For Petitioner Brian D. Glass Esq. Glass Krakower LLP
For Respondents Adam E. Collyer, Assistant Corporation Counsel
Lucy Billings, J.
In this proceeding pursuant to C.P.L.R. Article 75, petitioner Nicole Moreno-Lieberman moves to vacate an arbitration award dated February 16, 2011, insofar as it (1) found her culpable of one of four specifications charged against her and (2) imposed a $7, 000 fine. The sustained fourth specification charged that:
On or about May 24, 2010, Respondent [petitioner here] did impede an official Department investigation, in that Respondent turned over evidence relevant to Specifications 1, 2 or 3... to the father of Student A, to wit, a written statement wherein Student A indicated he may hurt or kill himself, resulting in the Department's investigator being unable to obtain said writing.
V. Pet. Ex. A, at 3.
Petitioner is a tenured teacher employed for more than nine years by respondent New York City Department of Education. She was assigned to Public School (P.S.) 169 within Community School District 75 as a teacher and as the dean of discipline. The specifications against her stemmed from her role in handling a school pupil's threats of suicide. School officials instituted separate specifications against the school's guidance counselor.
I. THE ADMINISTRATIVE PROCEEDINGS
The mandatory arbitration proceeding for petitioner, a tenured teacher, was held before a Hearing Officer pursuant to New York Education Law § 3020-a, see City School Dist. of the City of NY v. McGraham, 17 N.Y.3d 917, 918 (2011), as supplemented by the collective bargaining agreement between respondent Department of Education and petitioner's union, the United Federation of Teachers. The Hearing Officer dismissed three specifications, which charged petitioner with failing to take steps required by the Department's regulations to protect a student, referred to as "Student A, " and prevent him from harming himself. Chancellor's Regulation A-755. Dismissed Specification I charged that, upon learning of Student A's suicide threat, petitioner failed to notify the principal, allowed Student A to be released from school without notifying his father of the suicide threat, and did not telephone 911 for help for Student A. Dismissed Specification II charged that, based her conduct set forth in Specification I, petitioner endangered the physical, mental, and moral welfare of Student A, a child. Dismissed Specification III charged that, based on her conduct set forth in Specifications I and II, petitioner failed to prevent or contributed to Student A's suicide attempt and hospitalization.
In sustaining the fourth specification against petitioner, the Hearing Officer concluded as follows. First, petitioner, albeit unintentionally, negligently allowed a student's handwritten suicide note, written on a napkin and referred to as the "napkin note, " to be taken from the school by the student's father without preserving a copy of the note. Further, her "serious negligence... impeded the investigation" by respondent Department of Education into school personnel's handling of the student's threat to harm himself. V. Pet. Ex. A, at 41. The Hearing Officer explained that he was imposing a "serious" fine of $7, 000 to "sufficiently impress upon Respondent [petitioner here] the importance of preserving records no matter what position she holds." Id. at 44.
Petitioner claims that the Hearing Officer's decision sustaining the single specification against her is arbitrary and unsupported by the record and that, in any event, the $7, 000 fine was so disproportionate to the circumstances of the offense as to shock any sense of fairness. C.P.L.R. § 7511(b)(1). Respondents move to dismiss the petition on the ground that it fails to state a claim that the Hearing Officer's decision is arbitrary, is unsupported by substantial evidence, or imposes a penalty disproportionate to the offense sustained. C.P.L.R. §§ 404(a), 3211(a)(7), 7511(b)(1). Applying the standard of review as most recently articulated by the Court of Appeals in City School Dist. of the City of NY v. McGraham, 17 N.Y.3d at 919-20, and by the First Department in Principe v. New York City Dept. of Educ., 94 A.D.3d 431, 432-33 (1st Dep't 2012), the finding regarding the fourth specification is supported by the evidence and rational, but the fine imposed without any guiding standard is excessive and shocking to a sense of fairness.
II. SUMMARY OF THE FACTUAL RECORD
The events at issue took place at P.S. 169 Friday, May 21, 2010, and Monday, May 24, 2010, and began with interactions among teenage pupils, a male pupil referred to as Student A and two female pupils referred to Students B and C. Student B was Student A's former girlfriend. Student B had complained to Efraim Gabriel, a school aide, that Student A had tried to kiss her and touch her breast. On May 21, 2010, Gabriel relayed the complaint to petitioner as a disciplinary matter, and petitioner telephoned Student A's father in Pennsylvania and asked him to meet with her at the school on Monday, May 24, 2010, to discuss the initial complaint about his son.
Upon learning of Student B's complaint on May 21, 2010, Student A wrote a note on a paper napkin in Spanish, which he asked Student C to give to Student B. The note, referred to as the "napkin note, " demanded that Student B stop lying about him, in effect that she withdraw her complaint, and declared that he would rather kill himself and die than be jailed or deported to the Dominican Republic as a result of her complaint. Student B gave the note to the ...