Opinion
17446/03.
Decided March 17, 2004.
Attorney for Petitioner, Gregory Hawthorne, Esq., NY.
Attorney for Respondents, Isaac Klepfish, Esq., NY.
In this Article 75 proceeding, petitioner Howard Hoffmann seeks a judgment, pursuant to CPLR 7511 and Education Law § 3020-a, vacating the Hearing Officer's award dated April 25, 2003 and remitting the matter to a new Hearing Officer for hearing and determination. Respondents the Department of Education of the City of New York, Board of Education of the City of New York, John Lee as Superintendent of Queens High Schools and Joel I. Klein as Chancellor of the Department of Education of the City of New York (collectively, respondents or the Board) cross-move for dismissal of the petition pursuant to CPLR 3211 (a) (7).
Relevant Background
Petitioner was, at all times relevant, a tenured teacher in respondents' employ.
On or about June 5, 2002, the Board filed charges against petitioner in accordance with Education Law § 3020-a (1), seeking petitioner's termination on the ground that petitioner had "engaged in inappropriate conduct and conduct unbecoming his profession." Said charges contained fourteen (14) specifications alleging petitioner's sexual misconduct and sexual harassment of female students and other inappropriate behavior in front of and/or towards students.
The Hearing
The matter was submitted to impartial, binding arbitration and a pre-hearing conference was held on August 16, 2002. Hearings were thereafter held before the assigned Hearing Officer, Ralph S. Berger, Esq., on September 23, November 1, November 26 and December 19, 2002 and on January 30, 2003.
At the hearings, petitioner was represented by legal counsel and testimony was given by witnesses to petitioner's alleged acts. More specifically, testimony was provided by petitioner and several of the female students petitioner was alleged to have sexually harassed or otherwise engaged in inappropriate behavior towards or in front of.
Prior to any testimony being taken, the Board moved to enter into the hearing record evidence of a prior, 1999, § 3020-a hearing and decision wherein petitioner was accused and acquitted of charges substantially similar to those under consideration in 2002. The Board stressed that the prior decision was being offered into evidence on the issue of notice only, noted that all of the prior charges had been dismissed as against petitioner, and agreed to redact any of the prior specifications that were not substantially similar to the present charges.
It appears from the record that this occurred during the September 23, 2002 hearing.
In response to the Board's proffer of this evidence, petitioner, through his counsel, argued as follows:
The Board's purpose has already been accomplished because all they wanted was for the hearing officer to be aware of the fact that [petitioner] was previously charged.
. . .
Whether you take the case decision into the record or not at this point is more or less immaterial to [petitioner]. Clearly notice of the kind of charges he was charged with in this case are self evidence (sic). [Petitioner] knows and he stipulates that he needs no official notice not to say these things to students, its common sense.
. . .
And my second point is that section 3020-a provides that when a teacher is exonerated of charges, the record shall be expunged, and my question is, where did the copies of these charges come from? How did the Board obtain copies of these charges if they were, in fact, expunged as the law requires them to be?
To me the word expunged is very plane (sic) in its meaning; when something is expunged, it's as if it did not exist, and I oppose for that reason, but I submit that at this point, it doesn't matter.
( emphasis supplied).
Petitioner then conceded that this evidence had been turned over by the Board as part of the pre-hearing discovery and that he was aware, or on notice, that this document would be offered into evidence and this issue raised at the hearing.
The Hearing Officer found that the proffered document relating to prior § 3020-a charges of a similar nature against petitioner was admissible into the record of the current hearing for purposes of establishing petitioner's notice of what constitutes improper conduct and possible discipline resulting therefrom. In so doing, the Hearing Officer relied, inter alia, upon his personal experience as an arbiter of § 3020-a matters and the written opinion of another Hearing Officer presiding over a prior § 3020-a matter ( Matter of Phipps).
The opinion was written in 2000 and submitted by the Board in support of its position that the evidence of the prior charges against defendant should be admitted on the issue of notice.
Citing from that matter, Hearing Officer Berger noted, "[i]t is well established that prior warnings, admonishments and/or critical evaluations provided to a charged party [by his or her employer,] may [be] consider[ed] in [a] 3020 proceeding for purposes of demonstrating that the charged party had notice of the employer's dissatisfaction with his or her performance or that the charged party had notice of the employer's rules, regulations or policies. It is so even if the prior warnings did not result in 3020-a conviction."
The Phipps Hearing Officer relied, in part, upon the Third Department's decision in Engel v Sobol ( 161 AD2d 873), and upon the language of the lower court's decision therein.
Petitioner failed, in response to the Hearing Officer's ruling allowing admission of the subject evidence on the issue of notice, to offer any objection thereto. Thereafter, as part of his post-hearing brief, petitioner made specific reference to the prior charges and decision, arguing that: (1) the sexual misconduct allegations of students with respect to the 2002 matter were substantially similar to the charges filed against petitioner in the 1999 matter; (2) the "parallels" between the prior and present matters are "unavoidable"; and (3) it is, therefore, not unreasonable to assume that the witnesses knew about the prior matter.
The Hearing Officer's Decision
In an Opinion and Award rendered on April 25, 2003, the Hearing Officer noted that it was the Board's burden to prove the issue of notice and the Board had done so by arguing and submitting evidence that petitioner (1) had received training on the rules against sexual misconduct, touching students and using inappropriate language, and (2) "was on notice of the serious consequences for breaching these policies by the fact he was previously charged with similar misconduct."
The Hearing Officer further noted the testimony of several Board witnesses to be credible, while finding that: (1) petitioner's "testimony, overall, was short on candor and lacking in logic"; (2) "[h]is explanations amount to nothing more than speculation and surmise; and (3) "given this record" petitioner's "blanket denials of wrongdoing do not ring true."
The Hearing Officer ruled that the Board had sustained its burden of establishing the factual allegations set forth in ten (10) of the fourteen (14) specifications and that petitioner was guilty of, inter alia, "soliciting sex from students, asking students for sex in exchange for passing grades, making inappropriate comments about a female student's breast and buttocks, commenting on female students' physical appearance and clothing, engaging in inappropriate and sexually suggestive conversations with students, referring to his students as fucking kids' and fucking assholes,' touching a female student inappropriately, leering at female students, complaining to students about his divorce, support and child custody problems, and demeaning his ex-wife and his child to his students by labeling each of them a bitch.'"
The Hearing Officer noted that petitioner's acts of sexual harassment and sexual misconduct, "[s]eparate and apart from any legal or moral concerns, [are] specifically prohibited by the [Board]" and, again, that petitioner "was on notice", as a result of the prior incident and § 3020-a proceedings, "that sexual misconduct by a teacher is cause for termination."
Finding that petitioner had "not shown a proper understanding of the gravity of his misconduct", "remains in firm denial about any wrongdoing despite overwhelming evidence to the contrary", had not "demonstrated any remorse or indicated that he would change his behavior if returned to the classroom," and was "unfit to properly perform his obligations to the service and should not be returned to the classroom", the Hearing Officer directed that petitioner be removed from the schools and terminated from employment.
Arguments of the Parties
Petitioner contends that, because he was acquitted of the prior charges, the use of those charges in connection with the subsequent hearing "contravened the mandatory expungement provisions of Education Law § 3020-a (4) (b)." According to petitioner, respondents engaged in misconduct by offering the decision on the prior charges and § 3020-a disciplinary hearing into evidence, and Hearing Officer Berger exceeded his statutory jurisdiction by accepting this material into evidence and in, allegedly, improperly relying upon same in rendering his decision.
Education Law § 3020-a (4) (b) provides, in pertinent part, that, if the employee is acquitted, the charges shall be "expunged from the employment record."
Petitioner further claims that the admission into evidence of the decision of the prior § 3020-a hearing, reflecting the prior charges against him, "interfered" with the legislation's fundamental purpose, was contrary to public policy and violated petitioner's State and Federal due process rights by prejudicing his right to a fair hearing.
In opposition to the petition and in support of their cross-motion to dismiss, respondents argue that petitioner waived any claims related to the contested material by withdrawing his objection to the admission thereof into evidence. Respondents further argue that there is, in any event, no basis to overturn the decision of the Hearing Officer, since: (1) the prior hearing decision and charges were properly offered and admitted into evidence on the issue of notice, for the sole purpose of demonstrating petitioner's notice of the existence of a specific personnel policy and the type of conduct which would violate Board rules, regulations and practice; (2) the Hearing Officer clearly did not rely upon petitioner's prior charges in rendering his decision; and (3) there is nothing in the record which indicates, and petitioner fails to argue, that the Hearing Officer's determination of petitioner's guilt was arbitrary, capricious or not rationally based upon the hearing record or that the penalty imposed was disproportionate to the offenses charged.
Analysis
Petitioner participated in the arbitration proceeding and vacatur of the decision must, accordingly, be premised upon a ground set forth in CPLR 7511 (b) (1) ( see Education Law § 3020-a). Under CPLR 7511 (b), an arbitrator's award will not be vacated "unless it is violative of a strong public policy, or is totally irrational, or exceeds a specifically enumerated limitation of his power" ( Peckerman v D D Assocs., 165 AD2d 289, 295, citing Matter of Silverman v Benmor Coats, Inc., 61 NY2d 299, 308; see also New York City Transit Authority v Transport Workers' Union of America, Local 100, AFL-CIO, 306 AD2d 486).
When the arbitration is mandated by law, as in this case, the scope of judicial review is enhanced ( see generally, Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C7511:5, at 778-782). In enunciating this standard, the court appears to have borrowed the scope of review from CPLR 7803 (3), holding that "an award in a compulsory arbitration proceeding must have evidentiary support and cannot be arbitrary and capricious" ( id., citing MVAIC v Aetna Cas. Surety Co., 89 NY2d 214, 223). Further, petitioner may not be terminated in bad faith, in violation of a constitutional or statutory provision, or in violation of decisional law ( see James v Board of Education, 37 NY2d 891).
Petitioner herein fails to establish any basis upon which the Hearing Officer's decision should be vacated.
Initially, the court has reviewed the submitted portions of the transcript of the hearing record and notes that respondents correctly argue that petitioner waived his present objections to the admission and consideration of the prior § 3020-a charges and decision by failing to object on those grounds at the hearing and/or by withdrawing his objection to the admission of this material.
Petitioner "oppos[ed]" the admission of the evidence on the ground that such material was supposed to have been expunged and should not, in the first instance, have been in respondents' possession for their proffer. Petitioner's counsel's question to the Hearing Officer, and the ground upon which he based his objection, was "where did the copies of these charges come from . . . [h]ow did the Board obtain copies of these charges if they were, in fact, expunged as the law requires them to be?" Petitioner then abandoned his inquiry without this question being answered ( see Kelly v Coughlin, 192 AD2d 897, 898).
Although, at one point, petitioner also questioned, with derision, respondents' counsel's statement that the evidence was being offered only on the issue of notice and for no prejudicial or other purpose, he never specifically objected on the grounds he now proposes, that evidence of prior § 3020-a charges of which he was acquitted is inadmissible even on the issue of notice and whether or not actual prejudice accrues as a result thereof.
Petitioner's counsel's offer to stipulate to the issue of notice was, moreover, never accompanied by any objection to the admission of the evidence on the issue of notice. Indeed, petitioner's position at the hearing on the relevance and import of the admission of this material into evidence was, as explained further below, quite opposite to the position he now propounds. In sum, petitioner failed to preserve his present claims by urging them at the hearing below ( see Kenner v Coughlin, 105 AD2d 1130, 1131).
To the extent petitioner may be deemed to have, at the hearing, registered appropriate objections to the same matter he now objects to, it is clear that any such objection was withdrawn, and petitioner's opposition to the admission of the evidence of the prior § 3020-a decision and charges affirmatively abandoned.
At the hearing below, petitioner's counsel declared that, because the Hearing Officer had already, without seeing this evidence, gained knowledge of the prior similar § 3020-a charges and decision through respondents' counsel's statements, he considered the issue to be a moot point, and declared the admission of this evidence to be "more or less immaterial." Petitioner then went on to state, without equivocation, that, "at this point, it doesn't matter."
These statements constitute an unambiguous waiver of petitioner's objection to the admission of this evidence ( see Hart v Coombe, 229 AD2d 754, 755 [petitioner's statement during disciplinary proceedings that he "did not care" constituted waiver of objection previously proffered]; see also Victor v Goord, 253 AD2d 971; Barnhill v Coombe, 239 AD2d 719, 720).
Notably, petitioner points to no further objections or requests made by him or his counsel at this, or at any other, time during the disciplinary hearing. Even more notably, petitioner, as part of his post-hearing brief, made affirmative use of the now objected-to evidence, arguing that such material constituted exculpatory evidence by casting doubt upon the credibility of respondents' witnesses, the students who testified against petitioner.
Petitioner's present arguments, all centered around the admission of this evidence, are, accordingly, not properly before this court for consideration.
As a result, the petition fails to state a cause of action and respondents' cross motion for dismissal of the petition pursuant to CPLR 3211 (a) (7) must be granted.
In any event, were the court to consider petitioner's present objections, it would find them to be without merit.
Petitioner alleges that the admission of evidence of his prior charges, ordered expunged pursuant to Education Law § 3020-a (4) (b), violated the legislature's intent and public policy; that the hearing proceedings during which this evidence was allowed to be admitted were affected by error of law; that respondents' committed misconduct by offering the prior § 3020-a decision and charges into evidence; and that the Hearing Officer erred in allowing and considering said evidence, all in violation of petitioner's constitutional due process rights and purportedly requiring a new hearing before a new hearing officer.
"Education Law § 3020-a evinces a legislative intent to preserve confidentiality only while a disciplinary proceeding is pending and, once a final determination is reached, to maintain confidentiality only as to those charges of which the educator has been acquitted" ( LaRocca v Board of Education of the Jericho Union Free School District, 220 AD2d 424, 430, in dissent). Accordingly, certain files, though otherwise confidential, may be subject to disclosure to the general public pursuant to, inter alia, the Freedom of Information Law ( id. at 426, 427).
However, Education Law § 3020-a (4) (b) requires only that charges of which the employee has been acquitted be expunged from his or her "personnel records." Nothing in the statute enjoins respondents or their legal counsel from "retain[ing] necessary information in another [confidentially kept] file for use as a shield in any proceeding brought against them" by petitioner or by other persons arising out of the incident or incidents leading to the charges themselves ( see Jameson v Johnson, 136 Misc 2d 554, 556-557; see also Wong v Coughlin, 150 AD2d 832 [retention of information concerning administrative disciplinary proceeding pursuant to an order of expungement mandating that all references to the material be removed from the petitioner's files is permissible, since material will be kept apart from petitioner's files and clearly marked expunged so that they could not unfairly and prejudicially impact future deliberations bearing on the petitioner's status]).
Nor may the statute be construed as preventing respondents' use of information of prior charges in a subsequent, private, proceeding where such use is severely limited and the information has some non-prohibited, rational bearing upon said subsequent proceeding.
Indeed, it appears that, given the nature of petitioner's alleged acts towards his students, many of whom are presumed to be minor females, to require a complete and total expungement of any and all reference to these acts merely because petitioner was acquitted thereof by an administrative tribunal would unfairly expose and leave respondents vulnerable to other litigation brought by alleged victims and their parents and/or to criminal charges.
Here, the subsequent § 3020-a hearing and evidence presented therein was, apparently private ( see Education Law § 3020-a [c] [employees have the option to maintain the confidentiality of disciplinary proceedings and evidence presented therein by electing to keep the hearing private, not open to the public]), and respondents offered to redact any unnecessary or unduly prejudicial information from the material being offered into evidence.
There was, further, a rational and recognized basis for the Hearing Officer to allow admission of evidence of prior charges against petitioner for substantially similar conduct. That is, as to this matter, the material was clearly offered and accepted into evidence on the recognized exception of the issue of notice ( see Jerry v Board of Education of the City School District of the City of Syracuse, 50 AD2d 149, 159 [no error in admitting evidence of prior charges where evidence was offered on the issue of notice and not to prove that earlier incidents occurred]; see also Engel, 161 AD2d at 874).
Here, the burden of proving notice rested with respondents, the information concerning petitioner's prior charges was clearly relevant to the issue of notice, and respondents sought only to use a redacted portion of the prior records, limiting such use to the notice issue. The respondents were allowed to use this information as a shield, rather than as a sword against petitioner ( see Jameson, 136 Misc 2d at 556-557; David C. v New York State Department of Social Services, 203 AAD2d 964, 965).
That the courts have not had occasion to rule on the precise issue presented herein, use of expunged information at a subsequent § 3020-a hearing on the limited issue of notice, does not demand a finding that the expungement statute places a blanket prohibition on the use of such material, even as to the issue of notice.
After careful review, the court finds no impropriety in the offer and acceptance of the subject material into evidence at the hearing. There is also neither evidence nor indication on the record that the Hearing Officer acted in excess of his delegated authority by accepting this material into evidence, or that he considered the evidence for any purpose other than its bearing on the issue of notice. Nor has petitioner shown that the admission of this evidence so violated the fundamentals of a fair hearing, or was so prejudicial as to completely vitiate the hearing, that petitioner's due process and/or other constitutional rights were violated.
The court has considered petitioner's remaining arguments, including those premised upon the decision of the Court of Appeals in Syquia v Board of Education of Harpursville Central School District ( 80 NY2d 531), and finds them to be without merit. Syquia, as relevant herein, requires only that statutorily mandated provisions be strictly enforced. The statutory provision at issue herein requires only that the material be expunged from petitioner's personnel files. It does not, as already discussed, also mandate that this information not be retained in a separate, confidential file for future, limited use of an appropriate nature, such as occurred herein.
Finally, the court finds, as argued by respondents in support of their cross motion, that the evidence before the Hearing Officer supports his factual findings. There is, further, neither evidence nor indication that the Hearing Officer was in any manner improperly influenced by the admission of the contested evidence so as to materially prejudice petitioner and there is a clear and rational basis for the determination to terminate petitioner's employ.
Conclusion
Accordingly, petitioner's application is denied. Respondents' cross motion is granted and the petition is dismissed.
The foregoing constitutes the decision, order and judgment of this court.