OPINION AND AWARD

In the Matter of Arbitration between:

________________________________________

DEPARTMENT OF EDUCATION OF THE CITY

OF NEW YORK,
Complainant-Employer,
v. SED File No. 29,560

Respondent-Tenured Employee,

Pursuant to Education Law Section 3020-a.

________________________________________

Before: Marc A. Winters, Hearing Officer

APPEARANCES:

For the Department of Education

Clorisa Cook, Esquire, &

Larry Mutz, Esquire, Of Counsel
Office of Legal Services

For the Respondent

Jordan Harlow, Esquire,
Glass Krackower, LLP
HEARING DATES:

A telephonic Pre-Hearing Conference was held on August 23, 2016, before Hearing

Officer, Gloria Johnson. During the Pre-Hearing Conference, the Respondent, was represented by

Jordan Harlow, Esquire, Glass Krackower, LLP. The Department of Education was represented by

Clorisa Cook, Esquire, of Counsel, Office of Legal Services.

The DOE provided for discovery and inspection of the documents that were available, per

the Respondents request, prior to, after and during the evidentiary hearings.

Evidentiary Hearings were held, before this Hearing Officer, Marc A. Winters, on February

1, 2, 14, 15, 16, & March 7, 2017, at 100 Gold Street, New York, New York. At the Evidentiary

Hearings, the Respondent was represented by Jordan Harlow, Esquire, Glass Krackower, LLP. The

Department of Education was represented by Clorisa Cook, Esquire, and Larry Mutz, Esquire, of

Counsel, Office of Legal Services

Oral closings were given on March 7, 2017.

INTRODUCTION

The Board of Education of the City of New York, also known as the New York City

Department of Education, brings this action pursuant to Education Law 3020-a against

(Respondent), file number is a tenured teacher assigned currently to Central

Park East I located in Manhattan within District 4.

During the 2015-2016 school year, Respondent engaged in corporal punishment, verbal

abuse, insubordination, misconduct, neglect of duty, and conduct unbecoming to his position as

follows:
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SPECIFICATION 1:
On or about February 5, 2016, Respondent failed to submit his mid-year narratives.

SPECIFICATION 2:

By committing the act described in Specification 1, Respondent failed to comply with Principal
Monika Gargs directive that he submit his mid-year narratives by the February 5, 2016 deadline.

SPECIFICATION 3:

On or about February 11, 2016, Respondent:

a) Used his cellphone to videotape and/or record Student A while Student A was crying.
b) Continued to videotape and/or record Student A as Student A walked away crying
from Respondent.
c) Failed to comfort and/or engage with Student A beyond using his cellphone to
videotape and/or record the student.
d) Engaged in the acts described in Specification 3(a) and/or Specification 3(b)
during instructional time.

SPECIFICATION 4:

By committing one, some, or all of the acts described in Specification 3, Respondent:

a) Caused Student A to cry and/or to continue to cry.

b) Caused Student A to feel sad and/or scared and/or upset.
c) Caused Student A to feel humiliated and/or embarrassed and/or uncomfortable.
d) Acted in a manner that had or would have had the effect of unreasonably and/or
substantially interfering with a students mental, emotional, or physical well-
being.
e) Acted in a manner which reasonably caused or would have been reasonably expected
to cause mental, emotional, or physical harm to a student.
f) Knowingly acted in a manner likely to be injurious to the physical, mental, or
moral welfare of a child or children less than seventeen-years

SPECIFICATION 5:

On or about March 8, 2016, Respondent, while in the presence of students:

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 a) Put and/or pushed and/or lay his body on top of Student B, a third-grade student.
b) Used his chest and/or stomach area to make physical contact with Student Bs
body and/or back area.
c) Stated to Student B words to the effect of, This doesnt make you feel right, why are
you doing this to others?
d) Stated to Student B words to the effect of, Do you like how that feels?
e) Pushed Student B to the floor and/or downward after Respondent told Student B to sit
up.

SPECIFICATION 6:

By committing one, some, or all of the acts described in Specification 5, Respondent:

g) Caused Student B to cry.

h) Caused Student B and/or others students in the class to feel sad and/or scared
and/or upset.
i) Caused Student B and/or the other students in the class to feel humiliated
and/or embarrassed and/or uncomfortable.
j) Acted in a manner that had or would have had the effect of unreasonably and/or
substantially interfering with a students mental, emotional, or physical well-
being.
k) Acted in a manner which reasonably caused or would have been reasonably expected
to cause mental, emotional, or physical harm to a student.
l) Knowingly acted in a manner likely to be injurious to the physical, mental, or
moral welfare of a child or children less than seventeen-years-old.

THE FOREGOING CONSTITUTES:

- Just cause for disciplinary action under Education Law 3020-a;

- Conduct unbecoming to Respondents position or prejudicial to the good
order, efficiency, or discipline of the service;
- Substantial cause rendering Respondent unfit to perform his obligations properly to
the service;
- A violation of the by-laws, rules, and regulations of the Chancellor, Department,
School, District, or Board of Regents;
- Corporal punishment;
- Verbal abuse;
- Insubordination;
- Misconduct;
- Neglect of duty; and
- Just cause for termination.

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 The undersigned was appointed Hearing Officer in this matter. The DOE and Respondent

were represented by Counsel throughout the proceedings. Both the DOE and Respondent were

afforded a full and fair opportunity to present witnesses, to conduct, to direct and to cross-examine

each witness, and to present documentary evidence.

All witnesses were sworn. A stenographic record of each Hearing was made. This Hearing

Officer has full authority to resolve any arbitral challenges or procedural issues and to decide the

case on its merits. Both Advocates, for the DOE and the Respondent, made opening statements,

entered numerous exhibits into the record and gave oral closings. Neither party objected to the

fairness of this arbitration proceeding. Based on the record produced, this case is now properly

before this Hearing Officer and ready for adjudication.

SUMMARY OF THE PARTIES POSITIONS:

DOE:

The Department of Education asserts that they have proven by a preponderance of the

evidence that the Respondent has engaged in conduct that was unbecoming of his position. As a

result of not handing in narratives on time, videotaping students against DOE policy and punishing

a student by laying his body on top of her, the Respondent engaged in corporal punishment, verbal

abuse, insubordination, misconduct, and neglect of duty.

The DOE argues that based on the Respondents conduct just cause does exists where

termination is the only proper remedy.

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RESPONDENT:

The Respondent is a tenured teacher and dedicated pedagogue who engages students in a

non-traditional way to help them understand and then reflect on the consequences of their actions.

He engages in behavior management techniques that are effective. Respondent denies all charges

against him stating that all allegations are grossly misstated and completely innocuous. Respondent

has no prior 3020a disciplinary charges or Hearings.

The Respondent argues that the Department of Education has failed to meet their burden

and prove by a preponderance of the evidence that Respondent should be terminated.

The Respondent asked that the charges be dismissed.

PERTINENT PROVISIONS OR REGULATIONS

CHANCELLOR REGULATION A-420; CORPORAL PUNISHMENT

DEFINITIONS

Corporal punishment is defined as any act of physical force upon a pupil for the purpose of

punishing that pupil. Corporal punishment does not include the use of reasonable physical force

for any of the following:

to protect oneself from physical injury;

to protect another pupil or teacher or any other person from physical injury (e.g., breaking up a

physical altercation without using excessive force;

to protect the property of the school or others; or

to restrain or remove a pupil whose behavior is interfering with the orderly exercise and

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performance of school district functions, powers, or duties if the pupil refuses to comply with a

request to refrain from further disruptive acts, and alterative procedures and methods that do not

involve the use of physical force cannot be reasonably employed to achieve the purpose set forth

above.

DISCUSSION AND FINDINGS:

The basic principle in arbitration, when discussing discipline or discharge, is that an

Employer must have just cause for imposing such a penalty. The burden of proof falls directly on

the Employer. Education Law, Section 3020a cases are no different. The DOE bears the burden of

proving their charges by a preponderance of the evidence.

Preponderance of the evidence, simply put, means the evidence has to be sufficient, to

create, in this Hearing Officers mind, that the DOE has established its case.

The Respondent, in this case, has been charged with engaging in corporal punishment,

verbal abuse, insubordination, misconduct, neglect of duty, and conduct unbecoming to his

position.

The DOE is asking that the Respondent be terminated.

When addressing discipline or discharge, Arbitrators/Hearing Officers normally look for

two distinct areas of proof. First, whether guilt has been established. Second, has the proper penalty

been handed out?

This Hearing Officer first must determine if the Respondents conduct did in fact rise to

the level of behavior for which the end result would justify termination. The question becomes.

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Was the evidence presented at the Hearing, in support of the charges, sufficient to prove the

allegations made by the DOE against the Respondent?

The most important evidence in a case, such as this, comes in the form of testimony from

witnesses. The source of such testimony whether it is firsthand knowledge or merely hearsay is an

important part for proving just cause. This Hearing Officer relies heavily on the firsthand

knowledge of such witnesses since the consequences to the Respondent are so great.

To make a decision in 3020a cases, usually it is necessary to first examine the

Specifications and the evidence supporting those charges along with the Respondents defenses of

those charges listed in the DOEs Specifications. This Hearing Officer, then, must determine

whether the DOE is accurately portraying the conduct of the Respondent for which the DOE is

asking that termination be the end result.

Both the Counsel for the DOE and Counsel for the Respondent, respectively, argued many

issues in defense of the Specifications and in defense of the Respondent.

First, the DOE, portrayed the Respondent as a teacher who does not want to listen to anyone

of authority and is intent on doing things his way. Here, we have a new principal coming into a

teacher run school where the Respondent, a lead teacher by example, according to the DOE, felt

that the new principal was undermining the progressiveness of the school and immediately butted

heads.

Second, an overwhelming amount of testimony and evidence was submitted by the

Respondent and his Attorney concerning Respondents character, reputation and teaching ability

as a beloved and well respected teacher by the community, his students, his students parents and

fellow co-workers and teachers at their school. A number of parents, students and co-workers
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testified to the above-facts.

However, to make a decision in this case it is not necessary to discuss each and every issue

argued. The above characterizations are nothing more than a distraction from the charges listed in

the specifications and whether the evidence submitted by the DOE does in fact support those

charges.

With regards to Specifications 1 and 2:

Respondent was charged with insubordination for failing to submit his mid-year narratives

and for failing to comply with the Principals directive that the mid-year narratives be submitted

by the February 5, 2016 deadline.

Respondent was responsible for submitting seventeen (17) mid-year narratives by 5:00

P.M., Friday February 5th as directed by the Principal. That deadline, according to the Principals

testimony was later extended to Midnight on Sunday, February 7th.

Testimony from the Hearing resulted in the following facts: Out of the 17 (17) narratives

the Respondent was required to submit, seven (7) were submitted in January and fourteen (14) of

the seventeen (17) were submitted by the extended February 7th deadline. The remaining three (3)

were submitted the very next day on Monday, February 8th, all in time for submission to the parents

by the February 12th submission due date.

The testimony and evidence further revealed that the Respondent never refused to submit

his narratives. Never refused to follow any directive. There was never any intent not to comply

with the Principals directive or to intentionally disregard her directive. The Respondent did have

shared responsibilities with other co-workers that caused some delay in submitting all narratives

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on time, but again nothing proven to be an intentional or deliberate act.

The Principal further testified that other teachers also missed the deadline yet none of those

teachers were charged with 3020a charges.

Respondent had no previous letters to file or discipline for failing to submit narratives or

follow such a directive nor were there any similarly situated incidents or issues after the issues

raised in Specification 1 and 2.

The general rule followed by all arbitrators when deciding an insubordination case is that

there must be a clear and unambiguous order/directive in which an employee understands the

consequences for not complying with or violating such order or directive. Here we had a directive

although somewhat clear, being extended yet lacking any warning of consequences for not

following the directive.

The Respondents conduct as alleged in Specifications 1 and 2 is not insubordination.

Taking into consideration the facts-above, simply missing a deadline, one time, without intent not

to comply, such conduct, an isolated occurrence that appears to be corrected, does not rise to a

level of misconduct where termination or any discipline for that matter is warranted.

Specifications 1 and 2 are hereby dismissed in their entirety.

With regards to Specifications 3 and 4:

In Specification 3 Respondent is charged with using his cellphone to videotape and/or

record Student A while Student A was crying; Continuing to videotape and/or record Student A as

Student A walked away crying from Respondent; Failing to comfort and/or engage with Student A

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beyond using his cellphone to videotape and/or record the student; and, Engaging in the acts

described above during instructional time.

As a result of the charges listed above the Respondent is further charged with in

Specification 4 as Causing Student A to cry and/or to continue to cry; Causing Student A to feel

sad and/or scared and/or upset; Causing Student A to feel humiliated and/or embarrassed and/or

uncomfortable; Acting in a manner that had or would have had the effect of unreasonably and/or

substantially interfering with a students mental, emotional, or physical well-being; Acting in a

manner which reasonably caused or would have been reasonably expected to cause mental,

emotional, or physical harm to a student; and, Knowingly acting in a manner likely to be injurious

to the physical, mental, or moral welfare of a child or children less than seventeen-years.

Specification 4, as it relates to Specification 3, are simply arguments for what would or

could be the result or cause and effect should this Hearing Officer find that the DOE did prove the

Respondents actions to be culpable and in violation of any rule or regulation.

The evidence provided during the Hearings through witnesses and a videotape showed that

Student A was a particularly challenging student. Student A is provided with both physical and

occupational therapy as well as counselling. Student A frequently engages in aggressive behavior

and is very difficult to calm down when having one of his outburst. Student A is and was very

obsessive over a female student whom he always wanted to play with at recess. When the female

student did not want to play with Student A, he would become extremely aggressive as he could

not comprehend or understand why she would not want to play with him.

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 On the date in question, February 11, 2016, the Respondent found Student A, crying and

having an outburst on the steps leading from the cafeteria back to the floor where his classroom is.

Student A was extremely upset because the female student would not play with him and he did not

understand why. While trying to engage the student the Respondent thought that it would be helpful

to record his interaction with Student A so he could assess the effect of his engagement after the

immediate situation was over. The Principal upon hearing and seeing Student A crying and seeing

the Respondent videotaping the event told the Respondent to stop videotaping and she would take

care of Student A.

Based on the above-events the Respondent was charged with the conduct listed in

Specifications 3 and 4.

As to Specification 3a: using his cellphone to videotape and/or record Student A. The

evidence provided through testimony of the Respondent and corroborated by co-teacher is that

recording or videotaping student interactions is commonplace at their school which is known by

Administrators. The Principal argued that the Respondent did not have authorization to videotape

this student, by use of the consent form listed as Department Exhibit 10, which is a violation of

the Chancellors Regulations. After further review, a different consent form, as admitted as

Respondent Exhibit 9, proved that Respondent did in fact have consent form signed by Student

As parent. There were arguments made that Department Exhibit 10 was the correct consent form,

however, there was no evidence to suggest Respondent Exhibit 9 was not a valid consent form to

be used. Additionally, it must be noted that when the Principal told the Respondent to stop

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videotaping, the Respondent immediately complied. Further testimony from the Principal indicates

no further videotaping incidents occurred after that point with this Respondent.

As to Specification 3b and 3c: Continuing to videotape and/or record Student A as Student

A walked away crying from Respondent, and, Failing to comfort and/or engage with Student A

beyond using his cellphone to videotape and/or record the student. The evidence, as this Hearing

Officer watched the videotape exhibit of the incident over and over for several times, was that

while Respondent was trying to engage and comfort Student A while videotaping the engagement

at the same time, Student A kept walking and crying, why wouldnt she play with me, I want to

talk to her. There was absolutely no indication that Student A was trying to get away from the

Respondent. There was absolutely no indication that Student A was agitated or upset by the

Respondent videotaping the interaction. Student A was clearly upset over the female student not

wanting to play with him. Although the Respondent attempted to continue trying to calm Student

A and make him understand why he should not be upset, Student A continued to obsess about the

female student not wanting to play with him. Student A was completely innocuous to the fact he

was being videotaped

As to Specification 3d: Engaging in the above acts during instructional time. Evidence

clearly shows that the whole episode occurred during the transitional time between lunch and the

next class period.

As to the cause and effects of Specification 3 as listed in Specification 4:

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 There is no evidence that Respondent caused Student A to cry and/or continue to cry as

stated in 4a. There is no evidence that Respondent caused Student A to feel sad and/or scared and/or

upset as stated in 4b. There is no evidence that Respondent caused Student A to feel humiliated

and/or embarrassed and/or uncomfortable as stated in 4c. The only evidence for 4a, 4b, and 4c,

would be from the testimony of the Principal, the Respondent and the videotaped account. Without

the testimony of Student A, who did not testify at the Hearing, all other evidence is inconclusive

to prove what has been charged in the Specifications.

As to 4d, 4e and 4f: Respondent acting in a manner that had or would have had the effect

of unreasonably and/or substantially interfering with a students mental, emotional, or physical

well-being; Acting in a manner which reasonably caused or would have been reasonably expected

to cause mental, emotional, or physical harm to a student; and, Knowingly acting in a manner

likely to be injurious to the physical, mental, or moral welfare of a child or children less than

seventeen-years. Without the testimony of an expert witness, with an educational and professional

background in either psychology or psychiatry or a related field and who had fist hand knowledge

of Student As mental and emotional condition, there was no reliable testimony to suggest 4d, 4e

and 4f occurred or could have occurred.

Although the Respondents methods, by using videotaping to assess how the effect of such

an engagement worked or not, may or may not be the correct method to use with young students

it clearly was not proven to be misconduct.

Specifications 3 and 4 are hereby dismissed in their entirety.

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With regards to Specifications 5 and 6:

In specification 5 Respondent is charged that he put and/or pushed and/or lay his body on

top of Student B, a third-grade student; Used his chest and/or stomach area to make physical

contact with Student Bs body and/or back area; Stated to Student B words to the effect of, This

doesnt make you feel right, why are you doing this to others; Stated to Student B words to the

effect of, Do you like how that feels; Pushed Student B to the floor and/or downward after

Respondent told Student B to sit up.

As a result of the charges listed above the Respondent is further charged with in

Specification 6 that he caused Student B to cry; Caused Student B and/or others students in the

class to feel sad and/or scared and/or upset; Caused Student B and/or the other students in the class

to feel humiliated and/or embarrassed and/or uncomfortable; Acted in a manner that had or would

have had the effect of unreasonably and/or substantially interfering with a students mental,

emotional, or physical well-being; Acted in a manner which reasonably caused or would have been

reasonably expected to cause mental, emotional, or physical harm to a student; Knowingly acted

in a manner likely to be injurious to the physical, mental, or moral welfare of a child or children

less than seventeen-years-old.

Specification 6, as it relates to Specification 5, are simply arguments for what would or

could be the result or cause and effect should this Hearing Officer find that the DOE did prove the

Respondents actions to be culpable and in violation of any rule or regulation.

The Office of Special Investigations conducted an investigation based on charges proffered

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by Respondents paraprofessional Ms. Goldberg. Those charges were based on conduct Ms.

Goldberg related as follows: On March 8, 2016, while students were getting ready to transition out

of the classroom, Student A was crawling on the floor bumping into students who were standing

and getting ready to leave. Ms. Goldberg stated that she observed the Respondent approach Student

A, push his body on top of her and state, This doesnt make you feel right, why are you doing this

to others? Ms. Goldberg explained that, when the Respondent put his body on top of Student B,

she was sitting on the floor with her legs crossed. Ms. Goldberg further stated that the Respondents

chest and stomach made direct contact with Student Bs back. After a short period of time,

according to Goldberg, Respondent told Student A to sit up and then used his hands to push her

back down onto the floor. Goldberg also stated that she did not believe that the Respondents

actions to be sexual in nature but were meant to punish Student A for her behavior.

Respondent was subsequently charged with corporal punishment in accordance with

Chancellors Regulations A-420.

Student B has been described by all as being extremely sensitive. Her own mother testified

that Student B is a child with big emotions who does no handle discipline well. She melts down

and acts out like the world is coming to an end. Student B receives occupational therapy because

of the way she moves. Student B has difficulty with coordination, balance and spatial awareness.

Because of the spatial awareness issue she often bumps into students or moves in odd ways.

Respondents testimony was that Student B, who had occupational therapy that day was

upset because she missed passing out cupcakes for another students birthday. Being upset, Student

B, while crawling on the floor pushed another student. Respondent went over asked Student B to
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move to the side of the classroom. Respondent then kneeled down beside her and tried to help her

understand her emotions and actions. Respondent was attempting to teach her how she could move

and interact with children appropriately. Respondent testified that when reaching around her to

show her, his arm and body may have touch her but in no way was he attempting to hurt or punish

her with his body.

Although Student Bs mother would not let her give a statement to the Office of Special

Investigations or permit her to testify, Student Bs mother did testify at the Hearing. Respondent

had an extensive history with Student Bs family, her siblings and mother. Student Bs mother had

only exceptionally kind words to describe the Respondent and his teaching methods used with her

daughter. Student Bs mothers testimony of what her daughter had told her about the incident was

similar and corroborated much of Respondents account of what occurred.

Respondents attorney argued Ms. Goldbergs statement and testimony was biased because

Ms. Goldberg had recently been removed as a para for another child in Respondents classroom.

In that action Respondents believed Ms. Goldberg was not helping or working well with the

student.

With Ms. Goldbergs testimony as well as with the DOEs case, there were many flaws.

First, by testimony of parents of students, students themselves and a co-worker, it is clear

to this Hearing Officer that the Respondent did not create an intimidating, hostile or offensive

environment for learning. In fact, just the opposite with his loving, caring and unique ability to

connect with his students.

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 Second, many students were in class during the day of the alleged incident. None would

provide testimony for the DOE, including Student B, herself.

The DOEs entire case rests on the testimony of Ms. Goldberg who may or may not be

biased. Two student written statements that were provide to the OSI investigator even had

differences not only from each other statements but from what Goldberg had stated too.

When assessing credibility of a witness Hearing Officers normally look for the following

characteristics of their testimony. The relative strength of their recollection. Any showing of

obvious bias. And, a showing of emotional stress that would impair the witnesss ability to respond

to questions carefully and accurately. Additionally, a biased accuser is always subject to doubt.

Ms. Goldbergs testimony was not convincing. The overall quality and reasonableness of

her testimony was in doubt. Not to mention that on her written statement she asked to remain

anonymous for such a serious accusation against a classroom teacher.

At the Hearing it was quite obvious that Ms. Goldberg did not want to be there and was

extremely uncomfortable the entire time. Her memory was hazy to some questions, however,

perfect for others. For example, at the time in question, she testified that the student was crying

but did not remember when she actually started or if she ever stopped crying. Ms. Goldberg

remembered she was sitting at her table working on a students homework but did not remember

who was sitting with her and did not notice Student B crawling on the floor and bumping into

students. Ms. Goldbergs reasoning was she was very engaged in her work yet she noticed the

whole incident of Respondent supposedly laying on top of Student B. When pressed on cross-

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examination, Ms. Goldberg, would not confirm that she observed Respondent laying on top of

Student B in a manner that may crush her or whether he was putting significant weight on Student

B.

Interesting and yet disturbing to this Hearing Officer is that fact that Ms. Goldberg did

nothing to intervene in the situation she alleges. Ms. Goldberg never spoke to the Respondent

concerning the alleged incident nor did she ever speak to Student B concerning the alleged

incident. Ms. Goldberg testified that she did nothing to help calm Student B down or to check and

see if she was even ok.

Chancellors Regulation states that Corporal punishment is defined as any act of physical

force upon a pupil for the purpose of punishing that pupil. There is absolutely no credible evidence,

direct or corroborating to suggest the Respondent was trying to punish Student B by using physical

force. Likewise there is no credible evidence direct or corroborating to prove by a preponderance

of the evidence that the allegations in Specification 5, as listed, occurred.

What is believable is that some form of physical contact was made between the Respondent

and Student B. However, the evidence in not conclusive as to the extent of the physical contact

actually made. What is clear is physical force was not used nor was any contact made for the

purpose of punishing Student B.

As to the cause and effects of Specification 5 as listed in Specification 6:

There is no evidence that Respondent caused Student B to cry as stated in 6g. There is no

evidence that Respondent caused Student B and/or others students in the class to feel sad and/or
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scared and/or upset as stated in 6h. There is no evidence that Respondent caused Student B and/or

others students in the class to feel humiliated and/or embarrassed and/or uncomfortable as stated

in 6i.Without the testimony of Student B, and other students with firsthand knowledge, at the

Hearing, all other evidence is inconclusive to prove what has been charged in the Specifications.

As to 6j, 6k and 6l: Respondent acting in a manner that had or would have had the effect

of unreasonably and/or substantially interfering with a students mental, emotional, or physical

well-being; Acting in a manner which reasonably caused or would have been reasonably expected

to cause mental, emotional, or physical harm to a student; and, Knowingly acting in a manner

likely to be injurious to the physical, mental, or moral welfare of a child or children less than

seventeen-years. Without the testimony of an expert witness, with an educational and professional

background in either psychology or psychiatry or a related field and who had first hand knowledge

of Student Bs mental and emotional condition, there was no reliable testimony to suggest 6j, 6k

and 6l occurred or could have occurred.

Specifications 5 and 6 are hereby dismissed in their entirety.

The evidence in this case does not support the charges, filed by the DOE. After weighing

the evidence presented by the parties and accessing the credibility of the witnesses, including a

videotape this Hearing Officer finds the Respondent not guilty of the conduct charged in

Specifications 1, 2, 3, 4, 5 & 6.

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AWARD:

Based on the evidence presented, the weight associated and the credibility of the witnesses,

the charges in Specifications 1, 2, 3, 4, 5 & 6 are hereby dismissed in their entirety.

Based on the reasoning and discussion above and the entire record before me, This Hearing

Officer finds the DOE has not proven the Respondent unable to provide a valid educational

experience for the students assigned to his class. The evidence presented at the Hearings, in

support of the charges, were not sufficient to prove conduct for which the end result would justify

termination.

It is hereby so ordered this 15th Day of May, 2017.

__________________________________
Marc A. Winters, Hearing Officer
Seven Fields, Pennsylvania

AFFIRMATION

Pursuant to CPLR 7507:

I, Marc A. Winters, do hereby affirm, upon my oath as a Hearing Officer, that I am the

person, described herein, who executed this document which is my Opinion and Award.

Dated: May 15, 2017

_______________________________________
Marc A. Winters

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