Friday, March 21, 2014

Factors that may serve to mitigate a disciplinary penalty upon a finding of misconduct


Factors that may serve to mitigate a disciplinary penalty upon a finding of misconduct
2014 NY Slip Op 01813, Appellate Division, First Department
2014 NY Slip Op 01814, Appellate Division, First Department

In both of these cases tenured teachers were terminated after a disciplinary arbitrator found them guilty of allegedly "engaging in what appeared to be sexually inappropriate behavior with a colleague" while on school property in an “unofficial capacity.”

Supreme Court sustained the arbitrator’s findings of misconduct but remanded the matter for a new hearing and the imposition of a lesser penalty. The Appellate Division, however, modified the Supreme Court’s decision “on the law” by [1] reinstating the findings of misconduct but vacated that part of the order directing a new hearing and [2] remanding the matter for the imposition of a lesser penalties.

Explaining that where the parties are subjected to compulsory arbitration, the arbitration award must be "in accord with due process and supported by adequate evidence, and must also be rational and satisfy the arbitrary and capricious standards of CPLR article 78." Further said the court, “[a] hearing officer's determinations of credibility, however, 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 form an impression of either candor or deception."

The Appellate Division found that Supreme Court “erred in substituting its judgment” for that of the hearing officer and the arbitrator's findings of misconduct “was supported by adequate evidence.”
 
The court, however, agreed with Supreme Court that the penalty of termination of employment was shockingly disproportionate to the misconduct of the respective employees. A result is shocking to one's sense of fairness, said the court, “if the sanction imposed is so grave in its impact on the individual subjected to it that it is disproportionate to the misconduct, incompetence, failure or turpitude of the individual, or to the harm or risk of harm to the agency or institution, or to the public generally visited or threatened by the derelictions of the individuals.” 

Another consideration in fixing an appropriate penalty: would be the prospect of deterrence of the individual or of others in like situations.

Before the incident, the court noted, the teachers involved had made many positive contributions to the school and had an unblemished disciplinary records.

Among the circumstances that could serve in mitigating the disciplinary penalty imposed on an employee, in this instance termination, cited by the court were the following:

1. The employee’s actions were not premeditated and the employee had a spotless record for five years.

2. The employee’s behavior demonstrated a lapse in judgment in the absence of evidence that the incident was anything but a one-time mistake.

3. That, with respect to an educator, the conduct did not involve some form of romantic involvement or other inappropriate conduct with a student, but rather appeared to be consensual sexual conduct with an adult colleague that was not in and of itself either criminal or otherwise improper.

4. The absence of any indication in the record that the educator's conduct will affect his or her ability to teach or that he or she intended to inflict any damage on any student.

5. The tenured educator had an unblemished disciplinary record and consistently satisfactory performance ratings.

The Appellate Division, in remanding the matter for the imposition of lesser penalties, commented that “While it is unfortunate that the incident garnered so much attention and was exploited in the media, that in and of itself does not warrant the penalty of termination.”

N.B. James Beyer, Esq., writing in NYMUNIBLOB, has posted an article entitled Will Sex in School Decision Impact Teacher Discipline Process? in which he addresses a number of implications flowing from these ruling.
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Mr. Beyer's article is posted on the Internet at:http://nymuniblog.com/will-sex-in-school-decision-impact-teacher-discipline-process/

The decisions are posted on the Internet at:
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Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

Challenging Adverse Personnel Decisions at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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