Labor & Employment Law

Individual?s lacked remorse considered a factor in setting a disciplinary penalty

Individual?s lacked remorse considered a factor in setting a disciplinary penalty
Matter of Binghamton City School District v Peacock, 46 A.D.3d 1042, Appellate Division, Third Department

In a prior case involving the same parties, (Peacock I, 33 AD3d 1074, appeal dismissed, 8 NY3d 840), the court vacated the Education Law Section 3020-a penalty imposed on Brian Peacock by the Hearing Officer, ruling that ?the one-year suspension of [Peacock], a tenured teacher, for his grossly inappropriate relationship with a 16-year-old female high school student violated a strong public policy.?

As a result, the Hearing Officer reconsidered the matter and imposed a two-year suspension without pay.

The school district again objected and again initiated CPLR Article 75 proceedings seeking to overturn the new award. Supreme Court vacated the new award, ruling that it ?failed to protect students from [Peacock?s] harmful conduct and said the matter should be remitted to a different hearing officer for imposition of a new penalty.?

The school district appealed this determination by Supreme Court, arguing that public policy mandated Peacock?s termination and any other penalty would be inappropriate.

The Appellate Division disagreed with the views of the school district, noting that in Peacock I ?we did not describe how far into the future an appropriate penalty would extend to protect students from [Peacock].? It then observed that Supreme Court, in remanding the matter to ?a new hearing officer, concluded that the hearing officer?s imposing a two-year suspension ?violates the strong public policy we identified.?

In Peacock I the Appellate Division observed that:

it was not the length of the suspension that was objectionable. Rather, since [Peacock] ?ha[d] been insubordinate, refuse[d] to admit that he . . . ha[d] done anything wrong and show[ed] no remorse,? the award would have returned him to the classroom with no assurance that students would be adequately protected from him in the future (33 AD3d at 1077).

In the words of the Appellate Division:

In light of the Hearing Officer?s continued finding that [Peacock] lacked remorse for his inappropriate relationship with the student and had demonstrated an ?extraordinarily arrogant insensitivity to what his actions did to [the student] and her family,? the suspension whether one year or two years is not adequate. Until [Peacock] acknowledges the harm he has caused and undertakes counseling or other remedial action, no period of suspension could safeguard [the school district?s] students upon his return to classroom teaching. Whether [Peacock?s] termination is the only penalty that would assure this, or whether some other restrictions could be effective, is an issue to be resolved by the Hearing Officer upon the ordered remittal. Section 3020-a(4)(a) provides: ?In those cases where a penalty is imposed, such penalty may be a written reprimand, a fine, suspension for a fixed time without pay, or dismissal. In addition to or in lieu of the aforementioned penalties, the hearing officer, where he or she deems appropriate, may impose upon the employee remedial action including but not limited to leaves of absence with or without pay, continuing education and/or study, a requirement that the employee seek counseling or medical treatment or that the employee engage in any other remedial or combination of remedial actions.?

Finally, said the court, as the Hearing Officer did not have the benefit of Peacock I and will now have this decision as guidance before determining a new penalty, ?we do not find it necessary that the remittal be to a new Hearing Officer.?

Full post as published by New York Public Personnel Law on May 20, 2008 (boomark / email).