Opinion
402601/03.
Decided July 19, 2004.
James R. Sandner, Esq., New York, NY, Respondent's Counsel.
Michael A. Cardozo, New York City Law Department, New York, NY, Andrew M. Geschwind, Petitioner's counsel.
As this court stated in its prior Order of January 2, 2004, dismissing respondent's cross-motion to dismiss, petitioner brings this proceeding pursuant to Education Law Section 3020-a (5) and CPLR 7511 seeking to vacate a decision of the hearing officer in a proceeding under Education Law § 3020-a entitled In the Matter of the Charges Preferred by Department of Education of the City of New York v. Michael Campbell (SED File No. 4647).
Petitioner commenced the underlying arbitration proceeding pursuant to Education Law § 3020-a. The background facts as set forth in the Hearing Officer's decision are as follows
The above charges stem from an incident on Sunday April 14, 2002 when Respondent Michael Campbell, a tenured teacher at IS 72 in Staten Island, New York, was found by the police to be in possession of cocaine and marijuana. He was arrested and charged initially with possession of marijuana. A search of his car revealed the presence of 10 foils of aluminum, which was later determined to contain cocaine. Respondent remained in police custody and released the next day. Upon his release he called his Principal who informed him that he was already aware of his arrest. Thereafter, Principal Macellari instructed Respondent to report to the District Office, where he reported regularly.
On May 5, 2002 Respondent pled guilty to attempted possession of a controlled substance in the fourth degree, a class D felony. After the substance was tested in a laboratory, the charge was upgraded to a Criminal Possession or a Controlled Substance in the 3rd degree, with intent to Sell, a class B Felony and Criminal Possession of Marijuana in the 5th degree, a Class B Misdemeanor.
After an interview by a caseworker, Respondent was determined to have a chemical dependence and he was placed in the" Brooklyn Treatment Court" program. Following successful completion of a 12 to 18 month Court-supervised program, Respondent would have the opportunity to vacate his plea of guilty and the Court would dismiss the felony charge and his record would be sealed.
As of this writing, Respondent has been successfully moving through the various levels of the program where he has been regularly tested to verify his sobriety. He is scheduled to complete the final phase of the program sometime next month, at which time, if he remains clean, his plea of guilty is scheduled to be vacated and the criminal charge will be sealed.
Pursuant the 3020-a, the petitioner sought the dismissal of the respondent based upon the four charges/specifications petitioner levied against respondent before the hearing officer: 1) that the respondent engaged in criminal conduct; 2) that the respondent was arrested as a result of the criminal conduct; 3) that the respondent pled guilty to attempted criminal possession of a controlled substance; and 4) that as a result of respondent's aforesaid criminal conduct there was newspaper publicity which caused deep concern in the school community. Respondent stipulated to the first three specifications levied except for certain portions of specification No. 2 which related to whether respondent gave notice to petitioner. Respondent also disputed specification No. 4 as to publicity.
After carefully analyzing the facts in a 21-page decision, the hearing officer issued a determination which stated in relevant part
With respect to penalty, I note that both parties agree that disciplinary charges under 3020a are intended not to be punitive in nature but to determine whether the teacher is capable of carrying out his/her professional responsibilities. Having reviewed Respondent's praiseworthy and unblemished fifteen-year past service record and the testimony of the witnesses who appeared before me on his behalf, I have concluded without hesitation that, if given another chance, he will probably make even a greater contribution to his students and his community. His testimony revealed that as a devoted father of two young sons, he recognizes that his addiction and his arrest for possession with the resulting publicity, caused great pain to all the members of [h]is immediate family. His father is a former Principal and a life-long esteemed educator and his mother is also a teacher in the community. These three members of this family of educators, when taken together, have made significant contributions to the intellectual growth of this community. Therefore, I was not persuaded that the community is willing to discard Respondent's future contributions for one mistake in his personal life, made on his own personal time and unconnected directly to his teaching functions.
Therefore, having thoroughly considered all the evidence including the arguments and allegations of both parties, I have concluded that if the Respondent successfully completes his Brooklyn Treatment Court program, he will have no conviction on his record and he should be reinstated to his former or similar position in the District.
For the above stated reasons I issue the following:
AWARD
1. The Department does not have just cause to terminate Respondent Michael Campbell from his position as a tenured teacher.
2. Michael Campbell shall be returned to his former or similar position in the District if he successfully completes the Brooklyn Treatment Court Program, but without back pay.
3. The period from his suspension of salary until his reinstatement at the start of the forthcoming school year, shall be considered a disciplinary suspension.
Petitioner now challenges this award pursuant Education Law § 3020-a (5) which states that "the employee or the employing board may make an application to the New York state supreme court to vacate or modify the decision of the hearing officer pursuant to section seven thousand five hundred eleven of the civil practice law and rules. The court's review shall be limited to the grounds set forth in such section. The hearing panel's determination shall be deemed to be final for the purpose of such proceeding." The petitioner moves under CPLR 7511 (b) (1) (iii) which states that an arbitration award may be overturned "if the court finds that the rights of that party were prejudiced by . . . (iii) an arbitrator, or agency or person making the award exceeded his power or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made."
Petitioner argues that the hearing officer exceeded his authority because the award is contingent and indefinite in duration and does not comply with Education Law § 3020-a (4) and also that the award should be vacated because it violate a strong public policy and is irrational and inherently inconsistent.
Education Law § 3020-a (4) provides in relevant part that
The hearing officer shall render a written decision . . . The written decision shall include the hearing officer's findings of fact on each charge, his or her conclusions with regard to each charge based on said findings and shall state what penalty or other action, if any, shall be taken by the employing board. At the request of the employee, in determining what, if any, penalty or other action shall be imposed, the hearing officer shall consider the extent to which the employing board made efforts towards correcting the behavior of the employee which resulted in charges being brought under this section through means including but not limited to: remediation, peer intervention or an employee assistance plan. In those cases where a penalty is imposed, such penalty may be a written reprimand, a fine, suspension for a fixed time without pay, or dismissal. In addition to or in lieu of the aforementioned penalties, the hearing officer, where he or she deems appropriate, may impose upon the employee remedial action including but not limited to leaves of absence with or without pay, continuing education and/or study, a requirement that the employee seek counseling or medical treatment or that the employee engage in any other remedial or combination of remedial actions.
Petitioner's first argument, that the hearing officer's decision fails to comply with Education Law § 3020-a (4) because it is not "a written reprimand, a fine, suspension for a fixed time without pay, or dismissal" is meritless. The statute was amended in 1994 to add additional penalties which could include "a requirement that the employee seek counseling or medical treatment or that the employee engage in any other remedial or combination of remedial actions." See Laws of 1994 (ch 691, § 3); Matter of Board of Educ. of the Greenburgh Cent. School Dist. No. 7 v. Sobol, 237 AD2d 721, 722 (3d Dept 1997). The decision is not rendered indefinite because it conditions respondent's reinstatement upon the completion of a court-ordered treatment program. Clearly, the respondent cannot be reinstated until respondent has completed the prescribed treatment program, whenever that takes place. The fact that the award is contingent upon respondent's compliance with the treatment program is perfectly appropriate as it will ensure that respondent, before he has any contact with the school environment, has confronted his problem and is ready to be given another chance. See Matter of Board of Educ. of Westhampton Beach Union Free School Dist. v. Ziparo, 275 AD2d 411 (2d Dept 2000). Furthermore, petitioner cannot honestly pretend to be confused at the meaning of the hearing officer's direction to return the respondent "to his former or similar position in the District."
The petitioner's further argument that decision should be vacated as against public policy is also unsupportable. The Court of Appeals has held that "where the finding of guilt is confirmed and punishment has been imposed, the test is whether such punishment is so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one's sense of fairness." Pell v. Board of Ed. of Union Free School Dist. No. 1 of Towns of Scarsdale and Mamaroneck, Westchester County, 34 NY2d 222, 233 (1974). The court is not authorized in this proceeding to substitute its own judgment for that of the hearing officer, but rather to review whether the hearing officer complied with the governing statutes. In this case, petitioner argues that because respondent was charged with enforcing school rules banning illegal drugs and was the head of a school program serving "at risk" youth, respondent therefore had a heightened responsibility and that reinstatement of respondent jeopardizes the state policy of enforcing a drug free zone around schools. Respondent also points to the transcript of a court hearing in January 2003 which petitioner claims indicates that respondent has a positive drug test. However, no evidence of such a positive test was introduced by petitioner.
Although it was not apparently in the record before the hearing officer, the court notes that respondent has submitted in opposition to the petition a June 16, 2003, letter from the treatment center stating that respondent successfully completed treatment and the criminal court granted dismissal of the indictment against respondent on August 21, 2003.
The penalty imposed by the hearing officer amounted to a nearly two-year suspension of respondent without pay and the imposition of conditions to ensure respondent could be safely returned to his position. The decisional law indicates that this penalty is not so disproportionate to respondent's conduct as to shock the conscience in light of respondent's otherwise unblemished 15-year career. See Matter of Board of Educ. of the Greenburgh Cent. School Dist. No. 7 v. Sobol, 237 AD2d 721, 722-723 (3d Dept 1997); Matter of Board of Educ. of Westhampton Beach Union Free School Dist. v. Ziparo, 275 AD2d 411 (2d Dept 2000); contrast Matter of Board of Educ. of East Hampton Union Free School Dist. v. Yusko, 269 AD2d 445, 446 (2d Dept 2000). While the court shares petitioner's concern about the implications of respondent's conduct, this court cannot review the facts de novo, but must defer to the reasoned decision by the hearing officer executed in accordance with the applicable statutes. Therefore, the court rejects petitioner's argument based upon the record before the hearing officer and the governing decisional law.
Accordingly, it is
ORDERED and ADJUDGED that the petition is DENIED and DISMISSED.
This is the decision and order of the court.