In the Matter of Amira Beatty, Respondent,v.City of New York, et al., Appellants.BriefN.Y.January 3, 2018 August 14, 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: Beatty v. City of New York, et al., APL-2017-00123 Dear Mr. Asiello: We respectfully submit this letter brief on the same day as our letter brief in Williams v. City of New York, APL-2017-00107, and two weeks after the close of submissions in Matter of Bolt v. N.Y.C. Dep’t of Educ., APL-2017-00068. All three cases address a mistaken trend in decisions of the Appellate Division, First Department, on a recurring legal issue of public importance: the circumstances when an arbitrator’s dismissal of a teacher for misconduct is so “shocking to the conscience” that a court may override it. We thus reiterate our position that all three appeals warrant full briefing and argument. ZACHARY W. CARTER Corporation Counsel THE CITY OF NEW YORK LAW DEPARTMENT 100 CHURCH STREET NEW YORK, NY 10007 KATHY CHANG PARK Assistant Corporation Counsel Phone: (212) 356-0855 Fax: (212) 356-2509 Email: kpark@law.nyc.gov i'.'a.aMi®§V; wmm 2 PRELIMINARY STATEMENT In this article 75 proceeding, the Appellate Division, First Department—three votes to two—vacated an independent arbitrator’s determination that petitioner Amira Beatty should be dismissed from employment as a tenured New York City schoolteacher providing home instruction. Beatty failed to provide any instruction to a disabled student for two full months—ending only by a happenstance discovery—and she falsified her time logs to indicate she had in fact been providing the instruction. The Court should reinstate the arbitrator’s penalty of dismissal because it is hardly “shocking to one’s sense of fairness”—the established standard for judicial review. The crux of the decision below is that Beatty should be given a break because her failures occurred in the aftermath of Hurricane Sandy (both Beatty and the student lived in severely affected areas). But the arbitrator rejected Beatty’s plea along those lines for good reason: while Beatty claimed that she reported providing instruction to the student because supervisors said not to “punish” students for absences after the storm, she also falsely marked the same student absent on ten days, evidently chosen at random. And the arbitrator credited testimony from the student’s mother that, when she sought to make arrangements for her son to receive instruction, Beatty put her off by claiming that a supervisor had directed Beatty not to provide it. The arbitrator thus reasonably concluded that the picture was of someone exploiting the storm as a cover for her own deliberate choices. A common thread across all three First Department decisions now before the Court is loss of awareness of the limits of judicial review, given its remoteness from the core disciplinary proceeding. For one thing, questions often central to penalty—such as credibility of proffered excuses, presence of genuine regret, and commitment to repairing trust—are best judged by being in the same room as the employee (and other witnesses). When courts freely substitute their own judgment on penalty for arbitrators’, they not only render arbitration an empty exercise, but overlook their lack of an important perspective. The Court should reaffirm that the “shocking to fairness” standard is designed to be a check against aberrant decision-making, not a license to override arbitrators’ reasonable judgments. 3 STATEMENT OF THE CASE A. New York City’s home instruction program The operation of public schools may be government’s most critical function. New York City DOE operates the nation’s largest public school system, serving around 1.1 million students, running over 1,800 schools, and employing about 92,000 teachers.1 The body of students is not only extremely large, but also richly diverse in their backgrounds. More than four-fifths of students are Latino, African-American, or Asian-American;2 more than half are immigrants or the children of immigrants;3 and nearly four-fifths are eligible for federal lunch assistance.4 Many students also have special needs, as more than 100,000 are enrolled in special education programs.5 DOE’s mission is to provide all of its students with educators who create a fair and supportive learning environment that helps students reach their full potential and develop into productive members of our communities. This case centers on DOE’s home instruction program, which serves a special subset of students who are unable to receive instruction in a traditional classroom setting due to medical or psychiatric reasons. The program provides academic services in students’ homes (or 1 The material in this section is drawn from information available on the DOE website and the State Department of Education’s website. See N.Y.C. Dep’t of Educ., http://on.nyc.gov/2hRRZQ4 (last accessed Aug. 11, 2017); Press Release, State Education Department Releases Spring 2015 Grades 3-8 Assessment Results (Aug. 12, 2015), available at http://bit.ly/1IGFZoh (last accessed Aug. 11, 2017). 2 N.Y.C. Independent Budget Office, 2016 Education Indicators Report, Student Demographics, available at http://bit.ly/2fNjjZX (last accessed Aug. 11, 2017). 3 N.Y.C. Coalition for Educational Justice, Looming Crisis or Historic Opportunity? Meeting the Challenge of the Regents Graduation Standards, (Feb. 2009), at 12, available at http://bit.ly/2aDHIQI (last accessed Aug. 11, 2017). 4 N.Y.C. Independent Budget Office, New York City Public School Indicators: Demographics, Resources, Outcomes (July 2014), at 15, available at http://bit.ly/VCzzTF (last accessed Aug. 11, 2017). 5 N.Y.C. Dep’t of Educ., Statistical Summaries, http://on.nyc.gov/1OGTF65 (last accessed Aug. 11, 2017). 4 sometimes at libraries, community centers, or other locations), to limit the educational effects of long-term absences.6 Teachers assigned to the home instruction program provide instruction to a number of students within this vulnerable population, at various locations throughout the day. Because home instruction teachers work “in the field,” rather than in a particular school building, they operate on an honor system. The effective functioning of the home instruction program depends entirely on teachers who can be trusted to be working when and where they say they are working, can be trusted to provide educational instruction to the students they are assigned to educate, can be trusted to keep supervisors informed of their whereabouts and any schedule changes, and can be trusted to accurately complete records documenting their work. Beatty repeatedly received notice about these key elements of her job. When she became a home instruction teacher in 2007, Beatty received a detailed handbook making clear that she was required to report immediately all schedule changes to her supervisor and fill out her timesheets accurately (R. 401-428, 479). She also received multiple memos reiterating these points. One memo reminded teachers that all changes in a teacher’s schedule must be reported to a supervisor; logs must accurately reflect daily instructional activities; and personnel time reports must be certified (R. 481). Another warned that “[i]n the past, a number of Home Instruction teachers have been referred to the Office of Special Commissioner of Investigations for alleged theft of services” (R. 481, 485, 490). And a different memo received and signed for by Beatty made explicit that “[t]here will be no acceptable reason for any teacher’s failure to notify of a change in daily schedules” (R. 482). B. The independent labor arbitrator’s determination that Beatty should be dismissed from employment as a public schoolteacher With support from the teachers’ unions, the Legislature has enacted a robust process for independent arbitral review of disciplinary 6 Home Instruction Schools, http://bit.ly/2o6Tiwv (last accessed Aug. 11, 2017). 5 matters involving tenured schoolteachers. Educ. Law § 3020-a.7 In New York City, the arbitrator is selected from a rotational panel of independent labor arbitrators whose makeup has been jointly agreed upon by the teachers’ union and DOE. See United Federation of Teachers Collective Bargaining Agreement, Art. 21(G)(2).8 Teachers facing discipline have the right to a hearing at which they may subpoena and cross-examine witnesses and testify in their own behalf. Educ. Law § 3020-a(3)(c). After the hearing, the independent arbitrator must issue a written decision detailing the findings of fact and conclusions on each charge and crafting an appropriate penalty. Id. § 3020-a(4)(a). The statute limits judicial review of the arbitrator’s determination to the grounds set forth in CPLR 7511: “misconduct, bias, excess of power or procedural defects.” Id. § 3020-a(5)(a). Here, the presiding arbitrator addressed the following background facts. Beginning on September 19, 2012, Beatty was assigned to provide in-home instruction to Student A, who has cerebral palsy (Record on Appeal (“R.”) 122, 157-58). Student A came to DOE’s Home Instruction Program following major surgery requiring the breaking of his hip bones in two places and relocation of muscles from the front of his legs to the back (R. 122, 157-58). After surgery, he needed extensive physical therapy, was in severe pain, and had difficulty walking (R. 157). At the time, he was in fifth grade by age, but functioning at a first-grade level (R. 157). After the hearing, the arbitrator determined that Beatty had failed to provide any instruction to Student A in November and December 2012, following Hurricane Sandy (R. 40). In a thorough 7 See Memorandum from New York State United Teachers (March 29, 1977), Bill Jacket, L 1977, ch. 82; Memorandum from New York State Teachers Association (May 1, 1970), Bill Jacket, L 1970, ch. 717; Memorandum from New York State United Teachers (July 13, 1994), Bill Jacket, L 1994, ch. 691. 8 Education Law § 3020-a(3)(b) generally provides for the matter to go into arbitration under the auspices of American Arbitration Association. The statute, however, also permits this process to be modified pursuant to collective bargaining between the teachers’ union and DOE, as is the case here. See Educ. Law § 3020(1). 6 opinion summarizing the extensive evidence (R. 26-46), the arbitrator (1) found that Beatty had submitted false and fraudulent documents stating that she had taught Student A on dates when she did not; (2) found, based on Beatty’s own testimony and “overall credibility,” that her paperwork falsely asserted that she had reported to schools and libraries on days that she had marked Student A absent in December 2012; (3) found that her conduct was “intentional” and “designed to receive” an unearned benefit; and (4) found that she deprived Student A of all educational services over a two-month period, causing him to fall behind in his schoolwork (R. 44-45). The arbitrator further noted that these failures had come to light only when a hospital social worker called DOE in January 2013 to ask when the student would be getting his teacher back, thus prompting Beatty’s supervisor to look into the matter (R. 45; see also R. 122-123). The arbitrator’s opinion cited Beatty’s own admission that “she did not provide services to Student A after the hurricane and that she had submitted daily logs and time sheets in which she certified that she did” (R. 40). The arbitrator also rejected Beatty’s various attempts to explain away or excuse her conduct—specifically crediting the testimony of Beatty’s supervisor and the student’s mother over Beatty’s contrary testimony, based on the arbitrator’s in-person observation of the witnesses’ testimony and review of the record evidence (R. 40). First, the arbitrator did not credit Beatty’s claim that Student A’s mother asked her not to transfer her son to the Brooklyn program when the family was temporarily relocated there after the storm or to provide instruction to Student A at a Queens library when the family returned home at the beginning of December (R. 40-41). The arbitrator instead credited the mother’s consistent testimony that Beatty had declined to provide teaching services, citing purported “instructions” from her supervisor not to provide instruction to Student A (id.). Noting the mother’s demeanor and presentation during the hearing, the arbitrator described her as “genuine, open, and at times, blunt in her testimony” and found that she had no reason to lie about what Beatty had told her (R. 41). The decision also specifically noted that the mother’s credibility was enhanced by her evident regard for Beatty: for example, the mother had phoned Beatty immediately to let her know that the supervisor, 7 Assistant Principal Douglas Raydar, had visited her home to investigate Beatty’s failure to provide instruction (R. 40-41). Second, the arbitrator rejected Beatty’s excuse that her actions were the result of an unclear direction by the school not to penalize students for absences as a result of the hurricane. The arbitrator concluded: “At best, this could be interpreted as a temporary instruction to deviate from the normal practices regarding absences in the immediate aftermath of the hurricane” (R. 41). She thus found that the direction, such as it was, could not justify Beatty’s failure to provide services to Student A for “nearly two months,” and in particular could not justify her failure to do so for “the entire month of December” after the family had returned home (R. 41-42 (emphasis added)). The arbitrator also found that Beatty’s now-claimed understanding of supervisor’s instructions was discredited by her own conduct, since she (falsely) recorded ten unexcused absences for the student in December 2012 (R. 42-43). Third, the arbitrator did not credit Beatty’s attempt to dismiss her misconduct as a case of “inadvertent error or even sloppy paperwork” (R. 43). The arbitrator reasonably found that Beatty’s own testimony that she filled out her logs “flat”—or in advance—pointed to a finding of deliberate falsification, given the content of those logs (R. 44). She also found that Beatty took advantage of the honor system and “breached a fundamental tenet of the Home Instruction Program—that she must report any changes in her schedule and submit accurate records” (R. 43). The arbitrator further observed that Beatty did not provide any plausible reason why she had never discussed the situation at all with her supervisor, Raydar, whom she “loved” (R. 42-43). As the arbitrator noted, Raydar had approved use of makeup instruction by another teacher after the hurricane. Thus, if Beatty had discussed the matter with Raydar, he may well have given Beatty permission to work with the student by phone or email (as another teacher who testified did), or they may have been able to work out a temporary transfer arrangement while the family was staying in Brooklyn (R. 42-43). Instead, because Beatty never communicated with Raydar about the student, Student A received no instruction over the two-month period. 8 Based on her findings, the independent arbitrator concluded that dismissal was appropriate, stressing that theft of services is “a serious offense” and that Beatty’s ongoing misconduct would not have even been discovered here but for the phone call from the hospital social worker (R. 45). Beatty had not only “destroyed the trust” essential in the honor system, but also failed to take responsibility for her conduct, instead merely pledging to clean up her paperwork, blaming the student’s mother for poor decision-making, and refusing to recognize the harm her conduct caused to a vulnerable and physically disabled student (id.). The arbitrator specifically considered that Beatty had no prior discipline over her 17 years with DOE, was well-respected, and was herself affected by Hurricane Sandy, but found that these factors were outweighed by “her dishonesty, fraudulent conduct, and neglect of duty over an extended period of nearly two months” (R. 45-46). C. Beatty’s article 75 petition and the Appellate Division’s divided ruling remanding for redetermination of the penalty Beatty filed an article 75 petition in Supreme Court, New York County, seeking to vacate the arbitration award (R. 12-25). The Supreme Court (Chan, J.) dismissed the petition on DOE’s motion, finding that the penalty of termination did not shock one’s sense of fairness (R. 7-11). In a split 3-2 decision, this Court reversed Supreme Court’s dismissal of the petition and remanded for imposition of a lesser penalty, holding that the penalty of dismissal was shocking to one’s sense of fairness. Matter of Beatty v. City of New York, 148 A.D.3d 413, 413 (1st Dep’t 2017), lv. granted, 2017 Slip Op 74230(U) (May 18, 2017). Central to the majority’s reasoning was its view that the “extraordinary situation” of Hurricane Sandy mitigated the seriousness of her wrongdoing. Id. at 413, 415. The majority further downplayed the severity of Beatty’s misconduct by characterizing it as “a matter of lax bookkeeping than implementation of any venal scheme.” Id. at 414. The majority also emphasized that she had pledged to change her paperwork practices, that she had a long discipline-free record, and that she would have received the same salary regardless of how many students she instructed. Id. at 414-15. 9 A two-justice dissent, authored by Justice Andrias, would have upheld the penalty of dismissal. Id. at 416-19 (dissenting op.). Emphasizing that theft of services is a “serious offense,” the dissent underscored the arbitrator’s well-supported findings that Beatty’s wrongdoing was intentional, that she took no responsibility for her actions and continued to blame Student A’s mother, and that she failed to recognize the detrimental effect of her conduct on a disabled student. Id. at 418-19 (dissenting op.). The dissent also pointed out that Beatty had indeed benefitted from her misconduct, because she obtained more free time and avoided being assigned another student. Id. at 419 (dissenting op.). ARGUMENT A. The First Department has repeatedly departed from the established standard of review in teacher discipline cases. Far from being “shocking” to notions of fairness, the arbitrator’s decision reasonably explained why Beatty should be dismissed from employment, because she deprived a disabled student of all educational instruction for two full months, covered it up in reports to supervisors, and showed no meaningful regret about the matter even by the time of the disciplinary hearing. As noted above, this is one of several recent decisions of the First Department that openly second-guess an arbitrator’s decision as to teacher discipline, compromising DOE’s ability to ensure that its employees do their jobs and to discharge the department’s central obligation to effectively educate the City’s schoolchildren. This Court should direct a correction of course. This is not the first time that such clarification was needed. In Pell, this Court considered five separate Appellate Division decisions regarding the discipline of public employees, with the aim of articulating general principles that would eliminate intermediate courts’ inconsistency in review of administrative disciplinary determinations. There, the Court stressed that disciplinary sanctions may not lightly be set aside. Pell v. Bd. of Educ., 34 N.Y.2d 222, 235 (1974). 10 Pell emphasized that “the question is not whether [the court] might have imposed another or different penalty, but whether the agency charged with disciplinary responsibility reasonably acted within the scope of its powers.” Id. at 238. The sole criterion for vacating a penalty as excessive is whether it is “so disproportionate to the offenses as to be shocking to the court’s sense of fairness.” Pell, 34 N.Y.2d at 233; accord Lackow v. Dep’t of Educ., 51 A.D.3d 563, 569 (1st Dep’t 2008). The touchstone is whether the penalty is out of all proportion to the risk of harm to the agency or the public. Pell, 34 N.Y.2d at 234. As Pell made clear, judicial restraint is particularly needed when a public employee is disciplined for acts that call his or her ethics into question. Each of the five cases reviewed in Pell, like this one, involved an employee who had breached the employer’s trust; and, in each of the five cases, this Court reinstated or affirmed penalties of dismissal. Id. at 235-40. Pell instructs courts to consider the moral gravity of the offense; for example, “habitual lateness or carelessness” is not as serious as “larceny, bribery, sabotage, and the like,” even where the latter involve only small sums of money. Id. at 234-35. Pell further recognized that a prior good employment record cannot overcome “a violation of a trust and a breach of duty which, if condoned and imitated, could wreak havoc with the entire system.” Id. at 239 (emphasis added). Consistent with these precepts, this Court has routinely held dismissal to be an acceptable penalty where an employee breaches an employer’s trust or brings an employer into disrepute. Mapp v. Burnham, 8 N.Y.3d 999 (2007); Scahill v. Greece Cent. Sch. Dist., 2 N.Y.3d 754 (2004); Winters v. Bd. of Educ., 99 N.Y.2d 549, 550 (2002); Schaubman v. Blum, 49 N.Y.2d 375, 379 (1980); Pell, 34 N.Y.2d at 239. The reviewing court must also remain mindful that it is the public agency—not the courts—that must answer to the public regarding the integrity and efficiency of its operations. See Pell, 34 N.Y.2d at 235. This point applies with special force regarding public education—among the most crucial and highly charged of governmental functions. DOE has a vital public mission to educate the City’s schoolchildren. And teachers play perhaps the most pivotal role in carrying out this mission. They are not only charged with providing quality instruction, but also entrusted to foster the integrity of the school system and model proper 11 conduct for their students. See Ambach v. Norwalk, 441 U.S. 68, 78-79 (1979) (“a teacher serves as a role model … exerting a subtle but important influence over [students’] perceptions and values”). The “shocking to fairness” standard also appropriately reflects that the Legislature has enacted robust and detailed procedures for independent determination of disciplinary matters involving tenured teachers by labor arbitrators. This multi-tiered process was adopted with the support of the unions and features numerous protections, culminating in a trial-like hearing before an independent arbitrator. The extensiveness of these procedures presumes that courts will intervene only where the result of the arbitration is outside the broad range of acceptable disciplinary alternatives, and not merely because different decision-makers might consider the penalty to be too lenient or harsher than necessary. City School District of the City of New York v. McGraham, 17 N.Y.3d 917, 918-920 (2011). The First Department’s contrary approach skews the entire disciplinary process. While teachers commonly seek judicial review in those instances when independent arbitrators order dismissal, only a small fraction of teacher disciplinary arbitrations result in dismissal, and the vast majority of arbitral determinations are never seen by the courts. Yet the First Department has repeatedly departed from established principles of deference to annul arbitral determinations of dismissal when they occur. See, e.g., Matter of Bolt v. N.Y.C. Dep’t of Educ., 145 A.D.3d 450 (1st Dep’t 2016), lv. granted, 2017 NY Slip Op 69421 (Apr. 4, 2017); Williams v. City of New York, 142 A.D.3d 901 (1st Dep’t 2016), lv. granted, 2017 Slip Op 75382 (Jun. 1, 2017); Russo v. N.Y.C. Dep’t of Educ., 119 A.D.3d 416 (1st Dep’t 2014), rev’d 25 N.Y.3d 946 (2015); Matter of Brito v. Walcott, 115 A.D.3d 544 (1st Dep’t 2014); Matter of Mauro v. Walcott, 115 A.D.3d 547 (1st Dep’t 2014); Rubino v. City of N.Y., 106 A.D.3d 439 (1st Dep’t 2013); Matter of Riley v. City of N.Y., 84 A.D.3d 442 (1st Dep’t 2011). This decisional trend has stripped the “shocking to the conscience” standard of all meaning. The impact is real: arbitrators are not easily persuaded to dismiss a teacher, and the process is subverted when teachers regularly obtain de novo judicial review of a cold written record in the narrow band of cases where an arbitrator does order dismissal. 12 B. The arbitrator’s judgment of dismissal was not shocking to fairness here. Here, the record shows that Beatty’s serious misconduct persisted throughout a two-month period, ending only when it was brought to light by a hospital social worker. Her failings struck at the very core of the Home Instruction Program’s mission: she admitted that (1) she wholly deprived Student A, a seriously disabled student already several academic grade levels behind, of education for two months; and (2) she falsified her records over the period to indicate to supervisors that she did indeed provide that instruction (see R. 225, 229; see also R. 40). The arbitrator—who had the opportunity to observe witnesses and assess their comportment, tone, and demeanor—had ample basis to reject Beatty’s claim that the case reflected an inadvertent lapse, finding instead that her conduct was “intentional and designed to receive a benefit to which she was not entitled” (R. 44). As a result, deterrence objectives were centrally in play, since the Home Instruction Program, by its nature, must rely on an honor system, where teachers work in the field, without direct supervision, at multiple locations, day in and day out (R. 111, 124-125). A relationship of trust is thus especially key in the role of home instruction teacher. The facts of Pell offer a useful parallel. There, a teacher was dismissed from service after he “absented himself from his teaching duties [on seven occasions], thereby requiring replacements, falsely certified to being ill on those occasions, and was paid therefor.” 34 N.Y.2d at 236. The Court held that “[s]uch irresponsibility makes it impossible to conclude that the discipline imposed is shockingly disproportionate to the offense.” Id. (emphasis added). Here, Beatty missed far more teaching dates than the petitioner in Pell; her lack of communication with her supervisor prevented replacement instruction from being provided to the student; she falsely certified that she provided instruction on the missed dates; and she was paid for that instruction. Pell’s holding thus confirms that dismissal here was not “shockingly disproportionate” to Beatty’s misconduct. See also Montanez v. City of N.Y., 110 A.D.3d 487 (1st Dep’t 2013) (confirming dismissal where teacher submitted fraudulent affidavit to obtain educational benefit for her son). 13 The Appellate Division majority sought to recast Beatty’s misconduct as an “isolated instance of neglect,” despite the arbitrator’s express finding of deliberate and sustained misconduct. Beatty, 148 A.D.3d at 415. The court’s reasoning is flawed on all fronts. This Court should first reject the majority’s characterization of Beatty’s misconduct as “more a matter of lax bookkeeping than implementation of any venal scheme.” Id. at 414. The arbitrator expressly found to the contrary, and that finding is well supported: Beatty’s logs themselves refute her story that she mindlessly filled out her paperwork, instead presenting a picture of deliberate deception over an extended timeframe. Beatty did not fill out her paperwork the same way throughout the period; rather, she varied the paperwork. Her logs for November indicated that she provided services to Student A every day, Monday through Friday, throughout the month, with the exception of one day noted for the storm, one for staff development, and two days for the Thanksgiving holiday (see R. 349-353). Her logs for December differed, purporting to show absences by Student A on ten specific days, and provision of services to the student on other days (R. 42-43; see R. 345-347). The logs for December also varied the locations where Beatty purportedly spent her time on the days that she marked Student A absent (R. 345-347). Based on Beatty’s carefully doctored logs and the other evidence submitted at the hearing, the arbitrator had ample basis to find that Beatty’s own testimony that she filled out her logs “flat”—or in advance—pointed to a finding of deliberate falsification (R. 44; see also R. 225). In advance, Beatty would have had no basis for varying her log entries week over week and day over day, no basis for claiming absences by Student A on some days and indicating services were provided on others, and no basis for claiming to visit one school on some days that the student was absent and another school on other days. Having seen and heard the witnesses—and, in particular, having heard Beatty’s testimony and observed her demeanor—the arbitrator was in a far superior position to judge how calculated Beatty’s misconduct was and to decide the appropriate penalty accordingly. See McGraham, 17 N.Y.3d at 920; see also Altsheler v. Bd. of Educ., 62 N.Y.2d 656, 657 (1984) (“The Appellate Division erred when it substituted its judgment for that of the panel in assessing the weight to be accorded to the 14 various witnesses’ testimony”). The majority also erred in accepting Beatty’s excuse that supervisors had provided teachers with no guidance or information as to the instruction of students displaced by Hurricane Sandy, other than that displaced students should not be penalized for hurricane-related absences. Id. at 413. The court had no basis to ignore the arbitrator’s finding that this excuse was not credible. In fact, the court missed an important element of the record that the arbitrator did not: Beatty’s excuse, by its terms, did not make sense as an account of her own supposed understanding at the time of her misconduct, since she herself marked Student A with ten unexcused absences—falsely—in December 2012 (R. 42-43). As the arbitrator further pointed out, Beatty’s excuse also surely could not explain her failure to provide instruction for “the entire month of December,” after the student’s family had returned to their home (R. 41-42). And the arbitrator credited the testimony of Student A’s mother that Beatty told the mother—again falsely—that her supervisor had directed her not to provide instruction to the student (R. 40-41). Nor did the majority acknowledge that DOE had also repeatedly stressed to Beatty and other home-instruction teachers the importance of keeping supervisors informed of their whereabouts and any changes in their schedule, as well as the crucial need to maintain accurate records. Indeed, other home-instruction teachers understood that this rule did not change with Hurricane Sandy. For example, Naomi Lucas, whom Beatty herself called as a witness, testified that she made sure to keep Raydar informed about circumstances and ensured that all her students continued to receive services, even those who had relocated to another state (R. 217, 218, 221). And even if Beatty had been confused about how to account for the circumstances of the storm, she should have discussed it with Raydar. Instead, she never mentioned it to him, while Student A went without any education for months, and while her logs continued to report business as usual, including marking absences on some days and reflecting that instruction was provided on others, even though the truth was that Student A went unseen and untaught day in and day out. The purported lack of guidance from her supervisors could not 15 justify Beatty’s failure to take any steps for such an extended period of time, let alone her calculated cover-up of the true state of affairs. Instead, as the arbitrator reasonably found: “At best, [a direction not to penalize students] could be interpreted as a temporary instruction to deviate from the normal practices regarding absences in the immediate aftermath of the hurricane” (R. 41). No more sound is the majority’s assertion that Beatty derived no benefit from her misconduct because she would have received the same salary regardless. Beatty, 148 A.D.3d at 414. To the contrary, as the dissent pointed out, Beatty gained more free time and avoided being assigned another student. Id. at 419 (dissenting op.). Indeed, she seemingly enjoyed a later start to her work day, since Student A was the first student on her daily schedule (R. 345-47, 349-53). The majority also mistakenly downplayed the harm to the public and to DOE. Id. at 414. Beatty’s deception deprived Student A of educational services that he needed and was entitled to. As a consequence of Beatty’s misconduct, that student “became depressed” from the lack of instruction and fell “way behind,” according to the mother’s testimony (R. 160). And beyond the direct harm to Student A, Beatty’s misconduct also undermined the overall credibility and integrity of the Home Instruction program. The majority also gave short shrift to DOE’s need to deter others who might consider similar misconduct. The majority asserted that deterrence was not an issue here, because it was highly unlikely that the extraordinary situation presented in this case would recur. Beatty, 148 A.D.3d at 415-16. But the court’s premise again ignores that the arbitrator rejected the notion that Hurricane Sandy was a credible excuse for Beatty’s conduct. This case is really about a teacher exploiting an unfortunate circumstance as a cover for (1) not providing education to a student for two full months (and counting at the time the conduct came to light); and (2) lying about it to her supervisors (as well as the student’s mother). The majority also failed to appreciate that, even if the particular hurricane-related circumstances were never to repeat themselves (itself not guaranteed), Beatty and others might face other trying situations in 16 their careers. Because the honor system is so crucial to the Home Instruction Program, it is essential for DOE to deter home-instruction teachers from engaging in fraudulent and grossly irresponsible misconduct and expunge any perception that it may be acceptable under some circumstances. The majority additionally erred in concluding that Beatty’s prior discipline-free record outweighed her wrongdoing. Id. at 414-15. The arbitrator expressly considered Beatty’s record and reasonably determined that, to the contrary, her intentional misconduct over a two- month period outweighed her past record (see R. 45-46), particularly since she had expressed no regret, even for the fact that Student A had been deprived of educational instruction. See Cipollaro v. New York City Dept. of Educ., 83 A.D.3d 543, 544 (1st Dep’t 2011) (penalty of dismissal did not shock conscience given petitioner’s lack of remorse and failure to take responsibility for her actions, “even if there was an otherwise adequate performance record”). As this Court recognized in Pell, where the penalty is “within the permissible scope of the disciplining agency,” courts must accord “greater weight or recognition” to the “nature of the misconduct charge” than to “prior good records of service.” Id. at 239. Thus, the arbitrator’s determination that Beatty’s prior record did not immunize her from dismissal fully accords with Pell, given that her intentional misconduct constituted a serious breach of her responsibilities and impaired DOE’s core public mission. See 34 N.Y.2d at 235. Although the majority insisted that Beatty has pledged to change her practices and never to repeat the error, the record reveals that, at most, she has promised to be less sloppy with her paperwork (R. 186)—a pledge the arbitrator reasonably found to drastically minimize her misconduct. The majority also failed to consider the burden and difficulty of monitoring employees who have so ruptured their employers’ trust, particularly when they do not acknowledge having done it. These points aside, the First Department’s most basic mistake was treating the “shocking to fairness” standard as an empty slogan. The disciplinary arbitration is intended to be the “main event,” rather than a “tryout on the road” to a later lawsuit. Anderson v Bessemer City, 470 U.S. 564, 575 (1985); Wainwright v. Sykes, 433 U.S. 72, 90 (1977). If that means anything, it means that courts should not vacate penalties merely because they might have done it differently. Instead, such relief is proper only where the arbitrator’s chosen penalty lies distinctly outside the range of fair judgment. Here it plainly does not. C. Conclusion This Court should permit full briefing and argument in this case. If the Court grants this request, DOE asks that the Court coordinate the briefing and oral argument among this appeal and the Bolt and Williams appeals currently pending in this Court (see supra, at pp. 1-2). • In the alternative, this Court should reverse the Appellate Division’s decision and order and dismiss the petition. Respectfully submitted, IfeflH 0u»\ Kathy Chang Park Assistant Corporation Counsel Richard Dearing of Counsel cc: Bryan Glass, Esq. Counsel for Petitioner-Respondent Amira Beatty 100 Church Street, 8th Floor New York, NY 10007 17 CERTIFICATION OF COMPLIANCE I hereby certify that this letter brief was prepared using Microsoft Word 2010, and according to that software, it contains 5,978 words in the body of the submission. fafy QianilotfK/frJ *J\athy whang Park 18