In the Matter of Terrell Williams, Respondent,v.City of New York, et al., Appellants.BriefN.Y.January 3, 2018 October 11, 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: Williams v. City of New York, et al., APL-2017-00107 Dear Mr. Asiello: Pursuant to 500.11(e) of this Court’s rules, we respectfully request the Court’s permission to submit this reply, because we believe that it will be helpful to the Court in deciding the important issues presented in this appeal. We also renew our request, now joined by petitioner- respondent, that this appeal be heard with full briefing and argument (see Resp. Ltr. Br. at 1). PRELIMINARY STATEMENT DOE established in its opening letter that the petitioner Terrell Williams’s dismissal from employment as a public schoolteacher was not disproportionately shocking to his misconduct, based upon the arbitrator’s findings that he had a pattern of asking eighth-grade female students whether they had any cute sisters or older relatives, what they looked like, and if he could have their telephone numbers. After gauging his demeanor and considering his testimony, the 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 arbitrator reasonably remained unconvinced that, moving forward, Williams would refrain from continuing to violate appropriate boundaries with his students. In response, Williams urges this Court to adopt de novo review of arbitrators’ decisions regarding penalty in teacher discipline cases. But as DOE has already explained, that would contravene settled precedent as well as sound policy, both of which confirm that an arbitrator’s determination on penalty may be overridden only when it is “shocking to one’s sense of fairness.” Applying the appropriate standard, there is no basis for overturning the arbitrator’s sound judgment that dismissal was the appropriate penalty. Although Williams claims that he deserves a second chance, the arbitrator reasonably found that he gave no reason to think he would change if given that chance: he expressed no regret for his pattern of conduct or its consequences; tried to shift blame to his young students; denied seeing himself as a role model to students; and said the only changes he would make would be to eliminate down time in class and document his interactions with students to protect himself. Williams’s present insistence that his wrongdoing could have been much worse is cold comfort to parents who rightly expect teachers to adhere to appropriate boundaries and provide a safe and secure learning environment for their children. On these facts, the First Department erred in vacating the arbitrator’s chosen penalty of dismissal. ARGUMENT A. This Court lacks jurisdiction to review Williams’s challenges to the second arbitration award. As a threshold matter, this Court should not consider Williams’s challenge to the excessiveness of the second arbitration award, because it is outside the scope of this appeal. Because this is an appeal from the final arbitration award following a remand by the Appellate Division, the Court’s review is limited to the prior non-final First Department order. CPLR 5602(a)(1)(ii); see David Siegel, N.Y. Practice, §§ 527 and 528 (5th ed. 2011); Jack Weinstein, Harold Korn, & Arthur Miller, 12 3 New York Civil Practice ¶ 5602 (2d ed. 2005); Legislation Report, Bill Jacket, L 1986, ch. 316. Williams’s avenue to challenge the excessiveness of the second arbitration award is through a second article 75 proceeding, which he has brought and is pending before Supreme Court. It is not part of this appeal. This Court similarly lacks jurisdiction to review Williams’s arguments concerning the arbitrator’s failure to recuse herself when the case was remanded for assignment of a lesser penalty. This, too, is part of the second arbitration award, and thus is outside the scope of this appeal. Williams’s argument is also unpreserved, because he never asked for the case to be assigned to a new arbitrator as part of his requested relief in the first article 75 proceeding. In any event, his conclusory allegations of the arbitrator’s partiality are insufficient to state a claim for bias, because he can point to nothing more than his personal disagreement with the arbitrator’s chosen penalty. B. Williams misconstrues the appropriate standard of review that governs arbitral awards in teacher disciplinary cases. The crux of Williams’ position is that there should be no deference accorded to arbitrators’ determinations (Resp. Ltr. Br. at 2-4). He instead urges for more deference to be given to courts—and, in particular, the First Department—in reviewing arbitral awards in teacher disciplinary cases. We answered these points in our reply to the letter brief of petitioner Amira Beatty, who is also represented by Williams’s counsel and has made the very same arguments. Rather than repeating that material here, we simply highlight the following points and refer this Court to our reply in that case (see, e.g., Matter of Beatty v. N.Y.C. Dep’t of Educ., APL-2017-00123, Reply Ltr. Br. at 2-5). First, Williams’s position cannot be squared with sound policy or this Court’s precedent confirming the high level of deference owed to arbitrators’ determinations as to penalty. He ignores Pell’s core holding that judicial intervention in employee disciplinary matters should be restrained, especially where a public employee has been disciplined for acts that call his integrity and trustworthiness into question. Id. Nor does he offer any meaningful response to our points explaining the Legislature’s intent for arbitrations to serve as the main event in 4 teacher disciplinary proceedings (see, e.g., Beatty, APL-2017-00123, App. Ltr. Br. at 11). Second, Williams makes multiple factual misrepresentations about the realities of teacher disciplinary cases. For example, although he asserts that arbitrators who preside over teacher disciplinary proceedings are improperly under DOE’s influence (Resp. Ltr. Br. at 2), he fails to appreciate that the teachers’ union is equally involved in the selection of arbitrators, and that DOE has no unilateral authority to remove them from the panel without the agreement of the teachers’ union. Equally mistaken is his assertion that the number of terminations by arbitrators have “increased exponentially”: he offers no proof to support this claim, and in fact, DOE records for the last several years show that only about ten of the more than 200 disciplinary cases alleging misconduct charged each year culminate in awards of dismissal.1 This is out of an overall pool of tens of thousands of tenured teachers—hardly suggesting an exponential rise in dismissals. Thus, his arguments against deference are mistaken factually as well as legally. C. Williams’s attempts to minimize the seriousness of his misconduct are unavailing. Williams fails to offer any convincing objection to the soundness of the arbitrator’s conclusion here, let alone show that it was shocking to notions of fairness. As we established in our opening letter, the arbitrator properly found that that Williams had a persistent habit of asking his female eighth-grade students about their older sisters as potential romantic interests, including asking for their phone numbers and asking what they looked like (R. 78-80, 85). Williams himself admitted to having 18 to 20 such conversations over the two school 1 Along similar lines, the Wall Street Journal reported in 2014 that, out of 496 resolved teacher disciplinary cases over the 2012-13 and 2013-14 school years, arbitrators imposed a penalty of dismissal as to a total of only 17 educators for misconduct. Leslie Brody, Educators Fined, Not Fired, Wall St. J. (Jul. 27, 2014), available at http://on.wsj.com/2mUP7mZ. 5 years in question and further indicated that he had engaged in similar conversations with students at other schools in the past (R. 53, 286). The arbitrator also carefully considered whether Williams showed an understanding of appropriate student-teacher boundaries as well as a likelihood that he would abide by them moving forward, so as to warrant a lesser penalty. The arbitrator was reasonably unconvinced on both counts. To claim that the penalty of dismissal was shocking, Williams first attempts to downplay the seriousness of his misconduct by insisting that he could have done much worse. He claims that he did not commit a crime or violate any policy, and that he did not sexually abuse or touch a student. But as we established in our opening brief, he did violate DOE’s policy: the Education Law expressly prohibits “conduct unbecoming a teacher,” Educ. Law § 3012(2)(a), and DOE reasonably expects teachers to use their judgment and common sense in applying the rule (App. Ltr. Br. at 11-12). And while it is fortunate that Williams did not commit a more egregious offense, the arbitrator properly had concerns about his chronic boundary crossing, which sent harmful messages to his young female students and is documented to have made at least one parent furious and two students feel upset (App. Ltr. Br. at 5, 11). See Williams v. City of New York, 142 A.D.3d 901, 908-09 (1st Dep’t 2016), lv. granted, 2017 Slip Op 75382 (Jun. 1, 2017) (dissenting op.) (noting that Williams’s conduct “can only serve to reinforce a wrongheaded sense” to his young female students “that their value is solely in their physical appearance and as objects of desire”). Most of all, however, Williams ignores the arbitrator’s finding that he failed to demonstrate that he understood his responsibilities as a teacher and would be committed to fulfilling them in the future. It was based on this finding that the arbitrator reasonably decided not to return Williams to the classroom; the arbitrator expressly considered imposing a lesser penalty, but concluded that the specific record here did not warrant it. And as we explained in our opening letter (App. Ltr. Br. at 12-13), the record firmly supports this conclusion, where Williams took no responsibility for his misconduct, shifted the blame onto his students, openly admitted that he did not view himself as a role model, and said that all he would do differently in the future would be 6 to eliminate “down time” during class and document his interactions with students to cover himself. This assessment of Williams’ commitment to righting his pattern of improper conduct was reserved for the arbitrator, who was best- positioned to gauge Williams’s insight into his wrongdoing and remorse for his misconduct. Williams offers no real answer to this point. Nor does he seriously dispute that a decision-maker could reasonably conclude that it is wrong for a teacher to repeatedly use young female students as means to pursue his own romantic objectives—either to do so in reality or to give students the impression that he is. Thus, when Williams offered nothing to suggest that he would cease his conduct— and indeed gave testimony that only enhanced concerns along those lines—it was also reasonable for the arbitrator to conclude that he should not be returned to the classroom. There is likewise no merit to Williams’s contention that his satisfactory job history should preclude dismissal in this case. As we established in our opening letter, Williams does not have a clean record, but even if he did, this Court has recognized that a previously adequate record of service does not preclude termination, particularly in cases of misconduct involving a breach of the employer’s trust (App. Ltr. Br. at 14). He ignores Pell’s admonition that where the record establishes “a violation of a trust and a breach of duty which, if condoned and imitated, could wreak havoc with the entire system,” courts must accord “greater weight or recognition” to the “nature of the misconduct charge” than to “prior good records of service.” 34 N.Y.2d 222, 239 (1974). And that trust was violated here, in the view of DOE and parents who understandably expect that teachers will respect appropriate boundaries and refrain from exploiting their position of authority to use young students in their personal romantic pursuits. Further, to the extent that Williams complains that the arbitrator failed to consider the grave impact his dismissal would have on his family, he never introduced any evidence of such hardship during the arbitration. Cf. id. at 239 (discussing record evidence of hardship to petitioner, including forfeiture of pension rights). He cannot inject new factual matter now, when DOE is deprived of the opportunity to test its 7 veracity; nor may he do so through the unsupported assertions of her attorney. See Bingham v. N.Y.C. Transit Auth., 99 N.Y.2d 355, 359 (2003); cf. Peckham v. Calogero, 12 N.Y.3d 424, 430 (2009) (an argument may not be raised for the first time before the courts in an article 78 proceeding). That aside, even properly tendered evidence of hardship cannot overcome misconduct involving “a violation of trust and a breach of duty.” Pell, 34 N.Y.2d at 235, 239. Equally unavailing is Williams’s effort to draw support from his purported qualification for unemployment insurance benefits following his dismissal (App. Ltr. Br. at 4). At the threshold, this fact is beyond the scope of this Court’s review because it was not part of the hearing record or presented to the court below. See Acme Bus Corp. v. Bd. of Educ., 91 N.Y.2d 51, 56 (1997). In any event, Williams’s purported qualification for unemployment benefits following his termination has no bearing here, because it does not control the arbitrator’s authority to choose an appropriate penalty. The legislature expressly conferred this authority to the arbitrator alone. Educ. Law § 3020-a. Williams also mistakenly relies on a number of non-binding lower courts that have upheld lesser penalties. Not only are these cases inapposite because they involved different facts, but they, at most, merely show that there is a range of acceptable measures that may be chosen by an arbitrator. And to the extent that Williams cites decisions annulling arbitral determinations of dismissal, we have already explained that these cases reflect the First Department’s diluted application of the shocking-to-the-conscience standard, which the Court should correct (Matter of Beatty v. N.Y.C. Dep’t of Educ., APL-2017- 00123, App. Ltr. Br. at 9-12). As for Williams’s reliance on this Court’s decisions, City School District of the City of New York v. McGraham, 17 N.Y.3d 917, 918, 920 (2011), only underscores the relevant principles of deference here. In McGraham, this Court upheld the arbitrator’s penalty, emphasizing that it matters not whether reasonable minds might have disagreed over the appropriate penalty. McGraham, 17 N.Y.3d at 918, 920. Williams’s continued pattern of misconduct also makes this case much different from Matter of Principe v. New York City Department of 8 Education, 94 A.D.3d 431 (1st Dep’t 2012), aff’d 20 N.Y.3d 963 (2012), which involved two isolated acts of corporal punishment during threatening situations by a dean of discipline whose job it was to diffuse fights to protect students and faculty. Id. at 434-35. Williams also fails to grapple with this Court’s guidance in Pell confirming that dismissal here was not “shockingly disproportionate” to his misconduct, at least not under a true understanding of that standard (App. Ltr. Br. at 9-11). At bottom, the arbitrator properly found that Williams should not be given a second chance, given his pattern of inappropriate interactions with young students and failure to understand why it was wrong. In light of these findings, his dismissal was not surprising, let alone shocking. This Court should thus reverse the First Department’s vacatur of the arbitrator’s penalty, and reaffirm that the “shocking-to-the-conscience” standard permits a court to override an arbitrator’s penalty only where it truly demonstrates a departure from sound judgment. C. Conclusion DOE renews its request that the Court grant full briefing and argument in this case, and coordinate the briefing and oral argument among this appeal and the Bolt and Beatty appeals currently pending in this Court. In the alternative, this Court should reverse the Appellate Division’s decision and order, reinstate the penalty of termination, and dismiss the petition. 9 Respectfully submitted, Kathy Chang Park Assistant Corporation Counsel Richard Dearing of Counsel cc: Bryan Glass, Esq. Counsel for Petitioner-Respondent Terrell Williams 100 Church Street, 8th Floor New York, NY 10007 10 CERTIFICATION OF COMPLIANCE I hereby certify that this letter brief was prepared using Microsoft Word 2010, and according to that software, it contains 2,563 words in the body of the submission. ______________________________ Kathy Chang Park