# Botkin v. Board of Education

> Appellate Division of the Supreme Court of the State of New York · July 14, 1986 · 122 A.D.2d 136

URL: https://www.frixlaw.com/law-library/cases/5887971

## Case

- **Full name:** In the Matter of Arlene Botkin v. Board of Education of the City School District of the City of New York
- **Court:** Appellate Division of the Supreme Court of the State of New York
- **Decided:** July 14, 1986
- **Citations:** 122 A.D.2d 136; 504 N.Y.S.2d 521; 1986 N.Y. App. Div. LEXIS 59192
- **Precedential status:** Published
- **Opinion:** Concurring in part by Weinstein
- **Judges:** Weinstein
- **Cited by:** 1 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/5887971

## Opinion text

Weinstein, J.,
concurs in part and dissents in part and votes to grant the petition,- on the law, to the extent of annulling so much of the determination as imposed the penalty of dismissal, to otherwise confirm the determination and dismiss the proceeding on the merits, and to remit the matter to the respondent for the imposition of a new penalty, with the following memorandum.
While I agree with the majority to the extent that the determination of the respondent Board, predicated upon the hearing panel’s unanimous recommendation that the petitioner be found guilty of the misconduct charged and that her claims were incredible, is supported by substantial evidence, I cannot accept their finding that the penalty imposed was not disproportionate to the petitioner’s misconduct. Of particular significance is the fact that the petitioner had been reassigj|fed to a central office since her initial suspension and preferénce of charges with no indication that there had been any continuation of employment difficulties. While there is merit to the Board’s argument that the petitioner set an example of uncivil and inappropriate behavior and that her disruptive presence diverted the energy of the staff away from educational tasks into the conciliation of disputes, the Board nevertheless committed an abuse of discretion in failing to afford greater significance to the petitioner’s previous good record and her apparently satisfactory performance upon being reassigned. *138 To the petitioner’s credit, she voluntarily requested an unpaid leave of absence upon recognizing the problem. Notwithstanding the claims of disruptive conduct which had been leveled against the petitioner, the Board declined to grant her reasonable request. While not oblivious to the fact that administrative agencies are afforded a broad range of discretion with respect to matters of internal discipline (Matter of Ahsaf v Nyquist, 37 NY2d 182, 184-185 ), I nevertheless conclude that the penalty of dismissal was unwarranted. In view of the facts that the charges did not involve grave moral turpitude and that the petitioner had a 12-year unblemished record prior to the incidents which are the subject of the underlying charges, the penalty imposed was so disproportionate to the offense as to be shocking to one’s sense of fairness (see, Matter of Pell v Board of Educ., 34 NY2d 222 ). A lesser sanction such as a six-month suspension without pay would equally serve as a deterrent and would be more suitable to the offenses involved. To this effect, one member of the hearing panel, in recommending this precise sanction, expressed the following reasoning: "This penalty would (1) impress the seriousness of the matter upon the Respondent with little likelihood of repetition; and (b) serve notice on all concerned that disruptive and unprofessional conduct will not be condoned”. I would modify the determination by vacating the penalty imposed and remitting the matter to the respondent for the imposition of a new penalty.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/5887971. Public record. Not legal advice.