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INDEX NO.

2016EF334

FILED: ONONDAGA COUNTY CLERK 02/03/2016 05:27 PM


NYSCEF DOC. NO. 10

RECEIVED NYSCEF: 02/03/2016

STATE OF NEW YORK


SUPREME COURT

ONONDAGA COUNTY

--------------------------------------------------------------------------------In the Matter of the Application by Laura VieiraSuarez,


Petitioner,
for a judgment pursuant to Article 75 of the C.P.L.R.
against the Syracuse City School District,

Index No.: 2016EF334


RJI No.: 33-16-0266
Hon. Spencer Ludington, JSC

Respondents.

-------------------------------------------

PETITIONER'S MEMORANDUM OF LAW


IN SUPPORT OF ARTICLE 75 PETITION

Respectfully Submitted,

Of Counsel:
Dennis G. O'Hara, Esq.
Stephen Ciotoli, Esq.
Ryan G. Files, Esq.

O'HARA, O'CONNELL & CIOTOLI


Attorneys for Petitioner
7207 East Genesee Street
Fayetteville, N. Y. 13066
Tel. No.: (315) 451-3810

TABLE OF CONTENTS
PRELIMINARY STATEMENT

STATEMENT OF FACTS

Petitioner's Professional and Personal History

Student KP's Behaviors and the District's Responses

"Time Out Rooms" v. "Emergency Interventions"

The Events of October 29, 2013

The Grandmother's Complaint.

10

The District's "Investigation"

11

STATEMENT OF PETITIONER'S CASE

11

A.

The 3020-A Charges

11

B.

The Hearing Officer's Determinations

12

C. The Grounds for This Article 75 Appeal

13

THE LAW AND ARGUMENT

16

POINT I: THE SUBSTANTIAL EVIDENCE STANDARD, MODIFIED TO GIVE


EFFECT TO THE UNIQUE STATUTORY PROTECTIONS OF A TENURED
EMPLOYEE, IS THE MINIMUM STANDARD REQUIRED FOR JUDICIAL REVIEW
OF THE DECISION
16
A.

Judicial Review of Compulsory Arbitration Awards

16

B.

Additional Levels of Inquiry for a 3020-a Decision

17

C. The District's Burden of Proof

18

D.

Substantial Evidence is the Appropriate Standard of Judicial Review

18

E.

Constitutional Implications

19

POINT II: THE DECISION CONSISTS PRIMARILY OF CONCLUSORY


STATEMENTS NOT BASED ON THE EVIDENCE AND IS SO LACKING IN
{W0274748.1}

ANALYSIS AND DEVOID OF SPECIFIC FINDINGS OF FACT AS TO BE FACIALLY


DEFICIENT AND SUBJECT TO VACATURE
20

POINT III: THE HEARING OFFICER ERRONEOUSLY FAILED TO CONSIDER


RELEVANT AND PROBATIVE EVIDENCE REGARDING "EMERGENCY
INTERVENTIONS"
A.

Petitioner Agrees the Room was Not an Approved "Time Out" Room

22
22

B. An Emergency Intervention was Often Necessary and Appropriate

23

C.

24

Use of the Room for Emergency Interventions was Proper

POINT IV: THE HEARING OFFICER FAILED TO CONSIDER RELEVANT AND


PROBATIVE EVIDENCE REGARDING THE UNFAIRNESS OF THE DISTRICTS
INCOMPETENT "INVESTIGATION" OF THE COMPLAINT BY KP's
GRANDMOTHER
27
A.

The Investigation was Incompetently Conducted

27

B.

Wade's Incompetence Prejudiced Petitioner

28

POINT V: THE HEARING OFFICER'S DETERMINATIONS REGARDING CHARGE


NO.1 ARE NOT SUPPORTED BY SUBSTANTIAL EVIDENCE.
29
A.

The Separate Allegations; Petitioner's Short Responses

29

B.

Dooley's Story Regarding October 29, 2013

30

C. The Credibility Conflict Between Dooley and Petitioner

31

D. The Hearing Officer Failed to Properly Address the Credibility Conflict..

32

E.

.40

Dooley's Story Re: October 29, 2013 is a Fabrication

POINT VI: THE HEARING OFFICER'S DETERMINATIONS REGARDING CHARGE


NO.2 ARE NOT SUPPORTED BY SUBSTANTIAL EVIDENCE.
.48
A.

The Separate Allegations; Petitioner's Short Responses

.48

B.

The Hearing Officer's Sparse and Irrational Decision

50

C.

Substantial Evidence Does Not Support the Hearing Officer's Conclusion


Regarding the Alleged Directive

53

{W0274748.1}

ii

D. There is No Proof of Misrepresentations to McDonald

59

POINT VII: THE HEARING OFFICER'S DETERMINATIONS REGARDING CHARGE


NO.3 LACK ANY EVIDENTIARY FOUNDATION AND ARE NOT SUPPORTED BY
61
SUBSTANTIAL EViDENCE
A.

McDonald's Testimony Disproves the Charge

62

B.

Petitioner Was Aware of Only One and Not "Several" Incidents

62

C. The Hearing Officer Ignored Specification 3.1 (b)

64

POINT VIII: THE HEARING OFFICER'S DETERMINATIONS REGARDING CHARGE


NO.4 LACK ANY EVIDENTIARY FOUNDATION AND ARE NOT SUPPORTED BY
SUBSTANTIAL EViDENCE
65
A.

The Hearing Officer's Findings are Not Supported by Substantial Evidence

65

B.

Dooley's Affidavit and Testimony are Not Credible

66

C. Dooley's Affidavit is Contradicted by McDonald's Testimony

68

POINT IX: THE HEARING OFFICER'S DETERMINATIONS REGARDING CHARGE


NO.5 ARE NOT SUPPORTED BY SUBSTANTIAL EVIDENCE.
70
A.

Evidence Regarding the Lock has no Relevance on Petitioner's Credibility

71

B.

The Notes and Affidavits do not Undermine Petitioner's Credibility

72

C. Differences in Recollections do not Necessarily Impact Credibility

73

POINT X: THE PENALTY OF TERMINATION IS SO DISPROPORTIONATE TO ANY


OFFENSE ESTABLISHED BY THE DISTRICT AS TO BE TRULY SHOCKING TO
THE CONSCIENCE AND SHOULD BE VACATED
74
A.

The Requirements Established by Matter of PeJl

74

B.

Petitioner's Character, Exemplary Career and Background

75

76

SUMMARY AND CONCLUSiON

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iii

TABLE OF AUTHORITIES

Cases
Aikins v. Curtis 81 A.D.2d 1020 [4th Dep't 1981]

20

AJlesandro [State Comm. on Judicial Conducfi, 13 NY3d 238 [2009]

20

Appeal of Board of Education of the Goshen Central School District, 30 Ed. Dept. Rep.
28
181,187; (Decision No. 12,426, November 30, 1990)
Bd. of Educ. of Dundee Cent. School District [Colemanl, 96 AD3d 1536 [4th Dep't.,
2012]

17

Ferraro v. Board of Education, 32 Misc. 2d 563 [Sup. Ct. NY, App. Term. 2nd Dep't.
1961]

24

Gongora v. NYC Dept. of Educ., 34 Misc. 3d 161 (Sup. Ct., NY County, 2009)

19

King v. New York State Dep't of Health, 295 AD2d 743 [3d Dep't 2002]

31

Lackow v. Department of Educ. of the CitvofNew York, 51 A.D.3d 563 [1st Dep't 2008]
...................................................................................................................................16
Martin v. Ambach, 67 N.Y.2d 975 [1986]

18

Mirand v. City of New York, 84 NY2d 44 [1994]

24

Motor Vehicle Mfrs. Ass'n v. State, 75 N.Y.2d 175 [1990]

17

Mt. St. Mary's Hospital v. Catherwood, 26 NY 2d 493 [1970]

16,17, 19

Mulroy, 94 NY2d 652 [2001]

20

MVAIC v Aetna Cas. & Surety Co., 89 NY2d 214 [1996]

19

PeJl v. Board of Education, 34 NY2d 222 (1974)

Puchalski v. Depew UFSD, 119 AD3d 1435 [4th Dept. 2014]

18, 74
1

Statutes
8 NYCRR 19.5

24

8 NYCRR 200.22

{W0274748.1}

passim

iv

8 NYCRR 82-3.8

17,21
19

CPLR 7803

1, 16, 18

Education Law, 3020

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GLOSSARY

The following lists the individuals mentioned in this memorandum of law and
briefly describes their role or relevance to the charges. The witnesses
are identified by their last names in this Memorandum of Law.

------------------------------------------------------------------------------------------------------------------Role or Relevance

Witness

Diane Abt ("Abt")

Lead Secretary at LeMoyne Elementary School and


fact witness to the October 29, 2013 incident involving
student CS. She testified that Petitioner never left the
main office area the morning of October 29th.

Anthony Bishop ("Bishop")

Teaching Assistant at LeMoyne Elementary School.


Witness to KP's behavior and involved in the "throw
up" incident, the only incident Petitioner was aware of
where KP was in the Vestibule room. Bishop was also
a witness to the October 29, 2013 incident involving
student CS.

Josh Beardall ("Beardall")

Director of Staff Relations for the Syracuse City School


District. Present for a number of District interviews
conducted by Lisa Wade and took notes of these
interviews.

Joann Burns ("Burns")

Worked with Petitioner at the Residential Treatment


Facility (RTC). Character Witness for Petitioner.

Kristi Cleary ("Cleary")

School Psychologist at LeMoyne Elementary School.


Familiar with KP's behavior and helped develop KP's
Individual Education Plan (IEP) and Behavior
Intervention Plan (BIP).

Student CS ("CS")

Student at LeMoyne Elementary School. Classified as


Emotionally Disturbed. His rampage caused damage
to the Main Office on the morning of October 29, 2013,
which occupied the time and attention of Petitioner,
and other school staff.

{W0274748.1}

vi

Donna Dooley ("Dooley")

School Nurse at LeMoyne Elementary School. Sole


District Witness on Charge No. 1 regarding allegedly
putting KP in the Vestibule Room on October 29, 2013
and Charge NO.4 that Petitioner allegedly told her to
not tell the truth to the District investigators.

Amy Evans ("Evans")

Assistant Director of Special Education for the


Syracuse City School District. Conducted the initial
investigation for the District based on allegation from
KP's grandmother and interviewed KP.

Robert Francis ("Francis")

Head Custodian at LeMoyne Elementary. Dooley


claimed that Francis was present for the incident on
October 29, 2013, which Francis did not corroborate.

Daniel Lowengard ("Lowengard")

Former Superintendent of Syracuse City School


District who brought Petitioner to the District and was a
Character Witness for Petitioner.

Cheryl McDonald ("McDonald")

Vice Principal of LeMoyne Elementary School. Sole


District Witness on Charge No. 2 regarding Petitioner
allegedly directing her to use the Vestibule room for
KP and also Charge NO.3 that Petitioner allegedly told
her to not tell the truth to the District investigators.

Kristen Moulton ("Moulton")

KP's Special Education Teacher at LeMoyne


Elementary School. Witness to KP's behavior and
helped develop KP's IEP and SIP.

Susan Muehl ("Muehl")

Teacher Assistant in KP's 8-1-1 classroom. She was in


the middle of the fight between three emotionally
disturbed students that occurred beginning at 8:45 am
on October 29,2013.

Student KP ("KP")

Student at LeMoyne Elementary School. Classified as


Emotionally Disturbed. The charges center on this
student's behavior and the staff's efforts to deal with
his behavior.

Julie Sheridan ("Sheridan")

The Director of Faith Foundation at Most Holy Rosary


Church in Syracuse. Character Witness for Petitioner.

{W0274748.1}

vii

Lisa Wade ("Wade")

Assistant Director of Personnel since 2006 - Director


of Employee Services since 2013. The District's lead
investigator in this matter who conducted and took
notes of the interviews of the witnesses. Wade's
investigation and conclusions is what led the District to
bring charges against Petitioner.

Mark Warner ("Warner")

Teaching Assistant at LeMoyne Elementary School.


Was present when McDonald informed Petitioner that
she had placed KP in the Vestibule room.

Kathleen Warren ("Warren")

Assigned as KP's one-to-one Teacher Aide for the


2013-2014 school year. Witness to KP's behavior and
was with McDonald when she put KP in the Vestibule
room. Warren was also with KP the entire morning of
October 29, 2013.

Colleen Wills ("Wills")

Special education teacher in the 8-1-1 classroom that


KP was assigned to for the 2013-14 school year

Laura Viera-Suarez

Petitioner

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viii

PRELIMINARY STATEMENT

Petitioner, Laura Viera-Suarez, was the tenured Principal of the LeMoyne


Elementary School until her employment was terminated by the Board of Education (the
"Board") of the Respondent Syracuse City School District (the "District") on January 21,
2016. On July 8,2015, the Board filed charges against Petitioner pursuant to Education
Law 3020-a (the "Charges"). The Charges are annexed as Exhibit "B" to the Petition.
On January 15, 2016, the hearing officer appointed to decide the Charges posted his
opinion and award on a website maintained by the State Education Department
("SED"). A copy of that opinion and award (the "Decision") is annexed as Exhibit "A" to
the Petition. The Commissioner of Education has not yet served a copy of the Decision
on Petitioner as required by Education Law, 3020(4)(a).

(See, also, Puchalski v.

Depew UFSD, 119 AD3d 1435 [4th Dept. 2014]),


As required by Education Law, 3020 (5)(a), this proceeding seeking to vacate
the opinion and award of the hearing officer has been commenced pursuant to CPLR
Article 75.
The affirmation of Dennis G. O'Hara, Esq. identifies and incorporates the
transcript of the testimony and the exhibits accepted into evidence at the 3020-a
hearing.

(The transcript of the 3020-a hearing testimony has been submitted

electronically to the Court as Exhibit "C" to the affirmation, and references to the
transcript are identified by the letter "T" followed by the appropriate page number. The
District's hearing exhibits are Exhibit "0" and Petitioner's hearing exhibits are Exhibit "E"
to the affirmation).

{W0274748.1}

This Memorandum of Law is submitted in support of the Petition.

STATEMENT OF FACTS

Petitioner's Professional and Personal History

Petitioner was a successful educator for 36 years prior to the termination of her
employment. A significant portion of her personal and professional life has been
devoted to educating and caring for emotionally disturbed young men with a
commitment that extended far beyond what can be reasonably expected.

(T. 1700-

1705).
Petitioner has worked closely with children with severe emotional problems
throughout her career. Petitioner's first employment after graduation from school was in
1979 with Oneonta Job Corps, which was an alternative to incarceration for youth.
Petitioner taught and also worked on the development of the program and GED
programs. (T. 1699). Petitioner then worked in a Putnam County residential psychiatric
treatment center (an "RTC") where she taught emotionally disturbed students for 7
years, and held several administrative positions, starting as the clinical curriculum
coordinator and then Vice Principal, followed by 13 years as Principal of the RTC. (T.
1700-1702).

In Utica, New York, Petitioner was principal of an alternative education

program operated by the Oneida-Herkimer-Madison SOCES for students with behavior


problems.

The SOCES serviced nine component districts and had several sites for

children that could not be maintained in their home schools.

(T. 1703). Thereafter,

Petitioner worked for the Utica City School District as the Principal of the Liberal Arts
Academy at Proctor High School. (T. 1703-1704). Petitioner has been employed by the
Syracuse City School District (the "District") since 2005, beginning as Principal of

{W0274748.1}

Fowler High School from 2006-2009 and then Director of English as a Second
Language, ESL Bilingual and Languages other than English from 2009-2012. (T. 1705).
Petitioner has an Associate's Degree in Early Childhood Education from
Farmingdale University. Petitioner completed her Bachelor's Degree in Education and
began to work on her Master's Degree at SUNY Oneonta and completed her Master's
Degree and Professional Diploma in Special Education in School Administration at
Fordham University. (T. 1704-1705). Petitioner's Certifications are in Special Education,
Early Childhood Education, School Administrator/Supervisor Certification and School
District Administrator. (T. 1704-1705).
As Principal of LeMoyne Elementary School for the 2012-2013 and 2013-2014
school years, she supervised 100 staff members and more than 500 students.

(T.

1728-1729; Exhibit E-58). Special education students constituted 19.3% (over 100) of
the entire student population of LeMoyne Elementary (Exhibit E-58) and several
emotionally disturbed students placed incredible management demands on the staff.
(See, Joint Exhibit 4, Exhibits E-1-4, and E-9). Amongst her colleagues and superiors,

Appellant has been widely praised and commended for her "nurturing" demeanor and
unwavering commitment to all of her students. (See, testimony of Moulton [T. 286],
Cleary [T. 371], Dooley [T. 620], McDonald [T. 800], Wade [T.1385], Abt [T. 1574],
Lowengard [T. 1490-1491] and Warren [T. 1906]).
Petitioner's husband is employed by the Roman Catholic Archdiocese of
Syracuse as the program director of after-school programs.

(T. 1706-1707).

By

profession, he is a counselor who also spent most of his career working with severely
emotionally disabled students.

{W0274748.1}

For over 20 years, Petitioner and her husband have

been scrutinized by case workers, law guardians and others whose job is to protect the
welfare of vulnerable children.

(T. 1712-1713). These individuals have been in and

about the Suarez household for decades because Petitioner and her husband have
entered foster parent relationships and "closed adoptions" with six severely emotionally
disabled children who they have raised to adulthood.
The first child adopted by Petitioner and her husband was a resident of the RTC.
Before coming to that facility, he had been hospitalized for a year with multiple burns
and other injuries inflicted by his birth father. They adopted this young man when he
was seven years old. (T. 1710-1711). The next two adopted children were brothers who
were placed in foster care with Petitioner and her husband when they were 13 and 14
years old.

Petitioner had counseled one of the boys at the RTC.

directly from
schizophrenia.

Rockland

Psychiatric

hospital with

diagnosis

His brother came


of early

onset

Both boys had ODD (Oppositional Defiant Disorder), and one was

diagnosed with ADHD and as a pathological liar. (T. 1717).


The fourth child was borderline mentally retarded, with ADHD and ODD. He also
had a congenital heart condition. He was adopted by Petitioner and her husband when
he was 8 years old and he died from the heart condition when he was 33 years old.
This young man also came from the RTC and had been severely abused and
abandoned as a child. (T. 1719-1720). The fifth adopted child came to the family as a
13-year-old. He was a resident of St. Mary's Group Home on Long Island and his father
was a drug addict. (T. 1715).
The most recent addition to the Suarez family was adopted when he was eight
years old. He was also one of Petitioner's resident students at the RTC, diagnosed with

{W0274748.1}

ODD, ADHD and a bipolar disorder.

(1. 1723).

In addition, a court has granted

Petitioner and her husband custody of their grandson.

As a consequence, law

guardians and other case workers still frequently inspect and evaluate the Suarez family
setting. (1. 1712-1713).
Student KP's Behaviors and the District's Responses

The student at the center of the Charges (KP) is emotionally disturbed and prone
to extremely hostile behavior and outbursts that create serious safety risks for everyone
around him. He presents constant and almost insurmountable behavioral problems that
endanger himself, his teachers and fellow students. (See, Joint Exhibit 4 which contains
32 Disciplinary Referrals for the 2013-2014 school year for KP, and Exhibits E-1-4, and
E-9).
His documented behaviors included running throughout the school and hiding
wherever he can; screaming, cursing, and dumping over trash cans; physically and
without provocation attacking younger students; hitting a pregnant teacher in the
abdomen; slamming doors to classrooms; throwing wastebaskets; climbing on stair
railings; banging on windows and walls; scratching the face of staff members; and
kicking, punching and tantruming on an almost daily basis. Staff members testified that
KP's typical behaviors were "extremely unsafe" (1. 748-749) and frequently required
him to be physically restrained in order to effectively protect himself, others and school
property. (1. 246 [Moulton], 762-763 [McDonald], 1246, 1316-1317, 1342-1353 [Wade]
and 1858 [Petitioner]; See, Exhibit 0-14 for 1-18-12,3-1-13 (twice), 3-4-13, 3-13-13,424-13, 4-26-13 and 9-27-13). Sometimes, that response required immediate restraint

{W0274748.1}

using reasonable physical force at a location near his outburst. (T. 1341-1342, 22812282).
KP frequently had to be restrained to protect himself, others and school property.
Vice Principal McDonald told Wade, the District's lead investigator in this matter, she
has "to restrain [KPJ - when he strikes out at people" and that her "biggest fear - he will

hurt a bigger kid and they retaliate." (See, Exhibit 0-24). Teaching Assistant, Bishop,
provided similar testimony (T. 2258-2282), and KP's private therapist agreed that
restraint was necessary. (T. 754-786). In fact, Wade observed one out-of-control
situation where KP had to be restrained by the substitute Principal. (T.1353). These
dangerous behaviors were confirmed by testimony of other staff members.

(See,

T.199-200 [Moulton], T. 305 [Cleary], T. 447, 508 and 521 [Dooley], T.909-910, 939-940
and 1268 [Wade], T. 1886-1887, 1894-1895 and 1900 [Warren] and T. 1574-1576
[Abt]).

1. Warren is Assigned as KP's One-on-One Teacher Aide.


Warren was assigned to be KP's one-to-one Teacher Aide to help control his
behaviors. She was with him throughout every day (T. 284), usually chasing him
throughout the building and attempting to restrain him.

(T. 246, 1246, 1858).

She

would meet KP at the front of the building every morning and escort him to breakfast
either in the cafeteria, if he could put up with that stimulus or, more often, in Petitioner's
office. (T.1905-1906).

2. KP's Placement at LeMoyne was Inappropriate.


The LeMoyne staff did not think that LeMoyne was the proper placement for KP
and believed that the McCarthy program would be more appropriate. (T. 763-764). The
{W0274748.1}

McCarthy program was a separate school operated for students with serious emotional
issues. (See, e.g., T. 1270).

KP had a 45-day trial run at McCarthy in spring 2013.

(T.1762-1763). However, his grandmother refused to let him stay in the program
because it dismissed too early in the day and she "had other things to do." (T. 242, 764765, 1270-1271). Despite the unquestioned severity of KP's issues, the LeMoyne staff
received little help in response to numerous requests made to both the District's Special
Education office and KP's family. (Exhibit 0-38, Pg. 3 of 5). The Special Education
department ignored pleas by the staff to transfer him to McCarthy or another more
appropriate setting.
3. KP was a "Runner."
It is uncontested that one of KP's typical behaviors was to run into various
spaces throughout all floors of the school building.

The school nurse, Donna Dooley

("Dooley") testified that he would run to any unlocked area and hide. (T. 518). Bishop
also testified that KP "would run through the halls. He -- he would run out of the building.
He has jumped out of a window and when he's running through the halls he's trashing
and he's hitting students. And the scariest part is when he stands up on the railings in
the second floor and looks down the stairs." In Bishop's opinion, KP's behaviors
absolutely constituted a danger to himself and to other students. (T. 2258).
Warren told Wade "There is a place he goes to - Mr. Bishop would meet him in
area - right in there - he would get sick and throw up in the room".

(Exhibit 0-40).

Petitioner testified that KP frequently worked himself into such an agitated state that he
would throw up. (He "would throw up often. He -- his temper tantrums were such that

{W0274748.1}

he would temper tantrum to a point where he would -- he would gag and make himself
throw up."). (T. 1785).
Also, the Committee on Special Education noted in his December 18, 2013 IEP
that KP ran around the school and that an "adult is usually with him at all times to try to
help him be successful throughout the day with his peers and academics, but most of all
to be safe." (See, Exhibit 0-3, p. 3 of 8).

The hearing officer found that one of KP's

typical behaviors was "running away from class and hiding throughout the School."
(Decision, p. 7). As it relates specifically to the Charges, McDonald testified that KP
"actually open[ed] the door' to the Vestibule room one time after he had run to that
location. (T. 803).
Whenever KP bolted from the classroom, Warren or one of the classroom
teachers immediately pursued him. (T. 230).

If the adults in the classroom faced a

situation they could not handle, they contacted the Main Office for assistance via an
intercom system.

(T. 757).

In that event, McDonald normally responded.

(T. 757).

McDonald testified that when KP "got angry, he would run, he would hit, he would kick,
he would spit," and that she dealt with KP's behaviors on a "almost a daily basis."
(T.664-665).
"Time Out Rooms" v. "Emergency Interventions"

There was some confusion throughout the hearing regarding the difference
between using a "Time Out Room" for reflection (see, 8 NYCRR 200.22[c]) and
employing an "Emergency Intervention" to prevent an out-of-control student from
harming himself, others or destroying District property. (See, 8 NYCRR 200.22[d]).
These two concepts were the subject of significant focus at the hearing as it related to

{W0274748.1}

responding to KP's behaviors.

POINT III, infra, discusses the confusion over the

distinction between these two concepts in more detail.

The Events of October 29, 2013


Charge No.1 alleges that on October 29, 2013, Petitioner personally "placed" KP
in the Vestibule room. Petitioner denies that she ever placed KP or any other student in
the Vestibule room and also produced substantial evidence that she was involved in
responding to a major crisis in the Main Office suite during the half hour period when
Dooley claims Petitioner was at the Vestibule room the morning of October 29, 2013.

1. October 29, 2013 According to Dooley.


Dooley claims she saw Petitioner struggling with and being kicked by an
"agitated" KP in the school hallway at 9:00 a.m. on October 29, 2013. (T. 447).
Petitioner and KP were alone in the hallway with no staff or students in the vicinity and
his one-on-one Teaching Assistant, Warren, was nowhere in the area.
635).

(T. 508-509,

Dooley claims Petitioner asked her to help get KP to the Vestibule room and,

after they got him there, Petitioner held the door shut while KP screamed for fourminutes from inside the room.
Dooley also claims that Francis, the building's custodian, came by the Vestibule
room on October 29th while KP was screaming inside the room, and that Francis then
took Dooley and Petitioner inside the room to show them that there was no lock on the
inside door. Dooley claims the three of them had a discussion about the lock. (See,
Exhibit 0-15, and see also, T. 455-457, 493-494, 549).
denied any recollection of this incident.

(T. 1953).

Francis' failure to corroborate Dooley's story.


{W0274748.1}

When he testified, Francis

The Decision fails to address

2. October 29, 2013 According to Petitioner.

Petitioner denies that the incident claimed by Dooley ever occurred. In addition,
from approximately 8:45 am to at least 10:15 am on October 29, 2013, she was
involved responding to a serious fight between three emotionally disturbed students that
resulted in personal injury and significant property damage, including injury to Petitioner.
The Main Office area was trashed during this incident and one student was taken to the
hospital. Several staff members responded to the incident, including Dooley who treated
injuries to the student and Petitioner. Police officers and representatives of Onondaga
Case Management ("OCM") were also called to assist, as was an ambulance with EMS
personnel.
Discipline Referral and accident reports that were contemporaneously prepared
by several individuals are exhibits in the record. Dooley documented her treatment of an
injury suffered by the student (CS) when he kicked in a panel to the office door. (T.
1816). She prepared that note at 9:43 that morning. (Exhibit E-64). Dooley examined
the students ankle injury, called 911 to have him transported to St. Joseph's Hospital,
immobilized his right lower leg to the knee with a splint, applied ice packs to the leg, and
determined that he was "in stable condition" when he left for the hospital in an
ambulance with his grandmother. (Exhibit E-65). She also attended to Petitioner's injury
and signed the accident report. (Exhibit E-17).
The Grandmother's Complaint

On June 11, 2014, KP was again out of control banging on the glass windows in
the hallway outside Dooley's office. When Dooley tried to stop him, KP kicked and
punched her in the abdomen. Dooley telephoned KP's grandmother to inform her that

{W0274748.1}

10

the school had called 911 to transport him to C'Pep at St. Joseph's Hospital for a
psychiatric evaluation. (See, Exhibit 0-14, pp. 4-5). KP's aunt was the first family
member to arrive at the school in response to that call. She reacted angrily to the
situation and claimed that KP was acting out because the school was "locking him in a

closet in the basement." (T. 1849-50). The aunt also called the District's Special
Education office to make the same complaint. (Exhibit 0-6).

The District's "Investigation"


Lisa Wade ("Wade") from the District's personnel office ("Office of Talent
Management") was then assigned to investigate the complaint that KP had been locked
in a closet in the basement of the school building. She conducted several interviews of
school personnel before suspending Petitioner, McDonald and Warren on June 18,
2014. The 3020-a charges against Petitioner were not filed for another 13 months (on
July 8, 2015).

STATEMENT OF PETITIONER'S CASE


A. The 3020-A Charges
The essence of the first group of Charges is that, between 9:00 and 9:30 a.m. on
October 29, 2013, Petitioner personally placed an emotionally disturbed student (KP) in
a room for "Time Out" purposes although that room (the "Vestibule" room) was not
authorized to be used for that purpose and did not comply with the requirements of 8
NYCRR 200.22(c), his Individual Education Plan ("IEP") or Behavior Intervention Plan
("BIP"). Dooley was the sole witness against Petitioner relative to this Charge.
The essence of the second group of Charges is that Petitioner "directed" the Vice
Principal, McDonald, to place KP in the Vestibule room for purposes of subjecting him to
{W0274748.1}

11

a "Time Out." McDonald was the sole witness who claimed that Petitioner had given
her such a direction.
Both Charges allege that KP was subjected to "physical abuse" by being placed
in the Vestibule room.

Finally, they allege that Petitioner's responses to Wade, the

District employee who "investigated" the complaint of KP's family that he had been
"locked in a closet in the basement of the school," were not truthful and, also, that
Petitioner "requested" Dooley and McDonald to "make false statements" to Wade
relative to her investigation.
B. The Hearing Officer's Determinations

The hearing officer found Petitioner guilty of personally placing KP in the


Vestibule room on October 29, 2013, as claimed by Dooley. He also found Petitioner
guilty of "directing" McDonald to place KP in the Vestibule room for "Time Out"
purposes, as claimed by McDonald. He found that the District had failed to prove that
KP had suffered physical abuse as a consequence of being placed in the Vestibule
room.

Finally, he determined that Petitioner had not truthfully answered questions

posed to her by Wade during the "investigation," and that she had requested" Dooley
and McDonald to "make false statements" to Wade relative to her investigation.
The hearing officer determined that there was "just cause to Impose the penalty
of discharge" based on his findings that Petitioner had "placed or caused to be placed a
disabled male student (KP) in [the Vestibule room] in violation of his IEP and BIP, had
personally given "false accounts" to Wade and had "wrongfully relied on her position as

a building principal to influence others to falsely testify" to Wade.

{W0274748.1}

12

c. The Grounds for This Article 75 Appeal


Petitioner seeks to vacate the award on the following multiple grounds:
1. This case presented a critical distinction between the use of an approved "Time
Out" room for a special education student to reflect on behaviors in accordance
with his Behavior Intervention Plan ("BIP"), as authorized by 8 NYCRR
200.222(c), and an "Emergency Intervention" to prevent an out-of-control
student from harming himself or others, destroying school property or interfering
with the educational program, as authorized by 8 NYCRR 200.222(d). This
distinction was an important and potentially dispositive issue. Petitioner agrees
that it would be improper to use the Vestibule room as a "Time Out" room, at
least until the Board passed a policy approving the use of "time out" rooms and
the Vestibule room was modified to bring it into compliance with 8 NYCRR
200.22(c). She adamantly denies placing KP in the Vestibule room or directing
anyone else to do so. An additional defense is that 8 NYCRR 200.22(d)
authorizes the use of that room for an appropriate Emergency Intervention (Le.,
with an adult inside with the student and the door open), and such use should not
be the subject of charges. Petitioner contends that it was unjust for the District to
conflate the formalities for Time Out rooms with the Emergency Intervention
Regulation. However, the hearing officer ignored this testimony and did not say
one word about "Emergency Interventions." This was a failure to consider all the
evidence that resulted in discipline without just cause.

2. Due process and Education Law 3020-a(4)(a) require that the hearing officer's
Decision set forth findings of fact on each charge, [and] his ... conclusions with
regard to each charge based on said findings." The hearing officer made only
minimal findings of fact on disputed material issues that are relevant on the
merits of the Charges, and some of these were erroneous. He also failed to
make any findings of fact on significant evidence. As a consequence the
Decision consists primarily of conclusory statements that lack any evidentiary
foundation.
3. The hearing officer's conclusory findings regarding Charge No. 1 are based on
an erroneous standard of proof. After creating a bizarre and incomplete
"timeline" of events on October 29, 2013, the hearing officer found that "there is
an unaccounted gap between the initial disciplinary referrals of 8:45 am and
Respondent's injury at 10:00 am which does not make the alleged EMR incident
with KP an impossibility." This analysis erroneously required Petitioner to prove
that Dooley's version was "impossible." Conversely, it changed the District's
{W0274748.1}

13

burden of establishing Charge No. 1 by a fair preponderance of the credible


evidence to simply showing that it was a possibility. Thereafter, the hearing
officer stated that his finding was based on "a. preponderance of the credible
record evidence" without citing to any evidence.
4. The hearing officer's conclusory findings regarding Charge No. 1 are not
supported by substantial evidence and Dooley's version of the events of October
29, 2013 is not worthy of belief in light of overwhelming credible evidence to the
contrary.
(a) Dooley claims that Francis was at the Vestibule room on October 29, 2013
and would corroborate her story. Francis was subpoenaed by Petitioner
and he did not corroborate her testimony. Also, Warren testified that she
was with KP in the classroom the entire morning so he could not possibly
have been at the Vestibule room. The hearing officer, however, failed to
make any mention of the testimony of either Francis or Warren.
(b) Abt, the building secretary, testified that Petitioner did not leave the Main
Office suite between 9:00 and 9:30 on October 29, 2013. As with the
testimony of Francis and Warren, the hearing officer failed to make any
mention of Abt's testimony.
(c) Petitioner was occupied in the Main Office area, away from the Vestibule
room, for most of the morning responding to a brawl between three
emotionally disturbed young men that resulted in personal injury to
Petitioner and one student, major physical damage to the Main Office
suite, hospitalization of one student and involvement of the police,
Onondaga Case Management (OCM) personnel, an ambulance and EMS
personnel and parents or guardians of the students involved in the fight.
(d) Overwhelming documentary evidence that was contemporaneously
created in connection with the student melee establishes that Petitioner
was in the Main Office area from at least 8:45 until 10: 15 the morning of
October 29, 2013.
(e) The evidence also confirms that Dooley responded to the student fight on

October 29, 2013. This fact makes it highly unlikely, if not impossible, that
she was at the Vestibule room as she claims.
5. The hearing officer's conclusory findings regarding Charge No. 2 are not
supported by substantial evidence, and McDonald's testimony fails to establish
any misconduct by Petitioner.
{W0274748.1}

14

(a) Petitioner denies McDonald's claim that, in January 2014 she, Warren and

Petitioner took KP to the Vestibule room. Warren does not corroborate


McDonald's story, and testified she never saw Petitioner use the room
and, further, that Petitioner was never at the room when McDonald was
using it. (T. 777-778, 791; 18961901,1904).
(b) McDonald testified that Petitioner simply told her to "use" the room.
Petitioner denies this claim. Even if McDonald's claim is accepted as true,
such a statement would not be the basis for any discipline since the room
could reasonably be used for appropriate emergency interventions.
(c) Again, even if McDonald's claim is accepted as true, there is no evidence
that Petitioner gave her any direction as to what to do once she was at a
timeout location. McDonald admits that she was never given "any direction
or instruction as to how to carry out the timeout." (T. 687). Petitioner
never directed her to place KP alone in a room (T. 776-777), or to close
the door on him, or to hold the door shut. (T. 777). These were actions
McDonald took in her discretion. (T. 777).
(d) McDonald used the Vestibule room on three or four occasions to restrain

KP when he was out of control near that room. At least once, she shut the
door and held it closed for a brief period as KP tried to pull it open. Putting
KP in the room alone and holding the door shut on him was a decision
McDonald made in her discretion. It was never discussed with Petitioner
and, most certainly, was not done pursuant to any "directive" from
Petitioner. (T. 1884-1885, 1985).
(e) McDonald's testimony was uncertain regarding exactly what the alleged
directive was. At one point, she stated Petitioner "said she had a place
that she thought would work." (T. 676). Later, she "said this could be a
good time out space for' KP (T. 681), and still later that Petitioner said
"this would be a good space for' KP. (T. 682).
6. Charges Nos. 3, 4, and 5, which regard the District's investigation of the
allegations encompassed in Charges No. 1 and 2 are dependent on the outcome
of those two charges. If Petitioner is exonerated on Charges No. 1 and 2, she
must also be exonerated on Charges Nos. 3, 4, and 5.
7. The penalty of termination of employment was unwarranted, unjust and rendered
without any consideration given to the criteria set forth in Matter of Pell, 34 NY2d
222 (1974).

{W0274748.1}

15

THE LAW AND ARGUMENT


POINT I
THE SUBSTANTIAL EVIDENCE STANDARD, MODIFIED TO
GIVE EFFECT TO THE UNIQUE STATUTORY PROTECTIONS OF
A TENURED EMPLOYEE, IS THE MINIMUM STANDARD REQUIRED FOR JUDICIAL
REVIEW OF THE DECISION
The Supreme Court may vacate or modify the decision of a 3020-a hearing
officer on the grounds set forth in CPLR 7511. (Education Law 3020-a [5][a1). Section
7511 provides only a limited scope of review that is confined to specific conduct by an
arbitrator (i.e. misconduct, bias, and/or exceeding his or her power), or to procedural
defects. It authorizes little or no judicial review of the arbitrator's determinations of law
or fact.
A. Judicial Review of Compulsory Arbitration Awards
However, where the parties are required to submit to compulsory arbitration, as
in the instant case, "judicial scrutiny is stricter than that for a determination rendered
where the parties have submitted to voluntary arbitration." (Lackow v. Department of

Educ. of the City of New York, 51 A.D.3d 563, 567 [1st Dep't 2008], citing Matter of
Motor Veh. Ace. Indem. Corp. v. Aetna Cas. & Sur. Co., 89 NY2d 214, 223 [19961).
While Article 75 may provide a constitutionally adequate judicial review of an award in
voluntary arbitration, the Court of Appeals has held that "voluntary arbitration and
compulsory arbitration are fundamentally different."

The difference being that

deprivations of, or restrictions upon, personal rights that an individual might freely
consent to may only be compelled by government if they "accord with procedural and
substantive due process." (Mt. St. Mary's Hospital v. Catherwood, 26 NY 2d 493, 500
[1970]).
{W0274748.1}

16

Twenty years after the Mount St. Mary's decision, the Court of Appeals
reaffirmed the enhanced standard for judicial review of compulsory arbitration awards in
the following terms:
Inasmuch as compulsory arbitration is involved, judicial review under
CPLR article 75 is broad, requiring that the award be in accord with due
process and supported by adequate evidence in the record (see, Caso v.
Coffey, 41 NY2d 153, 156; Mount St. Mary's Hosp. v. Catherwood, 26
NY2d 493, 508, supra). The award must also be rational and satisfy the
arbitrary and capricious standards of CPLR article 78 (Caso v. Coffey,
supra, at 158). If the arbitrator fails to follow the statutory standards, the
award should be vacated for exceeding the legislative grant of
authority (see, Mount St. Mary's Hosp. v. Catherwood, 26 NY2d 493,
506, supra, quoting Matter Guardian Life Ins. Co. v. Bohlinger, 308 NY
174,183).
(Motor Vehicle Mfrs. Ass'n v. State, 75 N.Y.2d 175, 186-87 [1990]).
Here, the underlying 3020-a hearing was compulsory. As such, the award must
be evaluated under this enhanced standard of review. (See, also, Matter of Bd. of Educ.
of Dundee Cent. School District [Coleman], 96 AD3d 1536, 1538 [4th Dep't., 2012]
[where the ''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. "1).
B. Additional Levels of Inquiry for a 3020-a Decision

Three additional levels of judicial inquiries are required for awards in 3020-a
proceedings, two mandated by statute and one judicially defined. First, Education Law

3020-a(4)(a) and the Commissioner's Regulations at 8 NYCRR 82-3.8(k)(2) both


require that the hearing officer's written decision set forth findings of fact for each
charge, and conclusions based on such findings. In the event the hearing officer fails to
comply with this requirement, the award should be vacated.
{W0274748.1}

17

Second, Education Law 3020(1) provides that "No person enjoying the benefits
of tenure shall be disciplined or removed during a term of employment except for just
cause." A reviewing court should determine whether the hearing officer has complied
with this imperative so that no finding is made or penalty imposed without just cause.
Third, Pell v. Board of Education, 34 NY2d 222 (1974), requires the court to
determine whether a penalty imposed is "shocking to one's sense of fairness." If so, the
Court should "ameliorate harsh impositions of sanctions ... not only as a matter of
legislative intention, but also in order to accomplish what a sense of justice would
dictate." (Pell, supra, at 235).
C. The District's Burden of Proof
The District bears the burden of providing a quantum of evidence relative to the
charges that is sufficient to prove each charge by a preponderance of the evidence.
(Martin v. Ambach, 67 N.Y.2d 975 [1986]).
D. Substantial Evidence is the Appropriate Standard of Judicial Review
Phrases such as "must have evidentiary support' and "supported by adequate
evidence in the record' establish that judicial review in a compulsory arbitration case is
to extend beyond the limited grounds set forth in CPLR 7511. They do not, however,
establish the standard of review to be used by the judiciary in examining the record (i.e.,
rational basis, substantial evidence, preponderance of the evidence, beyond a
reasonable doubt or some other standard).
In this regard, courts have borrowed standards from CPLR Article 78.

For

example, where an award is not based on a hearing at which evidence was taken, the

{W0274748.1}

18

Court of Appeals has adopted the CPLR 7803(3) standard that requires an award "have
evidentiary support and cannot be arbitrary and capricious" (see generally, Alexander,
Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C7511 :5, at
778-782, citing MVAIC v Aetna Cas. & Surety Co., 89 NY2d 214, 223 [1996]).
Where, as here, the award is the result of a hearing at which evidence was taken
pursuant to direction by law, the standard of judicial review is the CPLR 7803(4)
requirement that the award be, "on the entire record, supported by substantial
evidence." See, e.g., Matter of Gongora v. NYC Dept. of Educ., 34 Misc. 3d 161, 166
(Sup. Ct., NY County, 2009) ("The requirement that the decision under review be
supported by adequate evidence restates CPLR 7803(4)'s ground for review.").
E. Constitutional Implications
The Court of Appeals in the Mt. St. Mary's held that due process requires an
appropriate standard of judicial review in any compulsory arbitration that potentially
impacts constitutionally protected property or liberty interests. (Mt. St. Mary's Hospital,
26 N.Y.2d at 498-99, 508-09). There are also equal protection concerns relative to the
proper standard of judicial review of a 3020-a award since, generally, all public
employees in New York are entitled to judicial review under the substantial evidence
standard codified in CPLR Article 78. A non-tenured public employee holding a clerical
position who challenges an award following a pre-deprivation hearing would be
statutorily entitled to have that award judicially reviewed under the CPLR 7803(4)
substantial evidence standard. To apply any lesser standard to the review of an award
in a 3020-a case would effectively deny the tenured employee the equal protection of
the laws guaranteed by the U.S. and State Constitutions.
{W0274748.1}

19

This is one more reason why it is necessary for the judiciary to borrow from
Article 78 when reviewing a 3020-a award.

In summary, a substantial evidence

analysis, modified to give consideration to the unique statutory protections of a tenured


employee, is the minimum standard required for judicial review under Education Law,
3020-a(5)(a).1
POINT II
THE DECISION CONSISTS PRIMARILY OF CONCLUSORY STATEMENTS
NOT BASED ON THE EVIDENCE AND IS SO LACKING IN ANALYSIS
AND DEVOID OF SPECIFIC FINDINGS OF FACT AS TO BE
FACIALLY DEFICIENT AND SUBJECT TO VACATURE

The Fourth Department has held that the award following an administrative
hearing must contain more than simple conclusory statements of guilt in order to survive
judicial review. (Aikins v. Curtis 81 A.D.2d 1020 [4th Dep't 1981]). The hearing officer
has an obligation to analyze the entire record fairly and objectively and make specific
findings of fact based on that evidence to support his or her conclusions. The Court
expressed this fundamental obligation as follows:
"The administrative finder of fact is obliged to "consider and sift all the
evidence -- accepting the true and rejecting the false" (cite omit). Since the
hearing officer's report does not contain any specific findings of fact but
only conclusory statements of guilt, we can only assume from this
somewhat ambiguous statement on the quality of the evidence that an

Petitioner says "minimum" because it may be appropriate to apply the higher


standard of preponderance of the evidence in cases where the outcome is so
stigmatizing as to foreclose future public employment. (See. e.g., Matter of Allesandro
[State Comm. on Judicial Conductl, 13 NY3d 238, 241, 249 [2009]; Matter of Mulrov. 94
NY2d 652 [2001]).

{W0274748.1}

20

erroneous standard of proof was employed in making his findings."


(lslJ. (Emphasis added).
This common law principle is codified in Education Law 3020-a(4)(a) which
states, "The written decision shall include the hearing officer's findings of fact on each
charge, his or her conclusions with regard to each charge based on said findings and
shall state what penalty or other action, if any, shall be taken by the employing board."
(Emphasis added). (See, also, 8 NYCRR 82-3.8(k)(2), which specifically requires written
findings of fact on each charge and conclusions based on those findings).
The transcript exceeds 2,300 pages and 62 District exhibits, 73 Petitioner
exhibits and five Joint Exhibits were received in evidence. Considering the size of the
record, the Decision is facially inadequate and incredibly scant. It is only 12 pages in
length, including the cover page. The first four pages repeat the Charges verbatim.
Approximately two pages under the subtitle "Findings of Fact" sets forth background
information that, for the most part, simply recites Statements of Fact from both parties
post-hearing memorandums. These "findings of fact" do not address the merits of the
Charges, and do not relate to matters in dispute. The decision contains only four pages
that discuss the Charges.
The hearing officer made only minimal findings of fact on disputed material
issues that are relevant on the merits of the Charges and completely ignored significant
evidence on his way to reaching conclusory statements of guilt. The few erroneous
findings of fact the hearing officer did make on substantive issues, and the lack of
findings of fact on others, is discussed below with reference to each charge.

{W0274748.1}

21

POINT III
THE HEARING OFFICER ERRONEOUSLY FAILED TO
CONSIDER RELEVANT AND PROBATIVE EVIDENCE REGARDING
"EMERGENCY INTERVENTIONS"
Several specifications allege that the Vestibule room (Elevator Machine Room)
was not a District authorized "Time Out" room and did not conform to the requirements
of 8 NYCRR 200.22(c). Petitioner denies that she ever placed KP in the Vestibule room
or directed McDonald or anyone else to do so. However, she agrees that any use of that
room

for "Time Out"

purposes would

not comply with

the

requirements

of

Commissioner's Regulation 200.22(c), and further agrees that such use was not
authorized by the District. In fact, the Board did not adopt a resolution to authorize the
use of any Time Out room until January 24,2015. (See, Exhibit E-29).
A. Petitioner Agrees the Room was Not an Approved "Time Out" Room

There is no question that the Vestibule room as it existed in the 2013-14 school
year did not comply with the requirements of Commissioner's Regulation 200.22(c). In
fact, it is doubtful whether any room within the l,.eMoyne Elementary school satisfied all
of those requirements (i.e. "adequate in width, length and height to allow the student to
move about and recline comfortably", "wall and floor coverings designed to prevent
injury to the student," "free of objects and fixtures can be potentially dangerous to a
student," etc.). (Section 200.22[c][5]).

In any event, the Board did not adopt a policy

that was a precondition for using any room for "Time Out" purposes until January 24,
2015. (See, 8 NYCRR 200.22[c][5]; Exhibit E-29).

Time out rooms are used to remove a student to a supervised area in order to
reflect and facilitate self-control consistent with the student's Behavior Intervention Plan

{W0274748.1}

22

("BIP"). KP's Behavior Intervention Plan provided a range of possible "Responses" to be


employed whenever problem behaviors occurred.

The response nearest to using a

"Time Out" stated" Student will be removed for a timeout. The 5 minutes will begin when
he is quiet with his head down. (in conference room)." (See, Exhibit 0-5). This was the

room next to Petitioner's office in the Main Office suite (T.120), a multipurpose room
designated as a reflection room in other student's BIPs and used for several other
activities beyond student reflection. There were times when it was in use and not
available for KP. (T. 1770).
The conference room could only be used when KP was under control, quiet, and
able to put his head down to reflect for five minutes. (T.1771). That "response" was
ineffective when he was in a rage and out of control. The BIP was meaningless when
KP was racing through the halls, tearing items off the walls, assaulting younger
students, kicking and punching staff members, climbing on the banisters of the second
floor stairway, or screaming, swearing, spitting and biting. (See, e.g. T. 532-533
[Dooley], T. 664-665,748 [McDonald], T. 1761, 1767, 1887 [Petitioner] and T. 22582259 [Bishop]). In these circumstances, a different intervention was required.
B. An Emergency Intervention was Often Necessary and Appropriate
Commissioner's Regulation 8 NYCRR 200.22(d) authorizes the use of
"Emergency Interventions" in situations where Section 19.5(a)(3) of the Rules of the
Board of Regents permit the use of physical force with a student. These situations are
(i) to protect oneself from physical injury; (ii) to protect any person from physical injury;
(iii) to protect the property of the school, school district or others; or (iv) to restrain or

{W0274748.1}

23

remove a pupil whose behavior is interfering with the orderly exercise and performance
of school or school district functions, powers and duties. (See, 8 NYCRR 19.5[a][3])).
There are several reasons why it was appropriate for school authorities to take
appropriate emergency intervention when KP was out of control. One is the fact that, if
the District failed to adequately supervise his conduct, it could be held liable for
foreseeable death or injuries proximately related to that lack of supervision. (Mirand v.
City of New York, 84 NY2d 44 [1994]). The District certainly had sufficient and specific

knowledge of KP's dangerous conduct and more than adequate notice of his potential to
cause injury to third parties as well as himself if left alone. Resulting injuries could and
should have reasonably been anticipated. School authorities may not ignore dangerous
conduct of a very seriously disturbed child without consequences. (Ferraro v. Board of
Education, 32 Misc. 2d 563 [Sup. Ct. NY, App. Term. 2nd Dep't. 1961]).

C. Use of the Room for Emergency Interventions was Proper


Petitioner denies that she ever personally placed a student in the Vestibule room
or "directed" McDonald or anyone else to do so. For the sake of defending the charges,
however, she also contends that it would have been appropriate and proper if the room
had been used in an appropriate manner (i.e., with the door open and an adult inside
the room) for an emergency intervention. In that instance, there would be no basis for
any charges against anyone.

emergency intervention.

Significant testimony was focused on the concept of

Every staff member involved with controlling KP's conduct

acknowledged that this type of intervention was required even if they were not
specifically aware of Commissioner's Regulation 200.22(d). (See, e.g.,1.1760-61
[Petitioner], 1. 752-754 [McDonald], 1. 1894-95 [Warren] and 1.2258-2261 [Bishop]).

{W0274748.1}

24

McDonald testified that she only used the room when KP was out of control "near
the room" and she had to "defuse" those behaviors and "restrain" him from hurting

himself or others.

(T. 763-764).

She only used the room when he "was having a

tantrum and he was a danger to himself or a danger to anyone else." (T. 690). She

testified it is necessary to use reasonable physical force to restrain a student whose


conduct threatens themselves or others, or who is destroying school district property or
disrupting the educational program. Under such circumstances, it would be appropriate
to remove the student to some other location. (T. 754).
McDonald does not believe she did anything wrong or illegal, but only what was
reasonably necessary under the circumstances. (T.762-763). Her June 27, 2014
affidavit (Exhibit 0-16), states that she first used the room with KP in January 2014
when he was in the school hallway near the Vestibule room, "ripping things off the wall,
yelling, swearing, tantrumming ... being violent" and running and that the three other
times she used the room with KP he had been committing similar behavior. (See,
Exhibit 0-16, Page 2 [3/4]).
Petitioner agrees that McDonald's decision to use the Vestibule room to restrain
KP when he was out of control near that room may have been necessary and
appropriate and, therefore, was not illegal or improper.

An emotionally disturbed

student who is out of control has to be calmed down by appropriate staff intervention. It
is only then that such a seriously troubled student would be able to receive any benefit
from reflection time. (T. 1765-66).
However, Petitioner does not agree with McDonald's decision to close the door
on KP and hold it shut. She also believes that an adult should always be in the room

{W0274748.1}

25

with the student. (T. 2000).

Had Petitioner known at the time that McDonald was

handling KP in this way, she would have put an immediate stop to such treatment.
Wade, the District's lead investigator, had no knowledge of the Commissioner's
Regulation on Emergency Interventions. (T. 1360). It is not surprising, therefore, that
she wrongly believed the regulations governing a "Time Out" room (which the Vestibule
room clearly did not satisfy) rendered any use of the room illegal, including appropriate
emergency interventions. Her ignorance regarding emergency interventions and her
words and actions regarding the possibility of criminal conduct spread fear and anxiety
among the staff and apparently motivated some to blame others for their own actions.
This was an incredibly important issue to Petitioner. She adamantly denies ever
placing KP in the Vestibule room or directing anyone else to do so. At the same time,
she contends that appropriate use of that room for an emergency intervention (i.e., with
the door open and an adult inside with the student) should not be the subject of
charges. An essential element of Petitioner's defense was that it was wrong for the
District to attempt to graft the formalities for Time Out rooms onto the Emergency
Intervention Regulation. However, the Decision does not say one word about
"Emergency Interventions." This omission violates the hearing officer's obligation to
consider and evaluate all the evidence and deprives Petitioner of her statutory right to
be disciplined only for just cause.

{W0274748.1}

26

POINT IV
THE HEARING OFFICER FAILED TO CONSIDER RELEVANT
AND PROBATIVE EVIDENCE REGARDING THE UNFAIRNESS
OF THE DISTRICT'S INCOMPETENT "INVESTIGATION"
OF THE COMPLAINT BY KP's GRANDMOTHER

There were a number of defects in the so-called investigation conducted by


Wade, which was one-sided and wildly judgmental. Although these arguments were
made to the hearing officer, they were ignored. There is no mention in the Decision
regarding Petitioner's multiple contentions in this regard or the hearing officer's
analysis of those arguments.
A. The Investigation was Incompetently Conducted

The reasons why Petitioner contends the "investigation was incompetent and
flawed to her detriment include the fact that (a) Wade is a Civil Service stenographer
with limited experience and no real training in conducting investigations (T. 881-83,
1391-93) who was not qualified to conduct the investigation, (b) her former boss, exSuperintendent Daniel Lowengard, testified that she did not have the aptitude to
conduct such an investigation because she saw everything in black and white, with no
gray (T.1489), (c) she had no knowledge of the controlling policies or laws (T. 128687), (d) she had no experience in Elementary School operations or administration (T.
1263-65) and (e) she had no experience dealing with emotionally disturbed students.
Moreover, her investigation was fatally flawed by her failure to interview the
complainant, the fact that she made premature judgments without all the facts, her
failure to get corroborating evidence to confirm witnesses' input, and her failures to

{W0274748.1}

27

properly document the evidence received and to prepare a report that summarized and
analyzed the evidence and justified her conclusions.
B. Wade's Incompetence Prejudiced Petitioner

Perhaps Wade's most egregious error was her failure to inform Petitioner as to
what Dooley and McDonald had stated to her.

An indispensable element of a

competent investigation of possible employee misconduct is to inform the target


employee of the allegations.

Wade's failure to inform Petitioner of the allegations

robbed her of the chance to refute the claims and eliminated any opportunity to provide
a proper context for facts which can be misconstrued in the wrong context.

The

Commissioner of Education describes this basic requirement as follows:


"This case raises serious questions about the use of the 3020-a
process for multiple charges that largely lack substance and, in only
one instance, even approach a level of teacher misconduct. This is
particularIv troubling where the district, in its eagerness to bring
charges, neglects to provide the teacher with notice and adequate
opportunity to comment on allegations before taking formal action. In
such cases, one must question whether the extraordinary expenditure
of time, energy and resources is warranted." (Emphasis added).

(Appeal of Board of Education of the Goshen Central School District, 30 Ed.


Dept. Rep. 181, 187; (Decision No. 12,426, November 30, 1990). This is precisely
what Ms. Wade did.

She intentionally failed to inform Petitioner of the allegations

against her. (1. 2185).

This failure had a predictable cascading effect that led

inevitably to the 3020-a charges. Those charges are primarily based upon Dooley's
fabrication regarding October 29, 2013 and McDonald's self-serving interpretation of
various discussions with Petitioner. Clearly, the "he said, she said" nature of these

{W0274748.1}

28

charges made it obligatory that Petitioner be informed of those allegations and be


given the opportunity to rebut them. When Wade was questioned as to why she did
not inform Petitioner of Dooley's claims regarding October 29, 2013, her response was
she never had the opportunity to do that. (T. 2189-90). That response was nonsense.
Although this failure deprived Petitioner of any opportunity to refute the allegations
before charges were filed, the hearing officer failed to even consider this argument by
Petitioner.
POINTV
THE HEARING OFFICER'S DETERMINATIONS REGARDING CHARGE
NO.1 ARE NOT SUPPORTED BY SUBSTANTIAL EVIDENCE
A. The Separate Allegations; Petitioner's Short Responses
Charge No.1 as amplified by the Charging Party's verified Bill of Particulars
alleges that, between 9:00 a.m. and 9:30 a.m. on October 29, 2013, Petitioner
personally "placed' KP in the Vestibule room.

The Charge alleges, that this action

constituted "conduct unbecoming a principal, misconduct, misconduct constituting


physical abuse, neglect of duty, immoral conduct and other just causes for disciplinary
action" for the following reasons:
1. The Vestibule room was "not a District authorized 'Time Out' room."
Petitioner agrees with this statement but contends that use of the room for an
appropriate Emergency Intervention, rather than as a "Time Out" room, is not
misconduct. (See, POINT III A, supra).

The hearing officer refers to the Vestibule room as the "EMS" or "Elevator
Machine Room" throughout the Decision. They are the same room.
{W0274748.1}

29

2. The Vestibule room did not satisfy the requirements of 8 NYCRR


200.22(c).
Again, Petitioner agrees with this statement but contends that it is not
improper to use the room for an appropriate Emergency Intervention under 8
NYCRR 200.22(d), rather than as a "Time Out" room under 8 NYCRR
200.22(c). (See, POINT III A, supra).
3. Placing KP in the Vestibule room for purposes of subjecting him to a

"time out" was not "authorized"


program ("IEP").

by his individualized education

The IEP does not mention time out rooms and has no relevance to the use of
such rooms since the District did not permit the use of Time Out rooms at any
school in the District until January 24, 2015. (See, Exhibit E-29). Also, the
IEP has no relevance to an "Emergency Intervention" in any event.
4. Placing KP in the Vestibule room for purposes of subjecting him to a
"time out" was not "authorized" by his behavior intervention plan
("BIP").
KP's Behavior Intervention Plan provided a range of possible "Responses" to
his disruptive behaviors. The closest one to a "Time Out" room stated
"Student will be removed for a timeout. The 5 minutes will begin when he is
quiet with his head down. (in conference room)." (See, Exhibit 0-5). By
definition, the BIP had no application to an "Emergency Intervention."

5. Placement of KP in the room constituted "physical abuse."


There was no support for this allegation in the record and it was dismissed by
the hearing officer. (Decision, pg. 10).

B. Dooley's Story Regarding October 29,2013


Dooley is the only person who alleges that Petitioner put KP into the Vestibule
room. No other witness claimed that she ever placed KP, or any other student, in that
room.

Dooley is a mandated reporter.

(1. 510). As the investigation unfolded, she

apparently realized that Wade believed something horrible had happened to KP and
was looking for someone to blame. Dooley became nervous, since she knew that KP

{W0274748.1}

30

had been in the Vestibule room but had not reported it or noted it in her nurses' notes.
(Exhibit 0-14). Realizing that she might come under criticism, Dooley concocted the
story that Petitioner had asked her to help Petitioner put KP in the room and then,
sometime around her third interview on June 18, 2014, created the nurses' note to
support this story.
Her story evolved from no mention of the Vestibule room to eventually claiming
that she helped Petitioner place KP in the Vestibule room on October 29, 2013. She did
not make this claim during her initial interview with the District's investigators, made a
vague reference to it during her second interview, and added further allegations during
subsequent interviews.

C. The Credibility Conflict Between Dooley and Petitioner


Petitioner adamantly denies Dooley's claims and asserts that she never placed
KP or any student in the Vestibule room. That story is a fabrication that Dooley created
and frequently enhanced for her own purposes. Petitioner and Dooley testified as to
completely contradictory and irreconcilable versions of what occurred on October 29,
2013. This charge presents a stark credibility dispute since they cannot both be
testifying truthfully.
Generally, such credibility disputes are to be resolved by the hearing officer.
Petitioner also acknowledges that both hearsay or non-hearsay evidence may create
credibility issues, provided "it is sufficiently relevant and probative to provide substantial
evidence to support the [hearing officer's] determination."
Dep't of Health, 295 AD2d 743 [3d Dep't 2002]).

{W0274748.1}

31

(King v. New York State

Without substantial evidence to

support the determination, it is error for a hearing officer to accept one version over
another simply to resolve a credibility dispute.
D. The Hearing Officer Failed to Properly Address the Credibility Conflict

No other relevant and probative evidence provides any evidence, let alone
substantial evidence, to support Dooley's story.
corroborating evidence.

Obviously, her own notes are not

The District, which has control over the E-SchooIPLUS

computer system, offered no evidence that the entries 90uld not be backdated. In fact,
Dooley confirmed information could be entered into her computer at any time. (T. 554).
On the other hand, Petitioner's testimony is supported by a significant body of relevant
and probative evidence from a number of documentary and testimonial sources.
The hearing officer did not address this conflict by analyzing the credibility of
either Petitioner or Dooley as one might expect. Instead, he relied almost exclusively
on the testimony of McDonald to bolster Dooley's claim. He did so despite the fact that
McDonald was not even in the building on October 29, 2013 (see. T. 780), and had
never claimed that Petitioner placed KP in the room. In fact, McDonald testified that she
never saw Petitioner put KP in the room. (T. 777-778, 791).

The hearing officer set forth five "reasons" why he determined that Dooley was
credible and Petitioner was not. These reasons are irrational and not supported by
evidence in the record:

1 (a). The Hearing Officer's First Reason:


"First, Ms. McDonald testified credibly that she had discussed the matter
of using the EMR for KP with Petitioner after a meeting convened in late
October or early November 2013 (this was the meeting of November 8,
2013-0.13). (See also, T.677-676 and Suarez testimony at T.1838-1839
{W0274748.1}

32

T. 1964: "Q. In-In this fall of 2013, you did have discussion with Ms.

McDonald about using a room for Student [KP) when he tantrumed (sic),
correct? A. We had a conversation about the possibilitv of using a room
for Student [KP). Q. And the use of the elevator machine room was
discussed as a possibilitv with Ms. McDonald, correct? A. That was one of
the possibilities.'J Such conversation took place when: "Shortly after the
meeting Laura mentioned that (KP's) grandmother had given permission
to use the 'time out room'." (0.16, p.2.) Petitioner denied that NS ever
gave her permission to use the EMR as a time out room. Petitioner also
denied telling Ms. McDonald to use the "time out room" (EMR). McDonald
asserted in a statement given to police that the first time she was actually
told to use the EMR was by Suarez in January 2014 (D. 16, p.2)."
(Decision p. 9) (Emphasis added).
1(b).

Petitioner's Response to the First Reason:

Petitioner freely testified that she and McDonald did "discuss" the Vestibule room
as one of several "possible" time out rooms. (T. 1838-39, 1908-09). That discussion
was based on the understanding that a number of hurdles had to be cleared before any
space could be used for that purpose.

First and foremost, the Board had to adopt a

policy that authorized the use of "time out" rooms within the District generally. At that
time, they were not allowed anywhere within the District. 3 Second, a specific time out
room would then have to be approved for use by the District's Director of Special
Education, Brian Pulvino. (T. 1839). Finally, if the Vestibule room was to be used for
"Time Out" purposes, it required modifications to comply with the Commissioner's
Regulations. (See, 8 NYCRR 200.22(c)(5); Exhibit E-30; see, also, T. 2001-02). No
action was taken at the building level beyond discussion of possibilities, and the
Vestibule room was never designated as a "time out" room. (T. 2004).

The Board did not approve the use of "time out" rooms until January 14, 2015,
long after the charges had been levied against Petitioner. (See, Exhibit E-29; T. 1756).
{W0274748.1}

33

Obviously, the fact that Petitioner and McDonald "discussed" the room as a
possibility at one time is not competent proof that Petitioner put KP in the room on
October 29, 2013 as alleged by Dooley.

This fact is irrelevant on the issue of the

credibility conflict between Petitioner and Dooley.

2(a).

The Hearing Officer's Second Reason:

"Second, as an administrative intern, it is highly unlikely that Ms.


McDonald would have used the EMR without approval from Petitioner."
(Decision p. 9).
2(b).

Petitioner's Response to the Second Reason:

The implication that McDonald was a "newbie" who had to obtain prior approval
from Petitioner for all her actions is completely unfounded. The Hearing Officer knew
that McDonald was not an "intern" in the traditional sense.

He also knew that the

District required individuals who applied for administrative positions to serve a so-called
"administrative internship." This enabled the District to extend the probationary term for
administrators by employing them in an "intern" basis before they received their actual
probationary appointments. (T. 1129-30, 1159, 1774).
McDonald is an experienced educator who, at the time, had been employed by
the District for 19 years.

(T. 657).

She had completed the Certificate of Advanced

Studies program at LeMoyne College.

She was fully certified as a School Building

Leader by SED and was qualified by experience and certification to function as a public
school administrator. (T. 659, 666). She was also a "mandated reporter" who had a
statutory obligation to report to Child Protective Services ("CPS") or other law
enforcement agency whenever she had reason to suspect that a student was the victim
of child abuse or neglect. (T. 732-733).
{W0274748.1}

34

In addition, McDonald was highly experienced in dealing with emotionally


disturbed children. During the 2012-13 and 2013-14 school years, she performed the
duties and responsibilities of the Vice-Principal at LeMoyne and had supervisory
responsibility over special education matters. (T.660 and 734; Exhibit E-20). McDonald
was also responsible for the summer school special education program for the entire
Syracuse City School District during 2013.

(T. 660, 779-780; 1794). The McCarthy

program is a school operated by the District for students with severe emotional deficits
(T. 33), and McDonald worked at McCarthy during the summer months. (T. 667). No
other administrator performed the Vice Principal duties and responsibilities at LeMoyne;
they were all handled by McDonald. (T. 742-743).
Nevertheless, the hearing officer appears to have concluded that McDonald
could not act independently and had to receive direction from Petitioner on every action
she took in her position as Vice Principal. For example, he stated it was "highly unlikely

that Ms. McDonald would have used the EMR without approval from Ms. Suarez"
(Decision, p.6). He further found "little reason to believe" that McDonald acted on her
own, and he credited McDonald's testimony that "she acted upon the advice and

direction of Ms. Suarez" when she placed KP in the Vestibule room. (Decision, p.10).
Based on these assumptions, the hearing officer held Petitioner legally culpable for
McDonald's actions.
The hearing officer's determination that McDonald lacked independent authority
and Petitioner is, therefore, culpable for McDonald's actions is not supported by the
evidence. McDonald was the Vice Principal in fact. She was responsible for "evaluating

and supervising teachers and staff, disciplining students, working with the community

{W0274748.1}

35

and parents and -- in other words, supporting the principal of the school." (T. 660). No
one else acted as the Vice Principal and McDonald acknowledged that her duties "as an

administrative intern were in the nature of the vice principal." (Id.).


Clearly, McDonald was accountable for her own behaviors and there is no
evidentiary basis to hold Petitioner legally culpable for McDonald's misconduct.
McDonald's title as an "administrative intern" does not have any relevance in resolving
the clear credibility conflict between Petitioner and Dooley regarding Charge No.1. 4

3 (a).

The Hearing Officer's Third Reason:

''Third, Ms. McDonald admitted using the EMR, while Suarez denied either
using the EMR herself or advising McDonald to use it for controlling KP's
behavior." (Decision p. 9).
3(b).

Petitioner's Response to the Third Reason:

McDonald did use the Vestibule room, and she could not plausibly deny that fact
because of the number of people who saw her at the room with KP.

For example,

Warren, who was with KP every day (T. 1886), testified that McDonald used the room
for KP at least four times and that she was with her each of these times. Warren also
testified that she never saw Petitioner at the room. (T. 1896 1901, 1904).
Bishop too saw McDonald use the room with KP. He heard screaming from the
room in June 2014 and saw KP in the room with McDonald at the door and Warren
standing behind McDonald. (T. 224-25). Dooley also testified that she saw McDonald
place KP in the room on two occasions. (T. 469-70, 474). Finally, Francis, the school
McDonald has been on a paid administrative leave since June 18, 2014, in
connection with the complaint regarding KP. She is not the subject of any charges or
other disciplinary action by the District. (T. 658).

{W0274748.1}

36

custodian, saw McDonald in March 2014 outside the room holding the door closed with
a student in the room. (T. 1950-51).
Thus, it is not surprising that McDonald admitted using the room. However, it is
difficult to understand how that admission has any bearing upon Petitioner's credibility.
The fact that McDonald admitted using the room and Petitioner denied doing so is of no
help in resolving the irreconcilable differences between Petitioner and Dooley regarding
the events of October 29, 2013.

It was irrational for the hearing officer to conclude

otherwise.
4(a).

The Hearing Officer's Fourth Reason:

"Fourth, Petitioner was well aware that the EMR had been used for KP,
being present at the EMR at the very least once in December 2013 as
witnessed by Mr. Anthony Bishop (T.2230-22345) and confirmed by
Suarez herself (T.1840-1842). While Suarez admitted seeing McDonald,
Bishop and PK at the EMR at that time, there is no proof that she took any
affirmative action to question or admonish McDonald, if, in fact, the
placement was contrary to her expectations." (Decision p. 9).

4(b).

Petitioner's Response to the Fourth Reason:

The one and only time Petitioner was made aware that KP had been in the room
was the "throw up" incident involving Teaching Assistant, Bishop, on December 9, 2013.
Petitioner had been told that KP had run into the Vestibule room on his own that day. (T.
1840, 1842; see, Exhibit E-28, p. 11).

No evidence controverts this claim and it is

corroborated by McDonald's testimony that she and Bishop "were chasing" him when he
was "running through the halls" (T. 692) and that KP opened the door to the room. (T.
693). This is what McDonald told Petitioner, this was Petitioner's understanding as to

{W0274748.1}

37

how KP came to be in the Vestibule room, and this is what she told the school
investigators.
There is no dispute that one of KP's typical behaviors was to run into various
spaces throughout the school building. (See, Section B.3 of the Statement of Facts).
Therefore, there would be no reason for Petitioner "to question or admonish McDonald"
because KP had run into the Vestibule room. There is no rational reason to conclude
that Petitioner's version of events on October 29, 2013 lacks credibility because
McDonald

was not admonished, and whether Petitioner did or did not reprimand

McDonald has no bearing on whether Petitioner personally put KP in the room, as


Dooley claims.
This irrational reasoning is not made rational by adding the qualifying statement:

"if, in fact, the placement was contrary to her expectations." Petitioner's "expectation"
was that KP would run to any location within the school if given the opportunity to do so.
(1. 1761).

Her further "expectation" was that either Warren, Bishop or one of his

classroom teachers would immediately pursue KP to prevent him from hurting himself or
others. (1. 1760-61). These expectations were justified and reasonable considering
KP's daily conduct.

5(a).

The Hearing Officer's Fifth Reason:

Petitioner asserts that Dooley's story regarding October 29, 2013 could not
possibly have happened because Petitioner was fully occupied that morning responding
to what was a full scale brawl among emotionally disturbed students that began in a
classroom and spread to the Main Office suite. The hearing officer completely
discounted this evidence and determined that this argument "also fails" because he

{W0274748.1}

38

found "an unaccounted gap between the initial disciplinary referrals of 8:45 am and
Respondent's injury at 10:00 am which does not make the alleged EMR incident with
KP an impossibility."). (Decision, p. 9).
5(b).

Petitioner's Response to the Fifth Reason:

There are multiple responses as to why this stated reason is irrational. First, to
say that Dooley's version is "not an impossibility" is not to say that it has been
established as fact by a preponderance of the credible evidence. What it does say is
that the hearing officer believes Dooley over Petitioner even though no other relevant
and probative evidence supports that story and other evidence discredits it and
corroborates Petitioner's testimony. The hearing officer's finding was not based on the
preponderance of the credible evidence but, rather, on his conclusion that it was a
"possibility." That was clear error.
Second, there is absolutely no evidentiary support for the statement that "Ms.
Suarez did not appear in her office until after 9:30 a.m. and possibly after 9:45 am." She
was there well before 8:00 and was in the office from the time Muehl ran into
Petitioner's office to report a major fist fight in the classroom at about 8:50 am until well
after 10: 15 am that morning. No testimony supports this finding; no document makes
that assertion.
Third, this finding is based on a truly bizarre timeline analysis that ends with the
completely unwarranted conclusion that "there is an unaccounted gap between the
initial disciplinary referrals of 8:45 am and Respondent's injury at 10:00 am." The
hearing officer created this "gap" by starting with an event at the beginning of the
incident (Le., The disciplinary referrals prepared by Muehl regarding the fight at 8:45 am

{W0274748.1}

39

- Exhibits E-14, 15, 16) and juxtaposing them with an event that occurred near the end
of the incident (i.e., The report regarding Petitioner's injury at 10:00 am - E.17). 5
Of course, the relevant time period is 9:00 to 9:31 that morning (which is when
Dooley claims she, Francis, Petitioner and KP were at the Vestibule room) and not 8:45
to 10:00 as stated by the hearing officer.

The hearing officer completely ignores

overwhelming evidence in the record, both testimonial and documentary, that places
Petitioner in the Main Office area throughout this entire period of time. There is simply
no support for his conclusions regarding credibility.
E. Dooley's Story Re: October 29, 2013 is a Fabrication
Of the 22 District employees interviewed during the "investigation," Dooley was
the only one who claimed that Petitioner placed KP in the Vestibule room. The only
documentary evidence to support this allegation was a printout of a computer entry that
Dooley made in her Nurse's Notes regarding KP's alleged visits to her office. (Exhibit D14). It is important to note that these entries could have been entered into Dooley's
computer at any time. (T. 428).
Dooley is a mandated reporter, and the evidence established that she was seen
by Bishop at the Vestibule room (T. 2243). She also admitted seeing McDonald put KP
in the Vestibule room but did not report it to CPS or any other law enforcement

The Decision also states, "While Ms. Suarez testified that she filled in a portion of
Muehl's referral, the time of Suarez' input is not evident; nor, was Ms. Suarez able to
testify as to any time at which she added her input." (Decision, P. 9). This too makes no
sense. The time, or times, when Petitioner made her entries on the three Discipline
Referral forms does not prove whether she was in the Main Office suite between 9:00
and 9:31 that morning handling a major disruption, as she claims, or at the Vestibule
room with Dooley and Francis during that time period, as Dooley claims.
5

{W0274748.1}

40

authority. (T. 470, 477-79). When the District's investigators caused the staff to think
that there was possible criminal liability (see, POINT II), Dooley had every reason to
protect herself by creating a type of "Nuremburg" defense, blaming Petitioner for her
omissions.
However, that defense is not supported by the evidence, which establishes that
what Dooley claims simply did not happen.

The hearing officer's finding of guilt on

Charge No.1 is erroneous and should be vacated for at least four reasons:

Dooley's changing versions of her story indicate it was fabricated to protect


herself for not having reported prior use of the room.

On its face, Dooley's story is improbable considering the day-to-day standard


school procedures which establish that KP could not have been alone in the
hallway struggling with Petitioner between 9:00 am and 9:30 am on October
29, 2013, or any other day.

The evidence established that Petitioner was occupied in the Main Office
suite from before 9:00 am until at least 10: 15 am on October 29, 2013
responding to a crisis involving another student ("CS").

No witness corroborates Dooley's story while several witnesses confirm, and


not one refutes, Petitioner's testimony regarding her activities the morning of
October 29, 2013.

1. The Changing Versions of Dooley's Story

Dooley was interviewed by Wade three times between June 12 and June 19,
2014. She also gave Detective Murphy a sworn affidavit on June 27, 2014 (Exhibit D15) and testified at this 3020-a hearing. Her story about the alleged incident of October
29, 2013 evolved and changed with each version which seriously undercuts her
credibility.

{W0274748.1}

41

a. Delay in Making Her Claim - The alleged incident of October 29, 2013
is obviously significant. If it had really happened, there can be no doubt that it would
have been in the forefront of Dooley's mind when she was questioned by the
investigators. However, she made no mention of it during her first interview with Wade
on June 12th. (See, Exhibit D-21).
b. Delay in Producing the 10/29/13 Nurse's Note - When Dooley was
interviewed a second time four days later on June 16, 2014, she produced at least a
portion of her nurses' notes. This was a note for March 18,2014 stating that McDonald
had grabbed KP's arm and asked Dooley to "check him." (See, Exhibit D-14, pg. 7).
This interview took place at the school (T. 511) and a printout of the October 29, 2013
nurses' note could have then been produced in a few moments if it truly existed as of
that date. However, the note was not produced at this interview. (T. 458-460).
c. Was the Vestibule Door Opened or Closed - Dooley's story as to
whether the Vestibule door was opened or closed on October 29, 2013 changed from
version to version. On June 12th, she said that "If ever closed -someone is presentnever lock a kid alone in a room" and later, "She remembers the door being locked."
(Exhibit D-21).

Four days later, she said "The door was open" - "Door was always

open" and "Never seen him with door closed." (Exhibit D-22, pg. 2 of 2; Exhibit E-32).
Three days later after Petitioner was suspended, Dooley said "I don't know if it was
opened, or if she opened it." (Exhibit E-33, pg.1). Finally, on June 27, 2015, Dooley
signed an affidavit which stated "It was closed. I don't remember if Laura had a key or
not, but she opened it up. I certainly don't have a key. as mine are limited to anything
that pertains to my nurse's office." (Exhibit D-15).

{W0274748.1}

42

During four interviews over the course of fifteen days, Dooley's story went from
remembering the door being locked and, if it was ever closed, an adult was inside
(Exhibit 0-21), to the door was always open and she never saw KP with the door closed
(Exhibits 0-22 and E-32), to either the door was open (Exhibit 0-23) or she did not know
if it was open (Exhibit E-33) and, finally, to it was closed and Petitioner opened it
(Exhibit 0-15). Her testimony at the hearing changed yet again when she testified she
never saw KP in the room with the door closed. (T. 544).
d. How did KP Get to the Vestibule Room - Dooley's testimony regarding
how KP allegedly got to the Vestibule room on October 29, 2013 was also inconsistent.
At her first interview, she did not even mention the alleged October 29, 2013 incident.
(Exhibit 0-21). On June 16th, she said that she first saw KP in the room ("the room by
the stairs), with the door open, and Suarez asked her to stay with him for 4 minutes."
She also said she was "not sure if he was brought into the room or ran into the room."
(See, Exhibits E-32 and 0-22).6
After Petitioner was suspended, Dooley finally gave the District's investigators a
copy of her October 29, 2013 nurse's note. (See, Exhibits E-33 and 0-23). By the time
she gave her affidavit on June 27, 2014, her story was, "I helped by holding [KPj by the
arm, as did Laura, and we guided him down the hallway." (Exhibit 0-15). Over a period
of two weeks, Dooley's story changed from not being sure whether KP had been

A note at the bottom of page 2 of Exhibit E-32 states that Dooley asked
McDonald (the "VP") if she had it in writing from the grandmother who could not be
trusted. Thus, Dooley had clearly spoken with McDonald before about using the room.
(T. 780).
6

{W0274748.1}

43

brought to or ran into the room to stating that she and Petitioner guided an irate KP from
the hallway outside the gymnasium to the Vestibule room.
e. Was she Inside or Outside the Room - Dooley's testimony as to where
she and Petitioner were positioned once they got to the Vestibule room on October 29,
2013 was also contradictory. She did not mention the alleged incident during her first
interview.

On June 16th, she was not specific about where they were positioned,

except to say "Laura was in the room" and asked Dooley to stay with KP to "keep them

in a nice quiet space." (Exhibit 0-16). On June 19th, she said "Both were in the room
Petitioner with child - All three in the room." She also said that "She stayed with [KP] for
4 minutes he was in there" and she was "not sure if [Petitioner] left or not." Beardall
heard her say "I don't remember if she [Petitioner] left or not. I'm just not sure." (See,
Exhibit 0-23, pg. 2 of 5; Exhibit E-33).
Dooley's June 27, 2014 affidavit no longer has either Petitioner or herself in the
room with KP.

In that affidavit, she states, "Laura put [KP] in the room and began

talking to him through the closed door. Laura asked me to stay with her. [KP] was
responding to Laura as she spoke with him through the door, and he started to calm
down. Laura then cracked the door and began talking to him with the door open a bit. I
actually timed the whole episode was there, and it lasted four minutes. I didn't speak
with [KP] at all. I just observed." (Exhibit 0-15). Her story was embellished yet again
during her testimony where she claimed that Petitioner was holding the door shut from
the outside while an "agitated" and "angry" KP struggled to get out of the room. (T. 45354).

{W0274748.1}

44

Over fifteen days, Dooley's story went from no mention of KP in the Vestibule
room (Exhibit 0-22), to Petitioner being in the room with him (Exhibit 0-16), to
Petitioner, Dooley and KP all in the room together (Exhibit 0-23), to KP in the room
alone with Petitioner opening the door "a bit" (Exhibit 0-15), to Petitioner holding the
door shut against a struggling and screaming KP inside the room. (1. 453-54).
Respectfully, this volume of changes regarding material and relevant issues
seriously discredits Dooley's story. It was incumbent upon the hearing officer to at least
analyze the impact of these several conflicts on her credibility. However, he failed to
even mention this issue and, instead, accepted Dooley's testimony as credible evidence
based upon his confused and erroneous discussion of McDonald's testimony.

2. The Standard Procedures at LeMoyne Elementary School

Several standard procedures in place at the LeMoyne Elementary School make


Dooley's story regarding October 29, 2013 highly improbable, if not impossible. For
example, Warren would meet KP at the front of the building every morning and escort
him to breakfast. (1.1905-1906). Warren was with him throughout the day. (1. 284).
Also, KP was always pursued by a staff member whenever he bolted from the
classroom. He was not allowed to run free. (See, Statement of Facts at page 5 to 7). In
the event he bolted from the classroom, the staff was instructed to go after him. (1.
1796). If he was in the hallway after 9:00 am, Warren or a classroom teacher would
have been in hot pursuit of him.

It would be impossible for him to be alone in the

hallway with Petitioner. (1.1797).


In addition, the morning bell rings before 9:00 am and students are to be in the
classroom at 9:00 am. Until that time, staff members are assigned to locations
{W0274748.1}

45

throughout the building to function as hall monitors, including one in the immediate
proximity of the Vestibule room.

(1. 1825).

The District did not produce any hall

monitor to confirm Dooley's story that Petitioner was struggling with KP in the hall that
morning. Also, Petitioner's standard practice was to have KP and other students in her
office for breakfast before class. (1. 34, 293, 1905-1906). Considering these established
procedures, the odds of Petitioner being alone struggling with KP in the hall outside of
the gymnasium between 9:00 and 9:30 on any school day are slim to none.
3. Corroboration or Refutation by Other Evidence

The hearing officer completely ignored a significant volume of evidence that


contradicted Dooley's story.

Dooley claims that Francis was at the Vestibule room

between 9:00 am and 9:30 am on October 29, 2013.


Francis as a witness to verify her story.

The District did not produce

When he was subpoenaed by Petitioner,

Francis testified that he had no recollection that this ever happened. (1. 1953).7 He
also testified that he never saw Petitioner at the Vestibule room. (1. 1953).
Dooley claims that KP was at the Vestibule room between 9:00 am and 9:30 am
on October 29, 2013.

Warren testified that KP was with her throughout the entire

morning of October 29th in the classroom (1. 1890-1891).

Dooley also claims that

Petitioner was at the Vestibule room between 9:00 am and 9:30 am on October 29,
2013. Abt, Petitioner's secretary, testified that Petitioner never left the Main Office area
that morning. (1.1623). Both the Police and Onondaga Case Management responded
to the incident and parents, grandparents and/or guardians of each of the four boys
Based on his clear recollection of other statements and activities regarding the
Vestibule room (See, e.g., 1. 1951), he would have remembered seeing Dooley and the
Principal holding the door on a screaming student if it had, in fact, occurred

{W0274748.1}

46

involved in the brawl were called to come to the school. This was not a forgettable
incident for anyone involved which lends strong credibility to their testimony.
4. No Complaint bv the Grandmother 10 Days Later

There was a support services meeting for KP at LeMoyne on November 8, 2013


attended by a number of people involved with KP's program including KP's
grandmother. We can be quite confident that if, only 10 days before that meeting, KP
had been in the Vestibule room, alone and screaming for four minutes while the door
was held shut by his Principal with whom he frequently had breakfast and lunch, his
grandmother would have been told of this fact and would have come to the support
services meeting only 10 days later with "guns blazing." However, there was no such
discussion at the November 8, 2013 support services meeting. The hearing officer
simply ignored the fact that KP's grandmother made no mention of him being "locked in
a room" at the November 8, 2013 support services meeting.
5. The Timed and Dated Photographs of the Property Damage

Petitioner took photographs of the destruction that the October 29th brawl
caused to the Main Office area. Several photographs are dated and time stamped for
October 29,2013 at 9:36 am. (See, Exhibits E-36, E-37 and E-38). Dooley's story would
have Petitioner rush back to the Main Office from the Vestibule room located in another
portion of the building, grab her I-phone and take several photographs of the damage in
a five minute period. To borrow the hearing officer's analysis, that might not have been
an "impossibility." However, it is highly unlikely in the real world, and is another relevant
factor that should have been considered by the hearing officer, but was ignored.

{W0274748.1}

47

The incident that Dooley described with increasing detail from her initial interview
to her testimony simply never happened. The hearing officer's acceptance of her story
based solely on his convoluted discussion of McDonald's testimony, while ignoring
significant relevant, probative and credible evidence to the contrary, was irrational and
should be vacated by this Court.
POINT VI
THE HEARING OFFICER'S DETERMINATIONS REGARDING CHARGE
NO.2 ARE NOT SUPPORTED BY SUBSTANTIAL EVIDENCE
Charge No. 2 accuses Petitioner of "conduct unbecoming a principal,
misconduct, misconduct constituting physical abuse, neglect of duty, immoral conduct,
and other just causes for disciplinary action" in that she "directed" McDonald to use the
Vestibule room as a "time out room" for KP in the fall 2013 and again in January 2014.
It alleges, further, that in fall 2013, Petitioner "falsely represented to McDonald that KP's
grandmother had authorized use of the room for time out purposes.

A. The Separate Allegations; Petitioner's Short Responses


1. In fall 2013, Petitioner "directed" McDonald to use the Vestibule room as
a "time out room" for KP.
In October and early November 2013, KP's grandmother asked if the school
had a room that could be used when he was out of control. The idea of a
This charge also repeats the allegations of Charge No. 1 that the Vestibule room
was "not a District authorized 'time out' room," did not meet the requirements of 8
NYCRR 200.22, that placing KP in the Vestibule room was not "authorized' by his IEP
or SIP, and that placing him in the room constituted "physical abuse." Petitioner's short
responses to these allegations set forth at POINT V, Section A, 1 through 5 are
repeated and incorporated here as if fully set forth.
8

{W0274748.1}

48

"Time Out" room was discussed by KP's services team at a meeting on


November 8, 2013. Following that meeting, Petitioner and McDonald toured
the school building to look at possible locations that might be used for Time
Out rooms. It was understood that no rooms could be used for that purpose
unless the Board first adopted a policy permitting time out rooms in general
and that specific time out rooms within LeMoyne Elementary for that purpose
had to comply with the requirements of 8 NYCRR 200.22(c).
There were discussions between McDonald and Petitioner about possible
locations for a Time Out room. However, by McDonald's own testimony,
Petitioner never gave her any "directions" to use the Vestibule room, or any
other room, at that time.

2. In January 2014, Petitioner "directed" McDonald to use the Vestibule


room as a "time out room" for KP.
McDonald testified that, in January 2014, she and Petitioner responded
together to a call that KP was having a fit, "ripping stuff off the wall" and out of
control in the hallway near the Vestibule room. McDonald claims that the
Teaching Assistant, Warren, was with KP at the time and that Petitioner told
her and Warren to "take him down there." McDonald interpreted "down there"
to mean the Vestibule room and she then placed KP in the room. She states
that Petitioner was not with her at the room but that Warren was.
Petitioner denies that any such incident or discussion occurred. Warren also
denies that the alleged incident described by McDonald ever occurred.
In Petitioner's opinion, McDonald's actions in placing KP in the room and
holding the door shut on him were inappropriate even for an Emergency
Intervention. The evidence is that these decisions were made by McDonald,
and that Petitioner never directed McDonald to place KP in the room alone or
to hold the door closed while he attempted to pull it open.

3. In fall 2013, Petitioner "falsely represented to McDonald that KP's


grandmother had authorized use of the room for time out purposes."
McDonald's testimony was the only evidence offered by the District on this
specification. She failed to establish that any such representation was made.
To the contrary, she testified that following the November 8, 2013 meeting
with KP's grandmother, Petitioner told her that the grandmother had "agreed
to using a timeout with [KP]' (T. 675). When asked if she claimed Petitioner
had represented to her that the grandmother had authorized use of the

{W0274748.1}

49

Vestibule room, McDonald testified that Petitioner "never said that room."
(T.771 ).

B. The Hearing Officer's Sparse and Irrational Decision

The hearing officer devoted barely a half page of his Decision to a discussion of
Charge No.2, and made little or no reference to the evidence elicited at the hearing. He
simply held that "Petitioner directed District employee Cheryl McDonald to place
disabled male student KP in the EMR, as described (0.16, p.2)." (See, Decision p. 10).

Two other comments by the hearing officer were:


1. There is little reason to believe that Ms. McDonald did so on her own. Ms.
McDonald testified that she acted upon the advice and direction of Petitioner.
(IQ).
2. "[Petitioner] was well aware of what Ms. McDonald was doing and at one
point in her testimony, relating a conversation with Ms. McDonald in June,
2014 where McDonald was telling her about putting KP in the EMR (while the
District was investigating the allegations concerning student KP) she told Ms.
McDonald not to say any more to her about the matter. (IQ).
With respect to the first sentence of comment #1 , there is every reason to believe
that McDonald did act on her own in her dealings with KP. In fact, she acknowledges
that the questionable aspects regarding her use of the Vestibule room (i.e., putting KP
in the room by himself, closing the door, holding it shut against his tugging on it, etc.)
were decisions that she alone made in her discretion. Petitioner never gave her any
direction on these matters and she clearly acted "on her own." (T. 686, 776-77). Of
course, the second sentence of #1 merely repeats the charge and is not a discussion of
evidence that establishes the allegations.
With respect to comment #2, the cited conversation is alleged to have occurred
on June 17, 2014, at least eight months after the alleged Fall 2013 directive and at least
{W0274748.1}

50

five months after the alleged January 2014 directive. In this conversation, McDonald
told Petitioner for the first time that she had used the room with KP. (T. 2005). This
admission was made while Mark Warner, a Teacher Assistant who was active in the
union, was in the room and after Petitioner had told Wade that the only time she was
aware of when KP had been in the room was the time he ran in there himself (the socalled "throw up' incident with Bishop). After McDonald sheepishly admitted she had
placed KP in the room, Petitioner said to her "Don't tell me any more" (T. 1983) and then
tried to contact Wade so that she could pass this information on to her. (T. 2011).
However, Wade had already mistakenly determined that Petitioner was responsible for
KP being held inside the room alone and did not return the call to Petitioner.
The fact that Petitioner asked McDonald not to say any more to her about the
matter has no relevance on whether she also gave McDonald directives regarding use
of the Vestibule room, as the Charge alleges. There simply is no evidentiary support for
the hearing officer's conclusion that Petitioner "directed" McDonald to use the room
either in the Fall 2013 or January 2014 as alleged in Charge NO.2.

1. The Alleged Directive in Fall 2013.


Exhibit 0-16 is the only evidence cited by the hearing officer to support his
determination that Petitioner "directed" McDonald to place KP in the Vestibule room for
"Time Out" purposes. This exhibit is the June 27, 2014 affidavit that McDonald gave to
the police after she had been suspended nine days earlier. The affidavit makes no

mention of any alleged directive in Fall 2013. The Decision does not even discuss the
alleged Fall 2013 directive, and the hearing officer clearly failed to make any

{W0274748.1}

51

determination regarding that allegation of Charge No.2.

That omission justifies

vacature of this charge if not the entire Decision.


Moreover, McDonald's affidavit actually denies that Petitioner directed her to use
the room in Fall 2013. It states, "The first time I was told to use the room, I believe
happened in January 2014. This was the first time that I thought anyone had placed him
in there." (See, Exhibit D-16, page 2). (Emphasis added). Obviously, if the first alleged
"directive" was in January 2014, there was no directive in Fall 2013.

2. The Alleged Directive in January 2014.


McDonald's June 27, 2014 affidavit is the only evidence cited by the hearing
officer as the basis for his conclusion that Petitioner "directed" McDonald to place KP in
the Vestibule room for 'Time Out" purposes.

Respectfully, McDonald's sworn

statements of alleged fact in that affidavit do not support such a conclusion. According
to McDonald,
"Laura and I were summoned down to the classroom, and upon arriving to
[sic] the hallway near the classroom, I observed Kendell acting out. He
was ripping things off the wall, yelling, swearing, tantrumming, and being
violent. He had already started running when we approached him. My
experiences with Kendell are that he typically runs in the direction of the
"time out .room". This is in the opposite direction of the office. When we
caught up to him, we weren't very far from the "time out room". Laura said
that we should try using the "time out room, " and told me to take him

McDonald's statements in Exhibit 0-16 were not spontaneous or casual. They


were well thought out before the affidavit was signed. In a highly unusual procedure,
she was allowed to prepare the contents of the affidavit at her lawyer's office with his
assistance and that of her husband and the statement they prepared was then dropped
into the police department affidavit format. (T.718). The affidavit was prepared after
McDonald had been suspended in connection with the investigation into the KP charges
and at a time when she was facing potential criminal charges. (T. 795).
{W0274748.1}

52

there. I was helped at that time by his 1: 1 teaching assistant, Kathleen


Warren."
Thus, even if McDonald's claims are accepted for purposes of this proceeding,
Petitioner's statement "to take him there" did not direct her to use the room for "time out"
purposes as opposed to an emergency intervention at a location away from a hallway in
the middle of the school. The statement certainly does not direct her to put KP in the
room alone and hold the door shut on him.

C. Substantial Evidence Does Not Support the Hearing Officer's Conclusion


Regarding the Alleged Directive
Even if we were to look past the hearing officer's failure to address the charge
that Petitioner gave McDonald an improper directive in Fall 2013 and forgive the
slipshod analysis of Exhibit 0-16 to support his conclusion that Petitioner gave
McDonald a directive to take KP there in January 2014, the large volume of credible,
material and contrary evidence throughout the entire record establishes that his ultimate
conclusion is not supported by substantial evidence.

1. Onlv McDonald Claims that Petitioner "Directed" Use of the Vestibule Room
The District interviewed 22 staff members. McDonald is the only one who claims
to have received a "directive" from Petitioner on how to respond to KP's behaviors. No
one else makes that claim. No directives were given to Moulton or Wills, the classroom
teachers who had to deal with KP daily (T. 286), or to Warren, the 1:1 aid who was with
KP all day, every day. (T. 1899).
If Petitioner truly believed that the Vestibule room could effectively and legally be
used as a "Time Out" room for KP within the meaning of 8 NYCRR 200.22(c), it defies

{W0274748.1}

53

common sense that she would convey that strategy only to McDonald. The record
establishes that McDonald's exposure to KP's behaviors was limited compared to that
of his one-on-one TA, Warren (who was with him all day, every day), his two classroom
teachers (Moulten and Wills), and TA Bishop.

These employees and other staff

members had far more exposure to KP, and a far greater need for assistance on how to
handle his behaviors, than did McDonald. (T. 798). However, the record establishes
that Petitioner never made any such directive to these other staff members.

2. McDonald Claims that the Directive Applied on to KP


The alleged directive from Petitioner is also inconsistent with the fact there were
several emotionally disturbed students at LeMoyne Elementary school whose behaviors
were similar to those of KP. McDonald identified the boys involved in the October 29,
2013 incident as having the same behavior problems as KP. (T. 749-750). However,
she claimed that Petitioner only told her to use the Vestibule room for KP, and not any
other disruptive student, and that she never used the room for any other student. (T.
798-99). If Petitioner thought that the room was appropriate for KP, there is no rational
reason why it would not also be appropriate for dealing with the dangerous behaviors of
these other troubled students.
The only apparent distinction is that KP's family filed a complaint that he had
been locked in a closet in the basement and the way in which Wade "investigated" that
complaint caused fear and concern among the staff, including McDonald. She needed
some justification and "cover" regarding her treatment of KP only and not the other
students with similar behaviors.

{W0274748.1}

54

3. McDonald's Testimonv was Vague Regarding the Alleged Directive.


McDonald's testimony beyond her carefully crafted affidavit was vague and
inconsistent regarding exactly what the alleged directive was. At one point, she stated
Petitioner "said she had a place that she thought would work." (T. 676).

Later, she

"said this could be a good timeout space for' KP (T. 681), and still later that Petitioner
said "this would be a good space for' KP. Regardless of the linguistic differences, it
appears that each description related to possible locations for a future time out room.
Not one of them was a directive that McDonald hold KP behind closed doors with no
adult in the room whenever he acted out. (T. 682).
McDonald's testimony establishes that what the Charge alleges were specific
"directions" in Fall 2013 were, in fact, only discussions among the building's two
administrators regarding what could be done to control KP in a safe and secure manner.
It is irrational and without any evidentiary foundation to conclude otherwise.
4. McDonald's Testimony was Controverted by Warren
According to Warren, the incident McDonald claims to have occurred in January
2014 in the school hallway never happened. Warren testified that the first time she and
McDonald took KP to the Vestibule room was when he was so out of control in the
classroom that all other students were removed from the room while McDonald tried to
get him under control. When she was unable to do so, McDonald told Warren to "come
with me" and she took KP directly to the Vestibule room. Warren testified that Petitioner
was not present at that time or at any other time when KP was placed in the room by
McDonald. (T.1896 -1902).

{W0274748.1}

55

It should be remembered that, like Petitioner and McDonald, Warren was


suspended by the District as of June 18, 2014 and faced possible charges. She has
also acknowledged being with McDonald on four occasions when the room was used to
restrain an out-of control KP. (1.1902). Like McDonald, Warren had an incentive to try
and shift the blame to Petitioner for any wrongful conduct that might result in discipline,
but she refused to yield to that temptation.
Despite the obvious significance of Warren's testimony, the hearing officer did
not offer any analysis regarding her critical and very credible testimony. It was as if she
never testified. He did not make any comment concerning the fact that she directly
contradicted McDonald's testimony as well as his findings based on that suspect
testimony. He simply ignored it. That was error which requires vacature of the Decision.
5. Petitioner Never "Directed" McDonald on How to Use the Room

Even if we assume, arguendo, that Petitioner told McDonald to use the Vestibule
room, she never gave her any direction as to what to do once she was there. McDonald
is a college graduate with a Masters degree, an experienced educator and a fully
certified administrator who admits that she was never given "any direction or instruction
as to how to carry out the timeout." (1. 687). Petitioner did not direct her to put KP in
the room alone. (1. 776-777). Petitioner never directed her to close the door on him (1.
777) and she certainly never told her to hold the door shut. (1. 777).

McDonald

acknowledged these were actions she took on her own within her discretion. (1. 777).
6. McDonald did Not Treat Whatever Petitioner Said to Her as a "Directive"

Clearly, Petitioner and McDonald have different recollections as to what


McDonald claims she heard and what Petitioner testified she meant to convey during
{W0274748.1}

56

their discussion in November 2013 regarding the Vestibule room and KP, and there is
no memorandum, email or other writing that confirms any "directive."

The hearing

officer found that Petitioner did give McDonald a directive to place KP in the Vestibule
room, "as described" in her June 27 2014 affidavit and because "there is little reason to

believe that Ms. McDonald did so on her own. Ms. McDonald testified that she acted
upon the advice and direction of Petitioner." (See, discussion at POINT VI, B, supra).
Respectfully, this finding is irrational and without evidentiary support for several
reasons.
McDonald certainly understood the meaning of a "directive." Petitioner testified
that she asked McDonald to keep in a box on her desk three-by-five cards that noted
parent and student contacts, which was a practice that Petitioner followed. According to
Petitioner, the reason for that practice was so that "if I got a call from a parent, or I had a

student come down and either I wasn't available or she wasn't, we could go to each
other's box, take out the card, and know what was done previously with that student.
That's a practice I have engaged in probably my entire career as a principal and my vice
principals and interns would tell you that." (T. 1779). When asked if she was required to
keep notations of student contacts on three-by-five cards (which would likely have been
relevant evidence in evaluating the credibility of her story regarding KP), McDonald
testified,
A. No, I was not required to.
Q. She didn't say to you that we both need to keep three-by five cards in case

one of us is not here the one will have access?


A. She asked me to. She did not require it.
Q. Oh, she didn't give you

{W0274748.1}

a directive?

57

A. No.

(1. 746). In other words, she believed she was required to follow a directive; anything

less, could be ignored.


In this regard, it appears that McDonald did not consider whatever was said to
her by Petitioner in early November 2013 to be a "directive," since she did not use the
room to restrain KP for at least two months, until January 2014. It is uncontroverted that
KP was out of control on almost a daily basis. (1. 682, 762). If McDonald truly
considered whatever was said to her by Petitioner on November 8, 2013 to have been a
"directive," that room would have been used multiple times before January 2014 or
McDonald would have been grossly insubordinate. 1O It is also relevant that McDonald
used the Vestibule room with KP, who had to be restrained daily, only three or four
times between November 2013 when she received the alleged directive and May 2014.
(1. 692).

7. McDonald's Story Changed and is Not Credible.

Like Dooley, McDonald's story evolved with each interview.

McDonald is not

stupid and she knew from the beginning that Wade was investigating a complaint that
KP had been held in a room behind a closed door. In fact, McDonald testified that, after
Wade met with Petitioner on June 12, 2014, Petitioner informed her "that they were
investigating the use of the room that we had placed [KPj in." (1. 702).

However, when she was first interviewed by Wade on June 12, 2014, she did not
say a word about using the room or receiving alleged directions from Petitioner. She

See, Exhibit 0-16, page 2 ("The first time I was told to use the room, I believe
happened in January 2014. This was the first time that I thought anyone had placed him
in there."). (Emphasis added).

10

{W0274748.1}

58

knew what the investigation was about, but told Wade that "they do not have rooms they
lock kids in." She even volunteered that KP ran into a "Boiler room" in the building but
said nothing about her use of the Vestibule room. (See, Exhibit 0-24).
McDonald continued to give dishonest responses to Wade during her second
interview on June 16th. This interview took place after McDonald had been called to the
Vestibule room by Petitioner and Wade so that they could use her key to unlock the
door to that room. She clearly knew, therefore, what room was the subject of the
investigation. (1. 708-09). During this interview, McDonald misled Wade by stating that
she "never unlocked the door to allow a student to go in with an adult." She also told
Wade that students have run into the room and were allowed to be in there until they
calmed down. She also told Wade that a former school social worker, Deb Webster,
informed her that the room had been approved and used for time out purposes before
Petitioner became Principal. (She did not say that Petitioner made that claim). (See,
Exhibits 0-25 and E-34). She said nothing, however, about having used the room with
KP or about an alleged directive from Petitioner. This was clearly dishonest.
In her hearing testimony, McDonald tried to justify her less than candid
responses to Wade by claiming that Wade did not ask the right questions. (1. 806-07).
This excuse is truly disingenuous.

D. There is No Proof of Misrepresentations to McDonald


Charge 2 also alleges "During the 2013-2014 school year, Ms. Viera-Suarez

falsely represented to Ms. McDonald that the use of the Elevator Machine Room for
purposes of subjecting the student to a "timeout" was authorized by the student's
grandmother." With respect to this charge, the Decision states, "I also find that Ms.

{W0274748.1}

59

Suarez falsely represented to Ms. McDonald that use of the EMR was authorized by
KP's grandmother. This finding is based on the preponderance of the credible record
evidence. (See, e.g., T. 675-676 [McDonald], T.1838-1839 [Suarez]; 0.16, p.2.)."
Respectfully, this finding is erroneous and has no evidentiary foundation. In fact,
it is controverted by the testimony of the only District witness who addressed this
charge. McDonald was the sole District witness on this specification, and her testimony
failed to establish that any such representation was made. To the contrary, she testified
that after the November 8, 2013 services meeting with KP's grandmother, Petitioner told
her that the grandmother had "agreed to using a timeout with [KP]' (T. 675). When
asked if Petitioner had represented to her that the grandmother had authorized use of
the Vestibule room, McDonald testified that Petitioner "never said that room." (T.771).
(Emphasis added). Thus, Petitioner denies she ever said the grandmother had
approved the use of the Vestibule room for a timeout location, and McDonald confirms
that Petitioner simply told her that the grandmother had agreed to use time outs, not a
specific room. (T. 771).
Moreover, it is a stretch for McDonald to claim that she was relying on something
Petitioner told her on November 8, 2013 about conversations with the grandmother
when she first used the room in January 2014.

McDonald had contact with KP's

grandmother regarding his behavior "almost every day." (T. 665, 764). If she had any
question about what responses the grandmother approved or did not approve,
McDonald was in a far better position than anyone else was to get answers to such
questions from the grandmother.

{W0274748.1}

60

POINT VII
THE HEARING OFFICER'S DETERMINATIONS REGARDING
CHARGE NO.3 LACK ANY EVIDENTIARY FOUNDATION
AND ARE NOT SUPPORTED BY SUBSTANTIAL EVIDENCE
Charge No. 3 alleges that Petitioner improperly attempted to influence
McDonald's response to questions posed by the District's investigators. Specifically, it
asserts that in June 2014 she was aware of "several incidents" where KP had been
placed in the Vestibule room for "time out" purposes and "requested" that McDonald
disclose only one of these incidents to District investigators.

The hearing officer

provided a single paragraph of analysis in finding Petitioner guilty of this charge:


I find that Ms. McDonald testified credibly that she was told by Ms. Suarez
in June, 2014 to make false statements to District personnel investigating
the placement of a disabled student (KP) in the EMR (0.16, p.2). In effect,
Ms. Suarez requested Ms. McDonald, in June, 2014 to reveal only one
incident out of three or four incidents Ms. McDonald knew of concerning
placement of a disabled student (KP) in the EMR for a "time out" (0.16,
p.2) (Charge 3.1 (a).) She told Ms. McDonald to stick to her account
previously given to District investigators denying or minimizing KP's
placement in the EMR for "time out" purposes (0.16, p.2) (Charge 3.1(b).)
I do not find Ms. Suarez rebuttal and alternative account to that of Ms,
McDonald to be credible. (Decision, pg. 11).
McDonald was the sole District witness on this charge and the allegations were
denied by Petitioner. This fact created a clear credibility dispute. However, the only
support for the hearing officer's determination is the June 27, 2014 affidavit that

{W0274748.1}

61

McDonald prepared at her lawyer's office and then had inserted into police affidavit
form. (Exhibit 0_16).11
The hearing officer did not address any of McDonald's testimony, direct or cross,
and he failed to provide any reason for determining that Petitioner's testimony was not
credible. Apart from McDonald's self-serving affidavit, he did not identify any evidentiary
basis for his conclusions. (See, Decision p. 11). Respectfully, the determination is not
supported by substantial evidence and the failure to provide any evidentiary reason for
his rejection of Petitioner's testimony constitutes reversible error.
A. McDonald's Testimony Disproves the Charge

Petitioner's attempt to influence McDonald's testimony to investigators occurred


on, and perhaps before, June 17, 2014. (1. 791).

On June 18th, McDonald was

interviewed by Wade and Beardall at which time she was asked if anyone attempted to
interfere with the investigation or encourage people not to cooperate with the
investigators. McDonald's response as recorded by Wade was, "No one asked her to
not to cooperate with the investigation.

To her knowledge, no one was asked not to

cooperate." (Exhibit 0-26; see, also, Exhibit E-35).


B. Petitioner Was Aware of Only One and Not "Several" Incidents

The premise of this charge is that Petitioner knew KP had been put in the
Vestibule room "several" times. However, Petitioner was not aware of any time when he
was "put" into the room; she only knew he had run into the room one time while being
chased by staff members (the so-called "throw up" incident) (1. 1840-1841). Petitioner
The hearing officer also cites to the charge itself immediately after two of his
findings. It is not clear why he did so, but it cannot be as support for his findings.
11

{W0274748.1}
{W0274748.1}

62

was

examined

and

cross-examined

extensively on

this

issue,

and

testified

unequivocally that she was not aware of any other incident where KP had been put in
the Vestibule room by McDonald, or anyone else.

(T. 1797-1799, 1840-1842, 1845,

1866 -1869, 2009-2010).


Only, Dooley and McDonald claim that Petitioner was at the room with KP other
than that one time. As discussed in POINT V of this Memorandum, Dooley's story
regarding October 29, 2013 is belied by several facts that discredit her testimony.
McDonald never saw Petitioner at the room with KP. (T.777-78). She could not safely
make this claim because she knew that Warren, who was with KP all day, would refute
that claim. However, she does claim she informed Petitioner at the end of the day when
she had taken KP to the room. Respectfully, this uncorroborated "he said, she said"
evidence is not a sufficiently substantial basis for finding Petitioner guilty of the charge
for several reasons.
First, no evidence controverts Petitioner's testimony that she only knew of the
one incident. None of the other 100 staff members support Dooley and McDonald.
Second, after the investigation was commenced and Petitioner had met with Wade,
McDonald admitted to Petitioner "Laura, I've used that room" or "Laura, I was the only
one who used that room." (T. 795-96; 1864). This was the first time Petitioner knew
that McDonald had used the room. (T. 1864, 2011). There would have been no rational

{W0274748.1}

63

reason for making this statement if McDonald had, in fact, already informed Petitioner
that she had used the Vestibule room to restrain KP. 12

c.

The Hearing Officer Ignored Specification 3.1 (b)

Specification 3.1 (b) alleges:


"On or about June 18, 2014, Ms. Viera-Suarez requested, in sum or
substance, that Ms. McDonald "stick" to the story that Ms. McDonald had
previously related to District investigators and not [sicl other incidents Ms.
McDonald was aware of in which a disabled male student was placed in
the LeMoyne Elementary School Elevator Machine Room for purposes of
subjecting the student to a time out.
The hearing officer did not make any finding with respect to this specification.
His Decision does not even discuss the allegation or the hearing evidence regarding it.
Consequently, the specification must be dismissed for lack of substantial evidence.
Even if the court were to analyze the record for substantial evidence regarding
this charge and determine that Petitioner made this or a similar comment, it would not
be a reason for discipline. Although she did not recall it, Petitioner testified she may
have made the alleged "stick to the story" comment when an obviously upset McDonald
came into her office on June 18th to tell her that she had just been called to the
Superintendent's office, saying "Oh, my God, I don't know what to do."

(T. 1865).

McDonald said "what if it is about KP" and Petitioner responded "Listen, if it's about KP.
Tell your story." (T. 1865). Also, McDonald acknowledged the phrase "I've got your
back' is common and frequently used by Petitioner and others in the educational

McDonald's statement was made in front of a Teaching Assistant, Mark Warner.


For that reason, Petitioner asked McDonald not to say any more. Her intention was to
then inform Wade of McDonald's comment. (T. 1864-65).
12

{W0274748.1}

64

community.

(1. 797-98).

She acknowledged that the phrase could have "many

contexts." (1. 797-798).

POINT VIII
THE HEARING OFFICER'S DETERMINATIONS REGARDING
CHARGE NO.4 LACK ANY EVIDENTIARY FOUNDATION
AND ARE NOT SUPPORTED BY SUBSTANTIAL EVIDENCE
Charge No. 4 alleges that on October 29, 2013, Petitioner directed Dooley to
place KP in the Vestibule room to subject him to a "time out." It further alleges that, on
June 17, 2014, Petitioner asked Dooley to falsely state to Wade that she had
"misunderstood' that "directive." One paragraph of the Decision states as follows:

Given prior findings relating to Ms. Suarez' credibility, I credit Ms. Dooley's
account of the incident of June 17, 2014 regarding her conversation with
Ms. Suarez. I find that Ms. Dooley's testimony is believable regarding Ms.
Suarez request to Dooley to make false statements to District personnel
regarding placement of a disabled male student (KP) in the LeMoyne EMR
(0.15, p.2) (Charge 4. Specification 4.1). I have already found that Nurse
Dooley's notes and testimony were dispositive on the issue of KP's
placement in the EMR for a "time out" on October 29, 2013 by Ms. Suarez
with the requested assistance of Nurse Dooley. I find, as credible. that Ms.
Suarez requested, in sum and substance, that Nurse Dooley tell District
investigators that she had misunderstood a directive she received from
Suarez on or about October 29, 2013 directing Dooley to place KP in the
EMR for purposes of subjecting the student to a time out. Ms. McDonald
also witnessed the aforesaid conversation and verified Nurse Dooley's
account (0.16. p.3). (See, Decision p. 11).

A. The Hearing Officer's Findings are Not Supported by Substantial Evidence


The Decision cites to only two exhibits as purported support for the hearing
officer's determination that Petitioner is guilty of this charge. One is Exhibit 0-15, which
is the affidavit that Dooley gave to the police on June 27, 2014. When she gave that

{W0274748.1}

65

statement, she was accompanied by her brother-in-law who is also a police officer. (T.
479). The second is Exhibit 0-16. This is the June 27, 2013 affidavit that McDonald
gave to the police which had been prepared by her attorney. (T. 795).
Petitioner,

Dooley and

McDonald

each

testified

regarding

this

charge.

Respectfully, their testimony establishes on balance that the charge is without any
evidentiary foundation and not supported by substantial evidence. However, the hearing
officer did not refer to any specific testimony to support his findings. The failure to
consider all the evidence and to make even a minimal analysis of conflicting evidence,
standing alone, is a basis to vacate the Decision.
B. Dooley's Affidavit and Testimony are Not Credible
Moreover, even a perfunctory analysis of the record establishes that the finding
of guilt on this charge is not supported by substantial evidence. To begin with, Dooley's
affidavit of June 27, 2013 was prepared after Petitioner, McDonald and Warren had
been suspended and at a time when the police were involved and the "heat was on."
Dooley knew that McDonald and Bishop had been in the Vestibule room with KP (T.
616) and she had not reported that fact to anyone. Considering the atmosphere of fear
created by Wade's incompetent investigation, it can be assumed that Dooley's story
kept changing out of a concern for her own future.
Dooley had been interviewed several times by Wade and by the police before
June 27, 2013.

However, this was the first time Dooley came up with the following

version of events:

Something that made me extremely uncomfortable happened before


Laura was suspended. I haven't mentioned this yet, and was unsure what
to do. In one of the days preceding her suspension, I walked into the main
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66

office after the kids had left school, and the school day was over. I ran into
Laura in her office. Cheryl was there. They were discussing the incident.
Laura was making a point that she had never brought a child into the
room. I told her about the time in late October, and proceeded to refresh
her memory. She denied remembering it. She told me that she never
mentioned it to Lisa Wade, from Talent Management. She then said that
she would just tell them that I misunderstood what her directive to me was.
I was floored. I told her what she was saying wasn't true, and that it was in
my nurse's notes. She seemed shocked to hear that.
So did Cheryl. She then pulled out an index card that had a note on it, and
held it up. She said something like "we don't have to worry, because I
have the o.k. from the grandmother to do this". So, first she wants me to
change my story, then when she realized that wouldn't happen, it's like,
"well I had permission". It was unbelievable. Then, she mentioned that if it
came to it, she'd get a lawyer.

I was under the impression that everything with Kendell, as it pertains to


this, involved permission from his grandmother. When Laura told me that
she was going to lie, and put the blame on me, I realized that there was a
lot more to all this. It's been upsetting me since the last time I spoke with
Det. Murphy that I didn't tell him right there in the office where I spoke with
him. It was very hard at that time. I made a point of contacting him to give
this additional information. (See, Exhibit 0-15, p.2).

On its face, the allegation that Petitioner would ask Dooley to give false
testimony to the District's investigators on the evening of June 17 makes no sense. By
that time, Dooley had been interviewed multiple times by Wade and had given Wade a
copy of the Nurse's note allegedly prepared on October 29, 2013. (T. 510-11, 515-17).
Also, the excuse that Dooley did not appreciate the severity of the allegations regarding
KP until Petitioner "told her that she was going to lie" is disingenuous. Dooley was a
trained nurse and a mandated reporter who knew what her obligations were. The last
minute change in her story to shift blame to Petitioner is simply not credible.

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67

C. Dooley's Affidavit is Contradicted by McDonald's Testimony


More important, Dooley's claim that Petitioner asked her to lie and change her
story to Wade is not supported by McDonald's testimony. On direct examination by the
District's counsel, McDonald testified as follows regarding the June 17th, 2013
conversation between she, McDonald and Petitioner:
A. Donna asked about the investigation. A statement was made about me
placing him in the room. A statement was made --.
Q. Who made that statement?

A. I think it was -- I made the statement that I had placed him in the room.
Ms. Suarez had made a statement saying that she had never placed
him in the room and Donna that, yes, she did place him in the room.
Q. Was she talking to Laura about that issue?

A. Yes. She said that she did place him in the room. Laura said no, I
didn't. Donna brought up an incident from, I believe, October of 2013
where she was asked by Ms. Suarez to help. Ms. Suarez said, "Donna,
I think you're mistaken" and Donna said, "No, it was in my nurse's
note."
Q. And what happened next, if anything?

A. I asked Donna Dooley where was I when this happened. Donna stated
she didn't know where I was. I was not there, but that it was in her
nurses' note. She explained to us that her nurses' notes were turned
over to the District.
Q. Were you aware at that time of any incident where Ms Suarez placed
Student A in the elevator machine room?

A. No.
Q. How did that meeting end?

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68

A. Donna told Laura not to really worry about it. Donna left. Laura and I
had a continued conversation. She, you know, said what should I do.
She asked who she thought she should call, our union rep and tell him
about it, and I said yes and she --I don't know when she called or who
she was going to call Dean or email-I don't know.

Q. You don't know if she did, do you?


A. No.

Q. The meeting ended at that point?


A. Yes.
(T. 712-13). (Emphasis added).
It is also noteworthy that Dooley's hearing testimony varies substantively from
the content of her affidavit cited by the hearing officer to support his finding that
Petitioner is guilty of this charge. (See, T. 480-485). Finally, Petitioner also denies that
she asked Dooley to change her testimony and testified that the incident described by
Dooley never occurred.

(T. 1868). She testified that she told Dooley and McDonald

during the June 17th conversation "she had never put the child, Student A, in to the
room." This was a true statement. (T. 482).

While an administrative hearing officer generally has the right to resolve


credibility issues, he must do so on the basis of the evidence and consideration of
factors that impact on a witness's credibility. He may reject but not disregard material
and relevant evidence, as occurred here. Respectfully, the hearing officer's complete
disregard of probative evidence on this issue mandates that the Decision be vacated.

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POINT IX
THE HEARING OFFICER'S DETERMINATIONS REGARDING CHARGE
NO.5 ARE NOT SUPPORTED BY SUBSTANTIAL EVIDENCE
Charge No. 5 alleges that Petitioner' statements to Wade that she had not placed
KP in the Vestibule room and had not directed anyone else to do so were not truthful.
The hearing officer's terse Decision states:
I find by a preponderance of the credible record evidence that Ms. Suarez
failed to truthfully answer questions by District personnel about placement
of a disabled male student in the EMR (Charge 5. Specification 5.1). As an
example, Ms. Suarez claimed to District personnel that KP ran into the
EMR on his own, when, in fact, a lock preventing this had been placed on
the exterior door to the EMR by Head Custodian Rob Francis in January,
2013 (0.18, 20). In particular, a preponderance of the credible record
proof shows that not only did Ms. Suarez place a disabled male student
KP in the EMR, but she also directed District employee McDonald to do so
as well (Charge 5, Specification 5.2). The notes kept by Ms. Wade as well
as her testimony and the statement of Ms. McDonald (0.16), Nurse
Dooley (0.15), Ms. Warren (0.62, p.3) and others reveal the discrepancies
in Ms. Suarez account and are credible. Thus, I find that Ms. Suarez is
guilty of conduct unbecoming a principal, misconduct, neglect of duty.
(Decision, p.11).
Of course, this Charge is dependent upon the District's ability to prove the
allegations of Charge NO.1 and Charge NO.2 and, for the reasons already stated,
Petitioner contends that the hearing officer's findings on those two charges are not
supported by substantial evidence. Moreover, the two reasons cited by the hearing
office to support his finding of guilt on this Charge are controverted by other evidence,
and it was incumbent upon the hearing officer to evaluate that evidence. Stated
somewhat differently, it was improper for him to simply ignore other evidence which
establishes that Petitioner's responses to Wade's questions were truthful.
{W0274748.1}

70

A. Evidence Regarding the Lock has no Relevance on Petitioner's Credibility


Although he employs the right words in claiming his findings are based upon "the

preponderance of the credible record evidence," the hearing officer cites to only one
reason why he concludes Petitioner's denial regarding Charge No.5 was not a truthful.
He states, Petitioner "claimed to District personnel that KP ran into the [Vestibule room]

on his own, when, in fact, a lock preventing this had been placed on the exterior door to
the [room] by Head Custodian Rob Francis in January, 2013."
This erroneous conclusion was reached because the hearing officer made the
same error in logic that Wade did early on in her investigation. During the first interview
Petitioner told Wade that KP was a runner and had once ran into that room. This
statement was based on information Petitioner had received from other staff members
regarding the so-called "throw up" incident. Although Petitioner did not vouch for the
accuracy of that information, she had no reason to question it and believed it was
accurate when she spoke with Wade. That belief was reasonable since there was no
question that KP was a "runner" (T. 518, 1206, 1246, 1267, 1272, 2266) and at least
McDonald and Bishop had told Petitioner that KP ran into the room. (T. 694, 1842). In
fact, as late as the 3020-a hearing, McDonald testified that KP ran into the room and
opened the door at a time after the lock had been installed. (T. 803).
There are several reasons why a door with a lock could be opened by a student.
Nevertheless, Wade jumped to the unwarranted conclusion that Petitioner had "lied"
when she said KP ran into the room on his own.

(T. 913, 1201). She reached this

conclusion the morning of June 12th after receiving an e-mail from Francis regarding
the door lock (Exhibit D-18), which "shocked' and "surprised' her. (T. 1204). This was

{W0274748.1}

71

the first day of her investigation and it jaundiced all that followed. Moreover, when Wade
interviewed Petitioner later on June 12th, she did not say anything about the conclusion
she had reached based on the Francis email.

13

B. The Notes and Affidavits do not Undermine Petitioner's Credibility

The hearing officer states that (1) the notes kept by Ms. Wade as well as her
testimony, and (2) the affidavits that McDonald, Dooley and Warren gave to the police
and the statements of others "reveal the discrepancies in Ms. Suarez account and are
credible." He did not explain what "testimony" of Wade or what "statements of others"

he was referring to so it is not possible to comment on these statements. Wade's notes


are comments she wrote down during her interview of approximately 20 people, many
of whom were interviewed multiple times. There is no way to know which of Wade's
notes the hearing officer thinks "reveal the discrepancies in [Petitioner's] account and
are credible."
Vague statements such as "the notes kept by Ms. Wade" and "the statements of
others" are no substitute for the specific findings of fact required by Education Law
3020-a(4)(a) and the Commissioner's Regulation at 8 NYCRR 82-3.8.

(See, also

Aikins v. Curtis, 81 A.D.2d 1020 [4th Dep't 1981]).

The Francis e-mail stated that "[q]uestions regarding this space [the Vestibule
room] usage can be directed to the VP - Sharon [sic] McDonald at Lemoyne." (Exhibit
D-18). Any competent investigator concerned with how the Vestibule room was used
would certainly have followed up with Francis as to the reason why he specifically
referred to McDonald in the work order. However, Wade did not do so.
13

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72

C. Differences in Recollections do not Necessarily Impact Credibility


To prove a false statement, it is not sufficient to simply allege that two individuals
have a different memory or recollection of events. This is particularly true where the
subject is fairly routine and susceptible to different recollections or memory. There is no
way to reconcile the testimonial differences between Dooley and Petitioner as simply
being a recollection issue. Petitioner strongly contends that Dooley fabricated the
October 29, 2013 incident and related events to protect herself and that the evidence
establishes this fact. At the very least, the District has failed to prove Charge No. 1 by a
preponderance of the credible evidence.
However, simply because McDonald and Petitioner have different recollections
does not mean that Petitioner spoke untruthfully. Petitioner answered Wade's questions
honestly when she stated that she was only aware of the one "throw up" incident when
KP ran into the Vestibule room. She had no knowledge of any other incident; she did
not know that McDonald or anyone else had placed KP in the room. (T. 1797-1799,
1840-1842, 1845, 1866 -1869, 2009-2010).

Moreover, Petitioner was placed at a

disadvantage when Wade failed to inform her of the information she was receiving
during her "investigation." This failure denied Petitioner the opportunity to clarify and/or
refute misunderstandings by reference to established facts, documents or input from
other individuals.

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73

POINT X
THE PENALTY OF TERMINATION IS SO DISPROPORTIONATE TO ANY
OFFENSE ESTABLISHED BY THE DISTRICT AS TO BE TRULY
SHOCKING TO THE CONSCIENCE AND SHOULD BE VACATED
The hearing officer devoted one paragraph of his Decision to the issue of
Penalty, in which he found that Petitioner's employment should be terminated. He made
no mention of her 34 year career in education or her amazing and inspiring personal life
story. There was no discussion of her extensive work with emotionally disturbed
children or her adoption of multiple disabled children. (See, Decision p. 12).
A. The Requirements Established by Matter of Pell
The seminal case on the obligations of the hearing officer regarding the issue of
penalty is the Court of Appeals decision in Matter of Pell v. Board of Education of Union

Free School District No.1, 34 NY2d 222 (1974). In Pell, the Court of Appeals held that a
court may set aside a penalty that "is so disproportionate to the offense, in the light of all
the circumstances, as to be shocking to one's sense of fairness." (Matter of Pell, supra,
at 233). The Court defined this standard as follows:

"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." (Pell, supra, at 234).
The Pell decision confirms the judiciary's responsibility to ameliorate harsh
penalties in an administrative proceeding "not only as a matter of legislative intention,

but also in order to accomplish what a sense of justice would dictate." (Pell, supra, at

{W0274748.1}

74

235). The following factors may be relevant considerations for a court when reviewing
the penalty imposed:

The length of employment of the employee,

the probability that a dismissal may leave the employee without any
alternative livelihood,

her loss of retirement benefits,

the effect upon her innocent family, and

the prospect of deterrence of the individual or of others in like situations.

(Pell, supra, at 235; see, also, Matter of Principe v. NYC Dept. of Educ., 94
A.D.3d 431 (1st Dep't 2012) and Matter of Bovino v. Scott, 22 NY2d 214, 216 (1968)).
B. Petitioner's Character, Exemplary Career and Background

If the Decision is allowed to stand, it will be a career-ender for Petitioner, and will
unquestionably have a devastating effect upon her family. Petitioner has served
severely disabled children in educational institutions for over 35 years and deserves
better. If one looks at this dispute objectively, several facts become clear:
1. There is no "smoking gun" in this case. Instead, there are "she said, she said'
accusations that are uncorroborated by any other evidence. These
accusations are made by two employees who had a lot to lose if, in fact, the
restraint of KP was a violation of law.
2. There is no pattern of repeated dangerous or illegal conduct. Dooley alleges
one instance and McDonald admits to 3 or 4 times when she took KP to the
Vestibule room. This was a maximum of five restraints over approximately
360 school days. There is no question that KP acted out daily and was a
danger to himself and others.
3. Wade's ignorance of employee's rights in Emergency Intervention situations
and the incompetent investigation she conducted caused Dooley and

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75

McDonald to panic and seek to shift responsibility for their actions to


Petitioner.
4. Petitioner has been made the scapegoat and subjected to an emotionally and
financially draining fight for two years.
The overwhelming evidence is that Petitioner is a person of high moral character
who has led an exemplary personal and professional life. She has truly "walked the
walk" with emotionally disturbed children. Several District witnesses testified that she
was "nurturing" and would never harm a child and, although Petitioner typically works
with challenging students, she has never before been accused of harming a child. Her
employment record is pristine. Several witnesses confirm that Petitioner has bent over
backwards with compassion and patience to help KP specifically. (See, e.g., T. 371-372
[Kristi Cleary], T. 800 [McDonald], T. 1574-1575 [Abt] and T. 544 [Dooley]).
The testimony of Lowengard, Abt, Burns and Sheridan establish that it is simply
not in Petitioner's DNA to commit any act that might harm an emotionally disabled child.
(See, Statement of Facts)

The Charges are based on disputed facts and suspect

circumstances, and the testimony of the two protagonists is disputed on many levels by
several sources.

Under the circumstances termination of her employment is not

warranted.
SUMMARY AND CONCLUSION

KP is an emotionally disturbed and troubled young boy who should have been
placed in McCarthy or some other District program designed to handle his daily
outbursts and disruptive behaviors. Those behaviors were dangerous and a threat to
his physical welfare (i.e., climbing on second floor stair railings, pounding on glass walls

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76

and steel doors, running throughout the school and from the building, etc.). His repeated
conduct of throwing objects and punching, kicking, biting and poking people with pencils
and similar acts also threatened other students and staff.
The Commissioner's Regulations authorize the use of physical force to prevent a
student from injuring himself or others and from destroying District property or disrupting
the educational program. (8 NYCRR 200.22[d]). While the staff knew instinctively or
anecdotally to intervene and restrain a student in such circumstances, the District had
not provided any training on "Emergency Intervention" under the Commissioner's
Regulation. During the relevant period, the Board did not allow schools to establish
'Time Out" rooms in accordance with 8 NYCRR 200.22(c) and, even if it had permitted
them, it is doubtful whether KP would have received any benefit from such a reflection
location.
In June 2014, KP's family complained that he had been "locked in a closet in the
basement of the schooL" Wade was assigned to investigate that complaint. She was
not qualified by experience, training or personal aptitude to carry out that investigation in
a fair and complete manner.

She had no experience with emotionally disturbed

children, had no experience with administration of an elementary school, had never


taught students, did not know the law and was unfamiliar with Emergency Interventions.
She had never conducted an investigation of this significance and was someone who
saw the world in terms of black and white, with no grey. Moreover, Petitioner was the
former Principal of her daughter's High School and her daughter had developed a
"special" relationship with Petitioner.

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77

The "investigation" was haphazard, unprofessional and very unfair to Petitioner.


The very first day, Wade concluded that Petitioner was a "liar" when she received an
email from Francis advising that a lock had been placed on the Vestibule door in
January 2013. Based on that email, Wade determined that Petitioner had "lied" to her
when she said KP was in the Vestibule room only one time, and that was when he ran
in there while chased by staff.
Thereafter, Wade looked for ways to find Petitioner guilty. She never informed
Petitioner of the accusations eventually made by Dooley and McDonald, depriving her
of the opportunity to disprove their claims. Of course, the conclusion that Petitioner had
lied is irrational. There are several reasons why a student could have run into the room
after the lock had been installed and other staff members testified that children did run
into the room. Moreover, Petitioner never claimed to Wade that she saw KP run into the
room. She simply conveyed what had been told to her by others.
The charges are based exclusively on the stories of Dooley and McDonald, two
school employees who are both mandated reporters.

Both stories developed and

expanded over a series of interviews with Wade and the police, and neither Dooley nor
McDonald made allegations against Petitioner during their initial interviews.
Dooley had been seen at the Vestibule room when KP was there and had not
reported it. Her story regarding October 29, 2013 is not supported by Francis as she
said it would be and is controverted by Warren. On its face, the idea that a building
Principal and school nurse could struggle in a main hallway outside the cafeteria with a
student who was screaming, kicking and punching and then drag him to a room and

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78

hold the door shut for four minutes while he screamed and pounded on the door without
any of the 100 staff members witnessing that incident is simply not believable.
Dooley's story is also controverted by a mountain of evidence that Petitioner was
occupied all morning in the Main Office area handling a major student fight on October
29, 2013. Of course, if the incident did happen as described by Dooley, she committed
a crime by not reporting it to CPS. Finally, Dooley's story that Petitioner attempted to
influence her testimony to District investigators is belied by McDonald's recollection of
that discussion.
McDonald's story regarding the alleged "direction" in Fall 2013 is, at best, her
takeaway from what was said in an unrecorded and undocumented discussion between
two administrators charged with running a public school with 500 students, 100 staff
members and a large population of disruptive emotionally disturbed students. It is
equivocal and makes no distinction between an illegal "Time Out" reflection room and a
legal Emergency Intervention. Moreover, that whatever was said was not meant as a
directive, and was not interpreted by McDonald as being one, is evident from the fact
that McDonald did not use the room for KP for about two months although his behavior
outbursts occurred daily.
The alleged January "directive" is controverted by Warren who was with KP all
day, every day. The hearing officer does not even discuss her testimony let alone
provide a basis to treat it as not worthy of belief. Moreover, the "Laura, I have used the
room" admission by McDonald in June 2014 is further indication that Petitioner was
unaware of this fact until that time. Again, the charge presents a "she said, she said'

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79

scenario and the hearing officer simply did not provide any rational basis for resolving
that dispute by a preponderance of the credible evidence.
Based on the foregoing, Petitioner respectfully requests that the Decision be
vacated and annulled and that Petitioner be restored to her employment with the District
and such other and further relief as the Court deems just be awarded to Petitioner with
costs of this proceeding ..

Respectfully submitted,

February 3,2016

.~~,

O'CONNELL & CIOTOLI

Dennis G. O'Hara, Esq.


Attorneys for Petitioner
7207 East Genesee Street
Fayetteville, New York 13066
Telephone: (315) 451-3810

TO:

Miles G. Lawlor, Esq.


Heather Cole, Esq.
Ferrara Fiorenza P.C.
Attorneys for Respondent
5010 Campuswood Drive
East Syracuse, New York 13057

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80