In the Matter of Ericka Bolt, Respondent,v.New York City Department of Education, Appellant.BriefN.Y.January 3, 2018July 17, 2017 THE LA w OFFICES OF RICHARD J. WASHINGTON, P.C. The Honorable John P. Asiello Chief Clerk and Legal Counsel to the Court New York State Court of Appeals 20 Eagle Street Albany, New York 12207-1095 Re: Bolt v. New York City Department of Education APL-2017-00068 Dear Mr. Asiello: Respondent, Erika Bolt, submits this letter brief pursuant to the Court's request for submissions under Rule of Practice 500.11, and in response to the Petitioner New York City Department of Education's letter brief, dated June 28, 2017. The Petitioner requests a full briefing and argument for this appeal. Respondent joins the Petitioner's application in that regard only and takes no position on the Petitioner's application to coordinate briefing with two other unrelated and factually distinguishable cases. An arbitrator's finding of guilt and the reasonableness of the corresponding penalty are fact-specific inquiries that must be determined on a case-by-case basis. This case presents a unique factual scenario that must be considered independently in order to decide whether the arbitrator's finding of misconduct was rational, and whether the penalty of termination is as shocking to the conscience of this Court as it has been in lower courts. ll )t) C1 ll R.l'l Is I JU fl 6 +(1.0.:i-:;./-t-l5 (I) 0111 l't0tlR RIUl\Rll~ll\\ \SIJl"\.;l.J():'-,-\J-L\\\.lll\\ i\t\\ YnRK. i\1\1 YoRK JC1uu7 \\\\\\.\\ \SIIf'\(,JU'\-\f-J.\\\.C0.11 PRELIMINARY STATEMENT This an appeal from the Appellate Division, First Department from a decision and order that modified the Supreme Court, New York County (Joan M. Kenney, J.) order and judgment. On October 14, 2014, Arbitrator James McKeever issued an opinion and award in the hearing against Ericka Bolt pursuant to Education Law § 3020-a. The arbitrator found Ms. Bolt not guilty of assisting her students on the statewide math exam, but did find her guilty of assisting at least three students on the statewide ELA exam. All charges were based upon an alleged incident that had taken place three years prior. The opinion and award credited the testimony of three student witnesses that testified on behalf of the New York City Department of Education (DOE), even though Ms. Bolt did not proctor the exam for two of the three students. Ms. Bolt did, however, proctor the 2010-2011 statewide exams for three students who testified on her behalf at the hearing. The arbitrator did not credit the exculpatory testimony of those witnesses. Upon finding Ms. Bolt guilty, the arbitrator terminated her. Ms. Bolt sought judicial review of the opinion and award in an Article 7 5 proceeding. The Supreme Court vacated the opinion and award. The court found the opinion to be irrational based, in part, upon the inconsistencies in the statements from the students upon whose testimony the arbitrator relied. The court highlighted the prejudice that resulted from relying upon the memory of children asked to recall a matter alleged to have occurred years before they were asked to testify. The DOE appealed the Supreme Court order and judgment to the Appellate Division First Department. Though the First Department acknowledged the conflicting testimony against Ms. Bolt, the court modified the Supreme Court order and confirmed the arbitrator's determination of guilt. In a very narrow holding, however, the Appellate Division - like the Supreme Court - found that under the circumstances presented in this case, the penalty of termination was shocking to the conscience. Justice Sweeny dissented, but the majority reasoned that, given Ms. Bolt's tenure and reputation within DOE, there was nothing to suggest that the alleged misconduct could not be remedied. 2 In reaching this decision, the majority distinguished the instant case from cases in which conclusive evidence established the commission of more egregious misconduct and therefore warranted termination. More importantly, the lower court analyzed the issues and applied the precedent and standard that has been the benchmark for more than four decades. STATEMENT OF THE CASE A. The initial allegations against Ms. Bolt Samantha Cato and Danielle Lerro, both teachers at LS. 303, reported that they were administering the sixth grade statewide exam when some of their students requested help (Record on Appeal ["R"] 62). Ms. Cato and Ms. Lerro reported the testing incident to the LS. 303 principal, Patricia Bentley (R.62-63). Ms. Cato and Ms. Lerro further informed Principal Bentley that Ms. Bolt had taught the students that requested help during the exam (R.59). There is no indication how Ms. Cato and/or Ms. Lerro determined that Ms. Bolt taught the students who requested help. Principal Bentley investigated the matter and did not believe the allegations were meritorious (R.64). She thought the students made the allegations not because they were true, but because they were attempting to get assistance on a difficult state exam. Accordingly, Principal Bentley did not pursue the matter further. Id. On or about June 15, 2012, the Special Commissioner of Investigation (SCI) received an anonymous report stating that teachers at LS. 303 believed that teachers at P.S. 199 had tampered with student tests (R.58-59). The Special Commissioner declined to investigate the matter and referred the case to the Office of Special Investigation ("OSI"). Upon receiving the referral from SCI, OSI began speaking to teachers and students regarding the allegations. B. The Investigation into the allegations against Ms. Bolt. The OSI investigation focused on interviewing Ms. Bolt's former students that matriculated to LS. 303 from P.S. 199. Of Respondent's former students that were attending LS. 303, only those former students who were then in Ms. Lerro or Ms. Cato's classes stated that Ms. Bolt instructed them to "fix" answers. Additionally, two of the students who claimed to 3 have received assistance were given time accommodations. Therefore, Ms. Bolt did not proctor their exams. None of Ms. Bolt's former students who were attending other schools were interviewed, and there was no evidence to suggest that Ms. Bolt's students attending other schools suffered any decline in their test scores between fifth and sixth grade. Ms. Bolt was interviewed, and she denied the allegations (R.64). Despite the Ms. Bolt's denials, OSI substantiated the allegations that she assisted students on the 2011 statewide math and ELA exams. On October 12, 2013, more than two years after the alleged test date, the DOE preferred charges against Ms. Bolt based upon the OSI final report (R.67). Under Education Law § 3020-a, Ms. Bolt's sole method of disputing the charges against her was compulsory arbitration. Ms. Bolt availed herself of her lone option, and the arbitration began on or about February 28, 2014. C. Ms. Bolt's 3020-a Hearing Although DOE Investigator Juliana Celik testified against the Ms. Bolt, she provided nothing more than hearsay evidence regarding her OSI investigation. The direct evidence against Ms. Bolt consisted of testimony from three student witnesses. Each of the DOE student witnesses attended I.S. 303. By the time these students testified at the hearing, nearly three years had elapsed since the test in question was administered. Thus, students who were ten or eleven years old at the time of the alleged misconduct were now thirteen or fourteen years old. None of the DOE student witnesses alleged that Ms. Bolt gave them the correct answers. Instead, the DOE's student witnesses testified that Ms. Bolt told them to "fix" certain answers on the examination (R. 40-42). Moreover, the testimony from the DOE student witnesses was inconsistent and often improbable. One of the DOE student witnesses (A.C) tested in a separate location, but claimed that he was present during the exam that Ms. Bolt proctored, and that he heard her telling students to "fix" answers. That same student testified that he returned to Ms. Bolt's classroom with another student witness (JR) that had been given an even greater time allotment. All of the DOE's student witnesses were inconsistent as to whether they personally brought their completed test 4 booklets to Ms. Bolt, or whether their respective proctors returned the test booklets. In her defense, Ms. Bolt called three student witnesses. Ms. Bolt proctored the exam for each of her student witnesses, who consistently testified that she did not provide any assistance to her students on the 2011 statewide exams. Celeste Castillo, who proctored the exam for ELL students, also testified and confirmed that the test proctors escorted students to their classroom and gave the completed exams to the classroom teacher (R.44). Accordingly, the DOE student witnesses who testified that they handed their completed tests to Ms. Bolt were mistaken. Lastly, Ms. Bolt testified in her own defense and denied the allegations (R.45-46). At the conclusion of the hearing, the arbitrator dismissed all charges that Ms. Bolt assisted her students on the 2011 statewide math exam. The DOE offered no evidence to support those charges. With regard to the statewide ELA exams, however, the arbitrator found Ms. Bolt guilty of assisting the students. The bulk of the arbitrator's analysis focused on rehabilitating the inconsistencies in the testimony that the DOE student witnesses provided (R.52-54). The arbitrator did not mention the Ms. Bolt's witnesses in his analysis, with the exception of noting that their testimony was accurate in stating that the proctor returned other student's tests to the Ms. Bolt (R.53). Having found Ms. Bolt guilty of assisting the students on the ELA exam, the arbitrator recommended termination (R.56). D. Ms. Bolt's Article 75 proceeding and the DOE's subsequent appeal Ms. Bolt commenced an Article 75 proceeding seeking to vacate the arbitration award that ( 1) found her guilty of allegedly assisting certain students on the statewide ELA exam and (2) imposed the penalty of termination (R.18). The Supreme Court, New York County granted Ms. Bolt's application and vacated the arbitration award in its entirety (R.6-18). In vacating the finding of guilt, the Supreme Court took note of prior inconsistent testimony concerning the allegations, as well as the inordinate delay that preceded the 3020-a hearing (R.16-17). Taking each of those factors into consideration, together with Ms. Bolt's tenure and unblemished history of service, the Supreme Court further found the penalty to be shocking to the conscience (R.15-16). The Department of Education appealed to the Appellate Division, First Department. 5 Upon review of the case on appeal, the First Department acknowledged the existence of conflicting testimony surrounding the allegations against Ms. Bolt, but nonetheless found that the evidence was adequate and reinstated the arbitrator's finding of guilt. Matter of Bolt v. NY.C. Dep't of Educ., 145 A.D.3d 450 (1st Dep't 2016). With regard to the penalty, however, Appellate Division agreed (4-1) with the Supreme Court's finding that the penalty of termination was shocking to the conscience. Id. Thus, both the Supreme Court and the Appellate Division, First Department considered all factors in this case and found that the penalty of termination was excessive and disproportionate. The DOE sought leave to appeal to this Court. The Respondent submitted opposition to the DOE's motion. The Appellate Division, First Department, granted the DOE leave to appeal and certified the following question for this Court: "Was the order of this Court, which modified the order and judgment (one paper) of the Supreme Court, properly made?" Thus, contrary to the DOE's assertion, the arbitrator's findings of misconduct and the penalty are both issues before this Court. Ms. Bolt respectfully submits that the lower court order was improper only insofar as it reinstated the arbitrator's finding of guilt. ARGUMENT POINT I: The lower courts did not deviate from the standard of review that this Court has prescribed for vacating an arbitrator's award The DOE contends that the lower court's majority holding evinces a "sharp departure" from the limited circumstances under which an arbitrator's penalty may be set aside" (M. West Letter Brief at 9). To the contrary, the Appellate Division's holding was consistent with this Court's guidance in such matters. As a general rule, the court may set aside a penalty only if the measure of punishment or discipline imposed is so disproportionate to the 6 offense, in the light of all the circumstances, as to be shocking to one's sense of fairness. Pell v. Bd. of Educ., 34 N.Y.2d 222, 233, (1974)(emphasis added). Moreover, when the requirement to arbitrate arises through a statutory mandate, the arbitrator's determination is subject to closer judicial scrutiny under CPLR 7511 (b) than it would receive had the arbitration been conducted voluntarily. Motor Vehicle Accident Indemnification Corp. v. Aetna Cas. & Sur. Co., 89 N.Y.2d 214 (1996). Here, the Appellate Division's determination that Ms. Bolt's penalty was disproportionate and shocking to the conscience was based upon well- settled precedent. See e.g. Pell v. Board of Education, supra; Harris v. Mechanicville Cent. School Dist., 45 N.Y.2d 279 (1978); O'Flaherty v. Board of Education, 54 N.Y.2d 980 (1981). The standard that this Court set forth ill Pell and it progeny is the same standard the lower courts employed in this matter. Contrary to the DOE's arguments, this case does not represent a departure from binding precedent. In the event this Court were to reverse the First Department and reinstate the penalty of termination, the ambiguities surrounding public employees' disciplinary penalties would not receive a final resolution because it is incumbent upon the lower courts to consider the individual circumstances of every case in deciding whether a penalty is appropriate. Thus, judicial review of administrative decisions must be made on a case-by-case basis. The DOE's disagreement with lower courts' determinations does not provide a basis for reversal of the First Department's decision to vacate the arbitrator's penalty. Ms. Bolt has overcome the high burden placed upon a litigant seeking to vacate an arbitration award. The DOE seemingly argues that penalties imposed through its disciplinary process are immune from judicial review. It is that argument in particular that runs afoul of this Court's precedent. See Matter of Principe v. New York City Dept. of Educ., 20 N.Y.3d 963 (2012)(; see also Harris v. Mechanicville Cent. School Dist., supra. To be sure, this Court has upheld disciplinary penalties. See City School Dist. of the City of New York v McGraham, 17 N.Y.3d 917 (2011). In McGraham, the tenured teacher was found guilty of engaging in improper conduct with a 15 year-old student. Id. at 918. This Court labeled the teachers actions as serious misconduct and upheld the penalty, citing inter alia, the "public policy in favor of protecting children." Id. at 920. The distinction between McGraham and the instant case is found in the penalty. 7 The School District in McGraham, suspended the teacher for only 90 days; whereas in this case, the DOE sought termination. Obviously, there is a wide gap between the 90 day suspension imposed in McGraham and the arbitrator's decision to terminate Ms. Bolt based upon "specious" allegations (R.16). Furthermore, the student witnesses' ages, the lapse of time, and the uncontroverted fact that Ms. Bolt did not proctor the exam for two of the students that claimed she provided them assistance should give this Court pause at the idea of implementing the ultimate penalty of termination. Although the First Department could not be compelled to vacate the finding of guilt, the court did vacate the penalty. In doing so, the court observed that this was an isolated incident in an otherwise unblemished career. The finding of guilt, although affirmed on appeal, was based upon conflicting testimony rendered nearly three years after the misconduct is alleged to have occurred. The testimony against Ms. Bolt was rife with inconsistencies. And importantly, not one student claimed that Ms. Bolt · provided them with the correct answers. Moreover, there was no evidence that Ms. Bolt engaged in similar misconduct prior to the charges, or in the three years between the alleged misconduct and the 3020-a hearing. Thus, there is no evidence that the charged conduct against Ms. Bolt was ongoing and continuous from year to year, which, if true, would have justified upholding her termination. See Matter of Mapp v. Burnham, 8 N.Y.3d 999 (2007)(termination upheld for a Port Authority employee that lied about his employment status to fraudulently obtain financial assistance); Scahill v. Greece Cent. Sch. Dist., 2 N.Y.3d 754 (2004)(termination upheld for petitioners that sold more than 14,000 untaxed cigarettes to students on school property over several months); Matter of Patterson v. City of New York, 96 A.D.3d 565 (1st Dep't 2012)(upholding termination penalty for a teacher that defrauded the government for three years); Green v. NY City Dep't of Educ., 17 A.D.3d 265 (1st Dep't 2005)(upholding termination penalty against a teacher following a grand larceny conviction); Hegarty v. Bd. of Educ., 5 A.D.3d 771 (2d Dep't 2004)(upholding the termination of a teacher that submitted fraudulent time sheets); and Shaubman v. Blum, 49 N.Y.2d 375 (1980)(upholding termination of an employee following his conviction for filing a false instrument). 8 Unlike Ms. Bolt's case, in each of the foregoing cases cited by DOE in its letter brief, the evidence against the employees was conclusive, irrefutable and arguably - if not actually - criminal. Contrary to those matters, the sufficiency of the evidence serves to further distinguish the instant matter from the cases cited by DOE. - Similarly, this matter is distinguishable from Winters v. Bd. of Educ., 99 N.Y.2d 549 (2002). In that case, the petitioner admitted to engaging in the misconduct and stated that he would do it again. Id. To the contrary, here, Ms. Bolt maintains her innocence and has acknowledged that the alleged misconduct is unacceptable. The First Department and the Supreme Court have consistently upheld disciplinary penalties if those penalties were not shocking to the conscience. See. Pell, supra. The lower courts followed the law in this case. Therefore, the First Department's ruling should be affirmed as to vacating the arbitrator's penalty because the court did not deviate from the proper standard of review or this Court's precedent in this matter. POINT II: Terminating an employee with an unblemished history based upon conflicting evidence is shocking to the conscience The DOE places particular emphasis on its mission and argues that the ruling in this case bears directly on the DOE's ability to maintain a public education system (M. West Letter Brief at 11-12). However, this argument oversimplifies the ruling in this case and fails to consider the individual circumstances of this case. This Court found that the evidence against Ms. Bolt was merely adequate; not overwhelming, and that the arbitrator's decision was based upon conflicting testimony. Indeed, this Court stated that "under the circumstances presented here," the penalty was shocking to one's sense of fairness. Matter of Bolt, supra. The DOE argues that the majority decision will frustrate the DOE's need to deter others who might consider similar misconduct (M. West Letter Brief at 13). Ms. Bolt does not challenge the DOE's mission or the importance of educating New York City schoolchildren. To be sure, educating our youth is a significant and consequential feat. Still, it is hyperbolic to aver that a finding in favor of the Ms. Bolt will compromise the DOE's ability to meet its essential goals. 9 There is no doubt, however, that this case will remain with Ms. Bolt throughout her professional and personal life. She has been branded a cheater under the law. She has been the subject of negative media attention and her integrity will forever be in question. For more than three years she has been fighting to establish her innocence and to salvage her career. In doing so, she has expended substantial financial and emotional resources. The DOE errs in arguing that the penalty in this case has not been sufficient. In finding the arbitrator's penalty shocking to its sense of fairness, the First Department did not usurp the DOE's ability to terminate teachers. Instead, the court presumably looked closely at the factors surrounding the arbitrator's finding. These factors included: ( 1) a two-year delay in prosecuting these allegations, (2) child witnesses who did not even take the statewide exam in Ms. Bolt's classroom, (3) Ms. Bolt's impeccable teaching record, and ( 4) the arbitrator's imposition of the most severe disciplinary penalty in labor law. Although the courts are not permitted to substitute their judgment for that of the arbitrator, such circumstances should be considered in analyzing the penalty. The quality of the evidence, or the lack thereof, is only one factor that presumably influenced the First Department's decision. It was more than the mere lack of evidence that supported this lower court's ruling. Assuming arguendo that the allegations were true, the First Department correctly noted that this would have been an isolated incident; an aberration in an otherwise spotless teaching career. The court reasoned that, given her tenure with the DOE, Ms. Bolt should have been given an opportunity to remedy her behavior. See Diefenthaler v. Klein, 27 A.D.3d 347 (1st Dep't 2006). Based upon the circumstances, the DOE errs in arguing that the lower court's ruling will prevent the termination of all teachers with a satisfactory record (M. West Memo at 14). To the contrary, the circumstances of each individual case will determine what level of judicial intervention, if any, is warranted. The tremendous discretion that has been given to arbitrators and the DOE in the disciplinary context is not absolute. While the DOE asserts that the Majority ruling would shift the standard of review, that assertion is not accurate. In fact, that assertion is tantamount to arguing that, if this Court holds termination to be excessive in one particular case, then the court can 10 never affirm a termination award in a subsequent similar case. Compare Bott v. Board of Education, 41 N.Y.2d 265 (1977)(terminating a teacher for corporal punishment) with Matter of Principe v. New York City Dept. of Educ., supra (holding that termination as an excessive penalty for corporal punishment under the circumstances of the case). Affirming the Appellate Division in this case will not impede DOE's ability to ·terminate teachers for misconduct. Such a ruling will merely safeguard teachers with impeccable records that have been found guilty of an isolated incident under dubious circumstances, which include, but are not limited to, stale and contradictory evidence. It also recognizes that there are varying degrees of misconduct, and therefore, there should be varying degrees of penalty. There is no universal determination as to what penalty will shock a court's conscience. Each case presents a divergent set of circumstances. Therefore, the courts of this state routinely review the circumstances of each case individually. This practice must continue. The Appellate Division's standard of review was set forth in great detail in its ruling. Similarly, the Supreme Court employed the same standard in vacating the arbitrator's opinion and award. Termination is the ultimate penalty for an employee. Although the DOE does not agree, the penalty was excessive in this instance. The DOE contends that Ms. Bolt has shown no remorse for her actions and offers this as a basis for termination (M. West Letter Brief at 16). However, this contention lacks foundation. Ms. Bolt has maintained her innocence since charges were first preferred against her. Even though the First Department could not be persuaded, Ms. Bolt argued her innocence on appeal just as she had done in the Supreme Court and during her 3020-a hearing. It would be antithetical for her to be remorseful for misconduct she did not commit. Notwithstanding DOE's contention that it is beyond dispute that Ms. Bolt directed several students to change their answers, the Appellate Division found that the conflicting evidence was "adequate" (M. West Letter Brief at 12); see also Matter of Bolt, supra. The evidence against Ms. Bolt is not conclusive, and therefore, her continuing denial and alleged lack of 11 remorse should not be deemed justification for her termination. To the contrary, it serves as further evidence of her innocence. The DOE incorrectly likens this case to Cipollaro v. New York City Dept. of Educ. 83 A.D.3d 543 (1st Dep't 2011) (M.West Letter Brief at 14). The DOE's argument presupposes that the evidence in this case was overwhelming. Unlike Cipollaro, where the petitioner presented incredible evidence, Ms. Bolt presented plausible and exculpatory evidence that was not credited. Id. (emphasis added) Moreover, the misconduct in Cipollaro continued over two years, while this is an isolated allegation of misconduct. Id. Accordingly, Cipollaro is distinguishable from the case at bar. Notwithstanding Justice Sweeney's dissenting opinion, the lower courts' rulings have not changed the standard of review for teacher discipline. This case is merely one of those rare instances where the DOE imposes a disproportionate penalty, and judicial intervention is necessary. CONCLUSION In light of the foregoing, the Respondent respectfully requests that the Court allow full briefing and argument in this case. In the alternative, the Respondent asks that the Court reverse the Appellate Division, First Department's decision and order insofar as it reinstated the arbitrator's finding of guilt. Respectfully Submitted, ~