In the Matter of Ericka Bolt, Respondent,v.New York City Department of Education, Appellant.BriefN.Y.January 3, 2018 August 1, 2017 Hon. 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. N.Y.C. Dep't of Educ. APL-2017-00068 Dear Mr. Asiello: Appellant New York City Department of Education (DOE) respectfully requests the Court’s permission to submit this reply under Rule of Practice 500.11(e). DOE renews its request, now joined by respondent Ericka Bolt, that this appeal be heard with full briefing and argument (see Resp. Ltr. at 1). PRELIMINARY STATEMENT DOE established in its opening letter that the arbitrator’s decision to dismiss Bolt is not “shocking” in light of her misconduct in directing multiple students to cheat on a statewide exam—both because dismissal is warranted in cases involving dishonest conduct, and because an arbitrator’s judgment regarding penalty is entitled to great deference. ZACHARY W. CARTER Corporation Counsel THE CITY OF NEW YORK LAW DEPARTMENT 100 CHURCH STREET NEW YORK, NY 10007 MELANIE T. WEST Assistant Corporation Counsel Phone: (212) 356-0842 Fax: (212) 356-2509 Email: mwest@law.nyc.gov i'.'a.aMi®§V; wmm 2 Bolt gestures at the concept of deference and purports to agree that an arbitrator’s determination as to penalty should be overridden only in exceptional cases, but in substance she advocates for the strictest scrutiny of arbitrators’ penalty determinations. Her brief (at 8- 9) suggests that an arbitral judgment of dismissal is appropriate only where the employee’s conduct “is arguably—if not actually—criminal,” such conduct is proven to be “ongoing and continuous from year to year,” and the evidence, moreover, is “conclusive [and] irrefutable.” But that vision would transform the question on review from whether the arbitrator’s penalty “shocks the conscience” into whether it was absolutely inevitable. Bolt’s attacks on the sufficiency of the evidence of her guilt are not properly before the Court, because she did not cross-move for leave to appeal from the Appellate Division’s ruling upholding those findings. Nor does the fact that the evidence was “conflicting” justify overriding the arbitrator’s chosen penalty. It is the arbitrator’s job to resolve conflicts in the evidence. Judicial review of the arbitrator’s findings of guilt asks whether the findings are supported by substantial evidence; it does not attempt to assess the precise strength of the evidence based on a cold record, particularly not in the guise of reviewing the penalty. And it is telling that Bolt is driven to reinvent the basis for the Appellate Division’s ruling, which did not cite the conflicting nature of the evidence as a reason for overriding the penalty. The sole issue before the Court is whether the arbitrator’s penalty of dismissal can be considered “shocking to one’s sense of fairness,” where a teacher encouraged multiple fifth-grade students to cheat on a standardized examination in clear abrogation of her basic duties as a teacher, as an employee of DOE, and as a role model to her young students. Long-settled law and sound policy say it cannot. 3 ARGUMENT A. Bolt’s challenge to the sufficiency of the evidence against her is not properly before the Court and cannot justify the penalty vacatur in any event. As an initial matter, Bolt urges this Court to vacate the Appellate Division’s order insofar as it unanimously reinstated the arbitrator’s factual findings of misconduct (Resp. Ltr. Br. at 6, 12). But because Bolt did not cross-move for leave to appeal, such affirmative relief is unavailable to her. See 511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144, 151 n. 3 (2002); Graubard Mollen Dannett & Horowitz v. Moskovitz, 86 N.Y.2d 112, 118 & n.2 (1995) (both confirming that affirmative relief is unavailable to party who does not cross-appeal, even where Appellate Division broadly certifies its order for review). The only question before the Court is whether the Appellate Division majority correctly held the arbitrator’s penalty of dismissal to be conscience-shocking. To the extent that Bolt argues that alleged weaknesses in the evidence may serve as a basis to vacate the penalty, this attempt to muddy the waters also fails (Resp. Ltr. Br. at 2, 8, 10- 12). In Bolt’s view, the Appellate Division vacated the penalty of termination because the evidence against her, while “adequate” to support the arbitrator’s finding of guilt, was “not conclusive” (Resp. Ltr. Br. at 11-12). Reiterating various arguments that failed to persuade the Appellate Division regarding the sufficiency of the evidence of guilt, Bolt now claims (at 10) that “the quality of the evidence … presumably influenced the First Department’s decision” on penalty. (Emphasis added). That claim is mistaken as an account of the Appellate Division’s reasoning and unsupportable as a reading of legal precedent. First, there is no basis for Bolt’s speculation (at 11-12) that the Appellate Division’s characterization of the evidence as “adequate” somehow signals equivocation about its sufficiency. Whether an arbitrator’s factual findings are “supported by adequate evidence” and “not irrational” is simply the correct standard of review. Motor Vehicle Mfrs. Ass’n v. State, 75 N.Y.2d 175, 186 (1990); Lackow v. Dep’t of Educ., 51 A.D.3d 563, 567-68 (1st Dep’t 2008). A reviewing court under article 75 (or article 78) may not weigh the evidence, assess credibility, 4 or make independent findings of fact, even where conflicting evidence allows room for disagreement with the arbitrator’s findings. Berenhaus v. Ward, 70 N.Y.2d 436, 443-44 (1987). Bolt’s central thesis—that a reviewing court may require “conclusive” or even “irrefutable” evidence to affirm an arbitrator’s factual findings or chosen penalty (Resp. Ltr. Br. at 3, 9, 11)—is thus flatly contravened by governing precedent. And for good reason, as it would render arbitration a largely empty exercise, instead of the centrally meaningful proceeding it is meant to be under the Legislature’s framework for resolving disciplinary issues involving tenured teachers (see DOE Ltr. Br. at 4-5, 11). Second, nothing in the First Department’s reasoning suggests that doubts about the evidence led the court to invalidate the penalty. The majority was very clear about its rationale for vacating the penalty: that Bolt’s misconduct in directing students to cheat was purportedly a “one-time mistake” and a “lapse in judgment,” and that the record was “devoid of evidence that would suggest” that Bolt “could not remedy her behavior.” Bolt v. N.Y.C. Dep’t of Educ., 145 A.D.3d 450, 451 (1st Dep’t 2016). That analysis was entirely separate from the court’s discussion of the finding of guilt, which it unanimously restored as supported by adequate evidence. Id. at 450-51. Third, all the “factors” that “presumably” influenced the court’s decision, according to Bolt (Resp. Ltr. Br. at 10), were arguments she used in urging the First Department to endorse Supreme Court’s annulment of the arbitrator’s findings of guilt (see Resp. App. Div. Br. at 18-28). The court necessarily rejected those arguments by reinstating those findings. Bolt has no basis to presume that these arguments nonetheless swayed the Appellate Division’s conclusion as to penalty, particularly in light of that court’s stated reasoning to the contrary. Fourth, if the First Department had found the evidence sufficient to reinstate the finding of guilt, but nevertheless vacated the penalty on the off-chance that Bolt might be innocent, that reasoning would be just as untenable as the reasoning actually employed by the majority. Bolt has not identified a single case where any court affirmed a finding of guilt but nevertheless vacated an arbitrator’s penalty because the 5 evidence was less than “conclusive.” That is because courts have correctly recognized that the sufficiency of the evidence to support an arbitrator’s findings of guilt and the proportionality of the arbitrator’s chosen penalty in light of those factual findings are separate questions to be reviewed separately. See Lackow, 51 A.D.3d at 568. To be sure, an arbitrator may appropriately consider the strength of the evidence as a factor in determining the proper penalty. But the reviewing court’s role in assessing the evidence is complete upon concluding that the evidence is sufficient to support the arbitrator’s findings of guilt. This standard of review reflects, among other things, that the court is not well positioned to second-guess the precise strength of a case based on review of the cold record, since that determination implicates matters of credibility, observation of demeanor and comportment, and the arbitrator’s experience with other disciplinary proceedings. Here, the arbitrator closely analyzed the hearing testimony and reasonably found that any inconsistencies in students’ accounts were largely immaterial to the central issue of Bolt’s guilt (R. 51-54). The Appellate Division thus correctly upheld the arbitrator’s factual findings. Nor is Bolt correct (at 9) that termination has been upheld only in cases where the evidence of guilt was conclusive. For example, Mapp v. Burnham, 8 N.Y.3d 999 (2007), reached this Court after the Appellate Division split 4-1 on the sufficiency of the evidence, with the majority voting to annul the findings of misconduct. See 23 A.D.3d 37, 44-46, 48- 53 (1st Dep’t 2005). This Court not only reinstated the findings of guilt but also confirmed the penalty of dismissal. And in Cipollaro v. N.Y.C. Dep’t of Educ., 83 A.D.3d 543 (1st Dep’t 2011), cited by Bolt at p. 12 of her letter brief, the Appellate Division confirmed both the findings of guilt and the penalty where the record evidence was “conflicting” but the arbitrator rejected the petitioner’s proof as incredible. Id. at 544. Bolt splits hairs in contrasting (at 12) the petitioner’s evidence in Cipollaro, which was “determined to be incredible,” with her own evidence, which she describes as “plausible” but “not credited.” In truth, both cases turned on the basic precept that a hearing officer’s credibility determinations are “largely unreviewable.” Berenhaus, 70 N.Y.2d at 443. In Cipollaro, as here, the arbitrator 6 simply resolved the discrepancies in the record rationally and was accordingly entitled to deference regarding its factual findings. Virtually all contested cases have conflicting evidence. It is the arbitrator’s job to sift through that evidence and determine what happened. Bolt’s arguments ignore the fundamental point that it is the arbitrator who was best positioned to consider factors like “the witnesses’ ages, the lapse in time” and the contested details in their testimony (Resp. Ltr. Br. at 8)—and to balance those elements against other relevant factors. Here, the other factors included the manner in which Bolt’s misconduct came to light—through independent reports from two teachers, unconnected to Bolt, at a different school, whose sixth-grade students asked them for “help” on statewide exams as their fifth-grade teacher (Bolt) had helped the year before. Other factors also included the arbitrator’s first-hand assessment that the multiple students who testified against Bolt were credible and had no motivation to lie about the cheating. Indeed, Bolt’s suggestion that the students’ testimony should be discounted merely because of their age, notwithstanding the arbitrator’s credibility assessment upon observing their testimony, would have far-reaching consequences for teacher disciplinary proceedings, where the sole witnesses to misconduct, apart from the charged teacher, are often young students. The Legislature’s decision to commit disciplinary matters involving tenured teachers to independent arbitrators for determination carries with it the need to honor and defer to an arbitrator’s findings where there is legally sufficient evidence to support them. That the Appellate Division referred to the existence of “conflicting evidence”— solely in the context of rejecting Bolt’s arguments regarding the findings of guilt—hardly provides Bolt with a basis to annul the penalty of dismissal, where the arbitrator reasonably resolved the conflict in evidence by finding that Bolt directed multiple students to cheat on a statewide examination. 7 B. Neither Bolt’s newly-minted allegations of hardship nor her lack of prior disciplinary history immunize her from termination for dishonest misconduct. Apart from her attempts to revisit the settled finding of guilt against her, Bolt argues that the penalty of termination is shocking because she has already suffered significant hardship and because she had no prior disciplinary history. Again, neither argument has merit. As to the first point, Bolt’s claims of negative media attention and “financial and emotional” cost lie entirely outside the record (Resp. Ltr. Br. at 10).1 Bolt had the chance to introduce evidence of such hardship during the arbitration, yet chose not to do so. Cf. Pell, 34 N.Y.2d at 239 (discussing record evidence of hardship to petitioner, including forfeiture of pension rights). It is too late for her to inject new factual matter now, when DOE is deprived of the opportunity to test its veracity; nor may she do so through the unsupported assertions of her attorney. See Bingham v. N.Y.C. Transit Auth., 99 N.Y.2d 355, 359 (2003); cf. Peckham v. Calogero, 12 N.Y.3d 424, 430 (2009) (an argument may not be raised for the first time before the courts in an article 78 proceeding). In any event, even properly tendered evidence of hardship cannot overcome misconduct involving “a violation of trust and a breach of duty.” Pell, 34 N.Y.2d at 235, 239. Second, Bolt’s reliance on her satisfactory job history does not avail her. Ignoring the well-established law that a previously adequate record of service does not preclude termination, particularly where the misconduct at issue involves moral turpitude or a breach of the 1 Arguably, negative media attention focused on Bolt’s facilitating of cheating on statewide testing would have weighed in favor of her termination, as it would have compromised her ability to serve as an effective authority figure and brought DOE into disrepute. See Jerry v. Bd. of Educ., 35 N.Y.2d, 534, 544 (1974) (where a teacher’s conduct “has become the subject of such public notoriety as significantly and reasonably to impair” her capability, that factor may bear upon the appropriate penalty); see also Mapp, 23 A.D.3d at 53 (Friedman J., dissenting) (noting, in a decision that would be vindicated by this Court’s reversal on further review, the “vital interest” of a public agency in “maintaining a reputation for integrity”). 8 employer’s trust (see DOE Ltr. Br. at 12-13), Bolt cites a string of cases where, she claims, termination was upheld only because the employee engaged in a longstanding pattern of deception (Resp. Ltr. Br. at 8). To the contrary, in Mapp, 8 N.Y.3d at 999, this Court reversed the Appellate Division, restoring the findings of guilt and confirming the penalty of termination where the employee submitted a single misleading application for aid to the Red Cross in the wake of the attacks on the World Trade Center. And in Schaubman v. Blum, 49 N.Y.2d 375 (1980), the Court reinstated a penalty of permanent disqualification from participation in a Medicaid program, for the offense of submitting a single false invoice. Bolt also fails to grapple with Pell’s admonition that where the record establishes “a violation of a trust and a breach of duty which, if condoned and imitated, could wreak havoc with the entire system,” courts must accord “greater weight or recognition” to the “nature of the misconduct charge” than to “prior good records of service.” 34 N.Y.2d at 239. Trust is vital to any employer-employee relationship—and especially so as to schoolteachers who educate and supervise young children in an independent setting. Directing students to cheat on a test betrays DOE’s trust and sends a harmful message across the school community. Other courts have not hesitated to uphold the termination of teachers who are found guilty of facilitating cheating. See Altsheler v. Bd. of Educ., 62 N.Y.2d 656, 657 (1984); Carangelo v. Ambach, 130 A.D.2d 898, 900 (3d Dep’t 1987). Under the arbitrator’s confirmed factual findings, Bolt engaged in conduct that subverted the integrity of the testing process, breached her employer’s trust, and sent a corrosive message to impressionable students that cheating is condoned. Her misconduct struck at the heart of DOE’s mission and violated the fundamental duties she owed to her employer, her students, and the public (DOE Ltr. Br. at 2, 13-14). Bolt cannot dispute that encouraging students to cheat on a statewide exam is inimical to DOE’s central goals; she merely claims that it is “hyperbolic” to assert that her continued employment would frustrate DOE’s ability to meet those goals (Resp. Ltr. Br. at 9). But there is nothing hyperbolic about the observation that Bolt’s misconduct—which affected multiple students and reverberated into the next year’s testing 9 process—undermined DOE’s objectives. And if such misconduct were “condoned and imitated,” Pell, 34 N.Y.2d at 239, the consequences would be far more serious still. For that reason, the Appellate Division’s vacatur of Bolt’s termination as “shocking” resonates far beyond her own case. The majority’s decision disregards Pell’s teaching that reviewing courts should consider a public agency’s need to deter similar misconduct in others. Pell, 34 N.Y.2d at 234. And it ignores the burden placed on DOE when it is forced to monitor teachers closely for cheating, rather than being able to rely on teachers to monitor students to prevent it—as Bolt was expected to do here (see DOE Ltr. Br. at 14). Moreover, if allowed to stand, the majority’s reasoning would inoculate virtually any teacher from dismissal for a first proven offense—regardless of how fundamentally that offense breached DOE’s trust. And it signals open season for courts to vacate arbitrator-chosen penalties based on nothing more than disagreement with the chosen sanction. See City School District of the City of New York v. McGraham, 17 N.Y.3d 917 (2011). This Court should reaffirm that the “shocking-to- the-conscience” standard permits a court to override an arbitrator’s penalty award only where it truly demonstrates a gross departure from sound judgment. That is not the case here: while some perhaps might have gone another way, the arbitrator’s decision to dismiss Bolt for directing students to cheat on a statewide exam is not surprising—let alone shocking. C. Conclusion DOE renews its request that the Court grant full briefing and argument in this case, and coordinate the briefing and oral argument among this appeal and the Beatty and Williams appeals currently pending in this Court (see supra, at pp. 1). In the alternative, this Court should reverse the Appellate Division’s decision and order insofar as it remanded for redetermination of the penalty, reinstate the penalty of termination, and dismiss the petition. 10 Respectfully submitted, /s/ Melanie T. West Melanie T. West Assistant Corporation Counsel Richard Dearing Deborah A. Brenner of Counsel cc: Law Offices of Richard J. Washington Counsel for Petitioner-Respondent Ericka Bolt CERTIFICATION OF COMPLIANCE I hereby certify that this letter brief was prepared using Microsoft Word 2010, and according to that software, it contains 2,917 words in the body of the submission. /s/ Melanie T. West MELANIE T. WEST