In the Matter of Ericka Bolt, Respondent,v.New York City Department of Education, Appellant.BriefN.Y.January 3, 2018 Reproduced on Recycled Paper To be argued by: JANE L. GORDON New York County Clerk’s Index No. 653285/14 New York Supreme Court Appellate Division: First Department In the Matter of ERICKA BOLT, Petitioner-Respondent, For a Judgment and Order Pursuant to Article 75 of the Civil Practice Law and Rules, against THE NEW YORK CITY DEPARTMENT OF EDUCATION, Respondent-Appellant. REPLY BRIEF DEBORAH A. BRENNER JANE L. GORDON of Counsel August 18, 2016 ZACHARY W. CARTER Corporation Counsel of the City of New York Attorney for Appellant 100 Church Street New York, New York 10007 212-356-0846 or -0826 jgordon@law.nyc.gov TABLE OF CONTENTS Page i TABLE OF AUTHORITIES ...................................................................... ii PRELIMINARY STATEMENT ................................................................. 1 ARGUMENT ............................................................................................. 3 BOLT’S ARGUMENTS FOCUS ON CREDIBILITY DETERMINATIONS THAT ARE LARGELY UNREVIEWABLE ........................................................................... 3 A. Bolt’s Attacks on the Witnesses’ Memories, Trustworthiness and Bias All Raise Credibility Issues. ........ 3 B. Despite Bolt’s Contrary Arguments, the Credible Testimony Constitutes a Rational Basis for the Arbitrator's Decision Here. ..................................................... 7 C. Bolt Fails to Come Forward with Clear and Convincing Evidence of Bias. ..................................................................... 8 D. Bolt Also Identifies No Evidence of Prejudice. ..................... 11 E. The Arbitrator’s Chosen Penalty is Not Conscience- Shocking. ............................................................................... 12 CONCLUSION ........................................................................................ 14 PRINTING SPECIFICATIONS STATEMENT ...................................... 15 TABLE OF AUTHORITIES Page(s) ii Asch v. NY City Bd./Dept. of Educ., 104 A.D.3d 415 (1st Dep’t 2013) ........................................................... 5 Batyreva v. N.Y.C. Dept. of Educ., 95 A.D.3d 792 (1st Dep’t 2012) ....................................................... 8, 11 Carangelo v. Ambach, 130 A.D.2d 989 (3d Dep’t 1987) .......................................................... 12 Green v. New York City Police Dept., 34 A.D.3d 262 (1st Dep’t 2006) ............................................................. 8 Matter of Jenkins v. NY City Hous. Auth., Amsterdam Houses, 129 A.D.3d 432 (1st Dep’t 2015) ....................................................... 5, 8 Lacklow v. Department of Educ. of the City of N.Y., 51 A.D.3d 563 (1st Dep’t 2008) ........................................................... 20 People v. Calise, 256 A.D.2d 64 (1st Dep’t 1998) ............................................................. 6 People v. Schroo, 87 A.D.3d 1297 (4th Dep’t 2011) .......................................................... 6 People ex rel. Vega v. Smith, 66 N.Y.2d 130 (1985) ............................................................................ 8 People v. Whatts, 116 A.D.3d 456 (1st Dep’t 2014) ........................................................... 4 PRELIMINARY STATEMENT There is no dispute that three of Erica Bolt’s former fifth-grade students testified before an independent arbitrator that she had instructed them and others to correct wrong answers during the 2011 statewide English Language Arts exams. It is further uncontested that this only came to light after those students moved on to middle school and independently asked two different sixth-grade teachers for help during the statewide proficiency exams. Bolt opposes this appeal by arguing that the arbitrator got it wrong, that the recollections of those students are untrustworthy, and that the corroboration provided by their teachers is hearsay. But she advances no theories, plausible or otherwise, to explain how these students and teachers—whose only common denominator is Bolt—could have conjured such strikingly similar accounts of cheating. The arbitrator correctly rejected her effort to discredit the students simply by virtue of the fact that they all attended the same middle school where the teachers learned of her misconduct and brought it to the attention of the authorities. There is no record support for even an inference that the students and teachers colluded to bring false claims 2 against Bolt, and Bolt never articulates any motivation for them to do so. Supreme Court’s fundamental premise—that the impartial arbitrator ignored testimony favorable to Bolt and was therefore biased—was dispelled by the arbitrator’s decision itself, where he carefully reviewed the testimony and explained why he credited some witnesses but not others. Although Bolt nonetheless seeks to split hairs by contending that the arbitrator failed to “analyze” the testimony of students whose testimony was favorable to her, that contention is also dispelled by the arbitrator’s decision. Similarly unfounded was Supreme Court’s finding of implicit prejudice to Bolt as a result of a “delay” here. The hearing undeniably concluded well within the time period specified by statute, and moreover, Supreme Court identified no witnesses or evidence that became unavailable during the disciplinary process—or any other form of prejudice inuring to Bolt. In her brief, Bolt fails to come forward with concrete, credible prejudice as well. She maintains that minor inconsistencies among the witnesses’ accounts somehow demonstrates 3 prejudice from delay, but unsurprisingly, puts forth no authority for that novel contention. Finally, Bolt maintains that the penalty of dismissal is shocking to the conscience because, up until these charges were proven, she had an unblemished record. But that is not the dispositive factor here. In making that contention, Bolt ignores the essential function that accurate and fair standardized tests serve in public education, and the corrosive effect a dishonest teacher has on those results, as well as on her students. ARGUMENT BOLT’S ARGUMENTS FOCUS ON CREDIBILITY DETERMINATIONS THAT ARE LARGELY UNREVIEWABLE A. Bolt’s Attacks on the Witnesses’ Memories, Trustworthiness and Bias All Raise Credibility Issues. Bolt is forced to concede that the impartial arbitrator’s credibility determinations are beyond judicial review (Resp. Br. at 19). Her transparent efforts to obtain judicial review by rebranding credibility as something else must fail. Questioning the accuracy of the memories of the students who testified against her, Bolt erroneously insists that this does not pose a 4 credibility issue (Resp. Br. 17, 24). This Court has expressly identified “memory, motive, mental capacity, accuracy of observation and statement, [and] truthfulness” as “issues of pure credibility” which “can be passed upon with greater safety by those who see and hear than by those who read the printed narrative.’” People v. Whatts, 116 A.D.3d 456, 461 (1st Dep’t 2014) (internal citation and punctuation omitted). As Bolt must concede, two middle-school teachers independently reported to the Office of Special Investigations (OSI) that several of their sixth-grade students had asked for help on their statewide proficiency exams, revealing that their fifth-grade teacher—Erica Bolt—had given them similar assistance (App. Br. 3-4, 9-10). Those teachers had no discernable reason to manufacture these reports, nor is there any evidence that they had colluded with three students who separately confirmed that Bolt had instructed them and others to change answers on their tests. Those students also had no conceivable reason to manufacture these accounts. Bolt counters that, if she instructed students to “fix” their answers, she was telling them to fill in the “bubble” on their answer sheets correctly (Resp. Br. 10, 24). Yet, she denied ever telling students 5 to bubble in their answers correctly (Record on Appeal [“R.”] 251). That testimony casts serious doubt upon the veracity of her claim now and also precludes this explanation from consideration here. See Matter of Jenkins v. NY City Hous. Auth., Amsterdam Houses, 129 AD3d 432, 432 (1st Dep’t 2015) (contention is unpreserved since it was not raised at the administrative level). And even if there were some evidentiary support in the record for such a contention, that squarely raises a question of credibility, which, again, was for the arbitrator to resolve. See Matter of Asch v. NY City Bd./Dept. of Educ., 104 A.D.3d 415, 421 (1st Dep’t 2013) (where reasonable people might differ over which witness’s account to credit, the duty of resolving that conflict rests “solely” upon the administrative finder of fact and it was “improper for the motion court to substitute its view of the credibility of the witnesses for that of the hearing officer”). Bolt also maintains that the students’ accounts were “rarely corroborated” (Resp. Br. at 17). On this record, her argument in this regard is confounding. The testimony of each of the three students corroborated each other, and each was separately corroborated by the statements their two middle-school teachers made to OSI (R.62-63). It 6 defies logic to accept that these witnesses—teachers and students— independently imagined similar allegations of cheating against Bolt, particularly since none had any motive to fabricate their accounts. And there is no suggestion, much less any evidence, that they collaborated to frame Bolt with false charges. Notably, the students’ accounts have the indicia of reliability for two important reasons: (1) the students implicated themselves in improper conduct; and (2) their accounts were corroborated. Cf. People v. Calise, 256 A.D.2d 64, 65 (1st Dep’t 1998). Bolt now argues that the students’ accounts were “diluted by the passage of time,” making their testimony untrustworthy (Resp. Br. at 17, 22). That also plainly raises a question of credibility. It is also wrong. There is nothing inherently suspect about a 14-year-old testifying about events that occurred when he or she was 11 years old, particularly where, as here, the events were unusual and memorable. These students would also be competent to testify in a criminal prosecution as a matter of law, People v Schroo, 87 A.D.3d 1287, 1289 (4th Dep’t 2011) (presumption pursuant to CPL 60.20 (2) is that a child over the age of nine is competent to give sworn testimony in a criminal proceeding), and that should be no less so in an administrative setting. 7 B. Despite Bolt’s Contrary Arguments, the Credible Testimony Constitutes a Rational Basis for the Arbitrator’s Decision Here. In an effort to obfuscate what amounts to a challenge to the arbitrator’s credibility determinations, Bolt asserts that the arbitrator’s decision lacks a rational basis (Resp. Br. at 19). It is not possible, however, to separate neatly rational basis analysis from the credibility issues, as Bolt’s arguments on this point illustrate. For example, Bolt points to supposed inconsistencies in the account of student C, insisting that she “did not correctly recall the circumstances of the test” (Resp. Br. at 20). This student’s ability to recall the events in question is, again, a classic issue of credibility. Nor is it dispositive that no other student overheard the conversation that occurred between Bolt and student C (id.), particularly since cheating is unlikely to be broadcast to potential witnesses. And Bolt has no convincing answer for why multiple independent witnesses described strikingly similar instances of this particular teacher aiding and abetting cheating during the same test. Bolt maintains that the accounts of the two sixth-grade teachers could not be corroboration for the students’ allegations because neither 8 had “independent knowledge” of the allegations against Bolt and their accounts are hearsay (Resp. Br. at 21). She is wrong on both counts. First, those teachers’ credibly described to the OSI investigator how they had separately been asked for help by students who were under the impression, due to their prior experience with Bolt, that receiving such help was acceptable (R. 62-63), which is entirely consistent with the testimony the students gave. Second, hearsay is admissible in administrative proceedings, and, if sufficiently relevant and probative, may even constitute substantial evidence in support of the underlying determination. People ex rel. Vega v. Smith, 66 N.Y.2d 130, 139 (1985).1 Thus, that evidence fully supports the finding of guilt here. C. Bolt Fails to Come Forward with Clear and Convincing Evidence of Bias. In a vain attempt to meet her burden to show bias by clear and convincing evidence, see Batyreva v. N.Y.C. Dept. of Educ., 95 A.D.3d 792 (1st Dep’t 2012), Bolt maintains that the arbitrator failed to discuss 1 In a purely perfunctory manner, Bolt claims that the purported lack of evidence against her denied her due process (Resp. Br. 21). That contention was not raised on administrative review or in Bolt’s petition (R.32-33) and is therefore unpreserved. Jenkins, 129 A.D.3d at 432; Green v. New York City Police Dept., 34 A.D.3d 262 (1st Dep’t 2006). 9 the credibility of her witnesses (Resp. Br. at 23). Once again, she is wrong. Throughout seven single-spaced pages, arbitrator McKeever meticulously discussed all the hearing testimony. In particular, he expressly considered the accounts of every one of the student witnesses, including those Bolt presented (R.44-46). And he went on to explain why he found that Bolt’s witnesses had failed to discredit the accounts given by the students who testified about episodes of cheating (R. 44-45, 52-53). First, the arbitrator discussed the testimony of J.B., who said that he did not see Bolt speak to any students during the 2011 exam (R.44), but noted that J.B.’s seat was across the room from Bolt, he was not watching her during the exam, and he admitted that he might not have heard conversations that could have occurred (id.). The arbitrator also discussed the testimony of H.A., who testified on direct that Bolt did not help any students during the exam, but similarly conceded on cross- examination that he was not watching Bolt the entire time and did not see everything that she did (id.). 10 The arbitrator then analyzed the testimony of R.C., who received special accommodations and who did not take the test in Bolt’s classroom but did take the test with C.C. and A.C. (id.). As the decision recounted, according to R.C., her proctor handed the tests directly to Bolt; she never saw Bolt say anything to anyone about the exam; and, when she returned to Bolt’s classroom, the students had completed the exam (R.44-45). While R.C. contradicted A.C.’s testimony that A.C. had been allowed to return her test booklet directly to Bolt, McKeever expressly decided that A.C.’s recollection was likely “inaccurate” on that point but did not otherwise undermine her testimony (corroborated by C.C.) that she witnessed Bolt telling students to change their answers at the end of the exam (R.52-53). Bolt simply ignores the foregoing to argue that the arbitrator failed to analyze the testimony of her witnesses or that it was a “crucial error” because the witnesses against her all attended the same middle school while her witnesses did not (Resp. Br. at 23). She never explains why being middle school classmates undercuts the credibility of those students, nor why that fact was crucial to the analysis. There is, therefore, no basis for her contention that the arbitrator ignored all the 11 relevant evidence or failed to address the credibility of her witnesses (id.). And to the extent that this argument is premised on credibility, it cannot establish bias. Batyreva, 95 A.D.3d at 792 (to extent that bias argument was “premised upon the hearing officer’s credibility determinations,” argument failed because petitioner “failed to show that the hearing officer’s credibility findings evince[d] a bias against her”). D. Bolt Also Identifies No Evidence of Prejudice. Supreme Court sua sponte found that a lapse of time alone prejudiced Bolt (R.16-17). The court made that finding in the absence of allegations of prejudice in the petition or concrete examples in the record (App. Br. at 24-27). However, this too raises an issue of credibility, because it rests on the ability of the student witnesses to recollect what occurred during their fifth grade standardized tests.2 Bolt implicitly concedes the point when she argues that the students were testifying about events that took place several years 2 Significantly, Bolt proposes two irreconcilable propositions: first, that prejudiced must be presumed simply by virtue of the time OSI took to investigate the charges against her; and second, that OSI’s investigation should have been broader and included interviews with more of Bolt’s former students who were attending other middle schools (Resp. Br. 6, 25, 27), which certainly would have lengthened the investigation. She cannot have it both ways, however. 12 before the hearing and that the students who testified about the cheating were “friends” who attended the same school (Resp. Br. at 26- 27, 28). As indicated above, an assessment of a witness’s memory or her bias are all part of the credibility determination. And Bolt misconstrues the notion of prejudice when she urges that she was prejudiced by inconsistencies in the students’ testimony (Resp. Br. at 27). She certainly had every opportunity to cross-examine the witnesses and argue that any inconsistencies undercut their credibility (R. 92-97, 98- 99, 101-106, 109-112, 210-211, 274-279). She was not prejudiced simply because those arguments failed to win the day. E. The Arbitrator’s Chosen Penalty is Not Conscience-Shocking. In contrasting her proven misconduct against others whose behavior was more egregious (Resp. Br. 28), Bolt seemingly attempts to minimize the corrosive and destructive impact her behavior had on her students and the integrity of the testing process generally. Her arguments in this regard, too, are unpersuasive. Bolt maintains that hers is not “the most egregious misconduct” (Resp. Br. at 30) but she never addresses the cases we cite and which 13 confirm that cheating is “a serious breach of a teacher’s obligations,” Carangelo v. Ambach, 130 A.D.2d 898, 900 (3d Dep’t 1987), even where a teacher has a previously unblemished record (App. Br. at 28-29). Her actions distorted the value of her students’ tests and provided her students with an entirely misguided role model. Nothing in her brief undermines the arbitrator’s determination that her dismissal from a teaching position was appropriate here. For all the foregoing reasons, Supreme Court’s judgment should be reversed and the cross-motion to dismiss should be granted. 14 CONCLUSION The judgment appealed from should be reversed and the cross- motion to dismiss the petition should be granted. Dated: New York, NY August 18, 2016 DEBORAH A. BRENNER JANE L. GORDON of Counsel Respectfully submitted, ZACHARY W. CARTER Corporation Counsel of the City of New York Attorney for Appellant By: __________________________ JANE L. GORDON Senior Counsel 100 Church Street New York, NY 10007 212-356-0846 or -0826 jgordon@law.nyc.gov PRINTING SPECIFICATIONS STATEMENT This brief was prepared with Microsoft Word 2010, using Century Schoolbook 14 pt. for the body and Century Schoolbook 12 pt. for footnotes. According to the aforementioned processing system, the brief contains 2,857 words.