In the Matter of Suzanne Lozinak, Respondent,v.Board of Education of Williamsville Central School District, Appellant.BriefN.Y.Dec 10, 2014 99 GARNSEY ROAD PITTSFORD, NY 14534 (585) 419-8800 EDWARD A. TREVVETT FAX: (518) 419-8817 ETREVVETT@HARRISBEACH.COM September 10, 2014 Hon. Andrew W. Klein Clerk of the Court State of New York Court of Appeals 20 Eagle Street Albany, NY 12207 Re: Matter of Lozinak v Board of Education APL- 2014-00161 Dear Mr. Klein: Per the Court’s letter of July 16, 2014 and in accordance with the Rules of the Court I am filing: one (1) original and two (2) copies of Appellant Board of Education’s arguments in support of its position on the merits; proof of service of one copy of Appellant’s arguments on the Respondent; three (3) copies of the Appellate Division briefs of all parties; three (3) copies of the Appellate Division Record; and the $315 fee required by section 500.3 of the Court’s Rules. In addition to its arguments in support of its position on the merits, Appellant also submits herewith below its request that the Court proceed by full review as opposed to section 500.11 review. The Court extended the Appellant’s time to submit its papers to September 12, 2014. The issue on appeal is whether the Supreme Court, Appellate Division, Fourth Department (“Appellate Division”) erred as a matter of law in its application of the principles governing judicial review of administrative penalties as enunciated by the Court of Appeals in Matter of Pell v. Board of Educ., 34 N.Y.2d 222, 356 N.Y.S.2d 833 (1974). As a threshold matter it should be noted that the Appellate Division did not render a separate opinion, but rather in its Order the Appellate Division simply affirmed the Decision and Order of Supreme Court, Erie County (“Supreme Court”) for the reasons stated therein without further discussion (R. 9-11). 1 Accordingly, references to the Appellate Division’s holdings and errors refer to Supreme Court’s Decision and Order which the Appellate Division adopted in whole as its own. 1 References preceded by an “R.” are to the Appellate Division Record filed herewith. Hon. Andrew W. Klein Clerk of the Court September 10, 2014 Page 2 For the reasons stated herein, the Appellant Board of Education of the Williamsville Central School District (“District”) submits that the Appellate Division erred in two respects in applying the Matter of Pell standard. First, the Appellate Division misapplied the Matter of Pell standard by holding that the grave moral turpitude standard established by the Court of Appeals in Matter of Pell did not apply in this case. This error resulted in the Appellate Division further erring by improperly giving weight to the Respondent's length of service and other irrelevant mitigating factors as a basis for overturning the District’s decision to terminate the Respondent’ employment. Second, the District submits that the Appellate Division also erred as a matter of law in finding that Respondent’s termination was shocking to one’s sense of fairness under the Matter of Pell standard. I. Procedural History The District appeals from the Appellate Division’s March 21, 2014 Order that vacated and annulled a lawful, rational decision of the District to terminate the Respondent’s employment for her admitted acts of incompetency and misconduct on school property that indisputably met all the elements of the crime of Criminal Sale of a Controlled Substance in the third degree (NY Penal Law §220.39); a Class B drug felony. The District filed Civil Service Law §75 charges against the Respondent on June 18, 2012 (R. 25-26). The duly appointed Hearing Officer found the Respondent guilty of the charges; viz., that Respondent provided 5-7 hydrocodone pills, a controlled substance, to a co-worker, sending those pills through the District’s internal mail system in the workplace and that Respondent’s conduct violated District policies (R. 27-31). The District’s Board of Education reviewed the record and adopted the Hearing Officer’s findings and terminated the Respondent’s employment effective November 14, 2012 (R. 32). Respondent initiated this CPLR Article 78 proceeding on January 3, 2013, seeking to annul the District’s determination to terminate her employment (R. 12- 24). The Appellate Division adopted Supreme Court’s holding that the Respondent’s felony-level misconduct in the school setting did not meet the “grave moral turpitude” standard established by this Court’s decision in Matter of Pell (R. 10-11). The Appellate Division rationalized its failure to apply Matter of Pell’s Hon. Andrew W. Klein Clerk of the Court September 10, 2014 Page 3 grave moral turpitude standard of four grounds, none of which can be sustained on this appeal. Firstly, the Appellate Division referenced and relied on the fact that the District did not immediately remove the Respondent from the workplace (the District was cooperating with the Amherst police, who specifically asked the District not to do anything with respect to the Respondent’s employment while they investigated the other employee to whom the Respondent had sent the drugs in school [R. 57, 183]). Second, the Appellate Division relied on the fact that the Amherst police ultimately chose not to file any criminal charges against the Respondent (R. 10). Third, the Appellate Division also based its refusal to apply the grave moral turpitude standard on what the District submits was the erroneous conclusion that no child was actually placed at risk (R. 11). Fourth, the Appellate Division erroneously relied on this Court’s decision in Matter of Shenendehowa Cent. School Dist. and CSEA, 20 N.Y.3d 1026 (2013) for the proposition that there is no public policy requiring the termination of any employee who engages in conduct relating to drugs (Matter of Shenendehowa was an arbitration case involving the termination of a bus driver who tested positive for marijuana metabolites but did not have drugs in school and was not investigated or charged with driving while impaired or any other drug offense) (R. 10-11). II. The legal standard set forth in Matter of Pell In Matter of Pell, this Court linked the grave moral turpitude standard of legal review of employee discipline cases, pursuant to which mitigating factors such as an employee’s length of service are not considered, to recognition of the fact that “[p]aramount too, in cases of sanctions for agencies like the police, is the principle that it is the agency and not the courts which, before the public, must justify the integrity and efficiency of their operations.” 34 N.Y.2d at 235. In subsequent cases this Court has determined that school districts are “agencies like the police.” Thus, in Matter of Will v. Frontier Cent. School Dist. Bd. of Educ., 97 N.Y.2d 690 (2002), a case involving alcohol-related conduct of a bus driver, this Court specifically recognized that a “… School Board has a special obligation to safeguard the well-being of its students.” This Court recently affirmed this precept again, stating that “[i]t cannot be disputed that the State has a public policy in favor of protecting children” and that, concomitantly, a school district has a legitimate interest in “… ensuring the safety of its students and maintaining orderly operations …” Matter of Santer, 23 N.Y.3d 251, 265 (2014). This “special obligation to safeguard the well-being of its students” puts the District, who acts in Hon. Andrew W. Klein Clerk of the Court September 10, 2014 Page 4 the role of in loco parentis vis-à-vis its students, on the same footing as agencies like the police, who also have an obligation to safeguard the well-being of the public. Police agencies and school districts alike each have a heightened level of responsibility and accountability to their constituencies and a corresponding need, recognized in Matter of Pell, to justify the “integrity and efficiency of their operations.” As discussed in detail below, the Appellate Division erred as a matter of law in not recognizing and giving full and proper consideration to the District’s kindred obligation to safeguard the safety and well-being of children in this case. Matter of Santer, 23 N.Y.3d at 265. The Appellate Division was apparently seduced by what it viewed as the Respondent-friendly facts of this case into misapplying Matter of Pell’s grave moral turpitude standard. Admittedly this case does not present the realized sexy parade of horribles that would make it a no-brainer for the Appellate Division to uphold the District’s decision to terminate the Respondent. Fortune smiled on the Respondent and kept the hydrocodone pills that she cavalierly sent to a co-worker through the internal mail out of the hands of any of the elementary students in the building where she had the drugs delivered, any one of whom could have easily overdosed if they had gotten hold of the Respondent’s drugs. Moreover, although the Respondent’s conduct was indisputably acknowledged by the courts and all parties to constitute a sale (and class B felony) under the Penal Law, the Respondent did not appear to be an evil “drug-dealer” because she did not actually monetarily profit from supplying her co-worker with hydrocodone. The District plainly thought that the Respondent’s misconduct was serious, as it immediately contacted the police. Nevertheless, the Appellate Division severely penalized it for agreeing to cooperate with the police as they requested, and not immediately take the Respondent out of the workplace to prosecute her under Civil Service Law §75. In addition, while the District plainly assisted the police in their efforts to investigate and prosecute the Respondent, the Appellate Division again severely penalized the District by erroneously subjugating its decision to terminate the Respondent to the utter whim of the police agency’s prosecutorial discretion, finding it significant in the grave moral turpitude analysis that the police, without even consulting the District, did not charge the Respondent even though she admitted to her felony conduct. Hon. Andrew W. Klein Clerk of the Court September 10, 2014 Page 5 It is, however, precisely the absence of a “parade of horribles” that made it even more important for the Appellate Division to carefully adhere to the law and not, as it did in this case, rubber stamp Supreme Court’s decision misapplying and eroding the moral turpitude standard established by this Court in Matter of Pell. The Appellate Division’s treatment of the grave moral turpitude standard in this case is evidence that, like a good kitchen utility knife whose blade has, from long use, become dulled and out of true, this Court needs to revisit and again hone the grave moral turpitude standard to bring it back into true. A. The grave moral turpitude standard as fashioned by the Court in Matter of Pell. In Matter of Pell this Court recognized that although long a part of the lexicon of case law, “… terminology like ‘shocking to one’s sense of fairness’ reflects a purely subjective response to the situation presented and is hardly satisfactory.” 34 N.Y. 2d at 234. The Court went on to observe that the “shocking to one’s sense of fairness” standard had been applied in a sufficient number of cases and had reached the point where “… a more analytical and articulated standard evolves.” Id. Thus, with a desire to make the “shocking to one’s sense of fairness” standard more objective and therefore less subject to the vagaries of the bench, the Court went on to announce and explain a new “grave moral turpitude” standard that refined the long-used “shocking to one’s sense of fairness” standard to sharply circumscribe the discretion of courts to overturn an employer’s disciplinary determination when more serious employee conduct was at issue. Id. Matter of Pell’s “grave moral turpitude” standard creates a bright line legal demarcation between cases not involving grave moral turpitude and those that do involve grave moral turpitude. In the “non-grave moral turpitude” cases courts continue to exercise broad discretion and have the ability to consider a wide range of mitigating factors in determining whether an employee’s termination was “shocking to one’s sense of fairness.” In cases where the employee’s misconduct constituted grave moral turpitude, however, a court’s discretion is largely curtailed and it may not, as a matter of law, consider mitigating factors such as an employee’s length of service, the effect of loss of employment, etc. Thus born, the “grave moral turpitude” standard’s purpose was to remove the subjectivity from the “shocking to one’s sense of fairness” standard of review used by courts and leave the discretion as to the appropriate disciplinary penalty in the hands of the Hon. Andrew W. Klein Clerk of the Court September 10, 2014 Page 6 employing agency when, as the Court explained, the employee’s misconduct involved “… an offense as morally grave as larceny, bribery, sabotage, and the like …” as opposed to relatively milder (from a societal perspective) misconduct involving such things as “… habitual lateness or carelessness, resulting in substantial monetary loss, by a lesser employee …”. Id. In announcing the “grave moral turpitude” standard, the Matter of Pell Court carefully and painstakingly distinguished cases of poor work performance and ordinary misconduct from cases involving employee misconduct that would properly be characterized as grave moral turpitude. Id. With respect to the former “non-grave moral turpitude” cases this Court recognized that one would reasonably expect and require some form of progressive discipline prior to termination, and therefore concomitantly recognized by logical extension that courts may properly exercise a broader legal review of the employer’s penalty and consider mitigating factors such as the length of the employee’s employment and the impact of termination on the individual in such cases. Id. On the other hand, with respect to the latter “grave moral turpitude” cases involving criminal misconduct and other serious misconduct universally recognized as being completely antithetical to the employer’s interest, this Court acknowledged that termination was recognized as the appropriate penalty even after a first offense without consideration of mitigating factors such as the employee’s long-service and unblemished record of good performance. Id. The Court defined the intended scope of its “grave moral turpitude” standard by parsing the individual cases that were combined under Matter of Pell. 1. Matter of Pell and its companion cases. In Matter of Pell itself, the terminated employee had absented himself from his teaching job without permission, falsely certified that he was ill on those occasions, and requested payment for those days. 34 N.Y.2d at 235. Pell was found guilty of insubordination, conduct unbecoming a teacher, and neglect of duty. Id. Even though Pell had not been charged with any crimes, the Court reversed the Appellate Division’s reinstatement of Pell and upheld the board of education’s termination of Pell stating: “[i]n disregard of his professional obligations and of his superior’s decision, [Pell] absented himself from his teaching duties, thereby requiring replacements, falsely certified to being ill on those occasions, and was paid therefore [which would be an uncharged crime]. Hon. Andrew W. Klein Clerk of the Court September 10, 2014 Page 7 Such irresponsibility makes it impossible to conclude that the discipline is shockingly disproportionate to the offense.” Id. It is significant that the Court found Pell’s misconduct, which presumably could have been charged criminally, to constitute grave moral turpitude even in the absence of any criminal charges. The takeaway lesson which the Appellate Division failed to apply from Matter of Pell is that criminal behavior antithetical to the agency and its mission constitutes grave moral turpitude regardless of whether the employee is charged criminally. In the Matter of Muldoon v. City of Syracuse companion case, a police officer was terminated based on his having fired his revolver from a window of the Public Safety Building while on duty [there was no indication that any member of the public was actually harmed by this misconduct], refusal to submit to a blood analysis, conduct unbecoming an officer, and failure to file a written report as was required of all officers who discharged a firearm in the performance of duty. Id., at 236. As with the Pell case, the Appellate Division struck down the agency’s penalty of termination and imposed a lesser disciplinary penalty. This Court reversed, stating: At first blush, the punishment imposed might seem excessive or unduly harsh; however, policemen hold a sensitive position in the community and have an obligation to aid in safeguarding and protecting the community they serve. Armed as they are with dangerous or deadly weapons, the use of such a weapon without conscious recollection of such use, could pose a serious future threat of possible harm to civilians and others. The Chief of Police as the person ultimately responsible for effective discipline must seek to protect both the community and the police force from dangers reasonably foreseen and risks which might become serious liabilities, or have grave consequences. If, in the exercise of his considered judgment, he imposes punishment, the exercise of his reasonable discretion should not be disturbed unless the punishment is so disproportionate to the offense as to be shocking to one’s sense of fairness (Matter of McDermott v. Murphy, 15 A D 2d 479, affd. 12 NY2d 780, supra.;) Id., at 237. Hon. Andrew W. Klein Clerk of the Court September 10, 2014 Page 8 The takeaway lesson from the Matter of Muldoon companion case is that the misconduct at issue need not result in actual harm to a member of the public to be considered grave moral turpitude. Thus, the happenstance that no one was injured by the bullet fired by Muldoon out of the window of the Public Safety Building is really no different than the Respondent’s good fortune in sending hydrocodone through the District’s internal mail system without any students coming into possession of those drugs. As noted above, this Court has already recognized that school districts have the same sort of “special obligation to safeguard the well-being of its students” as the Matter of Pell Court referenced with respect to police and the communities they serve. Matter of Santer, supra; Matter of Will, supra. This special obligation was part of the genesis of the Court’s recognition of the need for the grave moral turpitude standard and helps to shape and define its proper application. The Appellate Division, however, utterly failed to fully recognize, appreciate, and apply this Court’s grave moral turpitude legal standard that inexorably flows from the District’s heightened obligations toward its students and the school community; giving not even a cursory nod of recognition or heed to the District’s special obligations toward its students. Had the Appellate Division properly applied the grave moral turpitude standard, its discretion to set aside the District’s decision to terminate the Respondent based on various mitigating factors would necessarily have been completely curtailed, and it would have to have upheld the District’s termination decision in this case. In the Matter of Chilson v. Board of Education companion case, Chilson, a Senior Construction Inspector, had been criminally charged with grand larceny in the first degree, bribe receiving and receiving unlawful gratuities. 34 N.Y.2d at 237-38. Chilson thereafter plead down to the misdemeanor of receiving unlawful gratuities and received probation. Significantly, like the Respondent in this case, Chilson had an unblemished record of long service (21 years), which persuaded Supreme Court to set aside his termination in favor of a lesser penalty. The Appellate Division disagreed and reinstated the termination penalty. The Court, applying its newly articulated grave moral turpitude standard, upheld the order of the Appellate Division reinstating the board of education’s determination to terminate Chilson. The Court stated: Hon. Andrew W. Klein Clerk of the Court September 10, 2014 Page 9 Petitioner, a public servant, was guilty of a breach of trust and a failure to faithfully and honestly perform the duties of his position. His position was a sensitive one and the misconduct serious. The question is not whether we might have imposed another or different penalty, but whether the agency charged with disciplinary responsibility reasonably acted within the scope of its powers. The answer must be in the affirmative (see Matter of Walker v. Murphy, 15 NY2d 650; Matter of Boris v. Murphy, 19 NY2d 873). Id., at 238 (emphasis supplied). Again, the takeaway lesson is crystal clear: criminal behavior antithetical to the agency and its mission, even when plead down to a misdemeanor, constitutes grave moral turpitude. In such cases mitigating factors, such as an employee’s long record of good service, are not, as a matter of law, factors to be considered by courts in assessing whether the agency charged with disciplinary responsibility reasonably acted within the scope of its powers. In the Matter of Best v. Ronan companion case, the employee was terminated for engaging in a money mishandling scheme called “nickeling” in which he stole $1.26 over the course of 18 days. Id., at 238-39. The Appellate Division overturned the penalty of termination and imposed in its place a six month suspension without pay. Again applying its newly enunciated “grave moral turpitude” standard, the Court held that the Appellate Division improperly exercised its discretionary power of review as a matter of law. Id., at 239. The Court found that the employee’s “nickeling” scheme could have operated beyond the period of observation and detection and was a “… violation of a trust and a breach of duty which, if condoned and imitated, could wreak havoc with the entire system.” Id. The Court stated: “[w]hile heretofore the courts have, in some instances, considered prior good records of service and revoked a sentence of dismissal, substituting therefore a lesser penalty [citation omitted], it is becoming increasingly clear that the nature of the misconduct charge when weighed with the action taken, where such action is reasonably within the permissible scope of the disciplinary agency, must be accorded greater weight or recognition.” Id. Although the amount of Best’s theft was relatively minuscule, his criminal act, although not criminally charged, was antithetical to his employer’s mission, and was therefore considered by the Matter of Pell Court to be an act of grave Hon. Andrew W. Klein Clerk of the Court September 10, 2014 Page 10 moral turpitude. Thus the Court reversed the Appellate Division’s determination exercising its discretion to lessen the penalty and reinstated the employer’s penalty of termination. In so doing the Court also recognized that it was appropriate for the employer to consider deterrence as a legitimate factor in determining the appropriate discipline. The Appellate Division in the case at bar erroneously gave no credence or heed to the gravity of the Respondent’s criminal conduct and the District’s absolute need to deter all employees from engaging in similar misconduct that puts children at risk. Finally, in the Matter of Abbott v. Phillips companion case, Abbott, a police officer, was terminated by the village board for dereliction of his duties based on a finding that he engaged in other private employment while on sick leave. Id., at 239-40. The Appellate Division reduced the termination to a 20 day unpaid suspension. This Court, however, concluded that no reduction of the employer’s termination penalty was warranted, since it did not appear that the village board had abused its discretion in fixing the punishment. Id., at 240. The Matter of Pell Court again soundly rejected the notion that courts have complete discretion and power when reviewing the discipline imposed by an agency in cases where the underlying misconduct of which the employee was found guilty constitutes grave moral turpitude. In the case at bar it is glaringly apparent that the Appellate Division erred as a matter of law by reverting to a pre-Matter of Pell world wherein under cases like Matter of Mitthauer v. Patterson, 8 N.Y.2d 37 (1960) courts routinely exercised unfettered discretion and complete fiat over review of disciplinary sanctions. The Appellate Division, while giving token lip service to the grave moral turpitude standard, in fact eviscerated that standard by creating factors, discussed in detail below, that permitted it to avoid finding that the Respondent’s criminal conduct on school property constituted grave moral turpitude. The Appellate Division used its flawed and erroneous application of Matter of Pell’s grave moral turpitude standard to in turn permit it to freely substitute its view of the seriousness of the Respondent’s misconduct for that of the District’s based on a variety of mitigating factors including the length of the Respondent’s unblemished service, rather than deferring to the District’s determination based on a correct finding that, as a matter of law, the Respondent’s misconduct constituted grave moral turpitude. In so doing, it is submitted that the Appellate Division abused its discretionary power in Hon. Andrew W. Klein Clerk of the Court September 10, 2014 Page 11 reviewing and reducing the penalty of termination imposed by the District as a matter of law. III. The Appellate Division erred in finding that grave moral turpitude did not exist in this case because the District permitted the Respondent to continue to come to work at the request of the police and the police refused to file criminal charges against her. If Matter of Pell teaches anything it is that the legal determination of whether the acts of misconduct of which an employee is found guilty constitute grave moral turpitude depends on the nature of those acts themselves; not on other surrounding circumstances. To apply the grave moral turpitude standard otherwise as the Appellate Division did in the case at bar is to recast that standard in such a way as to return to the courts all of the Matter of Mitthauer-like discretion and subjectivity that this Court specifically and meticulously circumscribed for reasons of sound public policy in Matter of Pell. Some rules of law, like the grave moral turpitude standard in Matter of Pell, are made not to punish any specific offender, but to preserve and promote the common good in furtherance of sound public policy. Absent an evolutionary societal change in that public policy, legal standards such as the grave moral turpitude standard must be preserved against the inevitable natural erosion inflicted by courts over hundreds and thousands of applications of the standard over the years. Because of its particular underpinnings in sound public policy relating to the preservation of an employer’s mission and obligations to the public it serves, the grave moral turpitude legal standard is as vibrant and necessary today as it was 40 years ago when first crafted by this Court. When properly applied, the grave moral turpitude standard focuses solely on the employer and the species of misconduct committed by an employee vis-à-vis that employer and its mission. The grave moral turpitude analysis has no truck with a sympathetic offender’s circumstances or the happenstance of whether anyone suffered actual injury from the offender’s misconduct. Matter of Pell specifically teaches that such considerations regarding the offender’s circumstances only come into play if and when the legal determination has been made that the conduct itself does not constitute grave moral turpitude. In other words, grave moral turpitude cannot be a variable standard; to be manipulated and applied more harshly or more leniently depending on how sympathetically the Hon. Andrew W. Klein Clerk of the Court September 10, 2014 Page 12 offending employee is viewed by a reviewing court. Rather, the grave moral turpitude legal standard operates as a gateway, a mechanism for courts to use to make the threshold determination of whether an employee's surrounding circumstances can and should be considered or, alternatively, whether because of the seriousness of the misconduct, deference must be given, without quarter or exception, to the employer's judgment as to the discipline to be meted out in furtherance of its particular mission and responsibilities to the public it serves. A. The Appellate Division erroneously relied on circumstances other than the District’s mission and obligation to safeguard its students in assessing whether the Respondent’s misconduct in trafficking drugs in its schools constituted grave moral turpitude. “Danger invites rescue. The cry of distress is the summons to relief.” Wagner v. International Ry. Co., 232 N.Y. 176, 179 (1921). While Wagner was a tort case, it matters not what label is put on the conduct of the wrongdoer, the underlying legal precept is the same. See, Guarino v. Mine Safety Appliance Co., 25 N.Y.2d 460 (1969) (applying the danger invites rescue doctrine in a breach of warranty case). The person who commits wrongful tortious conduct will generally not be protected from the consequences flowing from that conduct to the victims of that conduct. If one thinks about this rule, it embodies the recognition by this Court of a broader societal imperative that may be stated thusly; the safety of the whole privileges action in furtherance of preserving and protecting the common good. It cannot be gainsaid that the deliberate imperilment of students is a species of tortious wrong. Respondent would likely retort, as the Appellate Division effectively did, that so what; even if you have tortious conduct you don’t have a victim, since no children actually came in contact with narcotics that the Respondent sent through the interoffice mail. Not true. The Appellate Division’s excusal of the Respondent’s behavior, its shortsighted focus on the lack of an immediate child victim in this case as a vehicle to avoid finding that the Respondent’s act constituted grave moral turpitude, ignores the other actual victim in this case – the District, whose legal (and moral) obligation, specifically recognized in Matter of Santer, supra, as a public policy of this State, is to take all appropriate steps at all times to protect children and ensure their safety. Hon. Andrew W. Klein Clerk of the Court September 10, 2014 Page 13 To avoid applying Matter of Pell’s grave moral turpitude standard to the Respondent’s conduct in the case at bar the Appellate Division also erroneously referenced post-misconduct events having nothing to do with the actual criminal misconduct for which the Respondent was disciplined. Specifically, the Appellate Division found that the grave moral turpitude standard did not apply to the Respondent’s felonious misconduct because: (1) after it learned of this misconduct and brought the police in, the District permitted the Respondent to work for six months at the request of the police (so as not to tip the other employee off during the police investigation); and (2) the police ultimately declined to file any charges against the Respondent (R. 10). Not surprisingly, the Appellate Division failed to cite any legal authority to support this gerrymandered conclusion; a hallmark of courts exercising unfettered plenary discretion over the determination as to whether the Respondent’s misconduct constituted grave moral conduct that the Matter of Pell court specifically sought to rein in. As discussed more fully below, not only was the legal analysis of the Appellate Division erroneous as a matter of law; it also failed to fully consider all of the uncontradicted facts in the case that militated against the Appellate Division’s finding that the Respondent’s misconduct did not constitute grave moral turpitude. B. The Appellate Division erred as a matter of law in considering the timing of the District’s filing charges against the Respondent to bolster its erroneous conclusion that the Respondent’s conduct did not constitute grave moral turpitude under Matter of Pell. It was error as a matter of law for the Appellate Division to consider the timing of the District’s filing of Section 75 charges against the Respondent as a factor showing that the Respondent’s conduct did not constitute grave moral turpitude. The Appellate Division adopted Supreme Courts holding that “… the fact that the District itself allowed the [Respondent] to return to work for six months while knowing the allegations as well as the decision of the police department to not file charges after the [Respondent] confessed to them.” (R. 10). In condemning the District’s decision not to immediately proceed with disciplinary charges against the Respondent the Appellate Division failed to give any consideration to the meaning of the different statutory time limits set forth in Civil Service Law §75 for commencing disciplinary actions against employee. Hon. Andrew W. Klein Clerk of the Court September 10, 2014 Page 14 Section 75(4) provides that an employer has 18 months from the occurrence of an event to file disciplinary charges against an employee unless the acts of misconduct would, if proven in a court of law, constitute a crime, in which case there is no statute of limitations for filing disciplinary charges against an employee. If one follows the Appellate Division’s holding in this case to its logical conclusion, the Statute of Limitations for an employer seeking to terminate an employee for conduct it believes constitutes grave moral turpitude is not even 18 months; charges must be filed immediately with no delay for any reason whatsoever. Clearly this is not the law, as the Legislature has recognized the importance of an employer’s ability to terminate employees who commit criminal misconduct in the course of their employment and has thus seen fit to remove all temporal restrictions on an employer’s ability to file such charges seeking to terminate the employee. This is consistent with the Matter of Pell Court’s creation of the grave moral turpitude standard that severely limits the ability of reviewing courts to second-guess an agency’s decision to terminate an employee for committing acts of misconduct in the workplace that would constitute crimes. Criminal activity antithetical to a public employer's mission to serve the public is the quintessential form of moral turpitude. Thus, it is submitted that the Appellate Division plainly erred as a matter of law in relying on the District’s failure to immediately commence termination proceedings against the Respondent as a factor in determining whether the Respondent’s misconduct constituted grave moral turpitude under Matter of Pell. The District’s decision to hold off on charging the Respondent for her misconduct was not dalliance on its part. On or about January 6, 2012, a District employee overheard a conversation between Respondent and another District employee about the transfer and receipt of the controlled substance (R. 57). This employee told the District’s Personnel Supervisor what she had heard (R. 57). Upon the District learning of this information, and given that the report involved the illegal distribution of a powerful prescription drug, the District immediately reported the matter to the Amherst Police Department (R. 57; R. 183). The police began investigating the matter and specifically asked the District to defer its investigation and wait to pursue necessary action, if any, regarding the Respondent’s employment until it was able to conclude the police investigation (R. 57; R. 183). In cooperation with the police and at their request, the District allowed the Respondent to remain working (R. 57; R. 183). Although the Hon. Andrew W. Klein Clerk of the Court September 10, 2014 Page 15 Respondent was interviewed by the police (outside of the presence of any District representative) and voluntarily gave a sworn statement admitting her guilt on January 20, 2012 (R. 64; R. 123; R. 183), the Respondent’s sworn statement was kept from the District until May 9, 2012, when the police concluded their investigation and informed the District that they were not going to file any charges against the Respondent (R. 57). The Appellate Division utterly failed to consider the fact that the District only forewent immediately proceeding with disciplinary charges against the Respondent because the police requested that it do nothing while they further investigated the conduct of the District’s other employee who asked the Respondent for, and received, the hydrocodone pills. Inasmuch as the Respondent had been interviewed by the police and had a felony charge hanging over her head like the Sword of Damocles, and the Respondent was an Account Clerk Typist working in the District’s Business Office away from children (R. 62), the District elected to cooperate with the police while they investigated the other District employee to whom the Respondent had given the drugs and agreed not to immediately do anything with respect to the Respondent’s employment. Next, the Appellate Division also failed to consider that based on their obligation to ensure the safety of the children in their care school districts work hard to develop cooperative relationships with the police agencies in whose jurisdiction they reside. Many if not most police agencies have DARE (Drug Abuse Resistance Education) officers who are trained to go into schools as educational partners to teach children good decision-making skills to help them lead safe and healthy lives. In an effort to create a safer environment for both students and staff many school districts hire SROs (school resource officers) who are current or retired police officers. Plainly there is (or at least should be) a symbiotic relationship between school districts and police agencies that benefits not just those respective agencies, but inures to the public benefit as well. The Amherst Police determined that there was value to them and their investigation of the other District employee to whom the Respondent gave her drugs to have the District hold off on any disciplinary proceeding against the Respondent. Thus, the District’s decision to forego immediately disciplining the Respondent in this case in furtherance of its relationship with the Amherst Police should not have been twisted against the District as the Appellate Division did in this case. Hon. Andrew W. Klein Clerk of the Court September 10, 2014 Page 16 Finally, while the Appellate Division looked at the surrounding circumstances favoring the Respondent when evaluating whether the Respondent’s conduct constituted grave moral turpitude, it utterly failed, as noted above, to consider any of the counterbalancing factors indicating that: (1) the Respondent was extremely unlikely to engage in any similar felonious misconduct given the criminal charges she was facing, and (2) the Respondent did not pose an immediate serious threat of harm to students since she did not work in proximity to any students. Plainly had the District known that the courts below were going to hold its cooperation with the police against it vis-à-vis its ability to discipline and terminate the Respondent’s employment such cooperation would never have occurred. To paraphrase Admiral Daniel Farragut, the message that the Appellate Division’s holding sends is: “Damn the police investigation and full speed ahead with discipline!” The District respectfully submits that as a matter of sound public policy this is the absolute wrong message to send. In any event, even if it were proper for the Appellate Division to consider circumstances other than the fact of the Respondent’s criminal misconduct in determining whether to apply the grave moral turpitude standard (which the District believes was error as a matter of law), is submitted that considering only the circumstances favoring the Respondent was an abuse of the Appellate Division’s discretion as a matter of law. C. The Appellate Division erred as a matter of law in considering the failure of the police to file charges against the Respondent to buttress its erroneous conclusion that the Respondent’s conduct did not constitute grave moral turpitude under Matter of Pell. It is submitted that the Appellate Division clearly erred by giving any weight whatsoever to the police’s decision not to file charges based on the Respondent’s admitted serious Class B felony misconduct as a mitigating factor to rationalize its conclusion that the Respondent did not commit an act of grave moral turpitude. In this regard it is telling that the Appellate Division utterly failed to explain how the acts of an outside, non-employer agency could possibly have any bearing on the characterization of the Respondent’s misconduct under the grave moral turpitude standard announced by the Court in Matter of Pell. Police agencies and District Attorneys often decline to charge and prosecute individuals for a variety of reasons having nothing to do with crimes a person may Hon. Andrew W. Klein Clerk of the Court September 10, 2014 Page 17 have committed. More to the point, however, as this Court recognized in Matter of Pell, courts need to defer to the employing agency’s determination as “… it is becoming increasingly clear that the nature of the misconduct charge when weighted with the action taken, where such action is reasonably within the permissible scope of the disciplinary agency, must be accorded greater weight or recognition.” 34 N.Y.2d at 239. If a court is to defer to an employing agency’s determination regarding discipline of its employees, then how can a non-employer police agency’s decision to either charge or not charge an employee with a crime have any legal (or even logical) bearing on the deference required to be given? It is submitted that it cannot, and did not in Matter of Pell and its companion cases Matter of Muldoon and Matter of Best discussed above wherein grave moral turpitude was found when, as in the case at bar, no criminal charges were filed against the employee. Thus, it is further submitted that it was error as a matter of law for the courts below to consider the Amherst Police’s decision not to charge the Respondent with the Class B felony that she admittedly committed as a factor in deciding whether the Respondent’s conduct constituted grave moral turpitude. IV. The Appellate Division erred in relying on this Court’s decision in Matter of Shenendehowa Cent. School Dist. and CSEA to find that grave moral turpitude did not exist in this case. The Appellate Division erroneously concluded that this Courts’ Matter of Shenendehowa Cent. School Dist. and CSEA, 20 N.Y.3d 1026 (2013) decision supports a finding that the Respondent’s felony drug misconduct did not constitute grave moral turpitude; citing that case for the proposition that there is no public policy of the state to terminate all employees who commit acts of misconduct concerning controlled substances (R. 10). Matter of Shenendehowa is, however, the metaphorical square peg to this case’s round hole. The Appellate Division necessarily engaged in a quintessential straw man fallacy to “round off” the “square peg” aspects of Matter of Shenendehowa and try to make it applicable to the case at bar. In order to be able to rely on Matter of Shenendehowa, the Appellate Division first created a “straw man” (the fallacy) by importing from Matter of Shenendehowa a non-existent public policy argument concerning employees who are connected in some fashion to illegal drugs into the case at bar. The Appellate Division then went on to defeat the non-existent straw man argument that in inserted into the case at bar by reference to Matter of Hon. Andrew W. Klein Clerk of the Court September 10, 2014 Page 18 Shenendehowa. The fatal flaw in all straw man arguments such as that adopted by the Appellate Division in this case is that they divert attention away from the true issue at hand; viz., whether the Respondent’s misconduct in and of itself constituted grave moral turpitude. While the grave moral turpitude standard established by this Court in Matter of Pell is itself rooted in sound public policy, the application of this standard in no way requires an agency to point to or rely on a specific public policy, as concluded by the Appellate Division relying on Matter of Shenendehowa, before its decision to terminate an employee for what is otherwise considered grave moral turpitude may be upheld by the courts. Thus, as discussed in detail below, it is submitted that the Appellate Division misread and erroneously applied Matter of Shenendehowa to the case at bar. Matter of Shenendehowa was, is, and always will be the “square peg” to this case’s round hole. In relying on Matter of Shenendehowa the Appellate Division appears to have been grasping at proverbial “justification-straws” to evade the conclusion that the Respondent’s felony misconduct constituted grave moral turpitude. Being a review of an arbitration decision under CPLR 7511, Matter of Shenendehowa involved completely different legal inquiries and standards having nothing to do with Matter of Pell and its grave moral turpitude inquiry and standard discussed therein. In Matter of Shenendehowa this Court’s decision was limited to reviewing the “… ‘three narrow grounds that may form the basis for vacating an arbitrator’s award - that it violates public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator’s power’ (citations omitted). None of these grounds has been established here.” 20 N.Y.3d at 1027. The Court’s review of the arbitrator’s decision in Matter of Shenendehowa was extremely limited, and even if the Court had been of the opinion that the arbitrator made a mistake of law or fact, and even if it would have concluded that the bus driver’s conduct would constitute grave moral turpitude under its decision in Matter of Pell, the Court was nevertheless required under well-settled law to give deference to the arbitrator’s decision. Ironically, if the Appellate Division had reviewed the matter at bar under the narrow grounds articulated in Matter of Shenendehowa, they would have found it impossible to determine that the District’s decision to terminate the Respondent violated public policy, was irrational, or clearly exceeded its power. Indeed, this Court’s recent decision in Matter of Santer, supra, provides the very public policy Hon. Andrew W. Klein Clerk of the Court September 10, 2014 Page 19 in this case that the court in Matter of Shenendehowa found lacking; viz., the “public policy in favor of protecting children” (23 N.Y.3d at 265). Nonetheless, the salient point is that while the subset of behaviors that constitute moral turpitude under Matter of Pell may include acts that are also violative of public policy, the two legal standards are not coextensive, synonymous, or interchangeable. Thus, the District submits that it was reversible error as a matter of law for the Appellate Division to apply them as such, particularly given that Matter of Pell specifically references an uncharged criminal act such as larceny (even though “only small sums of money may be involved” in the Matter of Best companion case), as an example of an act of grave moral turpitude. Next, Matter of Shenendehowa is also factually inapposite to the matter at bar because the underlying conduct in that case involved an employee’s violation of a civil law; not criminal law. The employee in Matter of Shenendehowa was terminated after a random drug test. Being a random test, as opposed to a reasonable suspicion test, there was no indication that the employee was driving a school vehicle while impaired or that the employee was even legally impaired at all at the time of the test; just that the employee tested positive for marijuana at the cutoff level for metabolites based on whatever methodology was used for that particular test. Marijuana in particular is notorious for having its metabolites stay in a person’s system in testable amounts long after the intoxicating effects of the drug have worn off. For example, the National Center for Biotechnology Information has reported that THC metabolites mean detection times can range from 1 to 5 days after the low dose and from 3 to 6 days after the high dose (http://www.ncbi.nlm.nih.gov/pubmed/8926739). 2 Consequently, while it was 2 The National Highway Transportation Safety Administration reports that: “Detection of total THC metabolites in urine, primarily THC-COOH-glucuronide, only indicates prior THC exposure. Detection time is well past the window of intoxication and impairment. Published excretion data from controlled clinical studies may provide a reference for evaluating urine cannabinoid concentrations; however, these data are generally reflective of occasional marijuana use rather than heavy, chronic marijuana exposure. It can take as long as 4 hours for THC-COOH to appear in the urine at concentrations sufficient to trigger an immunoassay (at 50ng/mL) following smoking. Positive test results generally indicate use within 1-3 days; however, the detection window could be significantly longer following heavy, chronic, use. Following single doses of Marinol®, low levels of dronabinol Hon. Andrew W. Klein Clerk of the Court September 10, 2014 Page 20 misconduct for the bus driver in Matter of Shenendehowa to have a random positive test for marijuana metabolites, such a test result did not prove the additional misconduct of being intoxicated or impaired while driving the school bus, which would have had the same public policy implications as the Respondent’s conduct in the case at bar. Inasmuch as the employee’s misconduct in Matter of Shenendehowa did not have the same public policy implications as the Respondent’s misconduct in the case at bar has, it was erroneous for the Appellate Division to treat Matter of Shenendehowa as valid controlling precedent in this case. Given the near-complete deference that courts must give arbitration decisions, the Court’s decision not to overturn the arbitrator’s award of reinstatement of the employee in Matter of Shenendehowa is hardly surprising. Contrast that case, however, with the matter at bar in which the Respondent committed the criminal acts of (1) bringing a controlled substance, hydrocodone, into school and then (2) sending those drugs by interoffice mail to a co-worker; conduct that undisputedly constituted a Class B felony notwithstanding the unfathomable decision by the police not to arrest the Respondent. Whatever the “public policy” considerations may have been at issue in Matter of Shenendehowa, the factual differences and differences in the legal review standard between that case and the case at bar make Matter of Shenendehowa completely inapplicable in this case and the Appellate Division erred as a matter of law in using Matter of Shenendehowa to justify its finding that the Respondent’s misconduct did not constitute grave moral turpitude under Matter of Pell. Finally, in relying on Matter of Shenendehowa the Appellate Division also erred because it focused its public policy inquiry on the wrong question. As Matter of Santer (decided after the Appellate Division rendered its decision) teaches, the public policy in the case at bar flows not from the underlying species of harm (creating a traffic hazard on school property in Matter of Santer as opposed to illegal distribution of drugs in the case at bar), but rather from the District’s in loco parentis relationship to children and the State’s clear public metabolites have been detected for more than 5 weeks in urine. Low concentrations of THC have also been measured in over-the-counter hemp oil products – consumption of these products may produce positive urine cannabinoid test results.” (http://www.nhtsa.gov/people/injury/research/job185drugs/cannabis.htm). Hon. Andrew W. Klein Clerk of the Court September 10, 2014 Page 21 policy in favor of protecting children from all hazards and harms. 23 N.Y.3d at 265-66. Thus, it is submitted that Matter of Shenendehowa is clearly inapposite to the case at bar and Matter of Santer is clearly on all fours with respect to the existence of a strong State public policy that was violated by the Respondent’s misconduct in this case. V. The Appellate Division erred as a matter of law in relying on fact that no child actually came into contact with the Respondent’s drugs to avoid finding that the Respondent’s misconduct in this case constituted grave moral turpitude under Matter of Pell. Societal notions of moral turpitude naturally evolve and change over time; some for the better, some not. For example, when Matter of Pell was decided 40 years ago, many considered the homosexual lifestyle to be a form of moral turpitude. Mores evolve, and this is reflected in the law. Thus, same sex marriage which was not legal when Matter of Pell was decided is now recognized in New York, and laws such as the State Human Rights Law expressly protect the gay lifestyle. See, e.g., New York Executive Law §296(1) (making it unlawful for employers to discriminate on the basis of sexual orientation). This is evolution for the better. On the other hand, while it may be somewhat of an old-fashioned concept, it is submitted that from the perspective of a healthy society some things must always be viewed as unhealthy or “wrong” if you will. Courts must be ever mindful, particularly when being asked to forgive misconduct in furtherance of justice or compassion toward an individual for whom it is easy to feel sympathy, that Matter of Pell’s bedrock notions of grave moral turpitude established in the furtherance of fostering a healthy society do not become distorted and relaxed to the point where society devolves into a worse state. Thus, it is submitted that the "anything goes so long as no one is actually harmed" view of moral turpitude applied by the Appellate Division in this case, with its cloyingly insipid simplicity, invariably leads to the ruination of a system of justice, and, more broadly, to the fabric of a prosperous and orderly society itself. When the test for moral turpitude becomes purely outcome driven it ceases to have any legal relevance or societal meaning. When courts start down this path, as it is submitted that the Appellate Division did in this case, the course must be corrected. Hon. Andrew W. Klein Clerk of the Court September 10, 2014 Page 22 Serendipity cannot transform an act of grave moral turpitude into one of simple misconduct. This Court recognized as much when it specifically held in Matter of Santer, that a school district was not required to prove that an employee’s actions actually resulted in injury to a student; it was enough for the district to prove “… that petitioners’ actions created a potential yet substantial risk to student safety.” 23 N.Y.3d at 265-66. Thus, the Appellate Division’s reliance on the fact that “It is also important to note that when asked upon oral argument, the District could not state that any child was actually placed at risk or came into contact with the medication.” (R. 11) to find that the Respondent’s misconduct did not constitute grave moral conduct was clearly erroneous as a matter of law under this Court’s holding in Matter of Santer. Although Matter of Santer was decided after the Appellate Division rendered its decision, the Court’s holding that an employer need not prove actual harm to children to sustain a finding that conduct constituted grave moral turpitude was a principle already well-established by precedent. Hence, in addition to good old-fashioned common sense, the well-recognized concept of deterrence referenced as a basis for discipline in Matter of Pell should have led the Appellate Division to conclude that the sheer fluke that no children came into contact with the Respondent’s narcotics was utterly irrelevant to the moral turpitude inquiry. Rather, it is submitted that it is the conduct itself, which constituted a class B felony, and the District’s need to absolutely deter that type of misconduct, that should have been the Appellate Division’s focus with respect to the moral turpitude inquiry. Thus, in Matter of Pell, the Court opined that “a result is shocking to one’s sense of fairness if the sanction imposed is so grave in its impact on the individual subjected to it that it is disproportionate to the misconduct, incompetence, failure or turpitude of the individual, or to the harm or risk of harm to the agency or institution, or to the public generally visited or threatened by the derelictions of the individuals. Additional factors would be the prospect of deterrence of the individual or of others in like situations, and therefore a reasonable prospect of recurrence of derelictions by the individual or persons similarly employed. …” 34 N.Y.2d at 234 (emphasis supplied). The Appellate Division utterly failed to give any consideration to the District’s need for deterrence as a factor in disciplining the Respondent for brining dangerous prescription drugs into the school environment; placing instead much weight on the fact that the District could not identify that any child was actually Hon. Andrew W. Klein Clerk of the Court September 10, 2014 Page 23 placed at risk or that children did not come into contact with the Respondent’s hydrocodone (R. 11). As noted above, the Appellate Division’s narrow focus on the fact that no children actually came into contact with the Respondent’s drugs used to justify its failure to apply Matter of Pell’s grave moral turpitude standard was erroneous as a matter of law both under Matter of Pell itself and the Court’s recent holding in Matter of Santer. Moreover, Matter of Santer aside, nothing in Matter of Pell remotely suggests or supports the notion seemingly adopted by the Appellate Division that grave moral turpitude is a variable concept that depends solely on the happenstance of whether a child (or any other member of the public) is injured or not. Indeed, in the companion case of Matter of Muldoon, this Court carefully noted that the fortunate fact that no one was injured when the police officer fired his weapon out of the window of the Public Safety Building was immaterial to its conclusion that he had engaged in an act of grave moral turpitude. Matter of Pell, supra, 34 N.Y.2d at 237; see also, Matter of Kelly v. Safir, 96 N.Y.2d 32, 39-40 (2001) (finding that employee’s act of issuing false certificates that authorized two guards to carry firearms and permitted them to work security in a department store undermined the employee’s creditability as a law enforcement officer and “. . . could have jeopardized public safety”, and therefore precluded use of the employee’s “. . . commendations and prior exemplary service . . . “ to mitigate the penalty of dismissal) (emphasis supplied). Although Matter of Pell clearly instructs otherwise, the Appellate Division failed to consider the District’s absolute need to deter behaviors such as the Respondent’s criminal drug-related misconduct. Just as most would hopefully agree in this post-Columbine, post-Sandy Hook era that bringing a gun or other weapon to school is a criminal act of grave moral turpitude even in the fortuitous circumstance that no children see or are exposed to the weapon, so too is bringing controlled substances into the school environment and casting them off into the interoffice mail to a co-worker in the elementary school as the Respondent did in this case. In both scenarios it is the criminal act itself, which exposes children to grave potential danger, that flies in the face of the public policy of protecting children and the District’s in loco parentis relationship to the children in its schools, and therefor constitutes grave moral turpitude that must be deterred at all costs. Hon. Andrew W. Klein Clerk of the Court September 10, 2014 Page 24 VI. The Appellate Division erred as a matter of law in finding that Respondent’s termination was shocking to one’s sense of fairness under the Court’s Matter of Pell standard. Although the Appellate Division failed to do so, the Court in Matter of Pell specifically recognized that the identity of the employer is a factor that a court must consider in assessing whether a penalty shocks one’s sense of fairness as a matter of law. The Court held that “[p]aramount too, in cases of sanction for agencies like the police, is the principle that it is the agency and not the courts which, before the public, must justify the integrity and efficiency of their operations.” 34 N.Y.2d at 235. The result of this recognition is that greater leeway is necessarily granted in reviewing the disciplinary decisions of the police agency because of the agency’s crucial need to maintain the public trust. See, Matter of Kelly v. Safir, 96 N.Y.2d 32, 38; see also, Matter of Scahill v. Greece CSD, 2 N.Y.3d 754 (2004) (school district did not abuse its discretion in terminating employment of an employee who violated the district’s trust and policy). As noted above, school districts are unique employers because of their “special obligation to safeguard the well-being of [their] students”. Matter of Will v. Frontier Cent. Sch. Dist. Bd. of Educ., supra, 97 N.Y.2d 690, 691 (termination was appropriate for alcohol-related conduct); Matter of Santer, supra. School districts, by virtue of their status as custodians of children and inculcators of both knowledge and community values, have the same need to justify the integrity and efficiency of their operations to their communities as police agencies do to the public they serve. Thus, in maintaining order and discipline “[p]ublic school authorities have special responsibilities, and therefore correspondingly broad powers, to control the school precincts in order to protect the students in their charge (see, e.g., Education Law, § 912-a, subd. 1; § 3214, subd. 3, par. a). The obligation to maintain discipline and provide security derives not only from common law, but from State law, and is delegated by local boards of education (see, e.g., Education Law, § 1604, subd. 9; § 1709, subd. 2; § 2590-e, subd. 8; § 3214, subd. 3, par. b).” People v. Scott D., 34 N.Y.2d 483, 486, 358 N.Y.S.2d 403 (1974). It cannot be disputed that school districts across the country face a daily struggle in ensuring the safety of the students in their charge, particularly when presented with the unfortunate prevalence of controlled substances; both in the Hon. Andrew W. Klein Clerk of the Court September 10, 2014 Page 25 form of illegal drugs as well as prescription narcotics such as the Petitioner’s hydrocodone. In his June 24, 2014 press release accompanying his signing of the law granting “Good Samaritan” protections to individuals who administer an opioid antagonist, Governor Cuomo recognized the growing heroin and opioid epidemic in communities across the State, noting that “[b]etween 2004 and 2013, Erie County saw an increase in the number of heroin and prescription opioid treatment admissions from 2,152 to 4,793, representing a 123 percent jump.” (https://www.governor.ny.gov/press/06242014-buffalo-heroin-bill-signing). Two years earlier Governor Cuomo issued a press release concomitant with his signing into law legislation to help the State crack down harder on prescription drug abuse (referred to as “I-STOP”) in which he noted that “[t]oo many families in New York State have suffered the loss of a teenager or youth as a result of prescription drug abuse.” (https://www.governor.ny.gov/press/08272012prescription drug-abuse). The Office of National Drug Control Policy notes that “[t]he Centers for Disease Control and Prevention has classified prescription drug use as an epidemic.” and that “[s]ome individuals who misuse prescription drugs, particularly teens, believe these substances are safer than illicit drugs because they are prescribed by a healthcare professional and dispensed by a pharmacist.” (www.whitehouse.gov/ondcp/prescription-drug-abuse). In September 2011, the Center for Behavioral Health Statistics and Quality issued a report “Results from the 2010 National Survey on Drug Use and Health: Summary of National Findings” in which it reported that in 2010, of the 3.0 million persons aged 12 or older who used illicit drugs for the first time within the past 12 months, 17.3% reported that their first drug was pain relievers. (http://www.samhsa.gov/data/nsduh/2k10nsduh/2k10results.htm). Although down a bit in the 2012 survey, it was reported that of the 2.9 million persons aged 12 or older who used illicit drugs for the first time within the past 12 months, 17% reported that their first drug was pain relievers. (http://www.samhsa.gov/data/NSDUH/2012SummNatFindDetTables/NationalFind ings/NSDUHresults2012.htm). In recognition of this societal problem and recognizing its special role in protecting children, the District adopted two policies regarding controlled substances and drugs on school property. The Respondent was provided access to these policies when she was issued a copy of the District’s 2011-2012 Employee Handbook, which specifically states, inter alia, that “[e]ach employee should Hon. Andrew W. Klein Clerk of the Court September 10, 2014 Page 26 understand the requirements of the core policies contained in this Handbook” (R. 100). Policy #6150 (Alcohol, Drugs and Other Substances) emphasizes that “students are often influenced by teachers and other members of a school’s staff” and “impresses upon staff members the importance of maintaining a high level of professionalism appropriate to their position, which, in turn, shall set a positive example for students.” (R. 125). Policy #6150 specifically prohibits the very act of criminal misconduct in which the Petitioner engaged; viz., distributing a controlled substance while on school property, with the aggravating factor of doing so using the interoffice mail where she had no idea what happened to her hydrocodone after she dropped the envelope off for delivery to an elementary school. Policy, #6151 (Drug-Free Workplace) affirms that it is not only commonly- known drugs that are banned from school property, but also any drug classified as a “controlled substance” (including hydrocodone) (R. 126). This is essential for compliance with the Drug-Free Workplace Act, 20 U.S.C. § 7101 et seq., which requires that the District ensure that the entire District is free of controlled substances. Courts have held that the penalty of termination is appropriate when an employee is found to have simply possessed an illegal substance at work. See, Matter of Santos v. Chesworth, 133 A.D.2d 1001 (3d Dept. 1987). The Respondent’s conduct, however, was far more egregious than simple possession. The Respondent not only possessed the controlled substance, but she distributed it to another person while on school property, exploiting school resources, in such a manner that for an undetermined period of time neither she nor the person to whom she was giving the hydrocodone exercised any control over it. As noted above, school buildings are “a special kind of place in which serious and dangerous wrong doing is intolerable.” See, Matter of Gongola v. Szado, 85 A.D.2d 853 (3d Dept. 1981) (school’s decision to increase the penalty recommended by a hearing officer did not shock one’s sense of fairness when an employee fraternized with a student). Thus, it is submitted that the Respondent’s felony distribution of a dangerous and powerful controlled substance through the District’s interoffice mail system constituted an act of grave moral turpitude. Given the District’s obligations to the safety and well-being of its students, it is further submitted that the Appellate Division erred as a matter of law in finding that the Respondent’s termination was Hon. Andrew W. Klein Clerk of the Court September 10, 2014 Page 27 shocking to one’s sense of fairness under Matter of Pell. See, e.g., Matter of Scahill, supra, 2 N.Y.3d 754 (termination of longstanding employees did not shock the conscious when employees were found guilty of using a school vehicle to distribute untaxed cigarettes on school property); Matter of Rutkunas v. Stout, 8 N.Y.3d 897 (2007) (termination of employee did not shock the conscience when employee “jeopardized the health and safety of his coworkers and the public patrons of the facility at which he worked”). VII. The District requests that the Court proceed by full review as opposed to section 500.11 review. The Court has selected this case for the alternative review procedure pursuant to section 500.11 of the Court’s Rules of Practice. The District respectfully suggests that this case would benefit from full review as opposed to section 500.11 review. The standard of review under Matter of Pell is an issue that affects hundreds of municipal employers and school districts and thousands of public sector employees statewide. This case raises issues not only of the proper application of Matter of Pell’s grave moral turpitude standard, but also public policy issues regarding cooperation between municipalities and police agencies. The New York Council of Mayors (“NYCOM”) has authorized me to represent to the Court that if the Court foregoes the alternative review procedure pursuant to section 500.11 of the Court’s Rules of Practice in favor of the full review process that it will pursue and file an amicus brief in this matter focused primarily on the public policy issues regarding cooperation between municipalities and police agencies. The General Counsel and Director of Legal and Policy Services for the New York State School Board’s Association (“NYSSBA”) has authorized me to represent that if the Court decides to forego the expedited review and reschedules this case for the regular briefing and oral argument procedure that he intends to recommend to the NYSSBA Board that they participate as an amicus as well. While the New York State Council of School Superintendents and the New York Council of Mayors and the County Attorneys Association of the State of New York have expressed some interest in submitting amicus briefs addressing public policy issues relating to the school safety and the impact of the decision at bar on the cooperation between public employers such as the District and police Hon. Andrew W. Klein Clerk of the Court September 10, 2014 Page 28 HARRIS BEACH ~ ATTORNEYS AT LAW agencies investigating crimes occurring in the workplace, they have not committed to so doing. In sum, it is submitted that full review would at the very least permit the filing of amicus briefs by NYCOM and NYSSBA that the Court may find helpful and permit a fuller argument of the broader policy issues in this case. VIII. Conclusion Based on the foregoing reasons it is submitted that the March 21, 2014 Order of the Appellate Division, Fourth Department should be reversed in its entirety and the underlying petition seeking to overturn the District's determination terminating the Respondent's employment should be dismissed. Sincerely, Edward A. Trevvett cc: Timothy Connick, Esq.