Cohen v Middletown Enlarged School Dist.

[*1] Cohen v Middletown Enlarged School Dist. 2006 NY Slip Op 50211(U) [11 Misc 3d 1054(A)] Decided on January 13, 2006 Supreme Court, Orange County Owen, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 13, 2006
Supreme Court, Orange County

Bernard Cohen, Petitioner,

against

Middletown Enlarged School District, Respondent.



6214/05



THORNTON, BERGSTEIN & ULLRICH, LLP

Attorneys for Petitioner

15 Railroad Avenue

Chester, New York 10918

LAMB & BARNOSKY, LLP

Attorneys for Respondent

534 Broadhollow Road, Suite 210

P.O. Box 9034

Melville, New York 11747

Joseph G. Owen, J.

This CPLR 7511 petition seeks a judgment vacating an August 22, 2005 determination of Hearing Officer Howard C. Edelman, Esq., made pursuant to Education Law §3020-a, which found petitioner culpable under certain disciplinary charges. For the reasons stated below, the petition is denied and the underlying determination is confirmed (see, CPLR 7511[e]).

Submit judgment to Orange County Clerk, as Clerk of the Court, with bill of costs.

During the operative time period, petitioner Bernard Cohen was the principal of Middletown High School in Middletown, New York. In or about January 2003, then superintendent Robert Sigler was arrested in connection with charges of child molestation, concerning which he subsequently pleaded guilty. Petitioner was thereafter investigated upon allegations that he failed to properly report a known sexual relationship between Sigler and a male student, and also that he improperly made changes to math regents' grades.

[*2]

The investigation resulted respondent's filing of five charges against petitioner, consisting of: (1) Insubordination and/or misconduct and/or neglect of duty and/or conduct unbecoming a principal by failing to make one or more mandatory reports regarding petitioner's alleged knowledge of the relationship between Sigler and a male student;(2) Misconduct and/or conduct unbecoming a principal and/or just cause to discipline for allegedly improperly changing student grades on the June 2002 Mathematics A Regents Examination;(3) Misconduct and/or neglect of duty and/or conduct unbecoming a principal and/or just cause to discipline for allegedly failing to ensure that instruction was provided by a licensed teacher for the GED I English Class on one or more occasions during the 2002-2003 school year;(4) Misconduct and/or neglect of duty and/or conduct unbecoming a principal and/or just cause to discipline for allegedly failing to ensure that instruction was provided in accordance with a student's individualized education plans (IEPs); and(5) Misconduct and/or neglect of duty and/or conduct unbecoming a principal and/or just cause to discipline for knowingly permitting the placement of a special education student in violation of her individualized education plan (IEP).

Among other things, petitioner claims that these charges were made solely in retaliation for the fact that he did, in fact, timely report Sigler's conduct to authorities

After a hearing, in his written determination dated August 22, 2005 the hearing officer found petitioner culpable on charges one through four, and not culpable on charge five. The hearing officer further concluded that no penalties were warranted on the third and fourth charges, but that the appropriate penalty on charges one and two was termination of petitioner's employment. Petitioner now seeks to vacate this award.

Pursuant to Education Law §3020-a(5), the Court's review powers are limited to the grounds set forth in CPLR 7511. However, "where, as here, the parties are forced to engage in compulsory arbitration, judicial review under CPLR article 75 requires that the award be in accord with due process and supported by adequate evidence in the record'" (Matter of Bernstein [Norwich City School Dist. Bd. Of Educ.], 282 AD2d 70, 73, lv denied 96 NY2d 937 [2001], quoting Motor Veh. Mfrs. Assn. Of U.S. v State of New York, 75 NY2d 175, 186; see, Matter of Hagarty v Bd. Of Educ. of the City of New York, 5 AD3d 771, 772). "Moreover, [a]rbitration awards may not be vacated even if the court concludes that the . . .[arbitrator] misapplies substantive rules of law, unless it is violative of a strong public policy, is totally irrational, or exceeds a specifically enumerated limitation on his power'" (Matter of Hegarty v Bd. Of Educ. Of the City of New York, supra, 5 AD3d at 772-773, quoting Matter of Wicks Constr. [Green], 295 AD2d 527, 528). Petitioner bears the burden of "establishing that the hearing officer's determination was arbitrary and capricious, or based on misconduct or bias" (Matter of Hegarty v Bd. Of Educ. of the City of New York, 5 AD2d 771, 773).

Petitioner first argues that his first amendment rights were violated by the hearing [*3]officer's alleged refusal to entertain his retaliatory discipline defense. In essence, petitioner contends that he was the only school administrator to report Sigler's conduct to authorities, and that the underlying charges singled him out solely in retaliation for this claimed exercise of his duties. By allegedly failing to entertain his first amendment claim, argues petitioner, the hearing officer rendered a determination which was arbitrary and capricious as well as in violation of public policy.

With respect to this issue, the hearing officer specifically held that the introduction of evidence of "[d]isparate treatment is certainly appropriate before me. . ." (Hearing Transcript, p. 1824). In ruling on petitioner's first amendment argument, however, the hearing officer observed that the decision makers' "intent" with respect to any alleged disparate treatment was not pertinent because "[d]isparate treatment either is or isn't regardless of intent" (Hearing Transcript, p. 1825). This is not tantamount to holding, as petitioner argues, that the hearing officer refused to entertain his claim. Clearly, evidence and legal arguments regarding petitioner's contention that he was singled out solely due to the exercise of his first amendment rights were permitted and entertained.

In fact, it is evident from a review of the August 22, 2005 written determination that the hearing officer carefully considered petitioner's contentions in this regard. For example, in summarizing petitioner's arguments the hearing officer observed, inter alia, that: In this context . . .[Cohen] maintains he was the only administrator who made any report about his suspicions. He suggests that . . .[certain other] individuals had as much or more access to information concerning the nature of the Sigler-A.G. relationship. . .. Despite this knowledge, none of these other administrators made any report, written or oral, to authorities, . . .[Cohen] asserts. In . . .[Cohen's] view, then, it would be the height of disparate treatment to punish him under these circumstances. . ..

(August 22, 2005 Determination ["Determination"], pp. 14-15). In addressing the evidence presented, the hearing officer first held that petitioner was aware of Sigler's inappropriate relationship with a male student, and that he breached his duties to timely investigate and make required reports. While recognizing the reluctance of all of the involved school administrators to act, due to "the uniqueness of the situation" (Determination, p. 21), the hearing examiner noted that "[a]s Principal of Middletown High School. . .[Cohen] had a special duty to do so. A.G. was a student there. As set forth above, he certainly had reasonable suspicions as to the nature of the Sigler-A.G. relationship" (Determination, p. 21).

Subsequently, after holding that petitioner was also culpable on the second charge (changing of student grades), the hearing officer returned to the disparate treatment issues and specifically ruled as follows: There is no doubt that the issue of disparate treatment is a legitimate defense when employees are charged with misconduct. In certain cases that defense may result in the lessening or even elimination of an otherwise [*4]appropriate remedy. Frankly, . . .[Cohen] has raised a legitimate claim of disparate treatment here and were . . .[Cohen] culpable of only Charge I a penalty of less than discharge might well be appropriate. However, and without deciding that issue, I find that, taken together, . . .[Cohen's] culpability of Charges I and II justifies upholding the Board's decision to seek termination of his services.********************************** Nor is any claim of disparate treatment valid with respect to Charge II. . .

(Determination, pp. 35-36). The hearing officer carefully considered all of the evidence presented and, while recognizing that petitioner's disparate treatment argument had some merit, found overriding and independent justifications for termination. Petitioner's "claim that his removal. . .and his dismissal were in retaliation for protected speech amounts to nothing more than a disagreement with the . . .[hearing officer's] conclusions" (Roemer v Bd. Of Educ. of the City School, District of the City of New York, 290 F. Supp. 2d 329, 333 [EDNY 2003]).

Petitioner next argues that his due process rights were violated with respect to the second charge involving the improper changing of student grades. The charge specifications each clarified the general charge with delineated allegations, as follows: Specification 1: The June 2002 Mathematics A Regents Examination Scoring Key required that, in words or substance, "[o]n the back of the student's detachable answer sheet, raters must enter their initials in the boxes next to the questions they have scored and also write their name in the box under the heading Rater's/Scorer's Name.'"Specification 2: Despite the provisions of the June 2002 Mathematics A Regents Examination Scoring Key, you changed one or more of the following student's examination scores without entering your intitials in the box(es) next to the question(s) you scored and/or changed. . .Specification 3: You changed the scaled scores of one or more of the following students from a failing grade to a 55 on the June 2002 Mathematics A reegents Examination without denoting any increase(s) in the student's credit(s) earned and/or total raw score. .

Among other things, in reaching his determination the hearing officer held "that Cohen did fraudulently make changes in the students' scores solely to convert failing Regents' exam grades into passing ones, and not because the students' work merited the additional credit he gave." (Determination, p. 24). This holding, argues petitioner, went outside the limited nature of the charges and thereby violated his due process rights to notice and opportunity to be heard.

The hearing officer's analysis of this charge begins with petitioner's own acknowledgment that "he failed to initial or sign appropriate items on the fourteen Math A Regents test booklets that he reviewed and regraded" (Determination, p. 16), essentially admitting to the charge specifications. As to these specifications, the hearing examiner's holding was initially narrow: The parties agree that . . .[Cohen] is culpable of Charge II. After all, there is no [*5]doubt that Cohen changed the 2002 Mathematics A Regents grades of the fourteen students listed in Specification 2. Nor is there any doubt the instructions for grading those exams required raters to write their names under the heading "Rater's/Scorer's" name. Cohen did not do so, the record reveals. In addition, having trained staff at other schools in the proper procedures for scoring Math A Regents . . ., Cohen surely knew what notations he had to make when he changed the grades. Thus, as noted above, Cohen and the Board agree he is culpable of this charge.

(Determination, pp. 23-24).

Petitioner, however, argued that "he . . . [was] not guilty of intentionally inflating scores" (Determination, p. 16), while respondent school district "insisted that Cohen willfully and fraudulently changed the grades in question in an effort to make the result look better than they really were" (Determination, p. 24). Recognizing that "the parties vigorously disagree about. . the nature of the changes Cohen made and his intent in doing so" (Determination, p. 24), the hearing officer heard evidence from both sides upon this issue which was apparently interjected, at least in part, by petitioner himself by responding to the second charge. Petitioner was fully and fairly apprised of the issue at hand, and was also given a full and fair opportunity to present his case. After hearing this evidence, the hearing officer made the fraud finding set forth above.

Upon reaching this conclusion the hearing officer rejected petitioner's argument, similar in nature to the argument made here, that the second charge should be dismissed because respondent failed to specifically allege that petitioner engaged in willful and fraudulent behavior (Determination, pp. 30-31). In short, the hearing officer concluded that petitioner was adequately apprised of the nature of the charge through the three specifications contained therein and the record made. The Court sees no basis for disturbing that conclusion.

Lastly, petitioner argues that the hearing officer's determination is not supported by adequate evidence. Upon review of the record as a whole, the Court disagrees. Petitioner fails to establish that the determination under review was arbitrary and capricious, or based on misconduct or bias (see, Matter of Hegarty v Bd. Of Educ. of the City of New York, supra, 5 AD2d at 773). Accordingly, the petition is denied.

In accordance with CPLR 7511(e), the August 22, 2005 award of Hearing Officer Howard C. Edelman, Esq. is confirmed.

This shall constitute the decision of this Court.

HON. JOSEPH G. OWEN

SUPREME COURT JUSTICE

Dated: January 13, 2006 [*6]

Goshen, New York

APPEARANCES: