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STATE EDUCATION DEPARTMENT THE UNIVERSITY OF THE STATE OF NEW YORK

In the Matter of the Disciplinary Proceeding Brought Pursuant to Education Law section 3020-a By

The Board of Education of the Syracuse City School District,

Charging Party,

-and-

laura Viera-Suarez,

T-023 P0002/0011 F-157

DECISION

SED File No 27,545

Respondent-Tenured Principal.

Before: Ivor R. Moskowitz, Esq., Hearing Officer

Parties:

Board of Education, Syracuse City School District By: Ferrara, Fiorenza, P.C. (Miles Lawlor, Esq.) {Heather Cole, Esq.}

laura Viera-Suarez By: O'Hara, O'Connel/ & Ciotoli, Esqs. (Dennis O'Hara, Esq.) (Steven Ciotoli, Esq.)

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Preliminary Statement

Ms, laura Viera-Suarez ("Respondent" or "Ms. Suarez"), is a multi-year employee of the Board of Education, Syracuse City School District ("Charging Party", aBoard" or "District"). Until she was placed on administrative leave in June of 2014, she was the Principal of the District's LeMoyne Elementary School ("School"), On July 8, 2015, the Board found probable causa pursuant to Education law sec. 3020-a to issue six charges including specifications against Ms, Suarez alleging conduct unbeoomlng a principal, misconduct, misconduct constituting physical abuse, neglect of duty, and other just causes for disciplinary action (Jt.1, Jt.2). The Board sought dismissal as a penalty and suspended Ms. Suarez without pay (Jt. 2). On or IIbout July 21, 2015, Ms. Suarez requested a hearing on the July S charges (Jt.3).

on August 5, 2015 a probable cause hearing was held in SED File No. 27,544 before Hearing Officer Stephen Lalonde regarding Ms. Suarez suspension without pay . . On August 6,

2015, Hearing Officer llILonde found no probable cause for Respondent's suspension without pay, but did not rule on the merits of the charges.

Thereafter, Ivor R. Moskowitz was ilppointed as hearing officer In this case. A pre­hearing conference was held in this matter on September 1, 2015 at which time hearing dates and discovery matter were initially agreed upon. Hearings totaling 13 days were held on October 8, 13, 14,16, 22, November 3, 4. 5, 6, 19,20, December 2 and 4, 2015.

Both parties were represented by counsel and were given full and fair opportunity to present witnesses and enter such other evidence as was relevant and material Into the record

of these proceedings. Sixty-two exhibits were placed in evidence by the District (0.4 was not admitted); 73 by the Respondent (E.S and E.ll were not admitted); and there were five joint exhibits. A transcript was taken totaling 2310 pages and prOVided to the parties.

Sriefs were jointly filed by the parties on December 23, 2015. The following constitutes the hearing officer's decision In the above entitled matter, based solely on the record herein.

The Charges (July S. 20151-Jt. 1

Charge No.1

CONDUCT UNBECOMING A PRINCIPAL, MISCONDUCT, MISCONDUCT CONSTITUTING PHYSiCAl ABUSE, NEGLECT OF DUTY,

MS. Suarez is guilty of conduct unbecoming a principal, misconduct, misconduct constituting physical abuse, neglect of duty,

, more particularly described as follows:

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Specifications:

1.1 On or about October 29, 2013, Ms. Viera-Suarez placed a disabled male student in a windowless, closet-like room in the LeMoyne Elementary School marked as the Elevator Machine Room, for purposes of subjecting the student to a "time out".

1.2

1.3 The placement of the disabled male student in the LeMoyne Elementary School Elevator Machine Room on October 29, 2013 for "time out" purposes was not authorized by the student's Individuafized Education Program orthe student's Behavior Intervention Plan.

1.4

Charge No.2

CONDUCT UNBECOMING A PRINCIPAL, MISCONDUCT, , NEGLECT OF DUTY,

Ms. Viera-Suarez is guilty of conduct unbecoming a principal, misconduct, , neglect of duty,

more particularly described as follows:

Specifications:

2.1 During the 2013-2014 school year, Ms. Viera-Suarez directed District employee Cheryl McDonald to place a disabled male student in a windowless, closet-like room in the LeMoyne Elementary School, marked as the Elevator Machine Room, for purposes of subjecting the student to a "time-out", despite the fact that: b) placement of the student in the Elevator Machine Room for "time-out" purposes was not authorized by the student's Behavior Intervention Plan.

2.2

2.3 During the 2013-2014 school year, Ms. Viera-Suarez falsely represented to Ms. McDonald that the use of the Elevator Machine Room for purposes of subjecting the student to a "time­out" was authorized by the student's grandmother.

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Charge No.3

CONDUCT UNBECOMING A PRINCIPAL, MISCONDUCT, NEGLECT OF DUTY,

Specifications:

3.1 In or about June, 2014, Ms. Viera-Suarez requested that District employee cheryl McDonald make false statements to District personnel who were investigating the placement of a disabled male student in the LeMoyne Elementary School Elevator Room. More specifically:

al In or about June, 2014, Ms. Viera-Suarez requested, in sum or substance, that Ms. McDonald disclose to District investigators only one of the several incidents she knew Ms. McDonald was aware of in which a disabled male student was place in the LeMoyne Elementary School Elevator Machine Room for purposes of subjecting the student to a "time out", and further requested that Ms. McDonald not discfose any other such incidents that Ms. McDonald was aware of.

b) On or about June 18, 2.014, Ms. Viera-Suarez requested, in sum or substance, that Ms. McDonald "stick" to the story that Ms. McDonald had previously related to District investigators and not other incidents Ms. McDonald was aware of in Which a disabled male student was placed in the LeMoyne Elementary School Elevator Machine Room for purposes of subjecting the student to a "time out."

Charge No.4

CONDUCT UNBECOMING A PRINCIPAL, MISCONDUCT, NEGLECT OF DUTY,

Ms. Viera-Suarez is guilty of conduct unbecoming a principal, misconduct, neglect of duty, , more particularly described as follows;

Specifications:

4.1 On or about June 17, 2.014, Ms. Viera-Suarez requested, in sum or substance, that District employee Donna Dooley make false statements to District personnel who were investigating the placement of a disabled student in the leMoyne Elementary School Elevator Machine Room.

4.2 More specifically, Ms. Viera-Suarez requested, in sum or substance, that Ms. Dooley represent to District investigators that she had misunderstood a directive that she had received from Ms. Viera-Suarez on or about October 29, 2013 directing Ms. Dooley to place a male student in the LeMoyne Elementary School Elevator Machine Room for purposes of subjecting the student to a "time out."

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Charge No.5

CONDUCT UNBECOMING A PRINCIPAL. MISCONDUCT. NEGLECT OF DUTY.

Ms. Viera-Suarez is guilty of conduct unbecoming a principal. misconduct, neglect of duty, , more particularly described as follows:

SpecifICations:

5.1 On or about June 12, 16 and/or 17, 2014, Ms. Viera-Suarez failed to truthfully answer questions posed to her by District personnel investigating reports that a disabled male student had been placed in the LeMoyne School Elevator Machine Room.

5.2 More specifically, Ms. Viera-SUarez falsely stated to District personnel that she had never placed a student in the LeMoyne Elementary School Elevator Machine Room, and/or that she had never directed a District employee to place a student in the LeMoyne Elementary School Elevator Machine Room.

CHARGE NO.6

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Discussion

Both parties have been ably represented by their attorneys. The Respondent denies the charges in their entirety and has challenged the veracity and recollection ofthe District's witnesses. Her attorneys have called District employees to testify on her behalf as well as heartfelt character witnesses enumerating her humane, nurturing treatment of students and her own adopted and foster children. The District, by its attorneys, has presented numerous witnesses asserting contrary views of the facts and challenging the credibiUty and veracity of the Respondent and her witnesses. In assessing credibility, it is noted that all District employee witnesses may be motivated, in part, by concerns about their continued employment (including. of course, the Respondent and Administrative Intern/Acting Vice Principal Cheryl McDonald).

How then to determine whether there is a preponderance of the record evidence or lack thereof to prove the charges? (For the standard of proof necessary in Section 3020-. cases, see Martin v. Ambach, 67 NY2d 975 (1986).) As In any case where there is conflicting evidence, the finder of fact must consider factors such as demeanor, documentary evidence, bias and motive. Add to this other considerations such as the relationship and timing of events. The list goes on. Should guilt be established, there is a final consideration of whether there is just cause to impose penalty.

Findings of Fact

The LeMoyne Elementary School (previously referred to as "School") is the venue of the charges herein. It has approximately 500 students in pre-K to grade 5, with an attendant staff of approximately 100 professional and support personnel, which included a Principal (Ms. Suarez), Administrative fntern/Vice Principal (Ms. Cheryl McDonald), special education teachers, teaching assistants, a behavior intervention counselor, head custodian, psychologist, school nurse and social worker.

Ms. Suarez was LeMoyne School Principal for the 2012-2013 and 2013-2014 school years. For those two years, Ms. McDonald (previously a long time physical education teacher) seIVed as an Administrative Intern under Ms. Suarez' tutelage, performing some, but not all, of the duties of a Vice-Principal. (For a listing of the duties of a Vice-Principal, see, E.20.) The testimony revealed that the District used the AdministratiVe Intern position to provide its future administrators with appropriate training and (some opined) to extend their probationary periods. the staff throughout this hearing often referred to Ms. McDonald, incorrectly, as the Vice Principal.

The School had a separate special education class, called an "8-1-1" class, which included a number of behaViorally difficult students some of whom needed a separately assigned aide (a "l-to-l") in addition to classroom teachers to optimize their educational goals (closing the gap between themselves and students at grade level). The students in this class were given Individual Educational Plans (UIEPsU) by the Committee on Special Education ("CSE")

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made up of a group of professional educators and support staff (including classroom teachers, parents or guardians, outside experts (as needed) and the school p5ychologist)- the "stakeholders" who were Involved in a particular student's education. Those special education students with disciplinary problems were given a Behavior Intervention Plan ("SIP") by the CSE. The SIP was created after the Committee performed a behaVioral assessment of the student Soth the IEP and SIP were regularized plans, created by the CSf and could not be changed on an ad hac basis without formal CSE approval.

Attending the School during part of the 2012-2013 school year was student , a very difficult, troubled, emotionally disabled student, prone to behavioral episodes including tantrums, rages and acting out In a variety of ways: striking staff and students, running away from dass and hiding throughout the School. This behavior manifested in the classroom as well as in the rest of the School. Some time before the end of the 2012-2013 school year, was transferred to the McCarthy School, a more restrictive environment than at LeMoyne. While other emotionally disabled students were named In this hearing, student is primarily the focal point of the charges.

At the start of the 2013-2014 school year, returned to LeMoyne from McCarthy and was assigned to an 8-1-1 class. Through the action of the CSE, was given both an IEP (D.1, 0.2) and a SIP (0.5) which took into account his academic shortcomings (below grade level) and well documented explosive behavior. Although he was old enough to be a third grader, fUnctioned academically as a kindergartner. Initially, upon his return to leMoyne, he was not a.5$igned an aide because the aide position had been lost upon s transfer to McCarthy.

In October of the 2013-2014 school year, an aide was requested for (E.l). Prior to approval, Kathleen Warren had functioned as his ·unofficial" aide. 's classroom teachers Included spedal education teache,... C.olleen Will. and Kristen Moulton. Thl?rl?aftp.r, most likely in January 2014 Ms. Warren was officially appointed as 's 1-to-l aide (T.1932). Teaching assistants for the 2013-2014 school year also included Susan Muehl (referred to as Mule or Meal in the transcripts).

's BIP (D.5) induded as responses to his enumerated behaviors: e.g., redirection, verbal warnings, last chances, placement in the COnference Room (in Ms. Suarez multi-use office suite). "Time out"locations were set out for use when s behavior warranted them. The SIP was approved by, among others, s and legal guardian (" "), 's social worker, teacher (Moulton), school psychologist (Kristi Cleary) and Ms. Suarez.

On October 28, 2013, Ms. Suarez met with and discussed s behavior at the School (E.28-Suarez notes, p.l0). mentioned that she used a "special room" at her home when he "tantrums". Ms. Suarez stated to her that there were possible rooms at LeMoyne that could serve the same purpose. Ms. Suarez testified that one possible room she had in mind was the vestibule or anteroom marked "Elevator Machine Room" ("EMR"). [The hearing officer was taken by the parties and their attorneys to such a place and observed the name plate above the (locked) door in question marked "Elevator Machine Room". He then observed a vestibule or an anteroom behind the first door (locked) and thereafter a second room behind a second door (locked). There is no proof in the record that was ever in the second room.) For purposes of simplicity and given that all parties have the same frame of reference, the anteroom or vestibule, as it is set forth in the charges, will be referred to as the "EMR"-shorthand for "Elevator Machine Room".

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On June 11, 2014, s was notified that she needed to come to the school as was out of control and the police had been Summoned to bring him to St. Joseph '$

hospital for a mental health examination ("CPEP"). When came to the school, she stated that s behavior resulted from being locked "in a closet in the basement" of the School (T.1849-1850: Suarez testimony). An investigation by the District shortly commenced, a confidential report ofa child abuse In an educational setting, dated June 18, 2014, was filed (D.ll) and criminal charges were brought against the Respondent. The criminal charges and their disposition (whether pending or dismissed) are not at issue here. Thereafter the charges dated July 8, 2015 resulted.

It is not in dispute that the EMR is a locked windowless room, approximately 5'x6' in size. It is constructed of whitewashed concrete or concrete block with an overhead light. The door to this room is solid and contains no Window. Anyone in this room cannot see out of it and outside parties cannot see in. The interior ofthe room is bare. The record does not show that

requested or approved the use ofthe EMR for . There is no proofthat use ofthe EMR was approved by the CSE or included in 's BIP.

Respondent's Motions to Dismiss and for Damages Based on a Finding that the Charges Herein are Frivolous

The motion to dismiss is denied for reasons of sufficiency set forth in a determination of the charges. Similarly, due to the findings set forth below, the hearing officer finds sufficient basis in the charges to deny the second motion as well.

The Charges

Charge 1. On October 29, 2013, at 9:31am, one day after Ms. Suarez conversation with 's which concerned, in part, the use of a "special room" to deal with s

tantrums, Nurse Donna Dooley recorded (0.14, pp. 8-9): "Instructed by principal to take student to small room desinated (sic) for student to have less stimuli and be able to cooperate with staff without biting, throwing punch drink at assistant teacher or using fowl (sic) language in front of kindergarten children and no longer disrupting first floor classes in session. Student stayed in small room for timed 4 minutes. Student left room with better behavior and could return to main office conference room to wait for principal. DDRN"

This is an official record entered into the District's computer system. The District placed it into evidence, together with the testimony of Nurse Dooley.

After hearing Nurse Dooley's testimony in support, the Respondent claimed several things: first, that the computer record could have been added after the fad; second, that content of the record was false when recorded; third, that Nurse Dooley's account was an impossibility since Ms. Suarez was not at the EMR, but rather attending to an emergency

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behavioral incident of a violent nature involving property damage lind personal injury due to an altercation and Its aftermath with student,

Insofar as the argument that the computer record was altered, beyond mere conjecture there is no proof that it was. (See, question and answer Suarez' testimony: "0. Now, Ms. Suarez, you don't have any evidence that Ms. Dooley altered her nurse's notes with regard to Student ( I, do you? A. No, I do not.· fT. 1962).) Having made this argument, the burden was upon the Respondent to prove such alteration. She did not.

Insofar as the argument that Nurse Dooley's notes were a falsity when recorded, both Ms. Suarez and Nurse Dooley gave conflicting accounts. Although it was not easy to make a judgment between Nurse Dooley and Ms. Suarez as to their relative credibility, later testimony by other witnesses and Ms. Suarez herself undermined her credibility. First, Ms. McDonald testified credibly that she had discussed the matter of using the EMR for with Ms. Suarez after a meeting convened in late October or early November 2013 (this was the meeting of November 8,2013-0.13). (See also, T.67S-676 and Suarez testimony at T.1838-1839 T.1964: no. In-In this fall of 2013, you did have discussion with Ms. McDonald about using a room for Student [ ) when he tantrumed (sic), correct? A. We had a conversation about the possibility of using a room for Student [ ). Q. And the use of the elevator machine room was discussed as a possibility with Ms. McDonald, correct? A. That WilS one of the possibilities.") Such conversation took place when: "Shortly after the meeting Laura mentioned that ( 's)

had given permission to use the 'time out room'." (0.16, p.2.) Ms. Suarez denied that ever gave her permission to use the EMR as " time out room. Ms. Suarez also denied telling Ms. McDonald to use the "time out room· (EMR). McDonald asserted in a statement given to police that the first time she was actually told to ~ the EMR was by Suarez in January 2014 (D. 16, p.2). Second, as an administrative intern, it is highly unlikely that Ms. McDonald would have used the EMR without approval from Ms. Suarez. Third, MS. MCOonald admitted using the EMR, while Suarez denied either using the EMR herself or adviSing McDonald to use It for controlling 's behaVior. Fourth, Ms. Suarez was well aware that the EMR had been used for , being present at the EMR at the very least once in December 2013 as witnessed by Mr. Anthony Bishop fT.223O-2234S) and confirmed by Suarez herself (T.1840-1842). While Suarez admitted seeing McDonald, Bishop and at the EMR at that time, there is no proof that she took any affirmative action to question or admonish McDonald, If, In fact, the placement was contrary to her expectations.

The last argument, that of impossibility, also fails. The incident of October 29, 2013 involving was recorded by Nurse Dooley at 9:31 am (D.14, p.8-9, 0.15, p.l). Ms. Suarez did not appear in her office until after 9:30 am and possibly after 9:45 am. Her injury from a fall (together with t in the Principal's office suite is set forth in Respondent's Employee Injury and

. Illness Report as occurring at 10:00 am (E.17-Suarez; see also, E.62,63 and 65 re: student ). The underlying Incident involving a classroom fight between and several other 8-1-1 special education students occurred, according to the disciplinary referrals filed by Ms. Muehl (E.14, 15, 16), at 8:45 am. While Ms. Suarez testified that she filled In a portlon of Muehl's referral, the time of Suarez' input is not evident; nor, was Ms. Suarez able to testify as to any time at which she added her input. Thus, there is an unaccounted gap between the initial disciplinary referrals of 8:45 am and Respondent's injury at 10:00 am which does not make the alleged EMR incident with an impossibility.

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In light of the above, as to charge 1, Specification 1.1, I find by a preponderance of the credible record eVidence that on October 29, 2013 Ms. Suarez placed a disabled male student ( ) in a windowless, closet-like room in the LeMoyne Elementary School marked as the Elevator Machine Room for the purposes of subjecting the student to a "time out". This constituted conduct unbecoming a principal, misconduct and neglect of duty.

Insofar as Charge 1, Specification 2, I do not find proof In the record that there was any

I find that Ms. Suarez is guilty of Charge 1, Specification 3 by a preponderance of the

credible record evidence. A review of s IEP and SIP does not show that placement of in the EMR was in any way authorized. This constitutes conduct unbecoming a principal, misconduct and neglect of duty.

Charge 2. Ms. Suarez directed District employee Cheryl McDonald to place disabled male student in the EMR, as described (0.16, p.2). There is little reason to believe that Ms. McDonald did so on her own. Ms. McDonald testified that she acted upon the advice and direction of Ms. Suarez. There is little doubt that she placed in the EMR approximately four times. Ms. Suarez was well aware of what Ms. McDonald was doing and at one point in her testimony, relating a conversation with Ms. McDonald in June, 2014 where McDonald was telling her about putting in the EMR (while the District was investigating the allegations conceming student ), she told Ms. McDonald not to say any more to her about the matter. (Respondent's conduct regarding Ms. McDonald and Suarez' attempt to limit possible investigation of the instant matter is consistent with Nurse Dooley's account of a conversation with Ms. Suarez in June, 2014 when she was told by Respondent that her nurse's notes were incorrect and that Ms. Suarez would just tell District investigators that Dooley had misunderstood Suarez' directive to Dooley.) (See Charge 4, infra.)

Thus, I find Ms. Suarez guilty of Charge 2, by a preponderance of the credible record evidence insofar as her conduct in directing Ms. McDonald to place in a windowless, closet­like room in the Schoof, marked the EMR, for purposes of subjecting student to a "time out" was conduct unbecoming a principal, misconduct and neglect of duty.

I further find that the

EMR was not authorized for "time out" purposes in either s IE? or BIP. I also find that Ms. Suarez falsely represented to Ms. McDonald that use of the EMR was

authorized by 's This finding is based on the preponderance of the credible record evidence. (See, e.g., T. 675-676-McDonald: T.1838-1839-Suarez; 0.16, p.2.)

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charge 3. In regard to Charge 3, Specification 3.1, I find that Ms. McDonald testified credibly that she was told by Ms. Suarez in June, 2014 to make false statements to District personnel investigating the placement of a disabled student ( ) in the EMR (D.16, p.2). In effect, Ms. Suarez requested Ms. McDonald, in June, 2014 to reveal only one incident out of three or four incidents Ms. McDonald knew of concerning placement of a disabled student ( ) in the EMR for a "time out" (0.16, p.2) (Charge 3.1 (a).) She told Ms. McDonald to stick to her account previously given to District investigators denying or minimizing 's placement In the EMR for "time out" purposes (D.16, 1'.2) (Charge 3.1(b).) I do not find Ms. Suarez rebuttal and alternative account to that of Ms. McDonald to be credible. Bya preponderance of the credible record evidence, I find that the aforesaid action by Ms. Suarez in requesting Ms. McDonald to make false statements constitutes conduct unbecoming a principal, misconduct and neglect of duty.

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

Charge 5. On or about June 12, 16 and/or 17, I find by a preponderance of the credible record evidence that Ms. Suarez failed to truthfullY answer questions by District personnel about placement of a disabled male student in the EMR (Charge 5, Specification 5.1). As an example, Ms. Suarez claimed to District personnel that ran into the EMR on his own, when, in fact, a lock preVenting this had been placed on the exterior door to the EMR by Head Custodian Rob Francis in January, 2013 (D.18, 20). In particular, a preponderance ofthe credible record proof shows that not only did Ms. Suarez place a disabled male student In the EMR, but she also directed District employee McDonald to do so as well (Charge 5, Specification 5.2). The notes kept by Ms. Wade as well as her testimony and the statement of Ms. McDonald (0.16), Nurse Dooley (0.15), Ms. Warren (0.62, p.3) and others reveal the discrepancies in Ms. Suarez account and are credible. Thus, I find that Ms. Suarez is guilty of conduct unbecoming a principal, misconduct, neglect of duty.

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Charge 6. Is dIsmissed as moot.

Penalty

Having found Ms. Suarez guilty by a preponderance of the credible record evidence of conduct unbecoming a principal, misconduct and neglect of duty as set forth In partIcular In my findings regarding Charges 1-S and their specifications, I find that the District has just cause to Impose the penalty of discharge. The record shows that Ms. Suarez placed or caused to be placed a disabled male student ( ) in a windowless, bare room in violation of his IEP and SIP and wrongfully relied on her positIon as a building principal to Influence others to falsely testify to District personnel entrusted with discovering the truth of a complaint made by a parent or guardian ( ). She then tried to cover up her actions by giving false accounts to District personnel. As a result of her action, the District can no longer trust an elementary school principal and key school administrator's veracity or judgment, nor rely on her with regard to being a leader and role model to the District's students or staff. While I give due credit to Ms. Suarez past accomplishments and the testimony of character witnesses testIfying on her behalf, they do not change the facts or the unfortunate outcome of this case.

Dated: January 15, 2016

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