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Tuesday, April 10, 2012

Disciplinary penalty imposed based, in part, the hearing officer’s reliance on an altered videotape of incident rejected


Disciplinary penalty imposed based, in part, the hearing officer’s reliance on an altered videotape of incident rejected
Principe v New York City Dept. of Educ. 94 AD3d 43

Found guilty of certain disciplinary charges, the employee appealed the termination of his employment by the New York City Department of Education. The Appellate Division granted his petition, agreeing with the holding by the Supreme Court that under the circumstances imposing the penalty of dismissal was excessive.

The Appellate Division said that it also agreed with Supreme Court’s view that “by discrediting [the teacher’s] entire testimony, the Hearing Officer failed to consider all the circumstances, including the disciplinary histories of the students involved, the context of the threatening environment in which the two incidents took place and that, at the time of the two incidents, [the teacher] was, as he testified, ‘only fulfilling [the] demands’ of his position as dean of discipline.”

Further, said the court, it appeared that the hearing officer gave “an inordinate amount of credit” to a portion of a video recording that had been altered from its original format so that it appeared frame by frame at one second intervals rather than its original format of a continuous video recorded in real time. The Appellate Division commented that this alteration to the videotape made what actually transpired during that incident unclear and equivocal.

While the Appellate Division said that it accepted the findings of the Hearing Officer's,* it agreed with Supreme Court that the evidence in this case demonstrates that the educator’s actions were not premeditated. Given all of the circumstances, including the educator’s “spotless record as a teacher for five years and his promotion to dean two years prior to the incidents at issue,” the Appellate Division decided that the penalty excessive and shocking to [its] sense of fairness, citing the Pell Doctrine [Pell v Board of Educ. Of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222].

Noting that “lesser sanctions are available that would deter [the teacher] from engaging in this conduct in the future, the Appellate Division remanded the matter to the Hearing Officer for the imposition of a lesser penalty consistent with its decision.**

*

** Justices Friedman and Richter dissented in a memorandum by Justice Richter,

The decision is posted on the Internet at:
.http://www.courts.state.ny.us/reporter/3dseries/2012/2012_02560.htm

Handbooks focusing on New York State and Municipal Public Personnel Law:

The Discipline Book, - a concise guide to disciplinary actions involving public employees in New York State. A 1900+ page e-book. For more information click on http://booklocker.com/books/5215.html

The Layoff, Preferred List and Reinstatement Manual - a 435 page handbook reviewing the relevant laws, rules and regulations, and selected court and administrative decisions. For more information click on http://booklocker.com/books/5216.html

A Reasonable Disciplinary Penalty Under the Circumstances - A 600+ page guide to penalties imposed on public employees in New York State found guilty of selected acts of misconduct. For more information, click on http://booklocker.com/books/7401.html

General Municipal Law§§ 207-a and 207-c - Disability Leave for fire, police and other public sector personnel - a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder. For more information click on http://booklocker.com/books/3916.html

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