Matter of Johnson v Riverhead Cent. Sch. Dist.

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Matter of Johnson v Riverhead Cent. Sch. Dist. 2015 NY Slip Op 30778(U) May 5, 2015 Supreme Court, Suffolk County Docket Number: 17022/14 Judge: Joseph C. Pastoressa Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] Index No: 17022/14 SUPREME COURT OF THE STATE OF NEW YORK IAS/ TRIAL PART 34- SUFFOLK COUNTY PRESENT: HON. JOSEPH C. PASTORESSA JIJS‘TICE OF THE SUPREME COURT Mot Seq: #00 I -MD X ATTYS FOR PETITIONER(S): HARRIET A. GILLIAM, ESQ. P.O. BOX 1485 RIVERHEAD, NY 1190 1 IN THE MATTER OF THE APPLICATION OF JOE NELL JOHNSON, 11, Petitioner(s), FOR A JUDGMENT PURSUANT TO ARTICLE 75 OF THE CIVIL PRACTICE LAW AND RULES, ATTYS FOR RESPONDENT(S): INGERMAN SMITH, LLP 150 MOTOR PARKWAY SUITE 400 HAUPPAUGE, NEW YORK 11788 -againstRIVERHEAD CENTRAL SCHOOL DISTRICT, Defendant( s). Pages Numbered Notice of MotioniOrder to Show Cause/ PetitioniCross Motion and Affidavits (Affirmatlow) Annexed Opposing Affidavits (Affirmations) 3, $, 5 Reply Affidavits (Affirmations) 7, y‘ ‘ Affidavit (Affirmation) O K x Papers J-, &, 1 - ___ ____ ___ It is. ORDERED, that the Petitioner’s application for an order pursuant to Article 75 vacating the Decision of Hearing Officer Jay Nadelbach, Esq., dated August 15, 2014, is denied; and it is further ORDERED AND ADJUDGED that the petition is dismissed. I’ctitioner, Joe Ne11 Johnson, 11, commenced this proceeding pursuant to CPLR 75 11 for a 1 udgment iacating the decision dated August 15. 2014 of Hearing Officer Jay Nadelbach, Esq., on thc ground that it is arbitrary. capricious, and irrational. Respondent. Riverhead Central School District (*‘District”)answered the petition and opposed the application. 1 [* 2] The District on December 10, 2013 pursuant to Education Law 53020-a brought disciplinary charges of misconduct against the Petitioner, who at that time was a tenured clementary school teacher with the Rivexhead School District. The charges against Petitioner stein from the events taking place on April 21, 2012, when Petitioner was arrested for operating a motor trehicle while intoxicated and possessing a loaded firearm. Petitioner did not have a license to possess the firearm. As a second charge, it was averred that the Petitioner’s conduct on April 21, 2012 was incompatible with the standards required for Petitioner to be viewed as a posit ive role model in the school community. Specifically, the District alleged the following cliarg es : Charge 1 “On April 21, 2012 Respondent was guilty of misconduct in that, while in Suffolk County, he operated a motor vehicle while intoxicated and was in possession of a loaded firearm, to wit: a .45 caliber handgun for which he did not have a license to possess.” Charge 2 “The Respondent’s conduct on April 21, 2012 is incompatible with the standards required to be seen as a positive role model for the students that would be assigned to him as a classroom teacher in the District.” Petitioner moved to dismiss Charges #1 and #2 pertinent to Respondent’s alleged “possession of a loaded firearm” prior to the commencement of the hearing. Petitioner’s motion alleged that the only evidence against him was obtained via an illegal police search. The District submitted opposition to Petitioner’s motion to dismiss, and on March 4, 2014, the Hearing Officer entered a decision denying the Petitioner’s motion. Hearings were held in the matter on March 7, March 25, April 9, April 30 and June 26 of 2014. Hearing Officer, Jay Nadelbach, on August 15, 2014, found the Petitioner guilty of both charges against him. Mr. Nadelbach also found that Petitioner’s ability to be viewed and to function as a positive role model had been compromised. Mr. Nadelbach determined that Petitioner‘s employment with the District should he terminated. I’he Petitioner was pulled over in the early morning hours of April 21, 2012 by Southampton Village Police Officer. Kimberly McMahon, for suspicion of Driving While Into\cicated. Officer McMahon gave testimony in the hearings concerning this matter, that she obscn ed the Petitioner in a gold 2008 Mercedes Benz crossing ox er the double yellow line on \e\ era1 occasions and using his cellular phone. 2 Officer McMahon testified that upon [* 3] approaching the driver’s side of the vehicle, she could smell alcohol on the Petitioner’s breath, she observed that the Petitioner’s eyes were red and glassy, and that he spoke with slurred speech. Officer McMahon requested that the Petitioner present his driver’s license and registration. Unable to locate these documents, the Petitioner opened his glove compartment, wherein Officer McMahon using a flashlight, was able to detect the presence of an iPad and papers. none of which were the sought after license and registration. At that point, Officer McMahon asked the Petitioner to step out of his vehicle, so as to administer field sobriety tests. Officer McMahon administered a horizontal gaze test, which the Petitioner was unable to satisfactorily complete.’ Officer McMahon testified that she became uncomfortable and directed the Petitioner to return to his vehicle and wait while she called for backup. While waiting for backup to arrive, Officer McMahon then observed the Petitioner again on his cellular phone, but nou shuffling about in the vehicle and reaching toward the glove compartment. Soon after Officer McMahon’s observations, Officer Moore arrived to the scene and asked the Petitioner to step out of the vehicle once more. At this time, Officer McMahon resumed administering the field sobriety tests. Petitioner was unable to successfully complete the tests, and was placed under arrest for driving while intoxicated. Petitioner was placed in the back seat of the patrol car, while Officer McMahon returned to secure the Petitioner’s vehicle and locate his driver’s license and registration. Officer McMahon also retrieved a .45 caliber Springfield black handgun which she found in the glove compartment. When Officer McMahon previously shined her flashlight in the glove compartment, the handgun was not there. Officer McMahon also testified that when she found the handgun concealed in the glove compartment it was loaded. Officer McMahon inquired as to the handgun, and Mr. Johnson identified the gun as belonging to someone by the name of “Daryl” indicating that he had known that the handgun was indeed in his possession and to whom it belonged. At the police barracks Mr Johnson refused a breathalyzer test and was given the opportunity to consult with his d t t orne J Superintendent of Schools. Nancy Carney. testilied regarding the petitioner‘s conduct and his abilit! to be a role model for students. Ms. Carney testified: 1 -‘I think it negates Mr. Officer McMahon asked the Petitioner to follow her pen with his el’es. she stated that the Petitioner instead stared directl) at 1ic.r. [* 4] .lohnson being a positive role model in the District. Something that, as I said, is very, very important to us is that we feel the people that are in front of our children are good citizens who kids can look up to, for kids who need to be taught right from wrong. I feel that has been compromised.” Superintendent Carney also testified that had the DWI charge been the sole allegation against the Petitioner, the 3020-a charges would not have been brought. She testified that there ha1 e been other instances where District employees were arrested and charged with DWI alone and those employees were not discharged. The difference here being the petitioner’s gun possession charge. Debra Rodgers, the Principal at Phillips Avenue Elementary School, where petitioner teaches also testified regarding petitioner’s ability to be a role model. Ms. Rodgers testified: “I have grave reservations about my ability to be able to place students in that class. I have concerns about my ability to facilitate teams and have staff feel comfortable with him on those terms” and “I don’t see him as a role model that he used to be. You know, in the past we have typically placed in Joe’s class those typically boys that needed a positive role model that was going to be supportive and assist them in making good decisions. And the day that he left or was administratively reassigned around the circumstances of the events, that changed the game.” ’The Petitioner defends the charges against him on the grounds that he was unaware that the handgun was in the vehicle. Mr. Johnson testified that the handgun belonged to a friend named “Daryl”, an Ohio domiciliary. Petitioner claimed that the firearm was placed there by Daryl’s girlfriend to whom he had loaned his vehicle, and it was then that the weapon must have been placed in the glove box absent his knowledge. Petitioner testified that he only found out about the firearm on the way to the precinct when Officer McMahon told him she found a weapon in his car. Officer McMahon testified that the police ran a check of the firearm, revealing that the handgun was in fact owned by a female, who was an Ohio resident. The female Ohio resident was later identified as Diana Alvarez. “Daryl ’s.’ girlfriend. Although Petitioner claims that he had no knowledge that the gun was in his vehicle. a written statement \\\om to bq Ms. Alvarez before Ohio police. states that she placed the firearm in the Petitioner’s lchiclc only after she obtained the Petitioner‘s permission to do so. Mr. Johnson also testified at the hcaring regarding his background and his commitment to the students, the administration, m c l the community. Mr. Johnson provided his end of the >ear satisfactory evaluations as a 4 [* 5] teacher and testified that he always tried to provide a positive educational atmosphere for his students when teaching or coaching. In addition, Mr. Johnson called a number of witnesses on his behalf’to refute the charges against him. Where as here, the parties are compelled to engage in arbitration by statutory mandate (see Education 1,aw $3020-a[5]), “judicial review under CPLR article 75 is broad, requiring that the award be in accord with due process and supported by adequate evidence in the record” (see, Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214, 223; Motor Veh. Mfi-s. Assn. 0fU.S. v State of New York, 75 NY2d 175, 186; Matter of Hegarty v Board of Lduc. of the City of N.Y., 5 AD3d 771, 772). An award will not be vacated where the determination has a rational basis and is supported by the record (Matter of Board of Educ. Of Westhampton Beach Union Free School Dist. v Ziparo, 275 AD2d 411). Moreover, it is well established that it is “up to the hearing officer to determine what, if any, weight should be given to the evidence, and a court should not substitute its judgment for that of a hearing officer” (Matter of Board of Education of Byram Hills Central School District v Carlson, 72 AD3d 81 5 , 8 15: see, Altsheler v Board of Educ. of Great Neck Union Free School Dist., 62 NY2d 656, 657; Matter of Barad v State Bd. For Professional Med. Conduct, 282 AD2d 893,894; Matter of Fitzpatrick v Board of Educ. of Mainaroneck Union Free School Dist., 96 AD2d 557, 558). I-Iere, the Petitioner pled guilty to the charge of driving while intoxicated in his criminal proceeding and he further admitted in his testimony at the hearings underlying this action, that on April 2 1. 20 12, he did in fact operate his vehicle while intoxicated. As such, the District did not have the burden of proving that portion of Charge number 1. There is no basis for this court to find that the hearing of‘ficer’s reliance on Officer VcMahon‘s testimony as a basis for his determination as to Charge number 1 alleging illegal gun possession, %as arbitrary, without rational basis, or without evidentiary support or unfair. Officer McMahon testified that she pulled the Petitioner over for suspicion of DWI, and when h e peered into the glove compartment with her flashlight to assist the Petitioner in locating his I~censc and registration, there was no firearm. While Petitioner sat in his car waiting for Officer \lcMahon‘s backup to arrive. Officer McMahon testified that she noticed the Petitioner making m o ements and reaching toward the glove compartment. Upon a search of tlie vehicle after the ~ Petitioner \\as placed in custody. Officer McMahon located a loaded 4S caliber Springfield 5 [* 6] bliick handgun in the glove compartment. Despite the Petitioner’s claim that he did not know the lii c‘xiii L ~ Ai n the I ehicle M ith him, the hearing ofiicer‘s deterinination to reject that claim was In this regard. thc hearing officer also relied on testiiiionj, from the I>i,ina OM iier of the firearm, 21\ ‘ire/ ‘is \tell a s a prior statement she made to the E14 ria police regarding hou the gun c;inic to he in the Petitioner’s possession. AI\arez testified that when she placed the handgun i n the \clilcle. i t \\;is i n its original packaging, a box. l’his is of particular note, as when the Grearni \ \ a \ rct~ic\ froiii tlic Petitioner’s \chicle it uas not in a box. nor was a boy retrieved from the cd \ cliictc Slic ~ l s o itiited repeatedlj during the course of questioning by tlie Elyria police and in tcstimon! h e g:i\ e during the hearings. that Petitioner hne\+/that she placed the lirearin in the glo\ e compartment. Alvarez also had cause to believe. through communications with the Petitioner. that the handgun would be placed in tlie Petitioner’s safe, located in his home. On this record the hearing officer concluded that the Petitioner did have knowledge and possession 01’ the firearin. The Petitioner’s conduct was deemed sufficient to assess a charge pursuant to liducation Laws 3020-a(5). The petitioner’s contention that the hearing officer incorrectly ,q)plied the exclusionary rule is without merit. ‘bTheexclusionary rule is applied in aclniiiiistrative proceedings by balancing the deterrent effect of exclusion against its detrimental impact on the process of determining the truth. Relevant evidence is not excluded when little or no deterrent benefit will result” (Moro v Mills, 70 AD3d 1269, 1270). Here, the testimony elicited \\;as relevant to the determination of petitioner’s moral fitness to teach children and petitioner identified no real deterrent effect likely to result from its exclusion (see, Moro v Mills, supr;i). I Iiidcr these circumstances. there \\.as a rational basis for and sufficient evidence to \upport the hearing ofticer’s conclusions (see. Matter of Trupiano v Board of Educ. of the East \leado\\ Iliiion k.ree School Dist.. 89 AD3d 1030; Matter of Board of Educ. of Brain r-Iills C‘cniral School Dist. 1’Carlson. 72 AD3d 8 15). ‘1, t o ( ‘ h x g e nuniber 2. the hearing of-ticer determined that it was fair and reasonable for tlic IIisLrict IO coiicludc that the Petitioner could .~\\ignciI \tident\ no longer serve as a positive role model for his 1 lic hearing of’ticer concliided that although the Petitioner at one point [* 7] a d gcneral community at large. The Hearing Officer in making his determination, relied on the testimony of Principal Debra Rogers and Superintendent Nancy Carney, that Mr. Johnson's ability to be viewed and to function as a positive role model has been thoroughly compromised. .4s such, the sanction of termination as chosen by the District and as determined by the Hearing Officer is rational given the facts and circumstances of this case. Once again, the court's review of this determination is limited to whether it was. arbitrary, capricious, irrational, or lacked sufficient evidentiary support or violated due process. Barring that, the court even if it disagreed with the hearing officers conclusions, cannot, by law, vacate them and substitute its own judgment Accordingly, the petition is dismissed. FINAL D I S P . ~ NON-FINAL DISP. I I \.4rticIc75\ .101 INSONVKIVT:RHEADCENTRALSCHOOLDlS~I'RlC'l.revIsed.3 I 5 16 7