* Subsequent History: Matter of Blake v Mills; Supreme Court, Albany County  (Connolly, J.); Judgment dismissed petition to review; September 28, 2009; affd 79 AD3d 1347 (3d Dept 2010); lv denied 16 NY3d 707 (2011). *

Appeal of SHANGO BLAKE, from the determination of Joel I. Klein, Chancellor of the New York City Department of Education, to implement an arbitrator’s decision to terminate him as Principal of I.S. 109.

Decision No. 15,856

(December 18, 2008)

Bernbach Law Firm PLLC, attorneys for petitioner, Jeffrey M. Bernbach, Esq., of counsel

Michael A. Cardozo, Esq., Corporation Counsel, attorney for respondent, Robert Katz, Esq., of counsel

MILLS, Commissioner.--Petitioner (also referred to as “appellant”) appeals the determination of Joel Klein, Chancellor of the New York City Department of Education (“the Chancellor” or “respondent”), implementing an arbitrator’s decision to terminate petitioner from his position as Principal of I.S. 109.  The appeal must be dismissed.

In January 2000, the New York State Legislature amended Education Law §3020 by adding a new subdivision three, which authorizes the City School District of the City of New York (“District”) and any employee organization representing employees or titles that are or were covered by any memorandum of agreement executed by the District and the Council of Supervisors and Administrators of the City of New York (the “Council”), on or after December 1, 1999, to negotiate agreements that modify or replace the procedures set forth in Education Law §§3020-a and 2590-j(7).  It further provides that the Commissioner shall review any appeals brought according to the terms of such agreements. 

Pursuant to Education Law §3020(3), on December 16, 1999, the Council and the District entered into an initial agreement providing for modified disciplinary procedures.  The parties then entered into a successor agreement (the “Agreement”), dated April 20, 2007, covering July 1, 2003 through March 5, 2010.  For allegations of misconduct with respect to principals, the parties, in Article VII(J)(4)(a) of the Agreement, established modified disciplinary procedures.  Specifically, the Agreement provides that at the principal’s option, allegations of misconduct may be presented to an impartial arbitrator who will decide whether just cause exists for the proposed action.  Thereafter, the Chancellor may, at the request of the principal, review the arbitrator’s decision.  If the Chancellor implements the arbitrator’s decision against the principal, the principal may then apply to the Commissioner for review of the arbitrator’s decision.

Pursuant to the Agreement, a written notice of specifications of misconduct and proposed adverse action was prepared and served on petitioner, alleging that petitioner engaged in conduct unbecoming his position, neglect of duties, and criminal conduct.  Petitioner was charged with 14 specifications of misconduct including, but not limited to, allegations of financial wrongdoing, an allegation of corporal punishment against a student, failing to report an incident, hindering an investigation and causing widespread negative publicity to the District.

An arbitration hearing was subsequently conducted on several dates in February, March, April, May and June 2008, and the arbitrator rendered his final decision on September 30, 2008.  The arbitrator found petitioner guilty of the charges alleged in specifications 2(b), (c), (d), (e), (f) and (g), 4(e) and (f), 5(a) and (b), 6(a) and (b), 7(a) and (b), 8(a) through (h), and 11 [throwing or pushing a student into a radiator, threatening the student by stating words to the effect of “don’t you f****** say something about my son or I’ll break your neck” and punching and choking the student], but not guilty as to the remaining specifications.  He concluded that petitioner should be terminated from his position as Principal of I.S. 109, based on the corporal punishment of the student. 

Upon receipt of the decision, petitioner requested the Chancellor’s review of the arbitrator’s findings and conclusion that petitioner should be terminated from his position for inflicting corporal punishment on a student.

By decision dated October 24, 2008, the Chancellor agreed with the arbitrator’s determination and decided to implement it.[1]  Petitioner then commenced this appeal by serving the Community Superintendent and the Chancellor on October 30 and 31, respectively, at their offices.  Petitioner requests that I reverse the Chancellor’s decision and the arbitrator’s determination to terminate petitioner from employment, for inflicting corporal punishment on a student, on the grounds that they are irrational, arbitrary and capricious and unsupported by substantial evidence.

Initially, I must address whether service of this appeal was proper.  Section 281.6 of the Commissioner’s regulations specifically addresses the service requirements for appeals to the Commissioner pursuant to Education Law §3020(3).  Section 281.6 provides, in pertinent part, that an appellant shall institute an appeal to the Commissioner by effecting personal service of a copy of the appeal upon;  

1. the chancellor, or a person designated to accept service on behalf of the chancellor; and
2. the community school district superintendent who initiated the arbitration proceeding, or a person in the office of such superintendent who has been designated to accept service.

In this case, the affidavits of service reflect that petitioner served the appeal on Monica Davis, a clerk to the Chancellor, and Camelia Brogdan-Cruz, the District Family Administrator for District 29.  Respondent maintains that these persons are not authorized or designated to accept service on behalf of the Chancellor or the superintendent, and that the only agent authorized to accept service on their behalf is the New York City Law Department.  It is undisputed that petitioner failed to serve the Law Department.  Therefore, I am constrained to dismiss the appeal for improper service (Appeal of Tchoukanine, 47 Ed Dept 334, Decision No. 15,715; Appeal of Harmon, 43 id. 478, Decision No. 15,057; Appeal of Malley, 31 id. 149; Decision No. 12,601).

Even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits.  The issues in this appeal are whether the arbitrator’s finding of guilt on the corporal punishment charge is supported by the record and whether that finding warrants termination.  I find that the record supports both the finding of guilt and the penalty.

This case turns on the credibility of petitioner, the student and the other witnesses who testified before the arbitrator.  The Commissioner will not ordinarily substitute his judgment for that of a hearing officer with respect to the credibility of witnesses (Appeal of Morrison, 39 Ed Dept Rep 675, Decision No. 14,346; Appeal of Grihin, 38 id. 399, Decision No. 14,064; Appeal of Bd. of Ed. of Community School District #22, 30 id. 238, Decision No. 12,448).  In order for the Commissioner to substitute his judgment for that of a hearing officer, there must be clear and convincing evidence that the hearing  officer’s determination of credibility is inconsistent with the facts, or that the hearing officer’s decision is contrary to the weight of evidence and the hearing officer has not adequately explained his rejection of otherwise convincing testimony (Appeal of Morrison, 39 Ed Dept Rep 675, Decision No. 14,346; Appeal of Gibbs, 33 id. 684, Decision No. 13,196; Appeal of the Bd. of Ed. of Community School District No. 2, 32 id. 391, Decision  No. 12,864).  Upon my review of the record, I find no reason to substitute my judgment for the arbitrator’s determinations regarding the witnesses’ credibility or his factual findings based thereon.

The arbitrator heard testimony from a number of witnesses for both sides, including petitioner.  A review of the arbitrator’s 68-page decision reveals that he assessed and evaluated the testimony of all witnesses, including petitioner, and provided detailed reasons for crediting certain testimony and not others.  The arbitrator’s decision summarized each party’s position, discussed every specification individually, outlined both sides’ arguments and referred to specific pages of the more than 3,300-page transcript to support his determination.

With respect to the corporal punishment charge, the arbitrator credited the testimony of the student and the District’s witnesses.  The student testified that on June 26, 2006, petitioner pushed the student’s hat off his head and threw it to the floor, that “he pulled [him] to the radiator and ... choked [him]”.  The student then testified that petitioner told him “‘you say anything about my son again, I’m going to break your neck,’ and he started punching [him] with his arms.”  According to the student, petitioner then punched him in the chest.  After the incident, the student testified that he looked at the two other eye-witnesses, Troy Edwards (“T.E.”) and James Holder (“J.H.”), and said “‘you’re not going to do anything about this?’” and petitioner said to T.E. and J.H., “‘did you see anything’” and both replied, “‘no, I didn’t see nothing.  I don’t have a problem.’”  When the student returned home that day, he testified that he noticed red marks on his neck.  The student’s written statement supports his testimony to the extent he indicates that petitioner threw him into the radiator, punched him in the chest and choked him. 

In addition, the student’s recollection of the events that day was corroborated by other witnesses.  Linette Edwards (L.E.), petitioner’s secretary, was seated at her desk outside the principal’s conference room and she testified that she heard petitioner say to the student “‘if you threaten my son, I’ll break your damn neck’”.  After they exited the conference room, L.E. also heard petitioner say “‘I didn’t see or hear anything, [J.H.], did you” even before the student made any accusation that petitioner had punched or choked him.  When the student heard J.H. say he didn’t say or hear anything, L.E. testified that the student asked J.H. how he could lie and stated, “‘you know you saw [petitioner] choke me.’”  She further testified to observing fingerprint marks on the student’s neck.

Ernest Alvarez, the program director at Project HOPE, a program that the student attended regularly, testified that when the student arrived at the program on June 26^th, he observed fingerprints on the student’s neck and when he asked the student “what happened to your neck?”; the student told him that petitioner grabbed him.

Moreover, two other employees at the school testified that petitioner admitted that he choked the student.  Susan Druss, the Purchasing Secretary at the school, testified that two days after the incident petitioner called her into a conference room and brought up the incident with the student.  At this time, petitioner told her that he lost it and blacked out and that he “put [the student] up against the wall, and ... choked him until he couldn’t breathe.”  In addition, Tesha Forbes, the School Treasurer, testified that on June 30, 2006, petitioner called her into the main office and raised the incident and explained that “he didn’t realize it, but he went off on [the student] ... [and] started to choke him”.

Even though petitioner denies pushing, punching or choking the student and two other eye-witnesses, J.H. and T.E., deny that petitioner had any physical contact with the student, the arbitrator chose to credit the testimony of the student and the District’s witnesses, and upon my review, I find no basis to disturb the arbitrator’s determination, which I find to be supported by the preponderance of the evidence.

Moreover, I find no merit to petitioner’s argument that the Chancellor improperly relied upon the arbitrator’s decision because the arbitrator made two erroneous statements in his determination.  While I agree that the arbitrator misstated that T.E. testified that petitioner “screamed he would break [the] student’s neck”[2] and that petitioner testified that he “was not angered by [the student] when he threatened [petitioner’s] son”, I find that these misstatements did not affect his overall findings, and any error in the language of the decision was de minimis.

In determining whether to substitute my judgment for that of hearing officer, the standard is whether the discipline imposed is proportionate to the offense (Matter of Mockler v. Ambach, 79 AD 2d 745, lv to app den 53 NY 2d 603; Appeal of the Bd. of Educ., Wellsville CSD, 35 Ed Dept Rep 523, Decision No. 13,620; Appeal of the Bd. of Ed., City School District of the City of New York, 35 id. 35, Decision No. 13,455).  An appropriate penalty should underscore the inappropriateness of the conduct and serve as a warning against future improper conduct (Appeal of the Bd. of Educ., Greenburgh CSD No. 7, 34 Ed Dept Rep 506, Decision No. 13,397).  The verbal and physical abuse of a student by an administrator is wholly inappropriate and intolerable.  In light of the seriousness of petitioner’s conduct, I find that termination of his employment is warranted, and I will not substitute my judgment for the penalty imposed by the arbitrator and Chancellor (see Matter of Pell v Bd. of Educ., 34 NY2d 222, 233; Appeal of Blumenblatt, 33 Ed Dept Rep 249, Decision No. 13,041). 

In light of the foregoing disposition, I need not address the parties’ remaining contentions. 

THE APPEAL IS DISMISSED.

END OF FILE