Preponderance of Evidence: What Does This Mean?

Tuesday, June 28, 2011


UPDATE-Preponderanceof evidence a term worth Repeating


This is a legal term worth repeating. And this particular post, please do pass on, since it relates to the amount of "Proof" needed, depending on the Court. I have taken the definition from our NFPCAR online Legal Definitions>> http://nfpcar.org/Legal/legalprint.htm I hope this helps, since, believe it or not, many lawyers aren't aware of the differences, but hopefully, we can ask a few questions to them to see if they are. (Related Power Point Presentation on Admin. Hearings>> FPLS-Administrative Law Presentation ) Plus other training>>http://www.examiner.com/foster-families-in-national/foster-parents-educational-resource-guide and http://www.foster-parents-legal-solutions.com/education.html )


Do you know the difference between:


*Preponderance of Evidence
*Clear and Convincing
*Beyond a Reasonable Doubt?
If Not, you better do your homework. Since depending on the court system, the level of proof depends on these terms.



I'm not a lawyer, but here are some basic "unlegal" thoughts, depending on the court system:
Administrative Hearing: By some only 51% proof needed..ie "If it could have happened, it probably did."
Family/Civil Court: To initially remove a child, usually little proof needed. However, for TPR to occur, proof must be "Clear and Convincing". which is a sliding scale between proof needed in Admin. Hearing, for example to "Beyond a Reasonable Doubt", depending on the judge.
Criminal Court: "It damn well better have happened!!"..ie "Beyond a Reasonable Doubt"


· For those who can remember the trials of OJ Simpson?? Every wonder why he won in Criminal Court, but lost in Civil Court??


So here is the definition for Preponderance of evidence:


Preponderance of evidence A standard of proof that must be met by a plaintiff if he or she is to win a civil action.


In a civil case, the plaintiff has the burden of proving the facts and claims asserted in the complaint. If the respondent, or defendant, files a counterclaim, the respondent will have the burden of proving that claim. When a party has the Burden of Proof, the party must present, through testimony and exhibits, enough evidence to support the claim. The amount of evidence required varies from claim to claim. For most civil claims, there are two different evidentiary standards: preponderance of the evidence, and clear and convincing evidence. A third standard, proof Beyond a Reasonable Doubt, is used in criminal cases and very few civil cases.


The quantum of evidence that constitutes a preponderance cannot be reduced to a simple formula. A preponderance of evidence has been described as just enough evidence to make it more likely than not that the fact the claimant seeks to prove is true. It is difficult to translate this definition and apply it to evidence in a case, but the definition serves as a helpful guide to judges and juries in determining whether a claimant has carried his or her burden of proof.


The majority of civil claims are subjected to a preponderance of evidence standard. If a court or legislature seeks to make a civil claim more difficult to prove, it may raise the evidentiary standard to one of clear and convincing evidence.


Under some circumstances use of the low preponderance of evidence standard may be a violation of constitutional rights. For example, if a state seeks to deprive natural parents of custody of their children, requiring only proof by a preponderance of evidence is a violation of the parents' due process rights (Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388, 71 L. Ed. 2d 599 [1982]). Freedom in matters of family life is a fundamental liberty interest, and the government cannot take it away with only a modest evidentiary standard. However, a court may use a preponderance of evidence standard when a mother seeks to establish that a certain man is the father of her child (Rivera v. Minnich, 483 U.S. 574, 107 S. Ct. 3001, 97 L. Ed. 2d 473 [1987]). Most states use the preponderance of evidence standard in these cases because they have an interest in ensuring that fathers support their children.
http://legal-dictionary.thefreedictionary.com/Preponderance+of+evidence(added 2/08-GPC)(Related Reading: Burden+of+Proof+Begone.pdf (added 8/09)


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Related Blog>>Preponderance of Evidence VS Clear and Convincing. What is better???
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Finally, here is the: Model State Legislation -Parental Due Process Act << I highly recommend that you pass this on to others, since it has many ideas on what is needed primarily in our Family Courts... We, as parents and/or any who care for children, must have our "Fair Day in Court". Please keep in mind, the judge makes their decision on "What Proof is presented" which may not be the Truth of the full story.

HERSHKOWITZ v. NEW YORK CITY DEPARTMENT OF EDUCATION, May 2008

Cary HERSHKOWITZ, Plaintiff-Respondent, v. NEW YORK CITY DEPARTMENT OF EDUCATION, Defendant-Appellant. -- May 27, 2008

TOM, J.P., BUCKLEY, SWEENY, MOSKOWITZ, JJ.


Michael A. Cardozo, Corporation Counsel, New York (Karen M. Griffin of counsel), for appellant.Wolf & Wolf, LLP, Bronx (Edward H. Wolf of counsel), for respondent.

Order, Supreme Court, New York County (Karen S. Smith, J.), entered January 8, 2007, which, to the extent appealed from as limited by the briefs, denied defendant the New York City Department of Education's (DOE) motion to dismiss the complaint pursuant to CPLR 3211(a)(7), unanimously reversed, on the law, without costs, and the motion granted.   The Clerk is directed to enter judgment in favor of defendant dismissing the complaint.

In 1999, DOE commenced a disciplinary proceeding pursuant to Education Law § 3020-a, charging plaintiff, a tenured teacher, with 12 specifications of sexual misconduct and other inappropriate interactions with respect to several students.   Plaintiff moved to suppress his written confession, in which he admitted to sending “many” instant messages to a female student explicitly discussing and soliciting various sexual acts.   The hearing officer suppressed the statement as violative of the collective bargaining agreement between DOE and the United Federation of Teachers (UFT), and thereafter dismissed all the charges against plaintiff and ordered him reinstated.   Supreme Court vacated the determination and directed a new hearing, at which the written statement was to be considered;  we affirmed (Board of Educ. of City of N.Y. v. Hershkowitz, 308 A.D.2d 334, 764 N.Y.S.2d 254 [2003], lv. dismissed 2 N.Y.3d 759, 778 N.Y.S.2d 776, 811 N.E.2d 38 [2004] ).

Following the new hearing, at which the written statement was admitted and plaintiff declined to testify, the hearing officer sustained six of the charges, and as a penalty imposed a one-year suspension without pay.   DOE commenced a special proceeding pursuant to CPLR article 75 and Education Law § 3020-a, challenging the penalty as inadequate.   Supreme Court granted DOE's petition to the extent of remanding for a new hearing before a different hearing officer.   A reading of the detailed, 15-page decision reveals that Supreme Court upheld the factual determination that plaintiff was guilty of the six sustained charges and remanded only on the issue of the penalty.   Supreme Court ruled that the penalty of a one-year suspension was “totally irrational” and “against New York's strong public policy of protecting children,” in that it:

“not only defies logic given the seriousness of [plaintiff's] admitted sexual misconduct ․, but it is offensive to the disciplinary process negotiated by [DOE] and [UFT]. Indeed, to suspend [plaintiff] for one year actually tells him and everybody else that these perverted and insidious acts are not serious.   Importantly, it also tells [the female student] and her mother that [the student's] resolve and her mother's courage used in withstanding and reporting [plaintiff's] persistent and improper advances were for naught.   In fact, [the student's] resolve is being used against her by those responsible for ensuring her safety as an attempt to minimize the heinous nature of [plaintiff's] acts ․ [T]his Court chooses to call this teacher's acts for what they are-an abuse of trust of the most serious kind ․

“To be sure, the fact that physical contact apparently did not occur here ․ is a tribute to the student's resolve, not [plaintiff's] exercise of restraint.   For his part, it is clear that he tried ․

“Last, considering the seriousness of [plaintiff's] conduct, a one year suspension is not justified by the fact that [he] had a clean record prior to this incident ․ He not only tried extremely hard to seduce [the student] into a clandestine and inappropriate relationship, but systematically dismantled the systems a parent puts in place to protect her daughter, namely honesty and open communication.”

The new hearing officer misconstrued the order as directing a de novo hearing on the merits of the charges as well as the appropriate penalty.   The parties relied on the record established at the prior hearings, and the hearing officer found plaintiff culpable of the same six charges previously sustained, and directed him to be dismissed from service.

Thereafter, plaintiff commenced this action to recover back pay and benefits for the period of time between the award suspending him for one year, which was annulled, and the final order terminating his employment.

The complaint should be dismissed for failure to state a cause of action, since the matter was remanded solely for a redetermination of the penalty and plaintiff ultimately received a harsher penalty (see Matter of Lugo v. City of Newburgh, 209 A.D.2d 414, 618 N.Y.S.2d 420 [1994];  Matter of DeMartino v. Meehan, 149 A.D.2d 703, 704-705, 540 N.Y.S.2d 500 [1989] ).   The fact that the second hearing officer erroneously believed that he was to make a redetermination as to the charges is immaterial.

Indemnification of School Personnel Leads To Senseless 3020-a Charges

What Does "Indemnification" of School Administrators Mean?

Re-posted from NYC Rubber Room Reporter

Below is an explanation given by SAANYS (there seem to be no contacts for Region 3, Manhattan, Queens, Brooklyn, Kings, Bronx, Richmond, Staten Island). In my opinion, the immunity clause for educators and education administrators throughout NYC and NY State is still random and arbitrary, as NY Law Department Attorney Martin Bowe told me several years ago - after Stuyvesant High School AP Jay Biegelson, AP Eleanor Archie, and Principal Stanley Teitel ripped up my daughter's IEP, changed it, and took away her services without informing me, and then Bowe defended them in Federal Court - that he indemnified anyone he "wanted to [indemnify]", and the public pays. See Public Officer's Law Section 18.


Hold Harmless Clause (provision):

Definition of 'Hold Harmless Clause'

"A statement in a legal contract stating that an individual or organization is not liable for any injuries or damages caused to the individual signing the contract. An individual may be asked to sign a hold harmless agreement when undertaking an activity that involves risk for which the enabling entity does not want to be legally or financially responsible."


This clause/provision is similar to the Absolute Immunity any judge has to make any decision he or she wants, and never be held accountable for this decision no matter how random, arbitrary or capricious it is.


America, shouldn't this legal protection of people, including judges, be denied as against our public rights to due process and justice?


Betsy Combier

From SAANYS:


As a first order of business we must define the terms defense and indemnification. Defense and indemnification really mean, “who pays?” That is to say, who pays when you, as an employee in a school district, are named in a lawsuit. Defense means something different than indemnification. Broadly defined, defense means paying legal fees and other costs associated with the defense of the employee. Indemnification broadly defined means the employer must pay damages and costs that are adjudged against the employee.

However, there are significant limitations and other nuances of the requirement of ‘who pays.’ These will be discussed in this article, along with important time frames within which you must act if you get sued.





As some of you may unfortunately know, when you are sued as a private citizen, you must pay for your attorney and all the other costs in defending yourself. And if the court finds against you, you must pay a judgment. The concept behind the defense and indemnification statutes in the Education Law stems from the fact that you are a government employee. As such, the legislature, as representative of the people, has determined that education is serving a ‘public’ purpose. Therefore, those employees serving in an industry that serves the public must have some type of extended protection from lawsuits – the rationale being that the public is best served by the uninterrupted operations of that industry and that those employees subsequently must be free to perform the work of the public without being subject to financial ruin as a result of lawsuits. The key of course is that the person must be performing the work of the public. That is, his or her actions were within the ‘scope of his employment.’

There are several statutes related to defense and indemnification in the Education Law. These statutes form a patchwork of protections. They range from a broad protection against any civil suit to more limited narrow protections against certain criminal charges.





Education Law 3811

The broadest provision is Education Law 3811. Quite succinctly, under 3811 the district must provide and pay for an employee’s defense and damages judged against him or her in any civil (not criminal) proceeding. But the employee must first meet two critical requirements: 1) the employee must have notified the board of education in writing within five days of being served; and 2) the court or the commissioner of education must certify that the employee’s actions were within the scope of his employment.
First, the employee should call his attorney and take his or her advice accordingly. Immediately when served papers, an employee would write a simple letter notifying the board of the lawsuit and make a request for defense and indemnification. That person should also make a copy of the papers served and include that with the letter. So to recap: When an employee gets served with legal papers in any civil suit, they must, within five days, send a letter to the board informing it of the suit and should include a copy of those papers.





You will know you are named when you are served with legal papers by a process server. That is someone who is not a party to the proceeding. These papers invariably come with a first page with the word “NOTICE” conspicuously written on it. For example that page may be a “Summons” or a “Notice of Petition.” This is a legal requirement designed to clearly inform you that you have be named in a legal action so that you can take action to defend yourself.

Education Law 3023

Under Education Law 3023, an employee is protected from financial loss resulting from a lawsuit where his or her accidental or negligent actions resulted in a person’s injury or damage to school property. This applies on or off school property as long as that employee’s actions were within the scope of his employment or volunteer duties under the direction of the board. Again, the critical aspects are that the employee is acting within the scope of his employment. And again, HURRY. This time, the employee must supply a copy of the original papers to the board within 10 days. There is no requirement that a written request for defense and indemnification be made. However, the employee can never go wrong by including such a letter and a copy of the papers. Play it safe and do it in five days.





Education Law Provision is 3028

Education Law 3028 includes a series of defense, indemnification, and immunity provisions addressing the ever-changing reality of student discipline issues in New York’s public schools. Now you may note that I stated that ‘certain’ criminal allegations were addressed in the Education Law. Here, 3028 states that the board must pay the attorney’s fees and expenses for any employee charged in a civil suit or criminal action as a result of disciplinary action the employee took towards a student within the scope of the employee’s duties or authorized volunteer activities. Again, 10 days to provide a copy or original of the papers served with no letter requirement. But again, play it safe, write a letter and attach a copy of the papers within five days.





Now you may have noticed that 3023 and 3028 do not specify both defense and indemnification. 3023 says ‘protect from financial losses’ and 3028 specifies only ‘attorney’s fees and expenses.’ This is a critical distinction because the courts have determined that the board’s duty to defend an employee, i.e. pay the attorney, is broader than the board’s duty to indemnify, i.e. pay a judgment against the employee. Although a discussion of this distinction is outside the scope of this article, suffice it to say that having your attorney paid for does not mean that you are off the hook for the judgment or a portion of it against you. It is possible that an employee can have his or her defense paid for and still be found to have acted outside the scope of his or her employment for a portion of the acts alleged and therefore, be held liable for some of the judgment.

Also, the requirement that a court or the commissioner of education ‘certify’ that the employee’s actions were within the scope of his or her employment may require that some adjudication of the facts be made before it is finally
determined whether or not the employee’s actions were within the scope of his or her employment. This, of course, takes time and presumably the employee may have to front the attorney’s fees and expenses and seek reimbursement later.


Defense and Indemnification Provision


Public Officers Law 18 was designed to cover all government employees. It resembles a lengthy iteration of Education Law 3811. Public Officers Law 18 can only apply to education employees if the governing municipality has formally adopted it. For example, if the City of Poughkeepsie adopted Public Officers Law 18, then the City School District of Poughkeepsie and its employees could be subject to its provisions.


Immunity


Immunity means an employee is exempt from prosecution. Again, this applies only where the employee’s actions were within the scope of his or her employment and so may require some adjudication of the facts. Section 3028 has separately several immunity provisions related to six different topics. They are: 1) student drug abuse, 2) student alcohol abuse, 3) student weapons possession, 4) student acts of violence, as well as 5) evidence of child abuse and 6) financial mismanagement of district funds. All these provisions require that the employee act “reasonably” and in “good faith” when they report such activity. The provisions on financial mismanagement, weapons, and acts of violence have specific retaliation protections built in. And the district is required to provide a written explanation of the drug and child abuse reporting requirements to employees annually. So, there is some immunity from prosecution if you act reasonably and in good faith when reporting on the six topics named above.

Let’s Review


There are several simple rules to remember. When served with papers, the employee must FIRST notify the district (Play it safe and do it in five days every time, and include a copy of the papers served on you.). AND, remember that an employee must always be acting within the scope of his or her employment to receive the protections of the defense and indemnification statutes. The protections apply only to civil claims except for criminal allegations resulting from acts related to student discipline. An example might be using physical force as reasonable restraint of a child during a student fight.

Remember, play it safe. Call SAANYS and speak directly with one of your attorneys to discuss a particular situation.

Campbell Brown Destroys Her Reputation as A Journalist With Her Latest Article on the NYC 3020-a Arbitrators

Shame On You, Campbell Brown

Paul Zonderman

I am so saddened by Ms. Campbell Brown's lack of integrity as a journalist, clearly shown by the lack of facts in her article below. First, several Arbitrators mentioned, Howard Edelman and Paul Zonderman, are no longer on the UFT-DOE rotating Panel, and have not been actively involved in the 3020-a process in NYC for several years. She says that Howard Edelman is not well known. Now, that's a false statement right there. Howard is a very well known arbitrator, inside NYC and throughout the State. Paul is, as well. It is shocking that Ms. Brown bought into the DOE's shpeel (?spelling?) of how "bad" they were while on the panel, while both had their share of terminations but couldnt stand the mess of process (this comes from a source). Didnt you at least go to Google for information, Ms. Campbell?

The problem Ms. Brown has, is she did not look at cases, but simply passed on the public relations general statement that all arbitrators are not doing their jobs, namely terminating "bad" teachers and especially those who sexually abuse students.

This is where Ms. Brown fails. Sure, some arbitrators are hired to fire - like Eleanor Elovich Glanstein and her sidekicks Nancy Ryan and NYSUT Attorney Steve Friedman (Eleanor Glanstein is now no longer on the panel); Lana Flame, now no longer on the panel - and others who I will be writing about soon. But if an arbitrator shows bias and decides to take allegations of sexual abuse and make these allegations of touching, kissing, etc. into "facts" without any supporting proof, then they can, and hopefully will, be brought to the Departmental Disciplinary Committee and shown the door. This may be the reason Ms. Glanstein is no longer on the panel, as I personally know three former victims who had her at their 3020-a and filed complaints against her.

As for Arbitrator John Woods, of NS&J in Maryland, and his partner in crime ATU Attorney Michael Francis, I have never, in my 12 years of participating in 3020-a hearings, seen two people who insult, belittle and verbally abuse witnesses and people who oppose them as much as these two. I will write further about a case that Woods just decided, in the near future.

The contact information for Hearing Officer Woods is:
John Woods, Esq.
NS&J Advisory Group
5430 Lynx Lane, Suite 217
Columbia, MD 21044
Email: JWoods@nsandLcom
Tel: 202-421-1881

The attorney for the Department is Michael Francis:
Administrative Trials Unit
NYC Department of Education
49-51 Chambers Street, Room 604
New York, New York 10007
MfrancisII@schools.nyc.gov
Tel: (212) 374-2498
Fax: (212) 374-1074

Dont let the bio below sway you; John Woods is not a neutral, and in my opinion, should leave arbitration, negotiation and mediation to other people. Also in my opinion, Attorney Michael Francis should be let go. He threatens and retaliates against anyone he believes is impeding him in any way.He needs anger management big time. Threatening witnesses whose testimony he doesn't like is not proper, and makes the ATU look bad.

About the Ombuds

John L. Woods, Jr.

John L. Woods, Jr. is an experienced Alternative Dispute Resolution (ADR) practitioner in the areas of labor, employment, business, and securities. Prior to joining Ramapo College, John served as the Chief Mediator and head of the Alternative Dispute Resolution Division for a United States Federal Government Agency. He also served as a Supervisory Federal Investigator during his tenure with the U.S. Federal Government. John currently serves as a mediator, arbitrator, and/or conciliator for the U.S. Federal Government, the State of Maryland, the Better Business Bureau, the New York Stock Exchange, the National Association of Securities Dealers, the Financial Industry Regulatory Authority (FINRA), the Trinidad and Tobago Chamber of Commerce, and the International Chamber of Commerce.

John’s International ADR experience includes providing training and consulting services in Jamaica (W.I.), Trinidad and Tobago (W.I.), the Western Sahara, Morocco, and Spain. He is currently an adjunct professor and frequently writes and speaks on issues concerning labor, employment, organizational development, conflict management and dispute resolution.

John received a Bachelors Degree from the State University of New York at Albany, a Masters Degree from New York University, and a Juris Doctorate Degree from Howard University School of Law.
So, what Campbell Brown is urging the public to advocate for is the Department of Education's edict: an allegation must be considered a "fact" if brought to 3020-a by a Principal, AP, or someone hired by the DOE to fire somebody.

Then, it is the job of the Respondent's legal representative(s) to prove the Respondent innocent. Yes, you got that right. The way that the UFT and DOE panel is set up, a teacher or employee brought to 3020-a is guilty when he or she enters the door. The process allows this person to fight this by proving that he or she is innocent, but if the fight is not 100%, the person remains guilty, and gets punished for his or her "crime", according to the specifications.

By the way, most people know that any person who is brought to 3020-a can have anyone represent him or her, and can hire a non-attorney to assist him/her, or do the job by him/herself. At 3020-a you do not have to use an attorney.

Ms. Campbell wants the fight against the allegations to be non-existant, and have anyone brought to 3020-a remain guilty of the allegations/facts as charged. Then, there is no sense in hiring arbitrators and paying $1400/day, so just do away with 3020-a hearings and fire anyone accused of anything, the minute an "investigator" substantiates the charge. The end of tenure rights.

Shame on you, Campbell Brown!

Betsy Combier

Law Department Directory

Arbitrators protect pervert teachers
by Campbell Brown
LINK 

By Campbell Brown

October 10, 2013 | 11:06pm

Modal Trigger

United Federation of Teachers President Michael Mulgrew needs to stop claiming the union has a zero-tolerance policy for pervert teachers. Arbitrators disagree.

Photo: Warzer Jaff

Howard Edelman isn’t well known in the education community. He should be: He has unilateral authority to change how the city Department of Education spends millions of 

Edelman is an arbitrator. When DOE moves to terminate a teacher for misconduct or incompetence, he decides whether the teacher stays or goes. And, if it’s “stay,” what the penalty should be.

Like his fellow arbitrators, Edelman’s judgment is final. (The city can appeal in court, but judges are loath to overturn arbitration decisions.)

And, like too many other arbitrators, Edelman makes it a priority to find ways to keep teachers in classrooms, with little apparent consideration of the impact on schools or students.

This is most evident, and troubling, in sexual misconduct cases.

In a breakthrough 2005 agreement, the union and DOE inserted language into the teachers contract stipulating “a mandatory penalty of discharge” to any union member “found by a hearing officer to have engaged in sexual misconduct.”

The contract defined sexual misconduct as including: “sexual touching, serious or repeated verbal abuse (as defined in Chancellor’s Regulations) of a sexual nature, action that could reasonably be interpreted as soliciting a sexual relationship, possession or use of illegal child pornography” as well as action that constitutes criminal conduct.

Union leaders often call this a “zero tolerance” policy. Problem is, Howard Edelman and his colleagues won’t enforce it. They repeatedly find that some sexual conduct by teachers is permissible.

In 2008, Edelman found that a teacher who rubbed the back and neck of a student in an empty classroom while speaking in threatening sexual innuendo — “I can make you do things you don’t want to do” — should get a mere two-month fine. The teacher had twice before been cited for improper touching.

Edelman’s terse rationale: “A teacher rubbed a student’s back. He did not have sex with the student or ask the student to have sex with him.”

In 2010, Edelman found that another serial abuser should be returned to the classroom after touching the bare shoulders and neck of a student while telling her she could strip for him.

The teacher “was not really soliciting sex from but was engaging in sexual banter,” with the student, he found — even though there is no precedent or protection in the contract for “sexual banter.”

He also found a way to forgive the use of child porn, calling a teacher’s secret agreement to be sent nude photos of a student “a lapse in judgment . . . [that] does not justify upholding his termination, I am convinced.” The contract explicitly says otherwise.

Yet Edelman is no anomaly. Many other arbitrators normalize sexual behavior or invent standards to arrive at decisions that flout zero tolerance.

Paul Zonderman has leniently arbitrated many misconduct cases. In one, he found that a special-education teacher touched boys so often that his actions “at worst, suggest pedophilia.” Yet Zonderman ordered nothing more than a reprimand.

Eric Lawson found that a Manhattan 6th-grade teacher repeatedly hugged female students, touched a student’s breast and leg and made sexually suggestive remarks to several students. He described the teacher as “unrepentant, claiming to be a victim” and said he didn’t deserve to keep his job “as long as he insists upon his innocence.”

Yet Lawson sent him back to the classroom anyway, ordering a six-month suspension and mandatory therapy.

In a distasteful recent case, a Bronx high-school teacher repeatedly called a large-breasted student “watermelon girl” and told her, if he felt she was dressed inappropriately, to “put your melons away” and “cover up your melons.” He called other female students “Wonder Woman,” “Chocolate Girl,” and “Dark Chocolate,” purportedly to encourage them. There is no evidence that he used nicknames to encourage male students.

The arbitrator, John Woods, said the teacher’s “unwelcome communication of a sexual nature is prohibited. However, termination is not the appropriate penalty in this case.” In fact, prohibited sexual communications require termination under the contract. Yet Woods ordered a penalty of just a week without pay.

With these and other arbitrators minimizing the sexual behavior of accused teachers with their students, the DOE has had little success in terminating teachers accused of violating the 2005 provision. Only about a quarter of those for whom probable cause of sexual misconduct has been found have lost their jobs.

In the other cases, an arbitrator has sided with a serial molester over the isolated, terrified child he threatens. And with a profane, sexualizing bully over the child he singles out as “watermelon girl.”

The union needs to stop claiming there’s a zero-tolerance policy for teacher sexual abuse. The arbitrators disagree.

Campbell Brown is the founder of the Parents Transparency Project and a former anchor for NBC and CNN.

Mike Bloomberg in 2011: Dump Half of NYC's Teachers

Re-posted from NYC Rubber Room Reporter

Mayor Stuns Many At MIT Speech, Says He'd Greatly Enlarge Class Size, Too

December 1, 2011 11:59 PM

Filed Under

Heard On 1010 WINS, WCBS, WFAN, Local, News,NY News, Politics, Seen On CBS 2HD, Syndicated Local,Watch + Listen

Related Tags

Bill de Blasio, Cathie Black,Massachusetts Institute of Technology, Mayor Michael Bloomberg, Michael Mulgrew, NYC schools, Rich Lamb, United Federation of Teachers

LINK

NEW YORK (CBSNewYork) — It’s a jaw-dropping prescription for fixing city schools.

“Professor” Michael Bloomberg said Thursday he would accomplish more with less by slashing the teaching staff in half — and that’s just the beginning, reports CBS 2’s Marcia Kramer.

He looked like he was from another planet when he dressed as a hippie for a political show, but the mayor’s blueprint for fixing city schools have some asking “what was he smoking?”

WCBS 880′s Rich Lamb With Reaction From NYC Public Advocate Bill De Blasio

“Education is very much, I’ve always thought, just like the real estate business. Real estate business, there are three things that matter: location, location, location is the old joke,” Bloomberg said. “Well in education, it is: quality of teacher, quality of teacher, quality of teacher. And I would, if I had the ability - which nobody does really – to just design a system and say, ‘ex cathedra, this is what we’re going to do,’ you would cut the number of teachers in half, but you would double the compensation of them and you would weed out all the bad ones and just have good teachers. And double the class size with a better teacher is a good deal for the students.” 

That’s right. The mayor told people at a Massachusetts Institute of Technology conference it would be far better to run city schools with way fewer people. And, by the way, on the billionaire’s perfect planet that would mean cramming more kids into each classroom. 

Andrea Spencer is dean of the School of Education at Pace University. “When I heard the statement I was really shocked,” Spencer said. “There is absolutely no evidence to suggest that half of the teachers in any system are ineffective. What there is evidence to support is the fact that larger classes really place detriments in the way of learning.”

But “Professor” Bloomberg is sticking to his views.

“The best thing you can do is put the best teacher you can possibly find and afford in front of the classroom and if you have to have fewer because there’s only a certain number of dollars to go around, I’m in favor of that,” Bloomberg said.

United Federation of Teachers President Michael Mulgrew said he put the mayor’s latest views on teaching in the same category of his decision to appoint a former magazine editor with no teaching experience to be schools chancellor.

“So the mayor thinks this is a good idea, in high schools to have class size in high schools of 70 kids. Clearly the mayor has never taught,” said United Federation of Teachers President Michael Mulgrew.

“And probably the mayor’s having another Cathie Black moment.”

The mayor also said he’s given teachers a 105 percent raise since he took office. Mulgrew said maybe the mayor should have stopped in at a math class while he was at MIT.

In lamenting the quality of teachers, the mayor claimed they come from the bottom 20 percent of their class and not the best schools.

Bad Faith Must Be Proven In Order To Re-Instate An Employee Who Opposes Being Excessed

In the Matter of Nancy Hritz-Seifts, Appellant, v Town of Poughkeepsie et al., Respondents.

—[*1]

In a proceeding pursuant to CPLR article 78 to review a determination of the respondent Town Board of the Town of Poughkeepsie dated October 22, 2003, which abolished the position of personnel assistant, and to reinstate the petitioner to that position with back pay, the petitioner appeals from a judgment of the Supreme Court, Dutchess County (Pagones, J.), dated June 30, 2004, which denied the petition and dismissed the proceeding.

Ordered that the judgment is affirmed, with costs.

It is well established that a public employer may abolish civil service positions for the purposes of economy or efficiency (see Matter of Aldazabal v Carey, 44 NY2d 787 [1978]; Bohan v County of Westchester, 250 AD2d 796 [1998]; Matter of Rose v City of Newburgh, 239 AD2d 587 [1997]; Matter of Klos v Town of Babylon, 237 AD2d 291 [1997]; Matter of Rosenthal v Gilroy,208 AD2d 748, 748-749 [1994]; Matter of Della Vecchia v Town of N. Hempstead, 207 AD2d 484 [1994]). It is also well settled that one who challenges the validity of such an act has the burden of proving that the employer did not act in good faith in abolishing the position (see Matter of Rose v City of Newburgh, supra; Matter of Klos v Town of Babylon, supra; Matter of Rosenthal v Gilroy, supra; Matter of Della Vecchia v Town of N. Hempstead, supra). The Supreme Court properly determined that the petitioner failed to sustain her burden of proving that the respondent Town Board of the Town of Poughkeepsie did not act in good faith (see Matter of Rose v City of Newburgh, supra; Matter of Klos v Town of [*2]Babylon, supra; Matter of Rosenthal v Gilroy, supra; Matter of Della Vecchia v Town of N. Hempstead, supra). H. Miller, J.P., Cozier, Ritter and Spolzino, JJ., concur.

Matter of Arnold v Erie County Med. Ctr. Corp.

2009 NY Slip Op 00918 [59 AD3d 1074]

February 6, 2009

Appellate Division, Fourth Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, April 1, 2009

In the Matter of Janet Arnold et al., Respondents, v Erie County Medical Center Corporation et al., Respondents-Appellants, and County of Erie, Respondent.

—[*1] Nancy E. Hoffman, Albany (Paul S. Bamberger of counsel), for petitioners-appellants-respondents.

Colucci & Gallaher, P.C., Buffalo (Paul G. Joyce of counsel), for respondents-respondents-appellants.

Cheryl A. Green, County Attorney, Buffalo (Jeannine M. Purtell of counsel), for respondent-respondent.

Appeal from an order and judgment (one paper) of the Supreme Court, Erie County (Frank A. Sedita, Jr., J.), entered July 19, 2007 in a proceeding pursuant to CPLR article 78, and cross appeal by permission of the Appellate Division of the Supreme Court in the Fourth Judicial Department, from the order and judgment. The order and judgment, insofar as appealed from, granted the cross motion of respondent County of Erie and dismissed the petition against it and, insofar as cross-appealed from, denied the motion of respondents Erie County Medical Center Corporation, Alan Antos, Steven Bajak, Amanda General, Sean Jablonski and Matthew White to dismiss the petition against them.

It is hereby ordered that the order and judgment so appealed from is unanimously modified on the law by denying the cross motion, reinstating the petition against respondent County of Erie, and granting that respondent 20 days from service of the order of this Court with notice of entry to serve and file an answer and as modified the order and judgment is affirmed without costs.

Memorandum: Petitioners commenced this CPLR article 78 proceeding seeking, inter alia, to annul the determination that created the position of senior technical assistant and abolished the position of computer operator for respondent Erie County Medical Center Corporation (ECMCC), thereby terminating petitioners from that position of employment. Petitioners appeal from an order and [*2]judgment insofar as it granted the cross motion of respondent County of Erie (County) to dismiss the petition against it, and ECMCC and the individual respondents (collectively, ECMCC respondents) cross-appeal from the order and judgment insofar as it denied their motion to dismiss the petition against them.

Addressing first the County's cross motion, we agree with petitioners that Supreme Court erred in granting it. We therefore modify the order and judgment accordingly. Contrary to the contention of the County, the proceeding against it was not time-barred. A CPLR article 78 proceeding "must be commenced within four months after the determination to be reviewed becomes final and binding upon the petitioner" (CPLR 217 [1]). "An agency determination is final . . . when the petitioner is aggrieved by the determination[, i.e., when] . . . the agency has issued an unambiguously final decision that puts the petitioner on notice that all administrative appeals have been exhausted" (Matter of Carter v State of N.Y., Exec. Dept., Div. of Parole, 95 NY2d 267, 270 [2000]; see Walton v New York State Dept. of Correctional Servs., 8 NY3d 186, 194-195 [2007]; Matter of Edmead v McGuire, 67 NY2d 714, 716 [1986]). Thus, in determining the issue of timeliness, we must first identify the administrative action or determination to be reviewed, and we must then determine when petitioners were first aggrieved thereby (see Matter of Properties of N.Y., Inc. v Planning Bd. of Town of Stuyvesant, 35 AD3d 941, 942-943 [2006]; Matter of Dziedzic v Gallivan, 28 AD3d 1087, 1088 [2006]).

Here, the relevant administrative determination for statute of limitations purposes is the County's determination that the computer operator position was not comparable to the newly-created senior technical assistant position. In the context of its cross motion, the County failed to meet its burden of establishing that it provided petitioners with notice of its determination more than four months prior to petitioners' commencement of this proceeding (see Matter of Vadell v City of New York Health & Hosps. Corp., 233 AD2d 224, 225 [1996]). Although the County had the final authority to classify employment positions with ECMCC, it sought advice from the New York State Department of Civil Service Testing Services Division (Testing Services Division) to review the classifications of computer operator and senior technical assistant in order to determine whether the computer operators were entitled to automatic certification in the new title of senior technical assistant. Although petitioners were notified by the Testing Services Division on October 31, 2006 and November 14, 2006 that the position of computer operator was not comparable to that of a senior technical assistant, they never received any oral or written communication from the County concerning its determination. Thus, the County's determination was not final for statute of limitations purposes until petitioners were laid off from their positions, on November 22, 2006 (see generally Matter of Heron v City of Binghamton, 307 AD2d 524, 524-525 [2003], lv denied 100 NY2d 515 [2003]; Matter of Wininger v Williamson, 46 AD2d 689 [1974], lv denied 36 NY2d 648 [1975]). Petitioners timely commenced this proceeding less than four months later, on March 21, 2007. We have considered the remaining contentions of the County and conclude that they are without merit.

Contrary to the contention of the ECMCC respondents on their cross appeal, the court properly denied their motion to dismiss the petition against them. We reject the contention of those respondents that the petition against them was time-barred. The relevant determination for statute of limitations purposes with respect to the ECMCC respondents is the determination of ECMCC to create the new position of senior technical assistant and to terminate petitioners from their positions as computer operators. Although petitioners were aware that ECMCC created the new position before November 22, 2006, they were not aware that they were being terminated from their employment until that day, and the petition was therefore timely.

Contrary to the further contention of the ECMCC respondents, there are triable issues of fact [*3]with respect to whether ECMCC acted in bad faith in terminating petitioners, thus precluding dismissal of the petition against them. "It is well established that a public employer may abolish civil service positions for the purposes of economy or efficiency" (Matter of Hritz-Seifts v Town of Poughkeepsie, 22 AD3d 493 [2005]), but it may not act in bad faith in doing so (see Matter of Johnson v Board of Educ. of City of Jamestown, 155 AD2d 896 [1989]), nor may it abolish positions " 'as a subterfuge to avoid the statutory protection afforded civil servants before they are discharged' " (Matter of Civil Serv. Empls. Assn., Inc., Local 1000, AFSCME, AFL-CIO v Rockland County Bd. of Coop. Educ. Servs., 39 AD3d 641, 642 [2007]; see Matter of Hartman v Erie 1 BOCES Bd. of Educ., 204 AD2d 1037 [1994]). " 'Bad faith may be demonstrated by evidence that a newly hired person performed substantially the same duties as the discharged employee' " (Civil Serv. Empls. Assn., Inc., Local 1000, AFSCME, AFL-CIO, 39 AD3d at 642).

A petitioner challenging the abolition of his or her position must establish that the employer in question acted in bad faith (see Matter of Aldazabal v Carey, 44 NY2d 787 [1978]; Hritz-Seifts, 22 AD3d 493 [2005]; Johnson, 155 AD2d at 897). Here, however, the ECMCC respondents moved to dismiss the petition against them and they therefore had the initial burden of establishing that ECMCC abolished the position of computer operator for the purposes of economy or efficiency and acted in good faith in doing so. In support of their motion, the ECMCC respondents submitted evidence establishing that ECMCC abolished the position to increase efficiency and that the new position required more experience and skills than the abolished position. In addition, individuals employed in the new position required the ability to handle a higher percentage of problems that may arise. In opposition to the motion, however, petitioners raised a triable issue of fact by submitting affidavits in which they stated that computer operators performed the same duties as senior technical assistants, that they were qualified for the new position, and that they were laid off solely because of their ongoing conflict with management (see Hartman, 204 AD2d 1037 [1994]; Matter of Terrible v County of Rockland, 81 AD2d 837 [1981]; see also Matter of Archer v Town of Wheatfield, 300 AD2d 1108 [2002]).

We have considered the remaining contentions of the ECMCC respondents and conclude that they are without merit. Present—Hurlbutt, J.P., Centra, Fahey and Peradotto, JJ.

NYC Teacher David Suker Fought The Gotcha Squad - Department of Education in NYC - and Wins His Case in Court by Betsy Combier

The "Rubber Room" is a process, not a place.....

David Suker

re-posted from Parentadvocates.org

David was fired from his teaching position at his "teacher trial" or 3020-a, by the deadly team of Arbitrator Eleanor Elovich Glanstein, Department Attorney Nancy Ryan, and New York State United Teachers (NYSUT) Attorney Steven Friedman. This lethal team violated David's due process and, writes New York State Supreme Court Judge Alice Schlesinger, the law, and then she vacates the termination.

Theresa Europe's email to OSI Director Regina Loughran

 
     

From the desk of Betsy Combier:
David Suker taught for 14 years at Offsite Educational Services which transitioned into GED Plus, without ever being brought to 3020-a prior to the proceeding described here, namely the 3020-a arbitration hearing, which was brought against him by the New York City Department of Education in 2012. I knew David from the Rubber Room at 25 Chapel Street in Brooklyn, New York. I started walking into this room with David Pakter around 2004, and talked with teachers who were there and followed their stories (see Steve Ostrin and Polo Colon, for example).

David Suker was and is an excellent teacher and a cult hero among students. He was a leader of Occupy Wall street, and had a run-in with the police which became misconduct charged against him. He had the very unfortunate circumstance of taking NYSUT's offer of representation, and not hiring a private attorney. NYSUT Assistant General Counsel Claude Hersh appointed Senior Attorney Steven Friedman. Steve worked in a deadly partnership with Attorney Eleanor Elovich Glanstein and DOE prosecuting Attorney Nancy Ryan. Why do I call this threesome "deadly"? Because their goal was to terminate those people brought before them. See the case of Nicola De Marco). Recently, sources tell me, Eleanor Glanstein was fired or removed from the UFT-DOE Panel. Nancy Ryan and Steve Friedman were moved to other Arbitrators. Thank goodness this team was broken up. I was fortunate enough to watch the three of them for several years, and, most recently, see how Nancy Ryan destroyed a Department of Labor Unemployment Hearing in August 2013. More about that in a later post.

Eleanor Glanstein is a very small woman who shrugs off violations of law and contract. She dismisses Nancy Ryan, a constant screamer and hysteric, as part of the order of business. Everything Nancy says is what Eleanor writes in her decision at the end of the 3020-a. Eleanor had a lot of power and was able to get away with her irrational rulings because her brother Larry Elovich was a political Somebody out on Long Island.

The way the Ryan-Friedman-Glanstein termination process worked was as follows: Nancy Ryan would pursue any and all charges with a vengeance that left everyone in the room stunned. Her attacks are personal and vicious, and she continues now, only with a new arbitrator. There are no rules, laws, or contracts that she cares about. Indeed, these are always discarded as wrongly placed barriers to getting to the core of the case, namely, terminating a "criminal" (the poor employee/victim). Nancy must be a very unhappy person to be so malicious. All allegations against a person are "facts", which Nancy defends with her lifeblood. Steve Friedman basically plays along to get along. His defense is the worst of any NYSUT Attorney whom I have observed since I started attending 3020-a hearings in 2003-4. He has none. Steve presents some evidence, but he really would like his client to resign, retire, or go away. He permits, by doing nothing to stop her, Nancy's hysterics. While Steve sits there not doing much of anything and Nancy is screaming that the teacher/employee is criminally insane, Eleanor shrugs off Nancy but almost always terminates the charged employee. Eleanor refuses to concern herself with any issues of probable cause and procedural error. It is good that she is no longer on the panel. No one will miss her....except maybe Nancy.

David was brought up on three sets of charges, the first two sets were unsubstantiated and/or minor, but Eleanor Glanstein found almost all specifications were valid. Then Steve allowed Nancy and Terri Europe to bring forth a third set of charges about David's daughter's school to which she had been admitted more than 7 years earlier, and Eleanor consolidated this set with the previous two. Former Director of the Administrative Trials Unit, the Gotcha Squad, Theresa ("Terri") Europe, heard from Nancy that David had placed his daughter in an upper west side elementary school and then gave an address for himself which was not supposedly in the district (he did not have a permanent address at the time). According to A-101, the Department of Education had 30 days to investigate. David was not told of any investigation. By the time he was charged with 3020-a, his daughter was in high school, where residence did not matter. David's daughter's mother lived in Bronx the entire time. In other words, this issue was a non-issue.

3020-a charges may go back only 3 years, unless the act charged was a crime when committed. David was not accused of a crime when his daughter started school. Thus, when Nancy told Terri that she had discovered the misconduct of David ten years earlier, Terri told Regina Loughran, Deputy Commissioner of the Special Commissioner of Investigation (SCI) that she wanted an investigation of David, but this violated 3020-a law.

This type of targeting is a violation of law. Yet, Eleanor Glanstein, with Steve Friedman's permission, charged David with the "misconduct" and David was terminated for fraudulently putting his daughter in a school without living in the district of the school.

David asked us at Advocatz to help him appeal this decision. We gladly contributed. At 3020-a, the Department, "Respondent" , had the burden of proof, and failed to provide a minimum amount of evidence that could justify the determination of termination as a just and equitable award. Certainly there was a clear failure to provide "preponderance of the evidence", which is the required standard pursuant to Education Law Section 3020-a.

Glanstein's irrational conclusion was that Petitioner's acts were deliberately planned to throw his long and successful career as a tenured teacher out the window. In other words, Glanstein made a determination reeking of bad faith where she ignored the testimony of David Suker, "Petitioner", that he knew nothing about any residency requirement for Columbia Secondary, and that his satisfactory teaching performance showed he was an excellent teacher, to find that David inexplicably committed fraud on his employer. This made no sense. To be fraudulent, a false statement must be made with the intent to deceive the victim. And, the false statement must be made with the intent to deprive the victim of some legal right, and the victim's reliance on the false statement must be reasonable. Therefore, it would have been reasonable for Columbia Secondary School to question/investigate/address Petitioner's residency within the 30-day period cited in the Regulation, A-101, but not have the NYC DOE Office of Legal Services charge him five(5) years later.

When David filled out the admission forms to Columbia Secondary School for his daughter he gave the address at which he and his daughter were staying in 2007. He did not lie. No one from the school ever questioned him about this address, and the only requirement for the school admissions is that first consideration goes to those students who live above 96th street. Students in the school population come from throughout the New York City area. Here, David never intended any fraud. No misconduct existed then or now, and no notice was given to David about possible wrong-doing, so he could address the issue, until it was "too late", and he was charged by Theresa Europe with 3020-a.

Ms. Europe had no authority, as the Attorney for the Department and Supervisor of the Administrative Trials Unit, to charge David five years after Columbia Secondary accepted his daughter. David invoked the doctrine of laches. From Wikipedia: "Laches is an "unreasonable delay pursuing a right or claim...in a way that prejudices the (opposing) party." When asserted in litigation, it is an equitable defense, or doctrine. The person invoking laches is asserting that an opposing party has "slept on its rights," and that, as a result of this delay, circumstances have changed such that it is no longer just to grant the (Petitioner's) original claim. Put another way, failure to assert one’s rights in a timely manner can result in a claim being barred by laches. Laches is a form of estoppel for delay.

Ironically, while David was charged with filling out erroneous records for his daughter, the Department refused to give him the requested records of the students whose complaints in 2009 led to some of his charges. Here is an excerpt from the transcript:
"Mr. Friedman: Okay, Madam Hearing Officer, pursuant to your previous ruling, I now call for production of any counseling records, disciplinary records, attendance records and anything else that would have been from December of 2008 to April of 2009 and again, pursuant to your prior ruling, I reserve the right to recall this witness in the event that anything in those documents turns up to be material relevant in this case.

Ms. Ryan: I have already asked for those documents, that's what he got...That's the extent of what they have...Yeah, what do you think I asked for. You think I asked them to pick out three papers?" (Transcript, "T" pp. 127-128)

Mr. Friedman: "If I understand correctly, there's absolutely no record of that student being in the program then. Nothing. No test results, no applications, no records that she shows" (T146)
Hearing Officer: "I've heard you both...but I will not strike the student's testimony. The application is denied" (T146-147).

Mr. Friedman: " Then can I respectfully request then that the Hearing Officer take notice that we are very, very hampered in our defense?" (T147)

Glanstein didn't care.

But luckily, New York State Supreme Court Judge Alice Schlesinger did care. She threw out the third set of charges about David's daughter and her admission to the West Side school, and remanded back to the Department for a penalty that was less than termination. Schlesinger mentioned Nancy Ryan in her decision:

"However, in the two-month period between the dates that Mr. Suker was informed of these two Charges, a related but somewhat unusual communication occurred. Nancy Ryan, the attorney prosecuting the matter for the Administrative Trials Unit of the Office of Legal Services (ATU) contacted Theresa Europe, Deputy Counsel to the Chancellor for the NYC Department of Education, and gave her “interesting” information relating to Mr. Suker’s daughter which Ms. Ryan had noted while preparing the case.*
...Ms. Europe ended her letter: “Can you open an investigation? We are scheduled to start trial but I can try to put it off if your office will investigate. Let me know and thanks.”....The findings from this investigation then formed the predicate for the final Charge, notice of which was sent to Mr. Suker on April 20, 2012, after the 3020-a hearing had begun...I thus find that all of the acts in this Charge, in all three Specifications, are time-barred; because the conduct has not been proven to specifically constitute a “crime when committed,” the acts fall outside the three-year limitations period for disciplinary charges under § 3020-a."

Last week, the New York Law Department filed an Appeal with the Appellate Division. David remains off the payroll until the resolution of this appeal.

See more about Regina Loughran below:

Law and Disorder: Special Victims Unit 
Investigators say the city's independent schools watchdog has often failed to bark
Tom Robbins, Village Voice, published: December 06, 2005 

Back in 1997 police arrested a man named Ronald Taylor, who worked as an assistant public school principal in Harlem. Taylor, 50 years old at the time, easily ranked as a parent's worst nightmare. His arrest came after the mother of a student walked into a local police precinct and reported that Taylor had lured her 15-year-old son to his apartment with an offer to play with his video game collection. He then proceeded to sexually molest him. When cops went to investigate they found Taylor had tricked up his West Harlem apartment as a kids' game room. They also found some 400 X-rated videos.


illustration: Glynis Sweeny
Details:
See also:

Too Hot to Handle
How a crooked congressman got a pass from school probers
by Tom Robbins , Village Voice
LINK

Unlike a score of school-personnel sex-abuse cases from that era, Taylor's arrest got little news play. The Times ran a short item on an inside page and the Daily News carried one as well, on page 79. The lack of attention was partly because the arrest did not emanate from the efficient publicity machine of Edward Stancik, the late special commissioner for investigation for city schools.

For 12 years until his death in 2002, Stancik's gaunt features were a staple on TV newscasts as he told of corrupt bureaucrats and twisted sex abusers nailed by his office. Such cases made Stancik wildly unpopular in the teachers' union offices and the old Board of Education headquarters on Livingston Street in Brooklyn, where he was viewed as a merciless inquisitor, a publicity hound whose investigations were measured mainly for their TV and news-ink potential.

On the other hand, many politicians, journalists, prosecutors, and parents adored him, viewing Stancik as a valiant warrior against an intractable bureaucracy. So what if he knew how to use the media? What better way to send a message to the public and bad guys alike that wrongdoing won't be tolerated? When Stancik died at age 47 of heart failure in March 2002, there were some misgivings expressed about his occasional overzealousness. But the editorial call was to make sure the watchdog office he'd led didn't lose its fangs.

But a few months after Stancik's death, something unusual in the world of law enforcement happened. A former top investigator in his office, an ex-detective who had been a supervisor there for five years, sat down and wrote two lengthy letters to city officials alleging that a top Stancik deputy named Regina Loughran had dropped the ball in several important cases, either delaying arrests or letting the bad guys get away altogether. In some instances, it was alleged, Loughran had changed cases from being "substantiated" to "unsubstantiated."

The complaints were investigated by city attorneys, and several were confirmed. Yet Loughran today remains as powerful as ever, serving as the $151,000 number two official in the special investigators' office. Former and current investigators, both men and women, who spoke under condition of anonymity, told the Voice they were puzzled by the inaction. "If we had caught someone in the education system behaving this way, they'd be long gone," said one former investigator.

Among the cases the investigators cited was that of Ronald Taylor.

According to the former detective and others familiar with the case, nearly a year before Taylor's arrest by police, investigators in Stancik's office had asked permission to launch a probe of the school official. The request was made after a prison social worker contacted the investigations office to say that an inmate was claiming to have been sexually abused by Taylor, his former teacher. Investigators initially dismissed the charge as one more prisoner trying to reduce his sentence. But the details of the story were disturbingly precise: Taylor had asked the student, then 15 years old, to carry a crate of milk up to his apartment. Once he got him inside, Taylor had sexually assaulted him. The inmate described the apartment in detail.

Investigators drove to upstate Green Haven Correctional Facility to interview the inmate, who convinced them that a sexual predator was loose in the schools. The statute of limitations had expired on the earlier assault, but the inmate said he was willing to wear a recording device to a meeting with Taylor to see if he could get him talking about other victims. The investigators relayed that offer to Loughran, then the attorney-in-charge of the child sexual-abuse unit and a key figure in the office. Loughran refused.

"The issue for her seemed to be, 'Why spend the time and money to get this kid out of jail and wire him up for a case that's too old,' " a former investigator told the Voice. "We argued that if we have this one person there are probably others out there at risk."

Loughran was adamant. But the investigators, most of them retired NYPD detectives who lived by chain of command, declined to appeal the decision over her head. The case was closed. Nine months later, the outraged mother of another victim filed her complaint with police. Taylor was immediately arrested and later sentenced to serve up to three years in prison. Under questioning, he said something that chilled both cops and school investigators. He said he was HIV-positive.

Ed Stancik's public posture was of a manager with a stern "the buck stops here" policy. But according to the former detective and others, the often ailing commissioner ceded wide authority to Loughran, a hardworking former sex-crimes prosecutor whose ability to turn out clearly written reports was highly prized by Stancik and his successor.

Investigators said Loughran was also often tempestuous, given to sudden rages and sulks. What made their jobs most difficult, however, was her apparent skittishness about dealing directly with outside prosecutors who were needed for any criminal referrals. "She just seemed intimidated or something," said one veteran ex-detective who worked in the office for years. "If we had a tape we needed to get to the D.A. she would have you drop it off with the officer in the lobby, rather than make a call to the prosecutor personally."

As a result, the investigators said, the case of the predatory assistant principal was just one of the instances in Stancik's old office where the system simply broke down.

There was the case of the art instructor accused of having displayed nude photos of himself to disabled students, confiding that "what a girl wants is a big dick." (The photos weren't found, and Loughran decided the students' testimony was "problematic," ordering investigators to change their findings from "substantiated" to "unfounded." When Board of Ed administrators asked for investigators to testify against the teacher to bar him from further employment, Loughran refused to allow it.)

There was the 48-year-old male teacher who admitted driving a 17-year-old female student to a funeral home parking lot in the Bronx and asking her, "What if I told you I wanted to go down on you?" (The teacher said he was trying to help her learn to fend off improper advances. The principal vouched for the teacher, and the girl later admitted she'd neglected to say they were also drinking beer at the time. Loughran said her testimony was inconsistent and ordered the case dropped.)

And there was Paul Kerner, a 61-year-old teacher at Sheepshead Bay High School who romanced an 11th-grade girl, taking her to Atlantic City casinos and a motel where he coerced her into performing fellatio and other sex acts. The investigator on the case urged Loughran to make a quick criminal referral to prosecutors, but the deputy balked. "I don't know what to do, let's hold off," she said, according to a report of the incident.

The office dithered so long that the victim called the investigator, complaining that Kerner was now stalking her, and asking why he hadn't been arrested yet. The investigator asked Loughran for permission to take the case to a friend at the FBI. Loughran expressed skepticism that the bureau would be interested, but reluctantly agreed. But when the FBI came seeking the backup documents for the case, Loughran balked again, forcing agents to get a grand jury subpoena. (Kerner was eventually convicted in federal court, where he received a 33-month sentence. Annoyed at the investigator who had called the bureau, Loughran allegedly had him transferred out of the sex-crimes unit.)

Yet another disturbing case posed an investigative challenge, one that Stancik's former detectives readily accepted, given the stakes, but which Loughran flat-out rejected. In that instance, a former city high school student, now a grown man and a member of the Army Reserves, called the office to say that his former principal had repeatedly sexually abused him a few years earlier. According to his story, he had been a fatherless youngster whom the principal had taken under his wing, bringing him on camping trips to Lake George and elsewhere where he had repeatedly molested him. On the advice of his therapist, the man had decided to confront and report his abuser. Once he did, the principal immediately resigned.

The Stancik investigators were able to get a consensually recorded telephone conversation in which the principal admitted his sexual abuse of the former student. Like the Ronald Taylor case, however, the acts were too old to prosecute. But investigators said the ex-principal (a Boy Scout troop leader who still lived with his mother) fit the profile of "a classic pedophile," and they believed he had to have preyed on others.

The next step, they proposed to Lough-ran, would be to wire up the ex-student and have him meet with the former principal to see if they could pick up leads on other victims. They would also talk to teachers and students at the principal's school to find out if other boys had been similarly "befriended." Loughran wouldn't hear of it. According to two former investigators, she said, "He is out of the system. Shut it down." (Loughran has denied using those words.)

In an effort to try to breathe new life into the case, one of the investigators reached out to a federal prosecutor he knew who was familiar with sex-crime statutes to ask if there was any other law the ex-principal might have violated. Loughran later said she was "upset" and "embarrassed" by the call, which she said duplicated her own research and had been made without her permission. Investigators said it was much more dramatic than that. "She was livid," said one of them. When the investigator was asked why the call had been made, he responded: "Because I'm trying to catch the son of a bitch."

According to the investigators, Lough-ran retaliated by shifting one of the two probers who had worked the case, considered one of the office's most productive teams, out of the sex unit. Loughran later insisted the assignment change had been made by Stancik, not her.

But it still wasn't over. The former principal, concerned at possible civil liabilities, offered to purchase a $250,000 house for the victim in exchange for a promise not to pursue further legal action. When Loughran learned of the offer, she allegedly said that the victim might be arrested for extortion, a suggestion that appalled the investigators. (As it happened, the deal fell through.)

"He had been a principal for 20 years, he had such power," said one of the investigators recently. "All he had to do was find another weak kid. We felt there had to be other victims. It was so egregious to shut it down. Pedophiles don't do it once and then go home. You don't have to be Columbo to figure that out."



The two letters detailing the complaints about the bungled past cases landed on the desk of city department of investigations commissioner Rose Gill Hearn in early 2003.

Hearn technically oversees the schools investigation unit (its offices are located in the same Maiden Lane building as DOI), but because of its sensitive mission it operates largely independently. Still, Hearn took the complaints seriously, assigning a pair of senior attorneys to look into them. Over the course of several months, the attorneys interviewed 10 current and former employees of Stancik's old special commissioner's office, including Loughran. During the interviews, the attorneys turned up another instance, in which a complaint about a Bronx teacher accused of sodomizing several young male students had been confirmed by the Stancik office but had somehow never been referred to prosecutors.

Those findings were in turn forwarded to Stancik's successor, Richard J. Condon, a former police commissioner who in the past headed investigative squads for the Manhattan and Queens district attorneys. When Condon took over in June 2002, he retained Loughran, bumping her up a notch to first deputy commissioner. A DOI spokesperson, Emily Gest, said the office hadn't ordered any changes or discipline for Loughran, but had "shared the facts and findings of its investigation, for Commissioner Condon to take any necessary remedial actions."

Condon said that he too took the complaints seriously, spending hours wading through old investigative files. "I was not a witness to this history," he said. "Most of these things happened years before I got here."

The standard he used in examining the cases, Condon said, was whether Loughran had had a "rational basis" for her decisions. In two instances—that of the art instructor who had shown the nude photos, and the teacher who had posed the obscene remarks to the student—Condon said he disagreed with Loughran's actions, but cautioned that even this conclusion was "probably unfair."

As for the failure to make a criminal referral in the Bronx sodomy case, Condon said the explanation was simple. "She screwed up. It happens." He noted that the office had handled a total of 1,800 cases during the period under review. Loughran also later told DOI's inquiry that she was "baffled" how she had failed to make the referral, but said if she was to blame so were her former bosses, Stancik and Robert Brenner, who served as Stancik's first deputy commissioner. (Brenner, now with the investigations firm Kroll Inc., did not return calls.)

At the end of the day, however, Condon said he chalked up the complaints to honest disagreements. "I am used to investigators and prosecutors arguing over whether cases should be prosecuted," he said.

Condon told the Daily News' Kathleen Lucadamo, who asked about the probe last month, that he considered Loughran "one of the straightest, most hardworking prosecutors I have ever worked with."

He told the Voice that he'd encountered none of the erratic behavior by Loughran described by the investigators. "I have been here three and a half years working next door to this woman and I have never seen the behavior these people describe," he said.

In a letter to DOI, however, Condon said he had changed office procedures to make sure he personally reads all complaints that come into the office and examines "every substantiated and unsubstantiated case."

Loughran, who declined to speak to the Voice, wrote Condon a lengthy defense of her actions, insisting that her decisions at the office had been "common-sense based and not capricious by any rational standard."

The investigators, past and current, remain unconvinced. "This isn't just disagreeing over cases," said one. "Yeah, there's always tension [in other investigative offices] between the investigators and the prosecutors. But it's always motivated by respect, and everyone understands they're a team. Here, you don't get that. And they're supposed to be about helping the kids."