unlikely, if not impossible, that

she was at the Vestibule room as she claims.

5. The hearing officer s conclusory findings regarding Charge No. 2 are not

supported by substantial evidence, and McDonald s testimony fails to establish

any misconduct by Petitioner.

{W0274748.1}


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(a) Petitioner denies McDonald s claim that, in January 2014 she, Warren and

Petitioner took KP to the Vestibule room. Warren does not corroborate

McDonald s story, and testified she never saw Petitioner use the room

and, further, that Petitioner was never at the room when McDonald was

using

it.

T. 777-778, 791;

18961901 1904 .

(b) McDonald testified that Petitioner simply told her to use the room.

Petitioner denies this claim. Even if McDonald s claim is accepted as true,

such a statement would not be the basis for any discipline since the room

could reasonably be used for appropriate emergency interventions.

(c) Again, even i f McDonald s claim is accepted as true, there is no evidence

that Petitioner gave her any direction as to what to do once she was at a

timeout location. McDonald admits that she was never given

any direction

or instruction as how carry out the timeout.

(T. 687). Petitioner

never directed her to place

KP

alone

in

a room (T. 776-777),

or

to close

the door on him, or to hold the door shut. (T. 777). These were actions

McDonald took

in

her discretion.

T.

777).

(d)

McDonald used the Vestibule room

on

three

or

four occasions to restrain

KP when he was out of control near that room.

At

least once, she shut the

door and held it closed for a brief period as KP

tried to pull it open. Putting

KP in

the room alone and holding the door shut on him was a decision

McDonald made in her discretion. It was never discussed with Petit ioner

and, most certainly, was not done pursuant to any directive from

Petitioner.

T.

1884-1885, 1985).

(e) McDonald s testimony was uncertain regarding exactly what the alleged

directive was.

At

one point, she stated Petitioner

said she h

a

place

that she thought would work. (T. 676). Later, she said this could be a

good time out space for

KP (T. 681), and still later that Petitioner said

this would be

a

good space for

KP.

T.

682).

6.

Charges Nos. 3 4 and 5 which regard the District s investigation of the

allegations encompassed

in

Charges No. 1 and 2 are dependent on the outcome

of

those two charges. I f Petitioner is exonerated on Charges No. 1 and

2

she

must also be exonerated

on

Charges Nos.

3 4

and

5.

7. The penalty

of

termination of employment was unwarranted, unjust and rendered

without any consideration given to the criteria set forth in Matter of Pell, 34 NY2d

222 (1974).

{W0274748.1}


25/89

THE L W AND ARGUMENT

POINT I

THE SUBSTANTIAL EVIDENCE STANDARD, MODIFIED TO

GIVE EFFECT TO THE UNIQUE STATUTORY PROTECTIONS OF

A TENURED EMPLOYEE, IS THE MINIMUM STANDARD REQUIRED FOR JUDICIAL

REVIEW OF THE DECISION

The Supreme Court may vacate or modify the decision of a 3020-a hearing

officer

on

the grounds set forth

in

CPLR 7511. (Education Law 3020-a [5][a1 . Section

7511 provides only a limited scope of review that

is

confined to specific conduct by an

arbitrator (i.e. misconduct, bias, and/or exceeding his or her power), or to procedural

defects. It authorizes little or no judicial review of the arbitrator's determinations of law

or fact.

A. Judicial Review

of ompulsory rbitration wards

However, where the parties are required to submit to compulsory arbitration, as

in the instant case, judicial scrutiny

is

stricter than that for a determination rendered

where the parties have submitted to voluntary arbitration. (Lackow v. Department

Educ. the City New York 51 A.D.3d 563, 567 [1st Dep't 2008], citing Matter

Motor

Veh.

Ace. Indem. Corp.

v.

Aetna

Cas.

Sur. Co.

89 NY2d 214, 223 [19961 .

While Article 75 may provide a constitutionally adequate judicial review of an award in

voluntary arbitration, the Court of Appeals has held that voluntary arbitration and

compulsory arbitration are fundamentally different. The difference being that

deprivations

of

or restrictions upon, personal rights that

an

individual might freely

consent to may only be compelled by government if they accord with procedural and

substantive due process. Mt. St. Mary s Hospital v. Catherwood, 26 NY 2d 493, 500

[1970]).

{W0274748.1}


26/89

Twenty years after the Mount

St.

Mary s decision, the Court of Appeals

reaffirmed the enhanced standard for judicial review of compulsory arbitration awards in

the following terms:

Inasmuch as compulsory arbitration

is

involved, judicial review under

CPLR article 75

is

broad, requiring that the award be in accord with due

process and supported by adequate evidence in the record see,

Caso

v.

Coffey,

41 NY2d 153, 156;

Mount

St.

Mary s Hosp.

v.

Catherwood, 26

NY2d 493, 508 supra). The award must also be rational and satisfy the

arbitrary and capricious standards of CPLR article 78 Caso v. Coffey,

supra, at 158). If the arbitrator fails to follow the statutory standards, the

award should be vacated for exceeding the legislative grant

authority see, Mount St. Mary s Hosp. v. Catherwood, 26 NY2d 493,

506, supra,

quoting

Matter Guardian Life

Ins.

Co

v.

Bohlinger,

308 NY

174,183).

Motor Vehicle

Mfrs.

Ass n

v.

State,

75 N.Y.2d 175, 186-87 [1990]).

Here, the underlying 3020-a hearing was compulsory. As such, the award must

be evaluated under this enhanced standard of review. See, also, Matter Bd. Educ.

Dundee Cent. School District [Coleman],

96 AD3d 1536, 1538 [4th Dep t., 2012]

[where the parties are subject to compulsory arbitration, the award must satisfy an

additional layer judicial scrutiny - i t must have evidentiary support and cannot be

arbitrary and capricious.

1).

Additional Levels Inquiry for a 3 2 a Decision

Three additional levels of judicial inquiries are required for awards in 3020-a

proceedings, two mandated by statute and one judicially defined. First, Education Law

3020-a 4) a) and the Commissioner s Regulations at 8 NYCRR 82-3.8 k) 2) both

require that the hearing officer s written decision set forth findings fact for each

charge, and conclusions based

on

such findings.

In

the event the hearing officer fails to

comply with this requirement, the award should be vacated.

{W0274748.1}


27/89

Second, Education Law 3020 1) provides that No person enjoying the benefits

of tenure shall be disciplined

or

removed during a term

of

employment except for ust

cause. A reviewing court should determine whether the hearing officer has complied

with this imperative so that no finding is made or penalty imposed without just cause.

Third, Pell v Board of Education,

34

NY2d 222 1974), requires the court to

determine whether a penalty imposed

is

shocking to one s sense of fairness. If

so

the

Court should ameliorate harsh impositions of sanctions ... not only as a matter of

legislative intention, but also

in

order to accomplish what a sense of justice would

dictate. (Pell, supra, at 235).

C The District s Burden of Proof

The District bears the burden of providing a quantum of evidence relative to the

charges that

is

sufficient to prove each charge by a preponderance of the evidence.

(Martin v Ambach, 67 N.Y.2d 975 [1986]).

D

Substantial Evidence

is the ppropriate

Standard

of

Judicial

Review

Phrases such

as

must have evidentiary support and supported

y

adequate

evidence n the record establish that judicial review in a compulsory arbitration case is

to extend beyond the limited grounds set forth

in

CPLR 7511. They do not, however,

establish the standard of review to

be

used by the judiciary

in

examining the record i.e.,

rational basis, substantial evidence, preponderance of the evidence, beyond a

reasonable doubt or some other standard).

In this regard, courts have borrowed standards from CPLR Article 78. For

example, where

an

award is not based on a hearing at which evidence was taken, the

{W0274748.1}


28/89

Court of Appeals has adopted the CPLR 7803(3) standard that requires

an

award have

evidentiary support

and

cannot

be

arbitrary and capricious (see generally, Alexander,

Practice Commentaries, McKinney s Cons Laws of NY Book 7B, CPLR C7511

:5

at

778-782, citing MVAIC v Aetna Cas Surety

Co 89

NY2d 214, 223 [1996]).

Where,

as

here, the award is the result of a hearing at which evidence was taken

pursuant to direction by

law

the standard of judicial review is the CPLR 7803(4)

requirement that the award

be

on the entire record, supported y substantial

evidence. See, e.g., Matter o Gongora

v

NYC Dept. o Educ., 34 Misc.

3d

161, 166

(Sup. Ct., NY County, 2009) ( The requirement that the decision under review be

supported y adequate evidence restates CPLR 7803(4) s ground for review. ).

E onstitutional mplications

The Court of Appeals in the Mt St Mary s held that due process requires an

appropriate standard of judicial review

in

any compulsory arbitration that potentially

impacts constitutionally protected property or liberty interests.

Mt St

Mary s Hospital,

26 N.Y.2d at 498-99, 508-09). There are also equal protection concerns relative to the

proper standard of judicial review of a 3020-a award since, generally, all public

employees in New York are entitled to judicial review under the substantial evidence

standard codified in CPLR Article

78

A non-tenured public employee holding a clerical

position who challenges an award following a pre-deprivation hearing would be

statutorily entitled to have that award judicially reviewed under the CPLR 7803(4)

substantial evidence standard. To apply any lesser standard to the review of an award

in a 3020-a case would effectively deny the tenured employee the equal protection of

the laws guaranteed by the U.S.

and

State Constitutions.

{W0274748.1}

9


29/89

This is one more reason why it is necessary for the judiciary to borrow from

Article 78 when reviewing a 3020-a award. In summary, a substantial evidence

analysis, modified to give consideration to the unique statutory protections of a tenured

employee, is the minimum standard required for judicial review under Education Law,

3020-a(5)(a).1

POINT

THE DECISION CONSISTS PRIM RILY OF CONCLUSORY ST TEMENTS

NOT SED ON THE EVIDENCE ND

S

SO L CKING N LYSIS

ND DEVOID OF SPECIFIC FINDINGS OF F CT S TO E

F CI LLY DEFICIENT ND SU JECT TO V C TURE

The Fourth Department has held that the award following an administrative

hearing must contain more than simple conclusory statements of guilt

in

order to survive

judicial review. Aikins v Curtis 8 A.D.2d 1020 [4th Dep t 1981]). The hearing officer

has an obligation to analyze the entire record fairly and objectively and make specific

findings of fact based

on

that evidence to support his or her conclusions. The Court

expressed this fundamental obligation

as

follows:

The administrative finder of fact is obliged to consider and sift all the

evidence -- accepting the true and rejecting the false cite omit). Since the

hearing officer s report does not contain any specific findings fact but

only conclusory statements

guilt, we can only assume from this

somewhat ambiguous statement on the quality

the evidence that an

Petitioner says minimum because it may

be

appropriate to apply the higher

standard of preponderance of the evidence in cases where the outcome is so

stigmatizing as to foreclose future public employment. See. e.g., Matter

Allesandro

[State Comm. on Judicial Conductl,

NY3d 238, 241, 249 [2009]; Matter

Mulrov.

9

NY2d 652 [2001]).

{W0274748.1}

20


30/89

erroneous standard

proof was employed in making his findings.

lslJ (Emphasis added).

This common law principle is codified

in

Education Law 3020-a 4) a) which

states, The written decision shall include the hearing officer s findings

fact on each

charge, his h r conclusions with regard to each charge based on said findings and

shall state what penalty or other action, if ny shall be taken y the employing board.

Emphasis added). (See, also, 8 NYCRR 82-3.8 k) 2), which specifically requires written

findings of fact

on

each charge n conclusions based

on

those findings).

The transcript exceeds 2,300 pages and 62 District exhibits, 73 Petitioner

exhibits and five Joint Exhibits were received in evidence. Considering the size

the

record, the Decision is facially inadequate and incredibly scant. It is only 12 pages

in

length, including the cover page. The first four pages repeat the Charges verbatim.

Approximately two pages under the subtitle Findings

Fact sets forth background

information that, for the most part, simply recites Statements of Fact from both parties

post-hearing memorandums. These findings of fact do not address the merits the

Charges, and do not relate to matters in dispute. The decision contains only four pages

that discuss the Charges.

The hearing officer made only minimal findings of fact

on

disputed material

issues that are relevant on the merits of the Charges and completely ignored significant

evidence

on

his way to reaching conclusory statements of guilt. The few erroneous

findings

fact the hearing officer did make

on

substantive issues, and the lack of

findings of fact on others, is discussed below with reference to each charge.

{W0274748.1}


31/89

POINT III

THE HEARING OFFICER ERRONEOUSLY FAILED TO

CONSIDER RELEVANT AND PROBATIVE EVIDENCE REGARDING

EMERGENCY INTERVENTIONS

Several specifications allege that the Vestibule room (Elevator Machine Room)

was not a District authorized Time Out room and did not conform to the requirements

of

8 NYCRR 200.22(c). Petitioner denies that she ever placed KP

n

the Vestibule room

or directed McDonald or anyone else to do so. However, she agrees that any use of that

room for Time Out purposes would not comply with the requirements

of

Commissioner s Regulation 200.22(c), and further agrees that such use was not

authorized by the District.

n

fact, the Board did not adopt a resolution to authorize the

use of any Time Out room until January 24 2015. See, Exhibit E-29).

A. Petitioner

Agrees

the

Room

was

Not

an Approved

T ime Out

Room

There s no question that the Vestibule room as it existed

n

the 2013-14 school

year did not comply with the requirements of Commissioner s Regulation 200.22(c).

n

fact, it s doubtful whether any room within the l,.eMoyne Elementary school satisfied all

of those requirements (i.e.

adequate in width, length n height to allow the student to

move about n recline comfortably , wall n f loor coverings designed to prevent

injury to the student, free objects

n

fixtures can be potential ly dangerous

student, etc.). (Section 200.22[c][5]).

n

any event, the Board did not adopt a policy

that was a precondition for using

ny

room for Time Out purposes until January 24,

2015. See,

8 NYCRR 200.22[c][5]; Exhibit E-29).

Time out rooms are used to remove a student to a supervised area

n

order to

reflect and facilitate self-control consistent with the student s Behavior Intervention Plan

{W0274748.1}


32/89

( BIP ). KP s Behavior Intervention Plan provided a range of possible Responses to be

employed whenever problem behaviors occurred. The response nearest to using a

Time Out stated

Student will be removed for

a

timeout.

he 5

minutes will begin when

he is quiet with his head down.

in

conference room). See,

Exhibit 0-5). This was the

room next to Petitioner s office in the Main Office suite (T.120), a multipurpose room

designated as a reflection room in other student s BIPs and used for several other

activities beyond student reflection. There were times when it was in use and not

available for KP.

T.

1770).

The conference room could only

be used when KP was under control, quiet, and

able to put his head down to reflect for five minutes. (T.1771). That response was

ineffective when he was

in

a rage and out of control. The BIP was meaningless when

KP

was racing through the halls, tearing items off the walls, assaulting younger

students, kicking and punching staff members, climbing

on

the banisters of the second

floor stairway, or screaming, swearing, spitting and biting.

See,

e.g. T. 532-533

[Dooley],

T.

664-665,748 [McDonald],

T.

1761, 1767, 1887 [Petitioner] and

T.

2258

2259 [Bishop]).

In

these circumstances, a different intervention was required.

B. n Emergency Intervention was Often Necessary and ppropri te

Commissioner s Regulation 8 NYCRR 200.22(d) authorizes the use of

Emergency Interventions

in

situations where Section 19.5(a)(3)

of

the Rules of the

Board of Regents permit the use of physical force with a student. These situations are

i to protect oneself from physical injury; (ii) to protect any person from physical injury;

(iii) to protect the property

of

the school, school district or others; or (iv) to restrain or

{W0274748.1}


33/89

remove a pupil whose behavior is interfering with the orderly exercise and performance

of school or school district functions, powers and duties.

See

8 NYCRR 19.5[a][3])).

There are several reasons why it was appropriate for school authorities to take

appropriate emergency intervention when

KP

was out of control. One is the fact that, i f

the District failed to adequately supervise his conduct, it could be held liable for

foreseeable death or injuries proximately related to that lack of supervision. Mirand

City of ew York 84 NY2d 44 [1994]). The District certainly had sufficient and specific

knowledge

of

KP s dangerous conduct and more than adequate notice of his potential to

cause injury to third parties as well as himself if left alone. Resulting injuries could and

should have reasonably been anticipated. School authorities may not ignore dangerous

conduct of a very seriously disturbed child without consequences. Ferraro

oard

of

Education

32 Misc. 2d 563 [Sup. Ct NY App. Term. 2nd Dep t. 1961]).

Use the Room for mergency nterventions was Proper

Petitioner denies that she ever personally placed a student

in

the Vestibule room

or directed McDonald or anyone else to do so For the sake of defending the charges,

however, she also contends that it would have been appropriate and proper if the room

had been used in

an

appropriate manner (i.e., with the door open and an adult inside

the room) for an emergency intervention. In that instance, there would

be

no basis for

any charges against anyone. Significant testimony was focused on the concept of

emergency intervention. Every staff member involved with controlling KP s conduct

acknowledged that this type of intervention was required even if they were not

specifically aware of Commissioner s Regulation 200.22(d). See e.g.,1.1760-61

[Petitioner],

752-754 [McDonald], 1. 1894-95 [Warren] and 1.2258-2261 [Bishop]).

{W0274748.1}

24


34/89

McDonald testified that she only used the room when KP was out

control

near

the room and she had to defuse those behaviors and restrain him from hurting

himself or others.

T

763-764). She only used the room when he was having a

tantrum and he was a danger himself a danger to anyone else T 690). She

testified it is necessary to use reasonable physical force to restrain a student whose

conduct threatens themselves or others, or who is destroying school district property or

disrupting the educational program. Under such circumstances, it would be appropriate

to remove the student to some other location. T 754).

McDonald does not believe she did anything wrong or illegal, but only what was

reasonably necessary under the circumstances. (T.762-763). Her June 27, 2014

affidavit (Exhibit 0-16), states that she first used the room with KP in January 2014

when he was

in

the school hallway near the Vestibule room, ripping things off the wall,

yelling, swearing, tantrumming ... being violent and running and that the three other

times she used the room with KP he had been committing similar behavior. (See,

Exhibit 0-16, Page 2 [3/4]).

Petitioner agrees that McDonald s decision to use the Vestibule room to restrain

KP when he was out of control near that room may have been necessary and

appropriate and, therefore, was not illegal or improper. An emotionally disturbed

student who is out of control has to be calmed down by appropriate staff intervention. It

is

only then that such a seriously troubled student would be able to receive any benefit

from reflection time.

T

1765-66).

However, Petitioner does not agree with McDonald s decision to close the door

on KP and hold it shut. She also believes that an adult should always be in the room

{W0274748.1}


35/89

with the student. T 2000). Had Petitioner known at the time that McDonald was

handling KP

in

this way, she would have put an immediate stop to such treatment.

Wade, the District s lead investigator, had no knowledge o the Commissioner s

Regulation on Emergency Interventions. T 1360). It is not surprising, therefore, that

she wrongly believed the regulations governing a Time Out room (which the Vestibule

room clearly did not satisfy) rendered

y

use of the room illegal, including appropriate

emergency interventions. Her ignorance regarding emergency interventions and her

words and actions regarding the possibility o criminal conduct spread fear and anxiety

among the staff and apparently motivated some to blame others for their own actions.

This was

an

incredibly important issue to Petitioner. She adamantly denies ever

placing KP in the Vestibule room or directing anyone else to do so. t the same time,

she contends that appropriate use of that room for an emergency intervention (i.e., with

the door open and an adult inside with the student) should not be the subject of

charges. An essential element of Petitioner s defense was that it was wrong for the

District to attempt to graft the formalities for Time Out rooms onto the Emergency

Intervention Regulation. However, the Decision does not say one word about

Emergency Interventions. This omission violates the hearing officer s obligation to

consider and evaluate all the evidence and deprives Petitioner

o

her statutory right to

be disciplined only for just cause.

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POINT IV

THE HEARING OFFICER FAILED TO CONSIDER RELEVANT

AND PROBATIVE EVIDENCE REGARDING THE UNFAIRNESS

OF THE DISTRICT S INCOMPETENT INVESTIGATION

OF THE COMPLAINT

KP s GRANDMOTHER

There were a number defects in the so-called investigation conducted by

Wade, which was one-sided and wildly judgmental. Although these arguments were

made to the hearing officer, they were ignored. There is no mention

in

the Decision

regarding Petitioner s multiple contentions in this regard or the hearing officer s

analysis of those arguments.

A. The Investigation was Incompetently Conducted

The reasons why Petitioner contends the investigation was incompetent and

flawed to her detriment include the fact that a Wade is a Civil Service stenographer

with limited experience and no real training in conducting investigations

T.

881-83,

1391-93) who was not qualified to conduct the investigation, (b) her former boss, ex-

Superintendent Daniel Lowengard, testified that she did not have the aptitude to

conduct such

an

investigation because she saw everything in black and white, with no

gray (T.1489), (c) she had no knowledge of the controlling policies or laws T. 1286-

87),

d

she had

no

experience in Elementary School operations or administration

T.

1263-65) and e she had

no

experience dealing with emotionally disturbed students.

Moreover, her investigation was fatally flawed by her failure to interview the

complainant, the fact that she made premature judgments without all the facts, her

failure to get corroborating evidence to confirm witnesses input, and her failures to

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27


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properly document the evidence received and to prepare a report that summarized and

analyzed the evidence and justified her conclusions.

Wade s ncompetence Prejudiced Petitioner

Perhaps Wade s most egregious error was her failure to inform Petitioner as to

what Dooley and McDonald had stated to her. An indispensable element of a

competent investigation of possible employee misconduct is to inform the target

employee the allegations. Wade s failure to inform Petitioner o f the allegations

robbed her

the chance to refute the claims and eliminated any opportunity to provide

a proper context for facts which can be misconstrued

in

the wrong context. The

Commissioner of Education describes this basic requirement as follows:

This case raises serious questions about the use

the 3020-a

process for multiple charges that largely lack substance and, in only

one instance, even approach a level teacher misconduct. This is

particular

Iv

troubling where the district,

n

its eagerness to bring

charges, neglects to provide the teacher with notice

n

adequate

opportunity to comment on allegations before taking formal action. n

such cases, one must question whether the extraordinary expenditure

time, energy and resources is warranted. Emphasis added).

Appeal Board Education the Goshen Central School District, 30 Ed

Dept.

Rep

181, 187; Decision

No

12,426, November 30 1990). This is precisely

what Ms. Wade did. She intentionally failed to inform Petitioner the allegations

against her. 1. 2185). This failure had a predictable cascading effect that led

inevitably to the 3020-a charges. Those charges are primarily based upon Dooley s

fabrication regarding October 29 2013 and McDonald s self-serving interpretation of

various discussions with Petitioner. Clearly, the he said, she said nature of these

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38/89

charges made it obligatory that Petitioner be informed of those allegations and be

given the opportunity to rebut them. When Wade was questioned as to why she did

not inform Petitioner of Dooley s claims regarding October 29, 2013, her response was

she never had the opportunity to do that. (T. 2189-90). That response was nonsense.

Although this failure deprived Petitioner of any opportunity to refute the allegations

before charges were filed, the hearing officer failed to even consider this argument by

Petitioner.

POINTV

THE HEARING OFFICER S DETERMINATIONS REGARDING

CHARGE

NO.1 ARE NOT SUPPORTED BY SUBSTANTIAL EVIDENCE

A. The Separate Allegations; Petitioner s

Short

Responses

Charge

No 1

as amplified by the Charging Party s verified Bill of Particulars

alleges that, between 9:00 a.m. and 9:30 a.m. on October 29, 2013, Petitioner

personally

placed

KP

in

the Vestibule room.

The Charge alleges, that this action

constituted conduct unbecoming a principal, misconduct, misconduct constituting

physical abuse, neglect of duty, immoral conduct and other

just

causes for disciplinary

action for the following reasons:

1

The

Vestibule

room

was not

a

District

authorized

Time Out room.

Petitioner agrees with this statement but contends that use of the room for an

appropriate Emergency Intervention, rather than as a Time Out room, is not

misconduct.

(See,

POINT

III A

supra).

The hearing officer refers to the Vestibule room as the EMS

or

Elevator

Machine Room throughout the Decision. They are the same room.

{W0274748.1}


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2 The Vestibule room did not satisfy the

requirements of

8 NYCRR

200.22(c).

Again, Petitioner agrees with this statement but contends that it is not

improper to use the room for

an

appropriate Emergency Intervention under 8

NYCRR 200.22(d), rather than as a Time Out room under 8 NYCRR

200.22(c). See, POINT III

A

supra).

3

Placing KP in the Vestibule

room

fo r purposes of subject ing him to a

time out was not authorized by his

individualized education

program

( IEP ).

The IEP does not mention time out rooms and has no relevance to the use

of

such rooms since the District did not permit the use of Time Out rooms at any

school

in

the District until January 24, 2015. See, Exhibit E-29). Also, the

IEP has no relevance to an Emergency Intervention in any event.

4 Placing KP in the Vestibule room fo r purposes

of

subject ing him to a

time

out

was

not authorized by

his

behavior intervention plan

( BIP ).

KP s Behavior Intervention Plan provided a range of possible Responses to

his disruptive behaviors. The closest one to a Time Out room stated

Student will be removed for

timeout. The minutes will begin when he

is

quiet with his head

down in

conference room). See, Exhibit 0-5). By

definition, the BIP had no application to an Emergency Intervention.

5 Placement of KP in the

room

constituted physical abuse.

There was no support for this allegation

in

the record and it was dismissed by

the hearing officer. (Decision, pg. 10).

B.

Dooley s Story

Regarding October 29,2013

Dooley is the only person who alleges that Petitioner put KP into the Vestibule

room. No other witness claimed that she ever placed KP or any other student,

in

that

room. Dooley is a mandated reporter. (1. 510). As the investigation unfolded, she

apparently realized that Wade believed something horrible had happened to KP and

was looking for someone to blame. Dooley became nervous, since she knew that KP

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had been in the Vestibule room but had not reported it or noted it in her nurses notes.

(Exhibit 0-14). Realizing that she might come under criticism, Dooley concocted the

story that Petitioner had asked her to help Petitioner put KP in the room and then,

sometime around her third interview on June 8 2014, created the nurses note to

support this story.

Her story evolved from

mention of the Vestibule room to eventually claiming

that she helped Petitioner place KP

in

the Vestibule room on October 29 2013. She did

not make this claim during her initial interview with the District s investigators, made a

vague reference to it during her second interview, and added further allegations during

subsequent interviews.

C The redibility onflict etween Dooley and Petitioner

Petitioner adamantly denies Dooley s claims and asserts that she never placed

KP or any student

in

the Vestibule room. That story is a fabrication that Dooley created

and frequently enhanced for her own purposes. Petitioner and Dooley testified as to

completely contradictory and irreconcilable versions of what occurred on October 29,

2013. This charge presents a stark credibility dispute since they cannot both be

testifying truthfully.

Generally, such credibility disputes are to be resolved by the hearing officer.

Petitioner also acknowledges that both hearsay or non-hearsay evidence may create

credibility issues, provided it

is

sufficiently relevant and probative to provide substantial

evidence to support the [hearing officer s] determination. King N ew York State

Dep t Health, 295 AD2d 743 [3d Dep t 2002]). Without substantial evidence to

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support the determination, it

is

error for a hearing officer to accept one version over

another simply to resolve a credibility dispute.

The Hearing Officer Failed to Properly ddress the redibility onflict

No other relevant and probative evidence provides

ny

evidence, let alone

substantial evidence, to support Dooley s story. Obviously, her own notes are not

corroborating evidence. The District, which has control over the E-SchooIPLUS

computer system, offered no evidence that the entries 90uld not be backdated.

In

fact,

Dooley confirmed information could

be

entered into her computer at any time. T 554).

On

the other hand, Petitioner s testimony

is

supported by a significant body

relevant

and probative evidence from a number of documentary and testimonial sources.

The hearing officer did not address this conflict by analyzing the credibility of

either Petitioner or Dooley as one might expect. Instead,

he

relied almost exclusively

on

the testimony of McDonald to bolster Dooley s claim.

He

did so despite the fact that

McDonald was not even in the building

on

October 29, 2013

(see.

T 780), and had

never claimed that Petitioner placed

KP in

the room.

In

fact, McDonald testified that she

never

saw Petitioner put KP

in

the room. T 777-778, 791).

The hearing officer set forth five reasons why he determined that Dooley was

credible and Petitioner was not. These reasons are irrational and not supported by

evidence

in

the record:

1 a . The Hearing Officer s First Reason:

First, Ms McDonald testified credibly that she had discussed the matter

o

using the EMR for KP with Petitioner after a meeting convened in late

October or early November 2013 (this was the meeting

o

November

8

2013-0.13). (See also, T.677-676 and Suarez testimony t T.1838-1839

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T.

1964:

Q.

In-In this fall o 2013, you did have discussion with Ms.

McDonald about using

a

room for Student [KP) when he tantrumed (sic),

correct?

A

We had a conversation about the possibilitv o using a room

for Student [KP).

Q.

nd

the use o the elevator machine room was

discussed

as a

possibilitv with Ms. McDonald, correct? A That was one o

the possibilities. J Such conversation took place when: Shortly after the

meeting Laura mentioned that (KP s) grandmother h d given permission

to

use the time out room . (0.16, p.2.) Petitioner denied that NS ever

gave

her

permission to use the EMR

as a

time out room. Petit ioner also

denied telling

Ms.

McDonald

to

use the time out room (EMR). McDonald

asserted in

a

statement given to police that the first time she was actually

told to use the EMR was by Suarez in January 2014 D.

6

p.2).

(Decision p 9 (Emphasis added).

1

b .

Petitioner s Response

to

the First Reason:

Petitioner freely testified that she and McDonald did discuss the Vestibule room

as one o several possible time out rooms. T. 1838-39, 1908-09). That discussion

was based on the understanding that a number

o

hurdles had to be cleared before

ny

space could be used for that purpose. First and foremost, the Board had to adopt a

policy that authorized the use of time out rooms within the District generally. t that

time, they were not allowed anywhere within the District.

3

Second, a specific time out

room would then have to be approved for use by the District s Director

o

Special

Education, Brian Pulvino. T. 1839). Finally, if the Vestibule room was to be used for

Time Out purposes, it required modifications to comply with the Commissioner s

Regulations.

(See,

8 NYCRR 200.22(c)(5); Exhibit E-30;

see,

also, T. 2001-02). No

action was taken at the building level beyond discussion

o

possibilities, and the

Vestibule room was never designated as a time out room. T. 2004).

The Board did not approve the use o time out rooms until January 14, 2015,

long after the charges had been levied against Petitioner. (See, Exhibit E-29; T. 1756).

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Obviously, the fact that Petitioner and McDonald discussed the room as a

possibility at one time is not competent proof that Petitioner put KP

in

the room on

October 29, 2013 as alleged by Dooley. This fact

is

irrelevant on the issue

the

credibility conflict between Petitioner and Dooley.

2 a .

The Hearing Officer s Second Reason:

Second, as an administrative intern, it is highly unlikely that s

McDonald would have used the EMR without approval from Petitioner.

Decision

p. 9 .

2(b). Petitioner s Response to the Second Reason:

The implication that McDonald was a newbie who had to obtain prior approval

from Petitioner for all her actions is completely unfounded. The Hearing Officer knew

that McDonald was not

an

intern

in

the traditional sense. He also knew that the

District required individuals who applied for administrative positions to serve a so-called

administrative internship. This enabled the District to extend the probationary term for

administrators by employing them in

an intern basis before they received their actual

probationary appointments.

T.

1129-30, 1159, 1774).

McDonald is an experienced educator who, at the time, had been employed by

the District for 19 years.

T.

657). She had completed the Certificate

Advanced

Studies program at LeMoyne College. She was fully certified as a School Building

Leader by SED and was qualified by experience and certification to function as a public

school administrator. T. 659, 666). She was also a mandated reporter who had a

statutory obligation to report to Child Protective Services CPS ) or other law

enforcement agency whenever she had reason to suspect that a student was the victim

of child abuse or neglect.

T.

732-733).

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In

addition, McDonald was highly experienced

in

dealing with emotionally

disturbed children. During the 2012-13 and 2013-14 school years, she performed the

duties and responsibilities o f the Vice-Principal at LeMoyne and had supervisory

responsibility over special education matters. T.660 and 734; Exhibit E-20). McDonald

was also responsible for the summer school special education program for the entire

Syracuse City School District during 2013. T. 660, 779-780; 1794). The McCarthy

program is a school operated by the District for students with severe emotional deficits

T. 33 , and McDonald worked at McCarthy during the summer months. T. 667). No

other administrator performed the Vice Principal duties and responsibilities at LeMoyne;

they were all handled by McDonald. T. 742-743).

Nevertheless, the hearing officer appears to have concluded that McDonald

could not act independently and

had

to receive direction from Petitioner on every action

she took in her position as Vice Principal. For example, he stated it was highly unlikely

that s McDonald would have used

the

EMR without approval from s Suarez

Decision, p.6).

He

further found

little reason

to

believe

that McDonald acted

on

her

own, and he credited McDonald s testimony that she acted upon the advice and

direction

s

Suarez when she placed KP

in

the Vestibule room. Decision, p.10).

Based

on

these assumptions, the hearing officer held Petitioner legally culpable for

McDonald s actions.

The hearing officer s determination that McDonald lacked independent authority

and Petitioner

is,

therefore, culpable for McDonald s actions is not supported by the

evidence. McDonald was the Vice Principal

in

fact. She was responsible for evaluating

and supervising teachers and staff disciplining students working with the community

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and parents and -- in other words, supporting the principal of the school. (T. 660). No

one else acted as the Vice Principal and McDonald acknowledged that her duties as

an

administrative intern were

in

the nature of the vice principal. (Id.).

Clearly, McDonald was accountable for her own behaviors and there is no

evidentiary basis to hold Petitioner legally culpable for McDonald s misconduct.

McDonald s title as an administrative intern does not have any relevance in resolving

the clear credibility conflict between Petitioner and Dooley regarding Charge No 4

3 a . The

Hearing Officer s Third Reason:

Third, Ms McDonald admitted using the EMR while Suarez denied either

using the EMR herself advising McDonald

to

use it for controlling KP s

behavior. (Decisi

Vieira-Suarez responds to 'time-out' room firing

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