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FILED: WESTCHESTER COUNTY CLERK 07/13/2023 08:25 PM INDEX NO. 63737/2023
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 07/13/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER
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In the Matter of the Application of :
:
DAVE PEARL, :
:
Petitioner, :
:
For a Judgment Pursuant to Article 78 of the :
New York Civil Practice Law and Rules : Index No.
:
-against- :
:
NEW YORK STATE UNIFIED COURT SYSTEM, :
:
Respondent. :
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PETITION IN SUPPORT OF ARTICLE 78 PETITION
O'ROURKE & DEGEN, PLLC
Attorneys for Petitioner
Dave Pearl
225 Broadway, Suite 715
New York, New York 10007
Tel: (212) 227-4530
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TABLE OF CONTENTS
INTRODUCTION..........................................................................................................................1
THE PARTIES ..............................................................................................................................3
JURISDICTION AND VENUE ....................................................................................................3
THE PLEADINGS .........................................................................................................................3
THE PRIOR ARTICLE 78 PROCEEDING ...............................................................................4
THE BASIS FOR THE PRESENT ARTICLE 78 PROCEEDING ..........................................4
THE FACTS ..................................................................................................................................4
A. Petitioner’s Facebook Profile Page (Exhibit 8) .............................................................5
B. “Creepy Joe and the Hoe” (Exhibit 9) ...........................................................................5
C. Need for Law and Order to Be Restored (Exhibit 10) ...................................................7
D. Open Borders and the Second Amendment (Exhibit 11)...............................................9
E. Statute of Limitations Bars Charges Based on Comment about Open Borders and
the Second Amendment ...............................................................................................11
F. Comments Did Not Appear on Petitioner’s Facebook Page ........................................14
G. Comments Were Taken Out of Context.......................................................................15
H. Private Communications on Political Issues Posted on Third-Parties’ Facebook
Pages While Off Duty Are Protected Speech ..............................................................15
I. No Effort by OCA to Ascertain Petitioner’s Intent or to Investigate His
Explanation ..................................................................................................................16
J. No Social Media Policy ...............................................................................................18
K. Statutes and Rules Misstated by OCA and Not Applicable to Off-Duty Conduct
Unrelated to the Position of Court Officer ...................................................................18
1. Ethics and the Law Enforcement Profession in the Court Officers Training
Manual (Exhibit 23) .........................................................................................19
2. Court Officers Rules and Procedures Manual (Exhibits 24 & 25) ..................20
3. Part 50 of the Rules of the Chief Judge (Exhibit 26) .......................................20
4. Employees Handbook (Exhibit 27)..................................................................21
THE REPORT AND RECOMMENDATION ..........................................................................22
THE DETERMINATION ...........................................................................................................27
THE ARBITRATION OPINION AND AWARD.....................................................................28
THE REVISED DETERMINATION ........................................................................................29
PUNISHMENT IMPOSED IS DRACONIAN ..........................................................................30
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A. Petitioner’s Impeccable Record ...................................................................................30
B. Character Witnesses .....................................................................................................30
C. Petitioner’s Truthful Testimony...................................................................................32
D. Comments Posted While Off Duty, Prior to Social Media Policy, and Unrelated
to the Position of Court Officer ..................................................................................32
E. Statute of Limitations Bars Use of Third Comment in Determining Penalty ..............33
CAUSES OF ACTION
First Cause of Action (Substantial Evidence) ....................................................................33
Second Cause of Action (Protected Speech and Freedom of Speech)...............................34
Third Cause of Action (Statute of Limitations) .................................................................34
Fourth Cause of Action (Back Pay and Benefits after 06/23/22) ......................................35
Fifth Cause of Action (Consideration of Alternate Dispute Procedure) ............................35
Sixth Cause of Action (Tainted Revised Determination) ..................................................36
Seventh Cause of Action (Punishment an Abuse of Discretion) .......................................37
PRIOR APPLICATION..............................................................................................................37
VERIFICATION..........................................................................................................................40
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER
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In the Matter of the Application of :
: PETITION
DAVE PEARL, :
:
Petitioner, :
:
For a Judgment Pursuant to Article 78 of the :
New York Civil Practice Law and Rules : Index No.
:
-against- :
:
NEW YORK STATE UNIFIED COURT SYSTEM, :
:
Respondent. :
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Petitioner DAVE PEARL, as and for his petition, respectfully alleges:
1. I am the Petitioner in the above-entitled proceeding, and I am fully familiar with
the facts and circumstances herein.
INTRODUCTION
2. This special proceeding arises from three comments that Petitioner posted on
other people’s Facebook pages over a period of more than four years. After Petitioner’s
Facebook friends tagged him during three political conversations, he merely responded with his
position on the Democratic candidates for President and Vice President, the rioting by members
of Antifa in Portland, Oregon, open borders, and the Government’s attempts to take away his
rights under the Second Amendment. The Office of Court Administration (“OCA”), acting on
behalf of Respondent New York State Unified Court System (“UCS”), obtained the Facebook
comments, claimed that they were offensive, and brought charges of misconduct.
3. Petitioner is the unfortunate victim of a new anti-bias policy run amok. On
October 1, 2020, Jeh Johnson released his Report from the Special Adviser on Equal Justice in
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the New York State Courts (the “Johnson Report”). It criticized UCS, found much bias in the
Court System, and pointed out that “[t]he bad news is that the accounts of explicit and implicit
racial bias we heard as part of this review were strikingly similar to the testimony from decades
ago.” (p. 27). The higher-ups in UCS must have been greatly embarrassed by the findings of the
Johnson Report. After all, the Report also noted that “‘change has to come from the top.’” (p.
79). The Report made 13 recommendations. On March 2, 2021, the Chief Judge, in her 2021
Annual State of Our Judiciary Address, announced that she “fully embraced” all of them.
4. As part of its ongoing campaign of showing everyone that the Unified Court
System was cracking down on bias, UCS issued a Press Release on May 17, 2021 in which it
stated, in part, that it is adopting a “robust zero tolerance policy,” “[e]ngaging in a robust
campaign and communications strategy,” and “[c]ontinuing the robust implementation of the
courts’ strategic plan for language access services.”
5. For UCS, the case against Petition was a welcome “we cannot lose” opportunity.
Even if Petitioner had prevailed, UCS would have obtained another statistic that shows that it is
serious about eradicating bias.
6. The solid proof of Petitioner’s completely innocent intent comes from his clear,
spontaneous, and unrehearsed answers to the questions that the Managing Inspector General
posed during her recorded interview that was transcribed and introduced into evidence, and from
his equally forthright and unassailable testimony at the hearing. His demeanor and responses
demonstrated a wholly unbiased state of mind. His exemplary 22-year career as a court officer
and his reputation in the community for not being biased, racist, sexist or violent, as attested to
by four character witnesses, bolstered the only logical conclusion that could be drawn from his
comments: they are not biased statements.
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THE PARTIES
7. Petitioner Dave Pearl is a resident of the State of New York, Putnam County.
8. Respondent New York State Unified Court System is the Judicial branch of New
York State government.
9. The Office of Court Administration is Respondent’s administrative arm.
10. At all times relevant herein, Respondent employed Petitioner as a Senior Court
Officer.
11. Petitioner is a member of the New York State Supreme Court Officers
Association (the “Union”).
12. The Agreement between the State of New York Unified Court System and The
New York State Supreme Court Officers Association, ILA, Local 2013, AFL-CIO (the “Union
Agreement”), dated December 7, 2017, governs Petitioner’s employment. Exhibit 7 1.
JURISDICTION AND VENUE
13. This court has jurisdiction over this action pursuant to CPLR 7801, et seq.
14. Venue is proper in Westchester County pursuant to CPLR 7804 and 506(b). It is
where Petitioner was assigned at the time of the alleged acts of misconduct and where the
hearing was held.
THE PLEADINGS
15. On November 4, 2021, OCA served Petitioner with the Notice of Charges and
Specifications. They accused him of posting “offensive and inappropriate comments [that]
1
Petitioner is submitting Exhibits numbered 1 through 32, 1A and 1B. Exhibit 3 is the
transcript of the Hearing and designated “H.” Exhibit 4 is the transcript of the Managing
Inspector General’s interview of Petitioner and is designated “I.” The recording of the interview
is available, should the Court wish to hear it. The Exhibits are listed on the Exhibit List
submitted herewith.
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specifically targeted a woman, immigrants and African Americans.” Exhibit 5.
16. On November 12, 2021, Petitioner served his Answer to the Charge and
Specifications. He denied any wrongdoing and interposed affirmative defenses that his
comments were legitimate political commentary, unrelated to his duties as a court officer,
protected speech, taken out of context, and barred by the statute of limitations. Exhibit 6.
THE PRIOR ARTICLE 78 PROCEEDING
17. On October 14, 2022, Petitioner commenced an Article 78 Proceeding in the
Supreme Court of the State of New York, County of Westchester, assigned Index Number
67096/2022 (the “Prior Article 78 Proceeding”).
18. The Prior Article 78 Proceeding sought to vacate the Determination rendered on
June 23, 2022 and was based upon the same charges as the instant Proceeding.
19. On July 6, 2023, Hon. Robert J. Prisco rendered a Decision and Order in the Prior
Article 78 Proceeding that transferred the matter to the Appellate Division, Second Department.
Exhibit 1B.
THE BASIS FOR THE PRESENT ARTICLE 78 PROCEEDING
20. On March 15, 2023, while the Prior Article 78 Proceeding was pending, Hon.
Norman St. George, Deputy Chief Administrative Judge of the Courts Outside the City of New
York, issued a Revised Determination with a covering letter. Exhibit 1.
21. The Revised Determination was identical to the Determination, except that it
deleted the reference to the Special Panel that had been convened to consider what penalty
should be imposed.
THE FACTS
22. The facts are gleaned from the two-day Hearing conducted on March 16, 2022
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and April 6, 2022 (Exhibit 3) and the interview of Petitioner by Managing Inspector General
Kay-Ann Porter Campbell held on April 5, 2021. Exhibit 4.
A. Petitioner’s Facebook Profile Page (Exhibit 8)
23. Petitioner had a private Facebook account that could only be accessed by his
Facebook friends. H. 210; Exhibit 8. The bottom of the first page that OCA introduced into
evidence had pictures of three of his friends—Jacqueline S. Brown Mayo (a black woman), Saad
Siddiqui (a Muslim man), and Chris Coughlin (a white man). The biographical information was
correct, except for the job description. It said “Former Court Officer at NYS Unified Court
System” and “Worked at New York State Unified Court System.” Petitioner did not recall that he
had listed his occupation, but knows that he would not have put “former” or “worked,” rather
than “works.” H. 212-213.
B. “Creepy Joe and the Hoe” (Exhibit 9)
24. In August 2020, Rush Limbaugh called Kamala Harris a “hoe” and a “mattress”
on his radio program. The comment was repeated all over the internet, in the New York Daily
News, and in other publications. He was awarded the Presidential Medal of Freedom. Exhibit 13.
25. In August 2020, during an exchange on Facebook with some friends, Petitioner
commented, “Creepy Joe and the Hoe.” Except for the person who reported the comment to
OCA and the people who were tagged, there is no evidence that any other third parties read it.
Petitioner was awarded the termination of his employment.
26. In or about August 2020, Petitioner, Bentley S. Rogers (a retired black court
officer), Connor Reilly (someone with whom Petitioner played softball), and Kieran O’Hagan (a
retired court officer) were communicating on Facebook. H. 213-214; I. 8.
27. Some of the comments made by Petitioner, Rogers, Reilly and O’Hagan are found
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on a screenshot that consists of five entries. Exhibit 9. The first entry by Rogers is “Biden-Harris
2020.” It must have been preceded by some unknown conversation not captured by the
screenshot. After Reilly told Rogers “wow ur lost” and Rogers said that Reilly should be
respectful, Petitioner wrote “Creepy Joe & the Hoe.” Three people liked Rogers’ comment and
three people liked Petitioner’s response. O’Hagan wrote, “Dave Pearl more like dementia joe.
Interesting how neither of these idiots were anywhere near winning their primaries.” There was
no evidence of what comments preceded or followed this give-and-take.
28. Repeating an accusation made by a well-known radio host that a vice presidential
candidate, who has been accused in the media of having slept with a prominent politician in
order to advance her political career, is a hoe is not a biased statement.
29. Petitioner explained that the comment was meant as a joke for Bentley Rogers
because they were friends and it had been going on for years. “It was just me breaking his
chops.” H. 216; I. 9. The joke referred to a headline that Petitioner had heard. He did not make it
up. He knew that it was based upon a story that Kamala Harris once had an affair with Willie
Brown to advance her political career. It was all over the internet. H. 216-217; I. 9-12. When the
Managing Inspector General asked whether Rogers was offended, Petitioner answered: “No. Not
for nothing, his posts are a lot worse than mine.” I. 10. According to Porter, Petitioner told her
that he had gotten that term from information that he recovered when he researched Kamala
Harris online. He cited those reports about Kamala Harris as the reason why he used the word
“hoe.” H. 20.
30. The comment was not on Petitioner’s Facebook page. He assumed that the initial
post had something to do with the election, but he does not know what preceded or followed the
entries on the screenshot. H. 218.
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31. Documentary evidence supports Petitioner’s statements. An article in USA Today
printed a letter from former San Francisco Mayor Willie Brown in which he “addressed his past
relationship with Sen. Kamala Harris . . . and acknowledged giving her appointments that
furthered her career.” “‘Yes, I may have influenced her career by appointing her to two state
commissions when I was Assembly speaker,’ Brown wrote.” Petitioner’s Exhibit 12.
32. In its August 17, 2020 edition, the New York Daily News headlined a story:
“Rush Limbaugh promotes sexist ‘Joe and the Hoe’ stories, including allegations Kamala Harris
was an ‘escort.’” The article continued: “Medal of Freedom recipient Rush Limbaugh used his
radio show’s massive reach to push stories about vice presidential candidate Kamala Harris as a
‘hoe’ and a ‘mattress.’ . . . The American Spectator story Limbaugh promoted was considerably
more to the point, calling Harris a ‘mattress’ and alleging ‘she slept her way up,’ according to the
radio pundit. He also noted that the story called the 55-year-old senator an escort. . . . [I]n early
2019, Limbaugh compared Harris to porn star Stormy Daniels.” Petitioner’s Exhibit 13.
33. During Petitioner’s direct examination, the following colloquy took place:
Q Is hoe a term that you use in your everyday conversation?
A No.
Q Do you ever refer to a woman as a hoe?
A No.
Q Now during the interview, which we heard earlier today, you were
asked if you think that the term was offensive, by Ms. Porter, and you responded
"I suppose”. Could you elaborate on that?
A I suppose, yeah, if I were to call someone directly a hoe, yes, that
would be offensive and hurtful. But that's not the case here. H. 217.
C. Need for Law and Order to Be Restored (Exhibit 10)
34. The screenshot consists of a single post by Petitioner. Exhibit 10. He started out
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by addressing “Stewart Bailey,” his cousin, who resides in Germany. Without that reference, we
would have no way of knowing the identity of anyone who was on that chain of comments. If the
whole thread had been retrieved, it would have shown that Petitioner and Bailey were posting
about Antifa. H. 219-220.
35. In his comment, Petitioner twice referred to the rioters as “savages.”
36. When Petitioner used the term “savages,” he was referring to Antifa. H. 17, 60-
61, 227; I. 13-14.
37. According to Merriam-Webster, a “savage” is someone who intentionally causes
destruction and chaos. Exhibit 20.
38. Calling rioters “savages,” whether they are white, black or any other color, is not
a biased statement.
39. OCA offered no testimony regarding the definition of “savages” or to refute the
overwhelming evidence that Petitioner was talking about Antifa. Petitioner’s comment made no
reference to Black Lives Matter or to people protesting as part of that group. H. 60.
40. The protests were all peaceful until Antifa made their appearance. Then they
turned into riots. It was all over the news. Antifa were the white individuals, mid 20s to 40s more
or less, dressed in black. They were the ones starting the fires, smashing the windows, throwing
bricks, attacking cops. They have been around since 2007 in Portland. Many newspaper articles
and media reports corroborate Petitioner’s statements 2. During his interview by the Managing
2
“It was by now a familiar scene of summer street warfare in Portland: Conservative
marchers, this time pushing a #HimToo message in one of the nation’s most progressive cities,
faced down a rowdy crowd group of anti-fascist protesters. . . . With political polarization on the
rise, the nation’s fraught conversations over immigration, race and policing are increasingly
being held in tense street showdowns punctuated with eggs, bricks and, lately, milkshakes.
Portland’s long history of street activism has made the city a central sage for many of those
conflicts.” Mike Baker, In Portland, Milkshakes, a Punch and #HimToo Refresh Police
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Inspector General, Petitioner also referred to the people who took part in the January 6th
insurrection as savages. H. 189; I. 24.
D. Open Borders and the Second Amendment (Exhibit 11)
41. The third screenshot contains comments that were made more than four years
earlier and is barred by the Statute of Limitations, as discussed infra. Exhibit 11.
Criticism, The New York Times, July 1, 2019 (Exhibit 14); “The mayor has since been in
contact with Multnomah County District Attorney Mike Schmidt, calling for more prosecutions
and accountability for ‘radical antifa and anarchists’ seeking to cause damage and wreak havoc
in the city, which suffered dozens of nights of violent protests in 2020.” Kaelan Deese, Portland
mayor blames antifa, anarchists following NYE riot, The Hill, January 2, 2021 (Exhibit 15);
“Anti-government and anti-fascist protesters in Portland and Seattle vandalized a Democratic
Party office and other buildings and scuffled with police on Wednesday, protesting against
President Joe Biden’s inauguration. . . . Portland has been the scene of unrest for months with
civil rights, anarchist and anti-fascist protesters scuffling with police and occasionally with right-
wing militias and Trump supporters.” Reuters Staff, Anti-fascist protesters vandalize buildings in
Portland and Seattle, U.S. News, January 21, 2021 (Exhibit 16); “Portland residents are left
drained from the conflict and are increasingly decrying the property destruction thought to be
caused by antifa. . . . Antifa claims they’re defending their city not only against heavy-handed
police tactics, but also from threats from far right extremists, groups like the Proud Boys and the
Oath Keepers—leading to fierce standoffs. . . . They’ve [Antifa] received a sharp rebuke from
the mayor, who is asking residents to help take back their city and be the eyes and ears of the
Portland Police bureau.” Neil Giardino, Mack Muldofsky, Allie Yang, After a year of protests,
Portland residents have waning patience for antifa, ABC News, May 5, 2021 (Exhibit 17);
“More than two dozen suspected Antifa rioters have been charged in Portland in the past two
weeks, signaling an escalation by both local and federal prosecutors following a full year of riots
in the besieged Oregon city. . . . The charges stem from an Antifa riot on April 23, when Lopez
is accused of using a rock to break the window of an apartment complex where a resident was
recording the protest on his phone. . . . The charges are a 180-degree turn for left-wing District
Attorney Mike Schmidt, who last year dropped over 90% of riot and protest-related cases.” Andy
Ngo, More than two dozen Antifa rioters charged for Portland mayhem, New York Post, June 6,
2021 (Exhibit 18); “After a year of unchecked violence, prosecutors are finally doing something
about Antifa’s rolling riot in Portland, Ore.: These last two weeks have seen more than two
dozen suspected Antifa thugs charged for an assortment of violent crimes dating as far back as
November. It shouldn’t have taken a whole year of watching protesters pelt police with Molotov
cocktails and destroy local businesses to realize that the ‘do-nothing’ strategy wasn’t working,
but here we are. It’s a notable turnaround for District Attorney Mike Schmidt, who after taking
office last August refused to prosecute 90 percent of riot- and protest-related cases.” Post
Editorial Board, Finally, Portland Antifa is being brought to justice for its violence, New York
Post, June 7, 2021 (Exhibit 19).
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42. “Timothy’s Post” is written on the top of the screenshot. However, OCA did not
produce Timothy’s Post, so the record contains no evidence as to the context in which the
remarks were made.
43. Al Mallah, Lloyd WM Ballou II and Petitioner commented on Timothy’s
undisclosed and unknown post. Timothy is Petitioner’s friend. He does not know Mallah or
Ballou II. H. 222-223.
44. The first comment on the screenshot from Mallah is “The amount of butthurt
liberals is too damn high.” Ballou II responded that he is not a liberal, to which Mallah wrote
“Sure!” The discussion concerned United States policy on allowing immigrants to enter this
country and more particularly referred to the Syrian refugee crisis which began in March 2011
and is still ongoing.
45. In fact, on January 27, 2017, President Trump signed an executive order that
suspended the entry of refugees into the United States for 120 days and stopped the admission of
refugees from Syria indefinitely.
46. Based upon the fact that, according to the Specification of Charges, the screenshot
was taken between June and October 2020, more than four years after the entries were made, the
comments appear to have been posted in the fall of 2016.
47. Petitioner wrote, “Discrimination, no. Just not going to be politically correct.
Close the Fucking borders!!!!! Let the syruan [sic] refugees move to your neighborhood and let’s
see how you feel then.” Exhibit 11. This statement expressed Petitioner’s opinion on the
government’s policy of open borders.
48. During her interview of him, the Managing Inspector General asked Petitioner,
“So anything there that you want to explain?” Then the following colloquy took place:
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OFFICER PEARL: Yeah, it is basically all the money we spend
on taxes - - excuse me - - all the tax money that is spent.
MS. PORTER CAMPBELL: On what?
OFFICER PEARL: On bringing people, letting - - just open
borders when we can’t even fix our own country. You know how many military
veterans are out there, homeless. They are homeless in general.
And I have no problem with them coming in
the right way, if they are vetted and, you know, I have no problem with that.
MS. PORTER CAMPBELL: And when you say “them” you mean - - are
you referring to Mexicans or are you referring to immigrants?
OFFICER PEARL: Well, whatever, just in general. Immigrants
in general. I. 16-17.
49. The second part of the comment. “2nd Amendment baby, I’m ready!!!!!” speaks
for itself. The Second Amendment provides: “A well regulated Militia, being necessary to the
security of a free State, the right of the people to keep and bear arms, shall not be infringed.”
Even the Managing Inspector General agreed that it is not offensive to be in favor of the Second
Amendment and that the right to bear arms is not the right to take up arms. H. 174, 226-227;
Exhibits 28 & 29.
50. With respect to the merits of the last allegedly offensive comment, Petitioner
submits that there is nothing wrong with wanting immigration restricted or with supporting the
Second Amendment’s right to bear arms. The screenshot contains Petitioner’s unbiased opinion
on important issues on which reasonable people may disagree.
51. It is difficult to understand how anyone could interpret the right to bear arms to
mean that Petitioner planned to shoot any refugees who came into his neighborhood. It does
make sense to conclude that Petitioner would defend himself against criminals.
E. Statute of Limitations Bars Charges Based on Comment about Open Borders and
the Second Amendment
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52. Section 24.5 of the Union Agreement provides that “no removal, disciplinary
proceeding or alternative disciplinary procedure shall be commenced more than 18 months
after the occurrence of the alleged incompetency or misconduct complained of and described
in the charges.” (emphasis added). Exhibit 7. The Specification of Charges were served on
Petitioner on November 4, 2021. Exhibit 5. Therefore, any charges based upon conduct that took
place prior to May 4, 2020 would be barred by the statute of limitations.
53. Qianchen Shi—Petitioner’s expert witness—testified that “4y” on Exhibit 11
means that when the screenshot was taken, the comment was at least four years old. H. 139, 155-
156.
54. After Shi testified, good conscience briefly prevailed and the OCA attorney
withdrew this screenshot from consideration. H. 157-158. However, he later changed his mind
When the hearing resumed three weeks later, over Petitioner’s objection, he was permitted to
withdraw his application to dismiss the third comment that has “4y” on it. H. 165-166 3.
55. OCA rested its decision to proceed on the third comment on the limp reasoning
3
The Hearing Examiner also ruled, in essence, that no matter how far-fetched the charges
are and that even if OCA would like to withdraw them, once the hearing has been commenced,
OCA cannot do so, as follows:
At the time, I granted that motion. Since then, based upon my research
and in conversations with Mr. Guarneri and with Mr. Degen, I want to clarify the
record and state that the charge and specification is not dismissed at this time; it is
rather the job of this hearing officer to report and recommend to the Deputy Chief
Administrative Judge for the courts outside of New York City whether or not that
charge and specification should be found based on the statute of limitations or
based on any other reason.
So I don't believe it was in the Hearing Officer's power to dismiss that
charge. I believe it is, rather, my task to recommend and report to the Deputy
Chief Administrative Judge who makes the ultimate determination. H. 165.
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that Petitioner “admitted” during the interview that the comment had been made in 2020. In any
event, his statement cannot alter the indisputable documentary proof.
56. Moreover, with respect to OCA’s bogus claim that Petitioner is bound by the
statement that he made during the interview that this comment was made on Facebook in the
summer of 2020, rather than four years earlier, it should be noted that: (1) Petitioner corrected
himself at the Hearing; H. 259; (2) Petitioner had entered the interview with no idea as to the
subject matter of the investigation and had no opportunity to recollect his thoughts and prepare 4;
(3) Petitioner was led to believe that all three of the comments had been made just after George
Floyd was killed in 2020—the time period later used in the Specifications; (4) the stamp of “4y”
was not brought to Petitioner’s attention during the interview; and (5) even though OCA had
three weeks to produce a witness to try to refute the testimony of Petitioner’s expert witness that
when the screenshot was taken, the comment already was more than four years old, it failed to do
so.
57. When Kay Ann Porter returned to the witness stand on April 6, 2022 to complete
her testimony, she suddenly would not admit that she had testified three weeks earlier that “1d”
means one day ago and “10w” means ten weeks ago. H. 75, 84. Instead she denied knowing the
meaning of “4y” and said that “I guess I did” testify last time that it meant four years ago. H.
4
On April 5, 2021, Petitioner walked into a conference room with Patrick Cullen
(President of the Union) and Anthony Vazquez (Second Vice President of the Union), where
they met with Managing Inspector General Kay-Ann Porter. Petitioner had no idea as to what she
would ask him. It turned out that she wanted him to verify the information on his Facebook
profile page (which was not entirely accurate) and then explain comments that he had made on
other people’s Facebook posts. At the time, the comments were from at least six months old to
more than four years old, had been taken out of context, and did not include the posts to which
they referred. It was as if Petitioner was being shown a page in the middle of a book and then
told to explain what was going on without knowing what had been written on the previous or the
following pages. Petitioner was not given a chance to refresh his memory in advance as to what
he meant in his comments or as to why he had posted them. H. 182-183, 208-209.
13
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175.
58. OCA’s backtracking as to the meaning of “4y” in the face of the irrefutable,
contrary evidence is puzzling. Since OCA offered no testimony and produced no documents in
support of its position, its refusal to concede this issue can only be attributed to a robust zero
concession policy, no matter how frivolous its stance may be. It seems both offensive and
inappropriate to pursue charges while knowing that they are barred by the statute of limitations.
F. Comments Did Not Appear on Petitioner’s Facebook Page
59. The Managing Inspector General was unaware of what it means to be “tagged” on
Facebook. H. 187-188. A tag is not a post. When someone posts a comment or a picture on
Facebook, it appears on that person’s page. If they tag someone, that is, if they create a link, the
post remains where it is on the posting person’s Facebook page, but the person tagged receives a
notification that they have been tagged. If the person tagged responds, their comment appears on
the Facebook page of the person who made the original post, not on their page. All three of
Petitioner’s comments were responses that he made after he had been tagged. None of them ever
appeared on his Facebook page. H. 227-229.
60. The first flaw in OCA’s proof is its failure to prove that any of the comments
appeared on Petitioner’s Facebook page, as alleged in Specification No. 1. Exhibit 5, p. 5. This
shortcoming is not merely a matter of semantics, because OCA placed great significance on the
fact that readers of Petitioner’s posts had been on Petitioner’s Facebook page, which, states that
he is a “Former Court officer at NYS Unified Court System” and “Worked at NY State Unified
Court System 5.”
5
As discussed in Part A, supra, Petitioner does not believe that he ever posted his
occupation on his Facebook page. I. 6-7; H. 72-73, 213.
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61. OCA’s problem may result from its attorneys’ lack of knowledge about the
lexicon of Facebook 6.
G. Comments Were Taken Out of Context
62. As the name suggests, a screenshot captures the contents of the screen at the time
that the picture is taken. The Managing Inspector General acknowledged that she did not know
what comments preceded and followed Petitioner’s comments on any of the screenshots. H. 73-
74, 83, 168-169. Petitioner, likewise, could not recall the contents of the comments that came
before and after his comments. H. 218, 219-220, 222-223. Thus, the record contains no evidence
of, and we have no way of knowing, the context in which Petitioner’s comments were posted.
H. Private Comments on Political Issues Posted While Off Duty on Third-Parties’
Facebook Pages Are Protected Speech
63. Petitioner’s comments concern his opinion on political issues and are completely
unrelated to the Unified Court System, its policies and its employees. H. 218-219, 221-222, 226.
They took place outside the workplace, on Petitioner’s own time, during private conversations on
the Facebook pages of people whom he knew. Under these circumstances, his right to speak out
far outweighs any reasonable concern that the comments might disrupt the Court Sys
Preview
FILED: WESTCHESTER COUNTY CLERK 07/13/2023 08:25 PM INDEX NO. 63737/2023 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 07/13/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER -----------------------------------------------------------------------X In the Matter of the Application of : : DAVE PEARL, : : Petitioner, : : For a Judgment Pursuant to Article 78 of the : New York Civil Practice Law and Rules : Index No. : -against- : : NEW YORK STATE UNIFIED COURT SYSTEM, : : Respondent. : -----------------------------------------------------------------------X PETITION IN SUPPORT OF ARTICLE 78 PETITION O'ROURKE & DEGEN, PLLC Attorneys for Petitioner Dave Pearl 225 Broadway, Suite 715 New York, New York 10007 Tel: (212) 227-4530 1 of 44 FILED: WESTCHESTER COUNTY CLERK 07/13/2023 08:25 PM INDEX NO. 63737/2023 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 07/13/2023 TABLE OF CONTENTS INTRODUCTION..........................................................................................................................1 THE PARTIES ..............................................................................................................................3 JURISDICTION AND VENUE ....................................................................................................3 THE PLEADINGS .........................................................................................................................3 THE PRIOR ARTICLE 78 PROCEEDING ...............................................................................4 THE BASIS FOR THE PRESENT ARTICLE 78 PROCEEDING ..........................................4 THE FACTS ..................................................................................................................................4 A. Petitioner’s Facebook Profile Page (Exhibit 8) .............................................................5 B. “Creepy Joe and the Hoe” (Exhibit 9) ...........................................................................5 C. Need for Law and Order to Be Restored (Exhibit 10) ...................................................7 D. Open Borders and the Second Amendment (Exhibit 11)...............................................9 E. Statute of Limitations Bars Charges Based on Comment about Open Borders and the Second Amendment ...............................................................................................11 F. Comments Did Not Appear on Petitioner’s Facebook Page ........................................14 G. Comments Were Taken Out of Context.......................................................................15 H. Private Communications on Political Issues Posted on Third-Parties’ Facebook Pages While Off Duty Are Protected Speech ..............................................................15 I. No Effort by OCA to Ascertain Petitioner’s Intent or to Investigate His Explanation ..................................................................................................................16 J. No Social Media Policy ...............................................................................................18 K. Statutes and Rules Misstated by OCA and Not Applicable to Off-Duty Conduct Unrelated to the Position of Court Officer ...................................................................18 1. Ethics and the Law Enforcement Profession in the Court Officers Training Manual (Exhibit 23) .........................................................................................19 2. Court Officers Rules and Procedures Manual (Exhibits 24 & 25) ..................20 3. Part 50 of the Rules of the Chief Judge (Exhibit 26) .......................................20 4. Employees Handbook (Exhibit 27)..................................................................21 THE REPORT AND RECOMMENDATION ..........................................................................22 THE DETERMINATION ...........................................................................................................27 THE ARBITRATION OPINION AND AWARD.....................................................................28 THE REVISED DETERMINATION ........................................................................................29 PUNISHMENT IMPOSED IS DRACONIAN ..........................................................................30 2 of 44 FILED: WESTCHESTER COUNTY CLERK 07/13/2023 08:25 PM INDEX NO. 63737/2023 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 07/13/2023 A. Petitioner’s Impeccable Record ...................................................................................30 B. Character Witnesses .....................................................................................................30 C. Petitioner’s Truthful Testimony...................................................................................32 D. Comments Posted While Off Duty, Prior to Social Media Policy, and Unrelated to the Position of Court Officer ..................................................................................32 E. Statute of Limitations Bars Use of Third Comment in Determining Penalty ..............33 CAUSES OF ACTION First Cause of Action (Substantial Evidence) ....................................................................33 Second Cause of Action (Protected Speech and Freedom of Speech)...............................34 Third Cause of Action (Statute of Limitations) .................................................................34 Fourth Cause of Action (Back Pay and Benefits after 06/23/22) ......................................35 Fifth Cause of Action (Consideration of Alternate Dispute Procedure) ............................35 Sixth Cause of Action (Tainted Revised Determination) ..................................................36 Seventh Cause of Action (Punishment an Abuse of Discretion) .......................................37 PRIOR APPLICATION..............................................................................................................37 VERIFICATION..........................................................................................................................40 ii 3 of 44 FILED: WESTCHESTER COUNTY CLERK 07/13/2023 08:25 PM INDEX NO. 63737/2023 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 07/13/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER -----------------------------------------------------------------------X In the Matter of the Application of : : PETITION DAVE PEARL, : : Petitioner, : : For a Judgment Pursuant to Article 78 of the : New York Civil Practice Law and Rules : Index No. : -against- : : NEW YORK STATE UNIFIED COURT SYSTEM, : : Respondent. : -----------------------------------------------------------------------X Petitioner DAVE PEARL, as and for his petition, respectfully alleges: 1. I am the Petitioner in the above-entitled proceeding, and I am fully familiar with the facts and circumstances herein. INTRODUCTION 2. This special proceeding arises from three comments that Petitioner posted on other people’s Facebook pages over a period of more than four years. After Petitioner’s Facebook friends tagged him during three political conversations, he merely responded with his position on the Democratic candidates for President and Vice President, the rioting by members of Antifa in Portland, Oregon, open borders, and the Government’s attempts to take away his rights under the Second Amendment. The Office of Court Administration (“OCA”), acting on behalf of Respondent New York State Unified Court System (“UCS”), obtained the Facebook comments, claimed that they were offensive, and brought charges of misconduct. 3. Petitioner is the unfortunate victim of a new anti-bias policy run amok. On October 1, 2020, Jeh Johnson released his Report from the Special Adviser on Equal Justice in 4 of 44 FILED: WESTCHESTER COUNTY CLERK 07/13/2023 08:25 PM INDEX NO. 63737/2023 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 07/13/2023 the New York State Courts (the “Johnson Report”). It criticized UCS, found much bias in the Court System, and pointed out that “[t]he bad news is that the accounts of explicit and implicit racial bias we heard as part of this review were strikingly similar to the testimony from decades ago.” (p. 27). The higher-ups in UCS must have been greatly embarrassed by the findings of the Johnson Report. After all, the Report also noted that “‘change has to come from the top.’” (p. 79). The Report made 13 recommendations. On March 2, 2021, the Chief Judge, in her 2021 Annual State of Our Judiciary Address, announced that she “fully embraced” all of them. 4. As part of its ongoing campaign of showing everyone that the Unified Court System was cracking down on bias, UCS issued a Press Release on May 17, 2021 in which it stated, in part, that it is adopting a “robust zero tolerance policy,” “[e]ngaging in a robust campaign and communications strategy,” and “[c]ontinuing the robust implementation of the courts’ strategic plan for language access services.” 5. For UCS, the case against Petition was a welcome “we cannot lose” opportunity. Even if Petitioner had prevailed, UCS would have obtained another statistic that shows that it is serious about eradicating bias. 6. The solid proof of Petitioner’s completely innocent intent comes from his clear, spontaneous, and unrehearsed answers to the questions that the Managing Inspector General posed during her recorded interview that was transcribed and introduced into evidence, and from his equally forthright and unassailable testimony at the hearing. His demeanor and responses demonstrated a wholly unbiased state of mind. His exemplary 22-year career as a court officer and his reputation in the community for not being biased, racist, sexist or violent, as attested to by four character witnesses, bolstered the only logical conclusion that could be drawn from his comments: they are not biased statements. 2 5 of 44 FILED: WESTCHESTER COUNTY CLERK 07/13/2023 08:25 PM INDEX NO. 63737/2023 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 07/13/2023 THE PARTIES 7. Petitioner Dave Pearl is a resident of the State of New York, Putnam County. 8. Respondent New York State Unified Court System is the Judicial branch of New York State government. 9. The Office of Court Administration is Respondent’s administrative arm. 10. At all times relevant herein, Respondent employed Petitioner as a Senior Court Officer. 11. Petitioner is a member of the New York State Supreme Court Officers Association (the “Union”). 12. The Agreement between the State of New York Unified Court System and The New York State Supreme Court Officers Association, ILA, Local 2013, AFL-CIO (the “Union Agreement”), dated December 7, 2017, governs Petitioner’s employment. Exhibit 7 1. JURISDICTION AND VENUE 13. This court has jurisdiction over this action pursuant to CPLR 7801, et seq. 14. Venue is proper in Westchester County pursuant to CPLR 7804 and 506(b). It is where Petitioner was assigned at the time of the alleged acts of misconduct and where the hearing was held. THE PLEADINGS 15. On November 4, 2021, OCA served Petitioner with the Notice of Charges and Specifications. They accused him of posting “offensive and inappropriate comments [that] 1 Petitioner is submitting Exhibits numbered 1 through 32, 1A and 1B. Exhibit 3 is the transcript of the Hearing and designated “H.” Exhibit 4 is the transcript of the Managing Inspector General’s interview of Petitioner and is designated “I.” The recording of the interview is available, should the Court wish to hear it. The Exhibits are listed on the Exhibit List submitted herewith. 3 6 of 44 FILED: WESTCHESTER COUNTY CLERK 07/13/2023 08:25 PM INDEX NO. 63737/2023 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 07/13/2023 specifically targeted a woman, immigrants and African Americans.” Exhibit 5. 16. On November 12, 2021, Petitioner served his Answer to the Charge and Specifications. He denied any wrongdoing and interposed affirmative defenses that his comments were legitimate political commentary, unrelated to his duties as a court officer, protected speech, taken out of context, and barred by the statute of limitations. Exhibit 6. THE PRIOR ARTICLE 78 PROCEEDING 17. On October 14, 2022, Petitioner commenced an Article 78 Proceeding in the Supreme Court of the State of New York, County of Westchester, assigned Index Number 67096/2022 (the “Prior Article 78 Proceeding”). 18. The Prior Article 78 Proceeding sought to vacate the Determination rendered on June 23, 2022 and was based upon the same charges as the instant Proceeding. 19. On July 6, 2023, Hon. Robert J. Prisco rendered a Decision and Order in the Prior Article 78 Proceeding that transferred the matter to the Appellate Division, Second Department. Exhibit 1B. THE BASIS FOR THE PRESENT ARTICLE 78 PROCEEDING 20. On March 15, 2023, while the Prior Article 78 Proceeding was pending, Hon. Norman St. George, Deputy Chief Administrative Judge of the Courts Outside the City of New York, issued a Revised Determination with a covering letter. Exhibit 1. 21. The Revised Determination was identical to the Determination, except that it deleted the reference to the Special Panel that had been convened to consider what penalty should be imposed. THE FACTS 22. The facts are gleaned from the two-day Hearing conducted on March 16, 2022 4 7 of 44 FILED: WESTCHESTER COUNTY CLERK 07/13/2023 08:25 PM INDEX NO. 63737/2023 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 07/13/2023 and April 6, 2022 (Exhibit 3) and the interview of Petitioner by Managing Inspector General Kay-Ann Porter Campbell held on April 5, 2021. Exhibit 4. A. Petitioner’s Facebook Profile Page (Exhibit 8) 23. Petitioner had a private Facebook account that could only be accessed by his Facebook friends. H. 210; Exhibit 8. The bottom of the first page that OCA introduced into evidence had pictures of three of his friends—Jacqueline S. Brown Mayo (a black woman), Saad Siddiqui (a Muslim man), and Chris Coughlin (a white man). The biographical information was correct, except for the job description. It said “Former Court Officer at NYS Unified Court System” and “Worked at New York State Unified Court System.” Petitioner did not recall that he had listed his occupation, but knows that he would not have put “former” or “worked,” rather than “works.” H. 212-213. B. “Creepy Joe and the Hoe” (Exhibit 9) 24. In August 2020, Rush Limbaugh called Kamala Harris a “hoe” and a “mattress” on his radio program. The comment was repeated all over the internet, in the New York Daily News, and in other publications. He was awarded the Presidential Medal of Freedom. Exhibit 13. 25. In August 2020, during an exchange on Facebook with some friends, Petitioner commented, “Creepy Joe and the Hoe.” Except for the person who reported the comment to OCA and the people who were tagged, there is no evidence that any other third parties read it. Petitioner was awarded the termination of his employment. 26. In or about August 2020, Petitioner, Bentley S. Rogers (a retired black court officer), Connor Reilly (someone with whom Petitioner played softball), and Kieran O’Hagan (a retired court officer) were communicating on Facebook. H. 213-214; I. 8. 27. Some of the comments made by Petitioner, Rogers, Reilly and O’Hagan are found 5 8 of 44 FILED: WESTCHESTER COUNTY CLERK 07/13/2023 08:25 PM INDEX NO. 63737/2023 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 07/13/2023 on a screenshot that consists of five entries. Exhibit 9. The first entry by Rogers is “Biden-Harris 2020.” It must have been preceded by some unknown conversation not captured by the screenshot. After Reilly told Rogers “wow ur lost” and Rogers said that Reilly should be respectful, Petitioner wrote “Creepy Joe & the Hoe.” Three people liked Rogers’ comment and three people liked Petitioner’s response. O’Hagan wrote, “Dave Pearl more like dementia joe. Interesting how neither of these idiots were anywhere near winning their primaries.” There was no evidence of what comments preceded or followed this give-and-take. 28. Repeating an accusation made by a well-known radio host that a vice presidential candidate, who has been accused in the media of having slept with a prominent politician in order to advance her political career, is a hoe is not a biased statement. 29. Petitioner explained that the comment was meant as a joke for Bentley Rogers because they were friends and it had been going on for years. “It was just me breaking his chops.” H. 216; I. 9. The joke referred to a headline that Petitioner had heard. He did not make it up. He knew that it was based upon a story that Kamala Harris once had an affair with Willie Brown to advance her political career. It was all over the internet. H. 216-217; I. 9-12. When the Managing Inspector General asked whether Rogers was offended, Petitioner answered: “No. Not for nothing, his posts are a lot worse than mine.” I. 10. According to Porter, Petitioner told her that he had gotten that term from information that he recovered when he researched Kamala Harris online. He cited those reports about Kamala Harris as the reason why he used the word “hoe.” H. 20. 30. The comment was not on Petitioner’s Facebook page. He assumed that the initial post had something to do with the election, but he does not know what preceded or followed the entries on the screenshot. H. 218. 6 9 of 44 FILED: WESTCHESTER COUNTY CLERK 07/13/2023 08:25 PM INDEX NO. 63737/2023 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 07/13/2023 31. Documentary evidence supports Petitioner’s statements. An article in USA Today printed a letter from former San Francisco Mayor Willie Brown in which he “addressed his past relationship with Sen. Kamala Harris . . . and acknowledged giving her appointments that furthered her career.” “‘Yes, I may have influenced her career by appointing her to two state commissions when I was Assembly speaker,’ Brown wrote.” Petitioner’s Exhibit 12. 32. In its August 17, 2020 edition, the New York Daily News headlined a story: “Rush Limbaugh promotes sexist ‘Joe and the Hoe’ stories, including allegations Kamala Harris was an ‘escort.’” The article continued: “Medal of Freedom recipient Rush Limbaugh used his radio show’s massive reach to push stories about vice presidential candidate Kamala Harris as a ‘hoe’ and a ‘mattress.’ . . . The American Spectator story Limbaugh promoted was considerably more to the point, calling Harris a ‘mattress’ and alleging ‘she slept her way up,’ according to the radio pundit. He also noted that the story called the 55-year-old senator an escort. . . . [I]n early 2019, Limbaugh compared Harris to porn star Stormy Daniels.” Petitioner’s Exhibit 13. 33. During Petitioner’s direct examination, the following colloquy took place: Q Is hoe a term that you use in your everyday conversation? A No. Q Do you ever refer to a woman as a hoe? A No. Q Now during the interview, which we heard earlier today, you were asked if you think that the term was offensive, by Ms. Porter, and you responded "I suppose”. Could you elaborate on that? A I suppose, yeah, if I were to call someone directly a hoe, yes, that would be offensive and hurtful. But that's not the case here. H. 217. C. Need for Law and Order to Be Restored (Exhibit 10) 34. The screenshot consists of a single post by Petitioner. Exhibit 10. He started out 7 10 of 44 FILED: WESTCHESTER COUNTY CLERK 07/13/2023 08:25 PM INDEX NO. 63737/2023 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 07/13/2023 by addressing “Stewart Bailey,” his cousin, who resides in Germany. Without that reference, we would have no way of knowing the identity of anyone who was on that chain of comments. If the whole thread had been retrieved, it would have shown that Petitioner and Bailey were posting about Antifa. H. 219-220. 35. In his comment, Petitioner twice referred to the rioters as “savages.” 36. When Petitioner used the term “savages,” he was referring to Antifa. H. 17, 60- 61, 227; I. 13-14. 37. According to Merriam-Webster, a “savage” is someone who intentionally causes destruction and chaos. Exhibit 20. 38. Calling rioters “savages,” whether they are white, black or any other color, is not a biased statement. 39. OCA offered no testimony regarding the definition of “savages” or to refute the overwhelming evidence that Petitioner was talking about Antifa. Petitioner’s comment made no reference to Black Lives Matter or to people protesting as part of that group. H. 60. 40. The protests were all peaceful until Antifa made their appearance. Then they turned into riots. It was all over the news. Antifa were the white individuals, mid 20s to 40s more or less, dressed in black. They were the ones starting the fires, smashing the windows, throwing bricks, attacking cops. They have been around since 2007 in Portland. Many newspaper articles and media reports corroborate Petitioner’s statements 2. During his interview by the Managing 2 “It was by now a familiar scene of summer street warfare in Portland: Conservative marchers, this time pushing a #HimToo message in one of the nation’s most progressive cities, faced down a rowdy crowd group of anti-fascist protesters. . . . With political polarization on the rise, the nation’s fraught conversations over immigration, race and policing are increasingly being held in tense street showdowns punctuated with eggs, bricks and, lately, milkshakes. Portland’s long history of street activism has made the city a central sage for many of those conflicts.” Mike Baker, In Portland, Milkshakes, a Punch and #HimToo Refresh Police 8 11 of 44 FILED: WESTCHESTER COUNTY CLERK 07/13/2023 08:25 PM INDEX NO. 63737/2023 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 07/13/2023 Inspector General, Petitioner also referred to the people who took part in the January 6th insurrection as savages. H. 189; I. 24. D. Open Borders and the Second Amendment (Exhibit 11) 41. The third screenshot contains comments that were made more than four years earlier and is barred by the Statute of Limitations, as discussed infra. Exhibit 11. Criticism, The New York Times, July 1, 2019 (Exhibit 14); “The mayor has since been in contact with Multnomah County District Attorney Mike Schmidt, calling for more prosecutions and accountability for ‘radical antifa and anarchists’ seeking to cause damage and wreak havoc in the city, which suffered dozens of nights of violent protests in 2020.” Kaelan Deese, Portland mayor blames antifa, anarchists following NYE riot, The Hill, January 2, 2021 (Exhibit 15); “Anti-government and anti-fascist protesters in Portland and Seattle vandalized a Democratic Party office and other buildings and scuffled with police on Wednesday, protesting against President Joe Biden’s inauguration. . . . Portland has been the scene of unrest for months with civil rights, anarchist and anti-fascist protesters scuffling with police and occasionally with right- wing militias and Trump supporters.” Reuters Staff, Anti-fascist protesters vandalize buildings in Portland and Seattle, U.S. News, January 21, 2021 (Exhibit 16); “Portland residents are left drained from the conflict and are increasingly decrying the property destruction thought to be caused by antifa. . . . Antifa claims they’re defending their city not only against heavy-handed police tactics, but also from threats from far right extremists, groups like the Proud Boys and the Oath Keepers—leading to fierce standoffs. . . . They’ve [Antifa] received a sharp rebuke from the mayor, who is asking residents to help take back their city and be the eyes and ears of the Portland Police bureau.” Neil Giardino, Mack Muldofsky, Allie Yang, After a year of protests, Portland residents have waning patience for antifa, ABC News, May 5, 2021 (Exhibit 17); “More than two dozen suspected Antifa rioters have been charged in Portland in the past two weeks, signaling an escalation by both local and federal prosecutors following a full year of riots in the besieged Oregon city. . . . The charges stem from an Antifa riot on April 23, when Lopez is accused of using a rock to break the window of an apartment complex where a resident was recording the protest on his phone. . . . The charges are a 180-degree turn for left-wing District Attorney Mike Schmidt, who last year dropped over 90% of riot and protest-related cases.” Andy Ngo, More than two dozen Antifa rioters charged for Portland mayhem, New York Post, June 6, 2021 (Exhibit 18); “After a year of unchecked violence, prosecutors are finally doing something about Antifa’s rolling riot in Portland, Ore.: These last two weeks have seen more than two dozen suspected Antifa thugs charged for an assortment of violent crimes dating as far back as November. It shouldn’t have taken a whole year of watching protesters pelt police with Molotov cocktails and destroy local businesses to realize that the ‘do-nothing’ strategy wasn’t working, but here we are. It’s a notable turnaround for District Attorney Mike Schmidt, who after taking office last August refused to prosecute 90 percent of riot- and protest-related cases.” Post Editorial Board, Finally, Portland Antifa is being brought to justice for its violence, New York Post, June 7, 2021 (Exhibit 19). 9 12 of 44 FILED: WESTCHESTER COUNTY CLERK 07/13/2023 08:25 PM INDEX NO. 63737/2023 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 07/13/2023 42. “Timothy’s Post” is written on the top of the screenshot. However, OCA did not produce Timothy’s Post, so the record contains no evidence as to the context in which the remarks were made. 43. Al Mallah, Lloyd WM Ballou II and Petitioner commented on Timothy’s undisclosed and unknown post. Timothy is Petitioner’s friend. He does not know Mallah or Ballou II. H. 222-223. 44. The first comment on the screenshot from Mallah is “The amount of butthurt liberals is too damn high.” Ballou II responded that he is not a liberal, to which Mallah wrote “Sure!” The discussion concerned United States policy on allowing immigrants to enter this country and more particularly referred to the Syrian refugee crisis which began in March 2011 and is still ongoing. 45. In fact, on January 27, 2017, President Trump signed an executive order that suspended the entry of refugees into the United States for 120 days and stopped the admission of refugees from Syria indefinitely. 46. Based upon the fact that, according to the Specification of Charges, the screenshot was taken between June and October 2020, more than four years after the entries were made, the comments appear to have been posted in the fall of 2016. 47. Petitioner wrote, “Discrimination, no. Just not going to be politically correct. Close the Fucking borders!!!!! Let the syruan [sic] refugees move to your neighborhood and let’s see how you feel then.” Exhibit 11. This statement expressed Petitioner’s opinion on the government’s policy of open borders. 48. During her interview of him, the Managing Inspector General asked Petitioner, “So anything there that you want to explain?” Then the following colloquy took place: 10 13 of 44 FILED: WESTCHESTER COUNTY CLERK 07/13/2023 08:25 PM INDEX NO. 63737/2023 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 07/13/2023 OFFICER PEARL: Yeah, it is basically all the money we spend on taxes - - excuse me - - all the tax money that is spent. MS. PORTER CAMPBELL: On what? OFFICER PEARL: On bringing people, letting - - just open borders when we can’t even fix our own country. You know how many military veterans are out there, homeless. They are homeless in general. And I have no problem with them coming in the right way, if they are vetted and, you know, I have no problem with that. MS. PORTER CAMPBELL: And when you say “them” you mean - - are you referring to Mexicans or are you referring to immigrants? OFFICER PEARL: Well, whatever, just in general. Immigrants in general. I. 16-17. 49. The second part of the comment. “2nd Amendment baby, I’m ready!!!!!” speaks for itself. The Second Amendment provides: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed.” Even the Managing Inspector General agreed that it is not offensive to be in favor of the Second Amendment and that the right to bear arms is not the right to take up arms. H. 174, 226-227; Exhibits 28 & 29. 50. With respect to the merits of the last allegedly offensive comment, Petitioner submits that there is nothing wrong with wanting immigration restricted or with supporting the Second Amendment’s right to bear arms. The screenshot contains Petitioner’s unbiased opinion on important issues on which reasonable people may disagree. 51. It is difficult to understand how anyone could interpret the right to bear arms to mean that Petitioner planned to shoot any refugees who came into his neighborhood. It does make sense to conclude that Petitioner would defend himself against criminals. E. Statute of Limitations Bars Charges Based on Comment about Open Borders and the Second Amendment 11 14 of 44 FILED: WESTCHESTER COUNTY CLERK 07/13/2023 08:25 PM INDEX NO. 63737/2023 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 07/13/2023 52. Section 24.5 of the Union Agreement provides that “no removal, disciplinary proceeding or alternative disciplinary procedure shall be commenced more than 18 months after the occurrence of the alleged incompetency or misconduct complained of and described in the charges.” (emphasis added). Exhibit 7. The Specification of Charges were served on Petitioner on November 4, 2021. Exhibit 5. Therefore, any charges based upon conduct that took place prior to May 4, 2020 would be barred by the statute of limitations. 53. Qianchen Shi—Petitioner’s expert witness—testified that “4y” on Exhibit 11 means that when the screenshot was taken, the comment was at least four years old. H. 139, 155- 156. 54. After Shi testified, good conscience briefly prevailed and the OCA attorney withdrew this screenshot from consideration. H. 157-158. However, he later changed his mind When the hearing resumed three weeks later, over Petitioner’s objection, he was permitted to withdraw his application to dismiss the third comment that has “4y” on it. H. 165-166 3. 55. OCA rested its decision to proceed on the third comment on the limp reasoning 3 The Hearing Examiner also ruled, in essence, that no matter how far-fetched the charges are and that even if OCA would like to withdraw them, once the hearing has been commenced, OCA cannot do so, as follows: At the time, I granted that motion. Since then, based upon my research and in conversations with Mr. Guarneri and with Mr. Degen, I want to clarify the record and state that the charge and specification is not dismissed at this time; it is rather the job of this hearing officer to report and recommend to the Deputy Chief Administrative Judge for the courts outside of New York City whether or not that charge and specification should be found based on the statute of limitations or based on any other reason. So I don't believe it was in the Hearing Officer's power to dismiss that charge. I believe it is, rather, my task to recommend and report to the Deputy Chief Administrative Judge who makes the ultimate determination. H. 165. 12 15 of 44 FILED: WESTCHESTER COUNTY CLERK 07/13/2023 08:25 PM INDEX NO. 63737/2023 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 07/13/2023 that Petitioner “admitted” during the interview that the comment had been made in 2020. In any event, his statement cannot alter the indisputable documentary proof. 56. Moreover, with respect to OCA’s bogus claim that Petitioner is bound by the statement that he made during the interview that this comment was made on Facebook in the summer of 2020, rather than four years earlier, it should be noted that: (1) Petitioner corrected himself at the Hearing; H. 259; (2) Petitioner had entered the interview with no idea as to the subject matter of the investigation and had no opportunity to recollect his thoughts and prepare 4; (3) Petitioner was led to believe that all three of the comments had been made just after George Floyd was killed in 2020—the time period later used in the Specifications; (4) the stamp of “4y” was not brought to Petitioner’s attention during the interview; and (5) even though OCA had three weeks to produce a witness to try to refute the testimony of Petitioner’s expert witness that when the screenshot was taken, the comment already was more than four years old, it failed to do so. 57. When Kay Ann Porter returned to the witness stand on April 6, 2022 to complete her testimony, she suddenly would not admit that she had testified three weeks earlier that “1d” means one day ago and “10w” means ten weeks ago. H. 75, 84. Instead she denied knowing the meaning of “4y” and said that “I guess I did” testify last time that it meant four years ago. H. 4 On April 5, 2021, Petitioner walked into a conference room with Patrick Cullen (President of the Union) and Anthony Vazquez (Second Vice President of the Union), where they met with Managing Inspector General Kay-Ann Porter. Petitioner had no idea as to what she would ask him. It turned out that she wanted him to verify the information on his Facebook profile page (which was not entirely accurate) and then explain comments that he had made on other people’s Facebook posts. At the time, the comments were from at least six months old to more than four years old, had been taken out of context, and did not include the posts to which they referred. It was as if Petitioner was being shown a page in the middle of a book and then told to explain what was going on without knowing what had been written on the previous or the following pages. Petitioner was not given a chance to refresh his memory in advance as to what he meant in his comments or as to why he had posted them. H. 182-183, 208-209. 13 16 of 44 FILED: WESTCHESTER COUNTY CLERK 07/13/2023 08:25 PM INDEX NO. 63737/2023 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 07/13/2023 175. 58. OCA’s backtracking as to the meaning of “4y” in the face of the irrefutable, contrary evidence is puzzling. Since OCA offered no testimony and produced no documents in support of its position, its refusal to concede this issue can only be attributed to a robust zero concession policy, no matter how frivolous its stance may be. It seems both offensive and inappropriate to pursue charges while knowing that they are barred by the statute of limitations. F. Comments Did Not Appear on Petitioner’s Facebook Page 59. The Managing Inspector General was unaware of what it means to be “tagged” on Facebook. H. 187-188. A tag is not a post. When someone posts a comment or a picture on Facebook, it appears on that person’s page. If they tag someone, that is, if they create a link, the post remains where it is on the posting person’s Facebook page, but the person tagged receives a notification that they have been tagged. If the person tagged responds, their comment appears on the Facebook page of the person who made the original post, not on their page. All three of Petitioner’s comments were responses that he made after he had been tagged. None of them ever appeared on his Facebook page. H. 227-229. 60. The first flaw in OCA’s proof is its failure to prove that any of the comments appeared on Petitioner’s Facebook page, as alleged in Specification No. 1. Exhibit 5, p. 5. This shortcoming is not merely a matter of semantics, because OCA placed great significance on the fact that readers of Petitioner’s posts had been on Petitioner’s Facebook page, which, states that he is a “Former Court officer at NYS Unified Court System” and “Worked at NY State Unified Court System 5.” 5 As discussed in Part A, supra, Petitioner does not believe that he ever posted his occupation on his Facebook page. I. 6-7; H. 72-73, 213. 14 17 of 44 FILED: WESTCHESTER COUNTY CLERK 07/13/2023 08:25 PM INDEX NO. 63737/2023 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 07/13/2023 61. OCA’s problem may result from its attorneys’ lack of knowledge about the lexicon of Facebook 6. G. Comments Were Taken Out of Context 62. As the name suggests, a screenshot captures the contents of the screen at the time that the picture is taken. The Managing Inspector General acknowledged that she did not know what comments preceded and followed Petitioner’s comments on any of the screenshots. H. 73- 74, 83, 168-169. Petitioner, likewise, could not recall the contents of the comments that came before and after his comments. H. 218, 219-220, 222-223. Thus, the record contains no evidence of, and we have no way of knowing, the context in which Petitioner’s comments were posted. H. Private Comments on Political Issues Posted While Off Duty on Third-Parties’ Facebook Pages Are Protected Speech 63. Petitioner’s comments concern his opinion on political issues and are completely unrelated to the Unified Court System, its policies and its employees. H. 218-219, 221-222, 226. They took place outside the workplace, on Petitioner’s own time, during private conversations on the Facebook pages of people whom he knew. Under these circumstances, his right to speak out far outweighs any reasonable concern that the comments might disrupt the Court Sys