Monday, April 05, 2004

Case of Ralph Capone

Case of Ralph Capone

School Custodian, Patchogue-Medford School District
Temple Beth El synagogue
Long Island, New York

Accused of asking two male students in their 20s, working on the High School equivalency diploma, claimed Capone asked them for oral sex.

There was a substantial article on this in the Long Island edition (only) of the NY Times last week, please forward a copy of this article to the Awareness Center if you have access to one.


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Table of Contents:  

  1. Custodian sues Patchogue-Medford School District for wrongful termination (04/05/2004)
  2. Fired Custodian: Predator or Scapegoat? (04/25/2004)
  3. Ex-custodian sues, alleging firing was unfair (07/21/2004)

  1. Board in turmoil over exec-session recordings (05/26/2005)
  2. Board seeks colleagues ouster, Patchogue-Medford trustees move to boot Weeks for leaking secret recordings of executive sessions  (06/09/2005)

  1. Matter of Capone v Patchogue-Medford Union Free School Dist.  (03/20/2007)


Custodian sues Patchogue-Medford School District for wrongful termination
News 12 Long Island - April 5, 2004

PATCHOGUE – Ralph Capone was fired from his job as a custodian at Patchogue-Medford School District. Two male students in their 20s, working on the High School equivalency diploma, claimed Capone asked them for oral sex. Capone was immediately suspended and then fired after a school investigation. School officials reported the incident to the police, but no criminal charges were filed against Capone.

Capone's wife and three other district employees say Capone was at the district office the date of the incident, not at Temple Beth El where the incident occurred. Capone plans to file a $50 million lawsuit against the school district for wrongful termination, slander and libel.
School board president Tony Kaiser stands by the board members 4-to-3 vote to fire Capone. The superintendent of the Patchogue-Medford School District is not commenting about the boards vote to remove Capone or the pending lawsuit.


Fired Custodian: Predator or Scapegoat?
By Steward Ain
Long Island Weekly - April 25, 2004, Sunday, Late Edition - Final , Section 14LI , Page 3 , Column 1

RALPH CAPONE'S supporters say that he was fired by the Patchogue-Medford School District in an attempt to cover up its own financial ... Not so, says Anthony N. Kaiser, the president of the school board. He contends that Mr. Capone, who had been a custodian for the district for 18...

Ex-custodian sues, alleging firing was unfair:  Patchogue-Medford School District
By Robert E. Kessler
Newsday (NY) - July 21, 2004

A former custodian in the Patchogue-Medford school district has filed a multimillion- dollar federal civil rights lawsuit, saying he was fired unfairly in March because of false accusations that he had solicited sex from two adult night students.
"It has had a horrible effect on our lives," said Ralph Capone, 52, adding that the accusations also hurt his family. "Even if we win, our lives will always have changed."
Joseph Madsen, an attorney for the school district, said he could not comment on pending litigation.

The school board voted 4-3 to fire Capone after a hearing by a former Nassau County prosecutor hired for the case.

After filing the suit in District Court in Central Islip, Capone and his attorney, Ruth Pollack of Mineola, said they believed Capone was a victim of the district's bruising politics.

Capone, who worked for the district for 18 years, said the narrow school-board majority had singled him out as an example because they believed that he and other members of the Civil Service Employees Association were working against them.

Capone said he was not particularly active in school politics, but believed that most of the district's CSEA employees had worked against the board majority that fired him.

Capone said the sexual solicitation charge resulted from retaliation by one of two 21-year-old men taking a night course in English as a second language. Capone said that before the charges were filed, he had asked one of the men to stop necking with a girlfriend in a hallway.

Pollack said the firing also was a warning to employees not to speak out against financial mismanagement in the district that Capone says occurred before the recent election put in a new board majority.


Board in turmoil over exec-session recordings 
By Nedra Rhone
Newsday - May 26, 2005

CORRECTION: A story yesterday about the Patchogue-Medford school board gave an incorrect first name for a former board member. The name is Ronald Raby. (A17 NS 5/27/05)
As if the overwhelming defeat of the proposed school budget earlier this month wasn't enough to put Patchogue-Medford district officials on edge, allegations involving sex, lies and compact discs may leave one board member without a seat.
Two former school board members have filed a petition with state education Commissioner Richard Mills for the removal of Tina Marie Weeks because they believe that she had given recordings of executive sessions to a man with a $50-million lawsuit against the district.
Weeks, now vice president of the board, "breached her fiduciary duty to the school district by surreptitiously recording executive sessions of the board ... ," according to the May 16 petition.
Under the state's General Municipal Law, as cited in the petition, a municipal officer is prohibited from "disclos[ing] confidential information acquired by [her] in the course of [her] official duties or us[ing] such information to further [her] personal interests."
Board member Joseph LoSchiavo said Weeks' actions were at least unethical. "The contents of the tapes is secondary to the fact that they were released to a plaintiff in a multimillion-dollar lawsuit against the district," he said. "It is very damaging for the district to have their trust violated like that."
Last July, a former custodian, Ralph Capone, filed a civil rights lawsuit against the district charging that he had been unfairly fired last spring. A hearing officer recommended Capone's termination after investigating district charges that he had solicited sex from two male night school students. Capone denied he ever solicited them. The board at the time, which included the petitioners Patrick Nett and Robert Raby, voted 4-3 to fire Capone. [CORRECTION: A story yesterday about the Patchogue-Medford school board gave an incorrect first name for a former board member. The name is Ronald Raby. (A17 NS 5/27/05)]
But Weeks said in an interview Tuesday that she felt the board's conduct was improper. "It is my sincere belief that the employee at issue in this matter was treated in a manner inconsistent with the values that we try to teach our children," she said.
In court documents, Capone said Weeks gave him the discs in question because "she felt that this whole thing shouldn't have happened ... " and she believed he had been "railroaded" by power- abusing board members.
Gerard Bringmann, a 23-year resident, wrote a letter to Attorney General Eliot Spitzer after the current school board took no action against Weeks.
School board President Margaret Felouzis "reminds me of a cat in a litter box," Bringmann said. "She's just trying to cover up the mess." Felouzis could not be reached for comment, but district Superintendent Michael Mostow said an outside lawyer hired by the district counsel is reviewing the tapes.
Raby and Nett filed the petition for Weeks' removal because they were outraged, Raby said. "Neither of us knew we were being taped, not that I am ashamed of anything that I said in that room." But for Weeks to then give the recordings to Capone, he said, "It just isn't the right thing to do."

Board seeks colleagues ouster, Patchogue-Medford trustees move to boot Weeks for leaking secret recordings of executive sessions
By Nedra Rhone
Newsday - June 9, 2005

School board members in Patchogue-Medford took steps to remove fellow trustee Tina Marie Weeks for official misconduct at a board meeting Monday night.
With a vote of 5 to 2, the board approved a resolution that directs the staff attorney to draft a petition for Weeks' removal. Weeks and board president Margaret Felouzis dissented.
In a public statement, board member Joseph LoSchiavo said Weeks "flagrantly violated her oath of office" by recording executive sessions and providing the recordings to a former custodian involved in a $50-million lawsuit against the district.
This latest push for Weeks' unseating comes about a week after two former board members filed a petition with the state commissioner of education, Richard Mills, to remove her under the same charges.
"I for one do not believe that this board should sit idle and count on the commissioner of education to do our bidding," LoSchiavo said in a public statement. "If we remain silent, voters have a right to conclude that we are ... unwilling to stand up for what is right on behalf of our constituents."
More than 200 residents filled the gymnasium of Bay Elementary School Monday, some carrying signs that read "The Party is Over Tina," "Resign Tina Resign" and "Tina TRIPP."
"What she did was unethical. She compromised the privacy of students and teachers," said Patti Kelly, a resident who had gathered a few hundred signatures from the community in support of Weeks' ouster.
Weeks has refused to resign, stating in the past that she felt the board's firing of Ralph Capone, a former custodian alleged to have made sexual advances to two night-school students, was improper. Weeks could not be reached for comment. In court documents, Capone said Weeks gave him the recordings because she felt he was being "railroaded" by board members abusing their power.
But some residents said it was Weeks who took advantage. "She overstepped her boundaries," said Mickey Perez. "I don't tape my friends' conversations and put them on the Internet."

Matter of Capone v Patchogue-Medford Union Free School Dist. 
March 20, 2007

Matter of Capone v Patchogue-Medford Union Free School Dist. 2007 NY Slip Op 02552 [38 AD3d 770] March 20, 2007 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, May 9, 2007 

In the Matter of Ralph Capone, Petitioner,
Patchogue-Medford Union Free School District, Respondent.
—[*1] Ruth M. Pollack, Mineola, N.Y., for petitioner.
Guercio & Guercio, Farmingdale, N.Y. (Douglas A. Spencer and Gary L. Steffanetta of counsel), for respondent.
Proceeding pursuant to CPLR article 78 to review a determination of Patchogue-Medford Union Free School District dated March 23, 2004, which adopted the recommendation of a hearing officer, made after a hearing, finding that the petitioner committed misconduct, and terminated the petitioner's employment.
Adjudged that the determination is confirmed, the petition is denied, and the proceeding is dismissed on the merits, with costs.
In June 2003 two adult students of the Adult Education Program conducted by Patchogue-Medford Union Free School District (hereinafter the UFSD), reported to their instructor that the petitioner, an employee of the UFSD, initiated sexually explicit conversations with them and offered to perform certain sexual acts. As a result, the UFSD charged the petitioner with 18 specifications of misconduct pursuant to Civil Service Law § 75. After a hearing, 17 of the 18 charges were sustained, the hearing officer recommended that the petitioner's employment be terminated, and the UFSD terminated the petitioner's employment. The petitioner commenced this article 78 proceeding, contending that he was deprived of adequate notice of the charges against him, that the charges were not supported by substantial evidence, and that termination was too severe a penalty. [*2]
Here, the statement of charges was sufficient to give the petitioner notice of the charges against him and allow him to present a defense. Civil Service Law § 75 requires that "[a] person against whom removal or other disciplinary action is proposed shall have written notice thereof and of the reasons therefore, [and] shall be furnished a copy of the charges preferred against him" (Matter of Fitzgerald v Libous, 44 NY2d 660, 660-661 [1978]). Additionally, the charges must be reasonably specific in light of the circumstances, which include "whether the interval ascribed for a particular offense is so excessive on its face that it is unreasonable; whether the respondent has exerted diligent efforts to state the time more specifically; and whether, under the circumstances, the designated period is reasonable" (Matter of Jeanotte v City of Rochester Police Dept., 110 AD2d 1081, 1082 [1985]). Given the petitioner's repeated contacts and conversations with the students, the charges against the petitioner identifying the relevant time period as May to June 2003 and Fall 2002 were adequate. Because the UFSD also provided him with the content of these conversations, the exact nature of his alleged misconduct was known to him as well.
There is substantial evidence in the record to establish that the petitioner, who held the position of custodial worker I, initiated sexually explicit conversations and offered to perform sexual acts with two adult students of the Adult Education Program conducted by the UFSD in the Fall of 2002, May 2003, and June 2003 (see Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 230 [1974]). Additionally, it was the hearing officer's role "to weigh the evidence or assess the credibility of witnesses and determine which testimony to accept and which to reject" (Matter of Sahni v New York City Bd. of Educ., 240 AD2d 751, 751 [1997]). In this regard, it was proper for the hearing officer to find the testimony of the two students to be credible, while finding the petitioner's testimony and that of his wife to be less than credible.
Prior to the preferment of the charges against the petitioner, he had an unblemished 19-year record with the UFSD. His evaluations were good to excellent over his years of service, and he received letters of commendation from the UFSD's superintendent of schools. Additionally, his conduct, while inappropriate and embarrassing to the adult students, did not endanger any minor children. His conduct also did not prevent them from attending class, nor did it involve any physical assault. Nonetheless, we are constrained by the Court of Appeals' decisions in Matter of Waldren v Town of Islip (6 NY3d 735 [2005]), and Pell v Board (supra) not to disturb the UFSD's determination, as it cannot be said as a matter of law that the penalty imposed on the petitioner herein, termination, is "so disproportionate to the offense as to be shocking to one's sense of fairness" (Waldren, supra at 736-737, quoting Pell v Board, supra at 237). In Waldren, the Court of Appeals held that, in the context of a 30-year career that was otherwise unblemished, an employee's use of his office computer to view internet pornography was sufficient to warrant termination. In view of such precedent, we cannot conclude that termination of the petitioner's employment was so disproportionate to the offense as to be shocking to one's sense of fairness (see Matter of Waldren v Town of Islip, supra at 736-737; Matter of Schnaars v Copiague Union Free School Dist., 275 AD2d 462, 463 [2000]). Schmidt, J.P., Skelos, Lifson and Covello, JJ., concur.


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