In the Matter of Terrell Williams, Respondent,v.City of New York, et al., Appellants.BriefN.Y.Jan 3, 20181 GLASS KRAKOWER LLP ATTORNEYS AND COUNSELORS AT LAW A Limited Liability Partnership 100 CHURCH STREET, 8TH FLOOR, SUITE 800 NEW YORK, NY 10007 212-537-6859 FAX NO. 845-510-2219 Bryan D. Glass E-mail: firstname.lastname@example.org Partner September 25, 2017 Via hand delivery Hon. John P. Asiello Chief Clerk and Legal Counsel to the Court New York State Court of Appeals 20 Eagle Street Albany, NY 12207-1095 Re: Terrell Williams v. City of New York, et al., APL-2017-00107 Dear Mr. Asiello: This firm represents Petitioner-Respondent Terrell Williams, a dedicated tenured teacher with thirteen (13) years of seniority with no prior discipline. Hearing Officer Lisa Brogan originally terminated Mr. Williams’ employment after a Section 3020-a tenured teacher hearing under the New York State Education Law. Hearing Officer Brogan’s first decision which terminated Mr. Williams was held “shocking” by the Appellate Division, First Department, and is the subject of this appeal. Upon remand on penalty from the Appellate Division, despite Mr. Williams’ objection that the case be transferred to another hearing officer for assignment of a lesser penalty, the NYCDOE and Mr. Williams’ union insisted the case must be assigned back to Hearing Officer Brogan. Unsurprisingly, despite multiple requests for her to recuse herself, Hearing Officer Brogan maintained jurisdiction and then imposed a three year and six-month suspension without pay against Mr. Williams upon her remand decision, which is equally shocking. Indeed, we are not aware of a single case which imposed that length of discipline short of termination. Therefore, both of the Hearing Officer’s decisions are discussed together in this submission. Whether reviewed together or individually, these decisions establish that they were based upon the Hearing Officer’s own personal opinion of morality and not upon law. Under Pell v. Board of Education, 34 N.Y.2d 22 (1974), Hearing Officer Brogan’s decision is excessive and was properly vacated by the Appellate Division, First Department. I. THIS CASE SHOULD BE FULLY BRIEFED AND ORALLY ARGUED. We disagree with many of the hyper-exaggerated statements in the Department’s August 14, 2017 submission. We agree, however, that this case warrants full briefing and oral argument to do proper justice to understanding the nuances of this UFT-DOE hearing panel in New York City and the actual reality of the facts of these individual cases. While leave to appeal has been 2 granted in Beatty v. City of New York, APL-2017-00123 and Bolt v. Department of Education, APL-2017-00068, as well as this case, each of these cases involve different parties and different factual patterns. Ms. Bolt is represented by a different law firm than this firm, which represents both Mr. Williams and Ms. Beatty. More fundamentally, each of these cases involves unique facts. The legal issue common in each case concerns the penalty imposed by the Education Law § 3020-a Hearing Officer (and they are called hearing officers under the statute and not independent labor arbitrators). Under Pell v. Board of Education, the determination of whether a penalty is shocking to the conscience is by its very nature subjective. Therefore, each of these cases needs to be fully examined on its own merits. II. THE REALITY OF TEACHER DISCIPLINE CASES DEMANDS JUDICIAL REVIEW. In Section 3020-a proceedings conducted by hearing officers in cases from school districts outside New York City, those hearing officers are mutually selected from an American Arbitration Association list by the school district and the tenured teacher and his/her individual attorney. In New York City, the decisions at issue here in each of these three cases come from hearing officers appointed on a lucrative panel by the NYCDOE and UFT. The individual teacher has absolutely no input on the selection of the hearing officer. These hearing officers are appointed on an annual renewal basis and are guaranteed at least five days per month of hearings on a per diem basis paying over $1,000 per hearing day. This can incentivize their interest to please the institutional interests that appoint and reappoint them. Notably, the NYCDOE is headquartered in the geographic area covering the First Department. Accordingly, the First Department justices often review Section 3020-a hearing officer decisions. Therefore, the First Department has extensive experience in reviewing teacher discipline penalties. The reversals coming from the appellate court in the last few years regarding these hearing officer decisions are not due to a “disturbing trend” by the courts regarding revisiting the shocking the conscience standard, but more likely a recognition that the hearing officers on the UFT-DOE disciplinary panel (not independent labor arbitrators) are subject to economic and political pressures that can affect the fairness of their decision-making regarding proper imposition of penalties. On the other hand, the NYCDOE has shown no reluctance recently to challenge decisions from hearing officers it finds too lenient and to eject hearing officers from its lucrative panel who do not terminate enough teachers. It is interesting that the NYCDOE asserts without any support whatsoever in its brief that the vast majority of tenured teachers do not get terminated in this NYC 3020-a hearing process; in fact, anecdotal experience indicates that the number of teachers charged as well as the number of teacher terminations ordered by hearing officers since 2003 (when this new rotational panel system was implemented) has increased exponentially.1 1 1 The three teachers presently under review are all racial minorities, who were terminated by Caucasian hearing officers. All involve issues of credibility based on their “lack of remorse” which led to their terminations. In Riley v. NYCDOE , 84 AD3d 442 (1st Dep’t 2011), and Guzman v. NYCDOE, 110 A.D. 3d 581 (1st Dep’t 2013), affirming, 2012 N.Y. Slip Op. 30512(U) (N.Y. Co. 2013), cases involving appellate vacatur of 3020-a terminations, these minority teachers were terminated by Caucasian hearing officers also based on credibility issues. In those cases, the First Department vacated their terminations as shocking to the conscience. The NYCDOE did not appeal 3 Indeed, the five justice panels reviewing the penalties are far more “independent” and diverse than the hearing officers appointed to the NYCDOE-UFT disciplinary panel, who often have little or no experience or exposure with the realities of public education in New York City. If anything, this provides justification to provide for a level of measured deference to the Appellate Division’s decisions, whose members are primarily elected justices from the Bronx and Manhattan. The NYCDOE’s allegation that these cases represent some type of disturbing pattern from the First Department is entirely conclusory. In fact, most of the First Department decisions still clearly uphold hearing officer decisions and their penalties in the vast majority of cases. The fact that a few outliers have been reversed as disproportionate by balanced and truly independent judicial panels does not provide a basis to disturb a longstanding and workable system of review for these cases. III. THE APPELLATE DIVISION APPLIED THE PROPER STANDARD OF REVIEW OF THE PENALTY IN THIS MANDATORY ARBITRATION CASE. In Pell, 34 N.Y.2d at 234-35, 241, this Court described what has become known as the “shocking to the Court’s conscience” standard as follows: Of course, terminology like “shocking to one’s sense of fairness” reflects a purely subjective response to the situation presented and is hardly satisfactory. Yet its usage has persisted for many years and through many cases. Obviously, such language reflects difficulty in articulating an objective standard. But, this is not unusual in the common-law process until, by the impact of sufficient instances, a more analytical and articulated standard evolves. The process must in any event be evolutionary. At this time, it may be ventured 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. There is also the element that the sanctions reflect the standards of society to be applied to the offense involved. Thus, for a single illustrative contrast, habitual lateness or carelessness, resulting in substantial monetary loss, by a lesser employee, will not be as seriously treated as an offense as morally grave as larceny, bribery, sabotage, and the like, although small sums of money may be involved….Consideration of length of employment of the employee, the probability that a dismissal may leave the employee without any alternative livelihood, his loss of retirement benefits, and the effect upon his innocent family, all play a role, but only in cases where there is those decisions to the Court of Appeals, and both of these teachers are presently working again with the NYCDOE without further incident since their return to the system. 4 absent grave moral turpitude and grave injury to the agency involved or to the public weal…. Thus, in adopting the “shocking the conscience” standard, Pell itself recognized that public employees are human and make errors. Pell also recognized that this standard evolves and is subjective. Stated another way, Pell recognized that hearing officers are not perfect and there will be times when their decisions will be vacated. The NYCDOE seeks to mask this fact by referring to Hearing Officer Lisa Brogan as an “independent arbitrator”, when in fact she was merely recommended by colleagues to serve as a hearing officer on a lucrative disciplinary panel chosen by UFT and DOE legal officials, who choose to assign cases to her at their discretion without any input from the individual pedagogue being charged. Case law decided under Education Law § 3020-a recognizes that in compulsory disciplinary cases, such as this one, where the teacher is given no choice other than to participate, judicial review of hearing officer decisions is more exacting than ordinary Article 75 review. See Peterson v. Katonah-Lewisboro Union Free School Dist., 134 A.D. 3d 1125 (2d Dep’t 2016) (noting stricter standard of review of Education Law § 3020-a decisions); Lackow v. Department of Education, 51 A.D. 3d 563 (1st Dep’t. 2008) (same), citing Motor Veh. Acc. Indem. Corp. v. Aetna Cas. & Sur. Co., 89 N.Y. 2d 214 (1996). Similarly, this Court held in City School District v. McGraham, 17 N.Y.3d 918 (2011), that although Education Law § 3020-a limits judicial review to grounds set forth in CPLR 7511, in compulsory disciplinary cases an award must satisfy an additional layer of judicial scrutiny. In sum, this Court has recognized that judicial review of disciplinary penalties entails an unavoidable element of subjective judicial discretion. That discretion is entirely appropriate under the enhanced review available in Article 75 cases involving mandatory arbitration. IV. TERMINATION WAS NOT PROPORTIONATE TO THE MISCONDUCT IN THIS CASE. Any discussion of “shocking the judicial conscience” and proportionality must begin with an analysis of the misconduct. That misconduct then must be examined and compared with existing case law, particularly recent case law involving teachers because as stated in Pell, the standard can evolve over time. Hearing Officer Lisa Brogan failed to do this. When the salacious nature and puritanical sensibilities are removed and the misconduct here is reviewed objectively, this is a garden variety misconduct case involving limited verbal abuse. Significantly, no sexual abuse of students occurred or was alleged; no physical contact between the teacher and the students occurred or was alleged; Mr. Williams never even met or spoke to the student’s relatives he was “supposedly” interested in; no sister “of interest” came in to testify at the 3020-a hearing; and Mr. Williams committed no crime or violation of any Department policy. No texts or photos on anyone’s phone were presented at the hearings, despite the Department’s self-serving recharacterization of the facts. What Mr. Williams did have was thirteen years of exemplary service and no prior discipline or even prior allegations of this sort. He also received unemployment benefits without a challenge from the NYCDOE, indicating that Mr. Williams did not commit misconduct as a violation of any known policy of the NYCDOE. 5 Nonetheless, Hearing Officer Lisa Brogan made her own judgment that Mr. Williams crossed her own personal sense of student-teacher boundaries (See Amended Decision at dated Feb. 16, 2017 at n. 8) (Decision dated Oct. 29, 2013 at 22). She summarized the misconduct as repeated inappropriate conversations with female students, asking two students if they had older sisters, how old they were and, in one case, if she had a boyfriend, having received and accepted from a student the phone number of her older sister, stated in sum and substance he wanted to meet the student’s older sister (it was conceded at trial no such contact took place with the sister, neither the sister nor mother testified, no photos or texts were presented, and Mr. Williams is a devoted family man with young children), repeatedly asked for photographs of their older sisters and told a student words to the effect that the student’s mother called him handsome. (Amended Decision at 2-3). What she failed to appreciate is any of the context of these conversations among middle school adolescents in an inner city school. Of significance, in her amended decision on remand, Hearing Officer Brogan does not state how many “repeated conversations” took place, how many students were involved and whether these allegations duplicated the other allegations. The Hearing Officer’s underlying October 29, 2013 decision suffers from the same infirmity in that she does not separately analyze these factual issues in discussing the appropriate penalty to impose. While the Department spends much time on presenting its own hyberbolic view of the facts, we recognize that the record below speaks for itself and is the actual record that the Appellate Division below examined. Suffice it to say that Mr. Williams denied the misconduct and he presented several adult eyewitness teachers who supported him. See Hearing Officer Decision dated Oct. 29, 2013 at 14-17. Unfortunately, Hearing Officer Brogan did not credit this evidence and, in fact, penalized Mr. Williams’ denials of misconduct even further by using it against him to conclude that he did not recognize the seriousness of the misconduct and imposing the harshest sanction feasible. In Riley v. NYCDOE, supra, the Court recognized the problem with this approach, essentially recognizing the double penalty imposed if a teacher denies misconduct and the hearing officer concludes otherwise and characterizes the denial as a lack of remorse, and then issues the ultimate sanction based on that denial. Of important significance is the fact that other than Pell, supra and perhaps City School District v. McGraham, 17 N.Y.3d 917 (2011) (cleverly cited by the Department for a different proposition of law), a controlling case cited herein, the Department did not cite in their Letter Brief any authority to support its argument that termination was appropriate or that the Appellate Division erred by finding that penalty shocking. This, of course, is contrary to the teaching of Pell, which as discussed above, mandates an examination of other cases when examining proportionality. Of even more significance is that in neither of Hearing Officer Lisa Brogan’s two decisions did she examine any case law concerning the appropriate penalty. Instead, she applied her own sense of morality and characterized Mr. Williams’ behavior as a “disturbing understatement”, “unconscionable” and “miles beyond any appropriate boundary.” (Decision dated Oct. 29, 2013 at 22). Indeed, in her amended decision on remand, she was so bold as to criticize the appellate decision below in concluding that no rule or policy was violated. (Amended Decision at 7). Basing a decision on one’s own sense of morality, 6 of course, is exactly what a hearing officer is not supposed to do. This is an independent basis supporting vacatur of the termination. Additionally, Hearing Officer Brogan’s decision violates the principles of Santer v. Board of Education, 23 N.Y.3d 251 (2014) (as well as Pell, supra) because she did not examine or discuss any other precedents regarding penalty in imposing termination and her decision contained no discussion of proportionality other than her own views of morality. As this Court stated in Santer, “Where, as here parties are subject to compulsory arbitration, the award must satisfy an additional layer of judicial scrutiny- it must have evidentiary support and cannot be arbitrary and capricious.” Id. at 251. The Court should consider City School District of New York v. McGraham, supra. Like Mr. Williams, Ms. McGraham was found to have crossed teacher-student boundaries. Significantly, however, by any measure Ms. McGraham’s misconduct was much more severe than anything Mr. Williams was alleged to have done. Yet, this Court recognized that Ms. McGraham should not be fired. In McGraham, a teacher communicated electronically directly with a student outside of school hours and sometimes late at night. They discussed personal matters and the teacher tried to discuss the nature of their relationship which was potentially romantic. Thus, McGraham went way over any line that Mr. Williams may have crossed because at worst Mr. Williams was found to be interested in adults whom he never interacted with. In McGraham, as in this case, there was no physical contact, no physical relationship, none of the communications were sexual, and she and the student never met outside of school grounds. The hearing officer found McGraham guilty of conduct unbecoming her profession and imposed a 90-day suspension without pay as well as reassignment to a different school. While it is true that McGraham was remorseful, it would not be reasonable to distinguish that case on this basis because Mr. Williams denied the misconduct and, by definition, he could not be remorseful. In McGraham, the Department argued that the penalty violated “public policy”, but the Court concluded that while public policy protected students, the penalty imposed did not violate any public policy. Though not discussed directly by this Court, the Appellate Division decision in McGraham, which was affirmed by this Court, also concluded that “the award in this case recognizes the seriousness of the allegations and imposes a penalty which we do not think is disproportionate to the charges… Moreover, we find the penalty imposed upon her not to be so lenient to have been arbitrary or capricious.” The Appellate Division also cited decisions involving shocking the conscience Pell standard. 5 A.D. 3d 445 (1st Dep’t. 2010). It is hard to figure the 3 ½ year unpaid suspension presently in place now against Mr. Williams is not sufficiently punitive to make him realize a need to comply with teacher-student boundaries. Significantly, even where a teacher was found guilty of engaging in sexually charged banter directly with a student, the Appellate Division, relying upon McGraham, upheld a suspension for one half of a school year in another appellate teacher case. Matter of Board of Education v. Ostrin, 120 A.D. 3d 1105 (1st Dep’t 2014), affirming, 2012 N.Y. Misc. Lexis 1355 (N.Y. Co. 2012). Mr. Ostrin, unlike Mr. Williams here, had a prior history of discipline. 7 The lower Court decision in Ostrin, which was affirmed on appeal, did not find the penalty “shocking” because “the ultimate penalty of dismissal is reserved for those situations involving the most egregious conduct, when no measure of alternative deterrence would be effective.” While the Court recognized the important role that teachers play as role models, it held that the misconduct cannot be viewed in a vacuum and that McGraham requires Courts to evaluate “the proportionality between a teacher’s offensive conduct and the penalty.” Id. There is additional case law that supports the Appellate Division decision in this case, including a decision which was affirmed by this Court, Principe v. Department of Education, 4 A.D. 3d 431 (1st Dep’t), affirmed, 20 N.Y. 3d 963 (2012). Though that decision did not involve teacher-student moral boundaries, it did involve teacher-student physical boundaries because the termination of a teacher found guilty of imposing multiple acts of excessive physical force on students was vacated under Pell as shocking because of the teacher’s length of service and performance. In Asch v. Board of Education, 104 A.D. 3d 415 (1st Dep’t 2013), the Appellate Division upheld a 6-month suspension without pay for an admitted gay male librarian who crossed teacher- student boundaries repeatedly by touching male students by rubbing their backs, shoulders and spines and by stroking a student’s hair. The Hearing Officer found that sexual misconduct was not involved and that given the petitioner’s long record of employment and lack of any prior discipline, this inappropriate behavior would likely not be repeated. Of significance is that the Appellate Division cited to Pell and concluded that the penalty was not shocking to one’s sense of fairness. Nothing in the record here could possibly support any claim that Mr. Williams will repeat the behavior which led to this case. In Polayes v. City of New York, 118 A.D.3d 425 (1st Dep’t 2014), a decision was vacated on the merits because a teacher who discussed “party schools” with students was found not to have crossed any teacher-student boundaries because, as here, there was no specific rule that classified any such statements as misconduct. In that case, the penalty was rescinded altogether because there was no clear violation of any specific policy, which is similar to the facts here. In Nreu v. Department of Education, 25 Misc.3d 1209 (Sup. Ct. N.Y. Co. 2009), the Court concluded that a one year suspension without pay was not “shocking to the conscience” with respect to a teacher who crossed student-teacher boundaries by making 39 phone calls to a student, by leaving a voice mail message on a student’s phone which stated that the student was special, that the teacher missed her and that he would like to adopt her, sent eight text messages, including one at 4:12 a.m., a text message stating that the teacher thinks about the student every day and appeared at her place of employment and stared at her. While this penalty is severe, it is almost a quarter less than that imposed by Hearing Officer Brogan even after remand, and this conduct is much more inappropriate and tangible than any alleged misconduct by Mr. Williams. See also Groton Central School Dist. v. Davis, 975 N.Y.S. 2d 709 (Sup. Ct. Tompkins Co. 2013) (two- month suspension for male teacher who on numerous occasions touched female students, inappropriately addressed them as “honey” or “babe,” told a student that she was beautiful or sexy which lead to inappropriate discussion about condoms not shockingly lenient). 8 Directly related to teacher-student boundary cases, such as the one at bar, are decisions involving moral turpitude because in those cases, the teacher also crossed boundaries involving morality. As noted above, Hearing Officer Lisa Brogan based her entire decision on her personal views of morality. In Mauro v. Walcott, 115 A.D. 3d 547 (1st Dep’t 2014), for example, two teachers were observed partially undressed in an upstairs classroom and appeared to have been engaging in sexually inappropriate behavior. This action caused the Board of Education widespread negative publicity and the Education Law § 3020-a hearing officer fired her. The First Department vacated the penalty of termination as shocking under Pell, supra. The Court relied upon the teacher’s excellent record and the fact that no criminal conduct was involved. Significantly, the Court cited to both McGraham, Asch and Nreu because “lesser penalties have been imposed where a teacher had an ongoing relationship with or engaged inappropriate behavior with a student.” See also Brito v. Walcott, 115 A.D. 3d 544 (1st Dep’t 2014) (same, in a companion case involving the “other” teacher). While we recognize that the teacher in McGraham acknowledged her misconduct, both Mauro and Brito denied that they committed the acts in question and therefore, like Mr. Williams, could not express remorse. Indeed, in Rubino v. City of New York, 6 A.D.3d 439 (1st Dep’t 2013), a teacher’s termination was vacated under Pell’s shocking to the conscience standard. Rubino, who initially denied the charges, posted vulgar comments about her students on her Facebook page by stating that she hated her students and implied that one of them should die by floating away after it was reported that another NYC student had fatally drowned during a field trip to the beach. In Matter of Board of Education v. Campbell, 2010 N.Y. Misc. LEXIS 2067 (N.Y. Co. 2010), a teacher was found guilty of downloading pornographic photographs in school and on a school computer in violation of the Board of Education’s internet use policy. Considering his fifteen years of service and unblemished record, the hearing officer imposed a suspension for the rest of the school year or 90 days, whichever was longer. The Court specifically held that given these facts, the penalty was “not shockingly lenient” and did not violate public policy, an issue that has not even been raised here. See also Simons-Koppel v. N.Y.C. Dep’t. of Education, 920 N.Y.S. 2d 244 (N.Y. Co. 2010) (upholding one- year suspension without pay for teacher found guilty of multiple acts of misconduct including commenting on revealing nature of a female student’s clothes, mentioning strip clubs in class, corporal punishment and taking pictures of students). Moreover, even teachers who have committed serious felonies have remained employed. See, e.g., Ellis v. Ambach, 124 A.D 2d 854 (3d Dep’t. 1986), lv. denied, 69 N.Y. 2d 606 (1987) (two-year suspension upheld for driver education teacher who had been convicted of criminally negligent homicide in connection with a hit-and-run accident that had been widely reported in the press). Perhaps most importantly, Hearing Officer Lisa Brogan was biased against Mr. Williams. She refused to recuse herself on remand simply because she was reassigned to this case. There is no rule as to how or why this case necessarily had to be and was in fact sent back to her. Nothing in the Appellate Division decision directed that the case be returned to her. The fact that Hearing Officer Brogan interjected her own personal values about morality without any citations to case law or other administrative Education Law § 3020-a decisions provides support for the fact that her decision is “shocking” and should not have been sent back to her. 9 Further support to vacate the award under Pell is the fact that Hearing Officer Lisa Brogan did not discuss the grave impact termination would have on Mr. Williams and his innocent family. Pell teaches us that a hearing officer must at least consider these factors before imposing the capital punishment of work. This fact is particularly significant because in her decisions, Hearing Officer Brogan, in considering the degree of misconduct, stated that Mr. Williams was a married man with children. This Hearing Officer did not consider the effect of termination of a gym teacher on him and his innocent family as she set out to terminate him. As noted above, this Hearing Officer also brazenly criticized the First Department decision that reversed her initial decision. We note that the Department of Education cited several cases in its brief to the Appellate Division where the First Department upheld termination. (Department Appellate Brief at 22). The Court below considered these cases and this belies any claim that the First Department consistently errs in its application of Pell. If anything, the cases cited by the Department demonstrate that Hearing Officer Brogan’s decision was shocking because the conduct in each of the Department’s cited cases was much more severe. See Matter of Villada v. City of New York, 126 A.D 3d 598 (1st Dep’t 2015), affirming, 2013 N.Y. Slip Op, 3289(U) (N.Y. Co. 2013) (teacher found guilty of multiple acts of sexual harassment including forcibly tongue kissing a colleague); Matter of Douglas v. N.Y.C. Board of Education, 87 A.D. 3d 856 (1st Dep’t 2011) (teacher found guilty of asking student about her boyfriend, stating that the student was sexy and he wanted to touch the student’s breasts and teacher touched his genitals in front of the student); Matter of Chaplin v. N.Y.C. Dep’t. of Education, 48 A.D. 3d 226 (1st Dep’t 2008), discusses virtual no facts, but it does appear that case involved criminal conduct; see also Matter of Aljeleye v. N.Y.C. Dep’t. of Education, 112 A.D.3d 425 (1st Dep’t 2013) (also discussing virtually no facts other than stating conduct unbecoming a teacher and verbal abuse were involved). In fact, her analysis does not even recognize that public policy favors the retention of tenured teachers who have a proven teaching record. See, e.g., Principe v. New York City Dep't of Education, 94 A.D.3d 431 (1st Dep't. 2012), affirmed, 20 N.Y.3d 963 (2013). V. MR. WILLIAMS DESERVES A SECOND CHANCE. The Department of Education seeks to put Mr. Williams on a high pedestal as a role model. However, just about every public employee who deals with the public or with children is a role model because any agency is concerned with their public perception. Indeed, every responsible employer, even private sector employers, wants to portray a positive public image. Discharge is a draconian penalty and would constitute a travesty of justice. It will destroy Mr. Williams’ ability to earn a living. It will destroy his family. It will not benefit the Department or the students he questioned or the relatives of students he never even met. Indeed, the disciplinary process is confidential, and there is no indication that the Department has ever or will ever communicate decisions to students or their parents. Neither the Department nor the Hearing Officer factored in these facts in examining the appropriate level of discipline despite this Court’s admonition in Pell which at least mandates its consideration. 10 Teachers who have done far worse have not been terminated and have been given a second chance by this Court as well as several others. The case law cited herein is overwhelming, and it is not for this Court to radically disturb. Such a radical change in the process is for state legislators, not the Courts. Therefore, it is apparent that the decision of Hearing Officer Lisa Brogan which terminated Mr. Williams without any case law analysis is simply a product of her own views of morality is shocking to the conscience. VI. CONCLUSION This Court should permit full briefing and oral argument in this case. We have no objection to the Department’s request that the Court coordinate the briefing and oral argument with the other Education Law § 3020-a appeals that are before this Court. In any event, it is submitted that this Court should affirm the well-reasoned decision of the First Department in a fully-reported decision. Respectfully submitted, By: ______s/_____________ Bryan D. Glass, Esq. Glass Krakower, LLP 100 Church Street, 8th Floor, Suite 800 New York, NY 10007 212-537-6859 email@example.com c: Kathy Chang Park, Assistant Corporation Counsel Attorney for Respondent-Appellant 11 CERTIFICATION OF COMPLIANCE I hereby certify that this letter brief was prepared using Microsoft Word, and according to that software, it contains 5,134 words. ______s/_______________ Bryan D. Glass, Esq.