Opinion
651804/15
06-24-2016
In the Matter of the Application of Claudia Tillery, Petitioner, v. The Department of Education of the City Of New York, Respondent.
Atty for Petitioner Goldberger & Dubin, PC 401 Broadway, Ste 306 New York NY 10013 Attn: Stacey Van Malden, Esq. Atty for Respondent Zachary W. Carter Corp. Counsel of the City of New York 100 Church Street, Room 2-107 New York NY 10007 Attn: Scott Silverman, Esq.
Atty for Petitioner
Goldberger & Dubin, PC
401 Broadway, Ste 306
New York NY 10013
Attn: Stacey Van Malden, Esq. Atty for Respondent
Zachary W. Carter
Corp. Counsel of the City of New York
100 Church Street, Room 2-107
New York NY 10007
Attn: Scott Silverman, Esq. Alice Schlesinger, J.
Petitioner Claudia Tillery, a former New York City middle-school teacher, commenced this Article 78 proceeding to challenge her termination by respondent Department of Education of the City of New York ("DOE"). Petitioner was terminated following a decision issued by Hearing Officer Haydee Rosario ("HO Rosario") on April 27, 2015, which followed a multi-day hearing held between August and December 2014.
For the reasons set forth below, the petition is denied.
Background Facts
Petitioner taught at the Stephen Decatur Middle School in Brooklyn without incident since 1996. But on November 22, 2011, petitioner was arrested after one of her students (the "Student" ) reported that he and petitioner had engaged in a sexual relationship from 2009-2011 (when the Student was between the ages of 12-15 years old). The Kings County District Attorney's Office prosecuted petitioner on charges of rape and other related crimes.
The Student's name will not be listed in this decision, as he is a minor child.
Based on these formal criminal charges, on March 6, 2012, DOE Arbitrator Martin Scheinman found probable cause of serious sexual misconduct, and petitioner was thereafter removed from DOE's payroll. DOE served petitioner on March 19, 2014 with charges and specifications pursuant to Section 3020-a of the Education Law, charging her with engaging in sexual misconduct, an inappropriate relationship with a student, conduct unbecoming her profession, and neglect of her teaching duties. In addition, the specifications alleged that petitioner wrongly permitted the Student to enter and remain in her home without permission or notifying the school's principal; petitioner and the Student spent time alone in a motel room rented by petitioner for nefarious purposes; and petitioner provided alcohol and marijuana to the Student.
In April 2014, at her criminal trial, petitioner was acquitted of all charges by a jury. The criminal investigation/prosecution was thus sealed automatically pursuant to Criminal Procedure Law ("CPL") § 160.50, which provides that the "official records and papers" of a criminal proceeding against a person shall be sealed, when the proceeding is terminated in favor of that person.
Despite the acquittal, a Section 3020-a hearing was convened on the above specifications and held on nine days between August and December 2014. Petitioner was represented by counsel at all times during the hearing. The following witnesses testified on DOE's behalf: the Student; Jeffrey Jacobs (a teacher at the school); Assistant District Attorney Lisa Nugent; Tawanna Harris (school aide); Christina Aligizakis (forensic biologist); and Kenya Green (confidential investigator). Petitioner, two of her children, and the father of her children testified on her behalf.
Before the hearing, petitioner moved to dismiss the specifications on the ground that some of the alleged conduct (i.e., that which occurred in 2009 and 2010) fell outside of the three-year statute of limitations provided in the Education Law. HO Rosario rejected this contention and denied the motion on the ground that the specifications fell within the "misconduct constituting a crime when committed" exception of the Education Law. HO Rosario found that acquittal in a criminal trial is not dispositive of 3020-a disciplinary charges, since the standard of proof (preponderance of the evidence) and evidentiary standards in a 3020-a hearing are lower than the standards of a criminal trial (beyond a reasonable doubt) Thus, HO Rosario found that DOE's full pursuit of the charges against petitioner was permissible in the employment context despite the acquittal and statute of limitations claim, since the alleged conduct throughout 2009-2011 could be found to be "criminal" at the time when committed. Therefore, the hearing could proceed under the lower burden of proof.
Section 2590-j(7)(c) provides that charges can be brought after the normal statute of limitations when a charge is of misconduct constituting a crime when committed
The court agrees with the HO's reasoning as to the statute of limitations. See Aronsky v. Board of Educ., Community Sch. Dist. No. 22 of City of New York, 75 NY2d 997 [1990].
Petitioner also moved to dismiss on the ground that the charges failed to adequately articulate all of the necessary elements to establish crimes. However, HO Rosario denied the motion, finding that the charges were sufficiently specific to give petitioner adequate notice and information to prepare a response. The court also agrees with this finding.
Petitioner also moved pre-hearing to exclude all records and information related to the criminal trial pursuant to CPL 160.50. This material included bank records, telephone records (over 8,000 text messages between the two), motel records, a video of petitioner taken on the Student's cell phone, DNA analysis (showing that the Student's saliva were found on petitioner's bedspread), the anticipated testimony of the prosecuting ADA (who was expected to testify as to admissions made by petitioner at the criminal trial), and the testimony of an NYPD Detective (who was expected to testify as to the chain of custody regarding the above evidence). Respondent opposed, arguing that the evidence it was seeking to introduce did not constitute "official records and papers" as defined under 160.50.
HO Rosario granted the motion as to the Detective's testimony, finding such testimony unnecessary, but denied the remainder of the motion. She found the following as justifications for admitting the controversial evidence: the bank, phone and motel records were created by private institutions in the regular course of business; the cell phone video was not recorded by a law enforcement agent; and the DNA analysis was prepared by an agency separate from the NYPD or District Attorney's Office. As to the ADA, HO Rosario permitted her to testify only as to admissions by the petitioner at the criminal trial (no testimony was permitted as to anything else regarding the criminal investigation or trial).
On April 24, 2015, HO Rosario issued a 45-page opinion and award, finding that DOE established by a preponderance of the evidence all of the charges contained in the ten specifications, and concluded that termination was the appropriate penalty. HO Rosario's decision was based on the Student's and petitioner's testimony, which she found was corroborated by the other aforementioned evidence. Specific findings and facts are discussed below as necessary.
Petitioner now contends that notwithstanding CPL 160.50, HO Rosario improperly admitted evidence at the hearing as mentioned above. Petitioner further argues that HO Rosario credited the Student's testimony in its entirety despite numerous inconsistencies therein, and improperly did not credit petitioner or her witnesses. Petitioner also argues that the Student had a motive to falsify his testimony based on his pending lawsuit against DOE; delay in DOE's investigation and charges prejudiced petitioner; HO Rosario did not have jurisdiction over certain specifications based on the statute of limitations; the HO exceeded her power and imperfectly executed it so that a final and definite award was not made; DOE was unable to produce the Student's records from the charged period; the HO demonstrated bias; and failed to render a timely written decision.
Discussion
General Legal Principles
Education Law § 3020—a(5) mandates that judicial review of a hearing officer's findings shall be conducted pursuant to CPLR 7511. Under such review an award may only be vacated on a showing of "misconduct, bias, excess of power or procedural defects." Austin v Board of Educ. of City School Dist. of City of NY, 280 AD2d 365 [1st Dep't 2001]. Consistent with this limited scope of review, a court may not set aside an arbitrator's award even where the arbitrator has made errors of law or fact. See Hackett v. Milbank, Tweed, Hadley & McClogy, 86 NY2d 146, 155 [1995].But where, as here, the parties have submitted to compulsory arbitration, judicial scrutiny is stricter than that for a determination rendered where the parties have submitted to voluntary arbitration. See Lackow v Dep't of Educ. of City of New York, 51 AD3d 563, 567 [1st Dep't 2008].
An arbitrator's determinations of credibility in a compulsory arbitration are "largely unreviewable because the hearing officer observed the witnesses and was able to perceive the inflections, the pauses, the glances and gestures - all the nuances of speech and manner that combine to perform an impression of either candor or deception.'" Lackow, 51 AD3d at 568, quoting Berenhaus v Ward, 70 NY2d 436, 443 [1987].
Additionally, DOE has the burden to prove the subject specifications at the hearing by a preponderance of the evidence. See Martin v. Ambach, 67 NY2d 975 [1986]. Lastly, the standard for reviewing a penalty imposed after a hearing held pursuant to Education Law § 3020-a is whether the punishment of termination was so disproportionate to the offenses as to be "shocking" to the court's sense of fairness. See Harris v Mechanic Cent. Sch. Dist., 45 NY2d 279, 283 (1978).
Specific Findings
At the outset, the court will proceed under the assumption that the petition was timely filed. DOE argued that HO Rosario's opinion and award were uploaded to an online computer system on or about April 24, 2015, which allegedly notified petitioner's counsel/union representative of the decision. This notification, according to DOE, caused the ten-day statute of limitations for filing this petition to begin to run. Thus, in DOE's view, May 4, 2015 was the deadline to file the petition. Because the petition was not filed until May 20, 2015, DOE maintains that the petition should be dismissed as untimely.
The court declines to dismiss the petition on statute of limitations grounds. At oral argument, petitioner's counsel argued that it was unclear as to whether petitioner herself received notice of HO Rosario's decision by the online upload. It appears, at best, only her counsel/union representative received notice of the upload. In any event, the petition was filed only 16 days after the purported deadline, and DOE has not established that it sustained any prejudice during this short period.
Moving to the merits, this court hereby sustains HO Rosario's decision recommending termination, finding that DOE proved the specifications by a preponderance of the evidence. Petitioner's primary contention is that because much of the controversial evidence taken at the hearing (e.g., the bank, motel and phone records, and DNA analysis) was admitted by the Hearing Officer despite the seal provided by CPL 160.50, vacatur of the decision and penalty is warranted. However, this argument is unavailing for multiple reasons.
First, the decision and award can be sustained on the basis of petitioner's and the Student's testimony alone. This testimony has nothing to do with the alleged evidentiary violations. HO Rosario noted that petitioner's own admissions established the following misconduct: without permission from the Student's parents and without notice to/permission from the school's administration, petitioner permitted the Student to enter and remain in her home on multiple occasions; petitioner bought a cell phone for the Student; petitioner gave the Student $500 in cash; and she rented a motel room for the Student and spent time alone with him at the motel. Further, HO Rosario noted petitioner's failure to notify the Student's parents or school administrators regarding multiple incidents where the Student stole items from her home.
To HO Rosario, this misconduct alone constituted conduct unbecoming of the position of teacher and prejudicial to the good order, efficiency and discipline of her service, as set forth in the specifications. HO Rosario also noted that petitioner lacked remorse for this admitted conduct, in that she remained "visibly and verbally combatant and indignant throughout this proceeding because, in her view, she is the sole victim in this case" and blamed the Student, who was at all relevant times between the ages of 12 and 15, for "controlling" and "manipulating" their relationship. Decision and Award, p. 40. Thus, to HO Rosario, petitioner was not fit to be a teacher because she could not be entrusted with the proper care or safety of students. This court finds no basis to set aside HO Rosario's findings in this regard.
As for the serious charges of sexual misconduct and those related to alcohol/marijuana, HO Rosario's findings were based primarily on crediting the Student's testimony and discrediting petitioner's testimony. However, it is clear that the testimony was often corroborated by some of the controversial evidence. There clearly is some overlap in the testimony and evidence, and it would be extremely difficult for the court to effectively determine which of the testimony was independent or derivative of the controversial evidence.
But even assuming that the controversial evidence constituted "official records and papers" and was sealed under CPL 160.50, and admittance constituted a violation of this statute, the Court of Appeals has held that a violation of CPL 160.50, without more, does not require suppression of such evidence or implicate constitutional considerations such as due process, or warrant annulment of a respondent's determination of termination despite a prior acquittal of the same or similar charges in a criminal proceeding. See Charles Q. v. Constantine, 85 NY2d 571, 575 [1995] (state trooper's termination for sexual misconduct upheld despite prior acquittal in criminal proceeding and improper consideration of records sealed under CPL 160.50 when "respondent's determination is supported by substantial evidence in the record, including the complainant's own testimony, and there is no indication that the admission of the erroneously unsealed evidence operated to deprive petitioner of a fair hearing."); see also People v. Patterson, 78 NY2d 711 [1991]. In re Joseph M., 82 NY2d 128 [1993], cited by petitioner, stands only for the proposition that in a termination proceeding, DOE should not be entitled to obtain the sealed records of a criminal proceeding when the employee was acquitted of the criminal charges. Joseph M. does not speak to the scenario here: where a violation of CPL 160.50 leads to some of the sealed evidence being admitted in the 3020-a setting.
Here, HO Rosario's decision was supported by substantial evidence in the record independent of the sealed material, namely the Student's and petitioner's testimony taken anew at the hearing. Further, there is no indication that the admission of the controversial evidence operated to deprive petitioner of a fair hearing. In her 45-page decision, HO Rosario discussed at considerable length, petitioner's arguments and evidence in support of her position, and expressed her reasoning in similar detail as to why she found petitioner's position to lack credibility. No misconduct, bias or procedural defects regarding HO Rosario's decision are evident or inferable. And as noted above, it is not this court's prerogative to review her credibility findings. Petitioner's remaining arguments are without merit.
The petitioner's conduct here was egregious. That being so, the penalty of termination does not shock my conscience or sense of fairness. Petitioner's admissions independent of the controversial evidence support termination, as they confirmed a long history of furtive conduct unbecoming of an educator of children. Further, HO Rosario's findings of sexual misconduct, based primarily on finding the Student's testimony to be more credible than petitioner's, will not be disturbed by this court.
Accordingly, it is hereby
ORDERED AND ADJUDGED that the cross-motion is granted, and the petition is denied and dismissed with prejudice. Respondent's counsel shall serve on petitioner's counsel a copy of this order with notice of entry within 20 days of entry. Dated: June 24, 2016
J.S.C.