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Decision No. 12,639

Appeal of the BOARD OF EDUCATION OF THE PERU CENTRAL SCHOOL DISTRICT from a determination rendered by a hearing panel pursuant to Education Law '3020-a concerning charges against Charles Mitchell, a tenured teacher.

Decision No. 12,639

(January 27, 1992)

Stafford, Trombley, Purcell, Lahtinen, Owens & Curtin, P.C., attorneys for petitioner, Dennis D. Curtin, Esq., of counsel

Robert D. Clearfield, Esq., attorney for respondent, Harold G. Beyer, Jr., Esq., of counsel

SOBOL, Commissioner.--Petitioner, the Board of Education of the Peru Central School District, appeals from the decision of a hearing panel convened pursuant to Education Law '3020-a to review charges preferred by the district against respondent, a tenured science teacher. Petitioner seeks an order modifying the hearing panel's decision and authorizing termination of respondent's services. The appeal must be sustained in part.

Respondent has been employed by petitioner since 1985. During his employment, respondent has been active in the sport of bobsledding and has achieved substantial success and notoriety in that area.

During the week of February 18, 1991, the Peru district was on mid-winter recess. On Thursday of that week (February 21, 1991), late in the afternoon, respondent received a telephone call from the president of the U.S. Bobsled Federation (the "Federation"), advising him that the U.S. bobsled teams competing in Europe had been called home for training. However, the Federation wanted to have a U.S. team compete in a final European race to be held in France during the period of February 24 - March 3, 1991. Respondent was advised that he was being considered as the driver for that team. Respondent was also informed that an airplane ticket was being held for him at JFK Airport in New York City for a flight to France on the next day, Friday, February 22, 1991, scheduled to depart at 3:00 p.m.

Although not confirmed by the Federation as its selection, respondent immediately called his district superintendent to discuss the matter. The superintendent's wife advised him that the superintendent was ill and unavailable. At about 7:30 p.m. respondent received a call from the president of the Federation confirming respondent's selection to the team. Respondent informed the president of the Federation that he would like to accept the position and would attempt to secure permission from his employer for leave time.

The record indicates that, on numerous occasions during his employment with the Peru district, respondent had requested and obtained permission for leave time to compete in bobsledding. During the most recent school year, petitioner had approved leave with pay for respondent to compete in trials for the World Cup Team, held in December 1990 and early January 1991. After that competition, respondent was granted additional time to compete in pre-Olympic trial races. At a meeting on January 15, 1991, petitioner board discussed respondent's bobsledding and voted 4 to 3 to permit him to take off the remaining Fridays of the 1990-91 bobsled season, at no cost to the district, so that he could participate in the qualifying rounds of national bobsledding competitions held at Lake Placid.

Respondent again called the superintendent and was again informed that the superintendent was ill and unavailable. Respondent told the superintendent's wife of his opportunity to compete for the United States at an international competition. He further noted that because of the need to attend to administrative matters and obtain transportation to New York City, he needed an answer by 9:00 a.m. the following morning. The superintendent's wife advised respondent that the superintendent was not authorized to grant his request and that he should contact the members of the board.

Respondent then attempted to contact the high school principal and six members of the board. He was unable to reach any of them. Respondent eventually contacted the one remaining board member, who said that he would try to contact the board president. At about 10:00 p.m. the board president called respondent, who told him of his opportunity and his request for a leave of absence. The board president stated that he would speak to the superintendent and call him in the morning.

The board president and the superintendent discussed the matter late Thursday evening and early Friday morning and agreed that they would not support respondent's leave request. At about 7:30 a.m. on Friday, the superintendent called respondent and, according to the superintendent, told him:

Charlie, I think it's a great opportunity. I think on a personal level it's nice. I personally would like you to have had the opportunity. But, professionally, on a professional level, I

cannot recommend that you be allowed to go. And I will not recommend that you be allowed to go.

Apparently feeling that he had not received an answer to his request, respondent then called two former school superintendents, explained his situation and asked for their advice. Both allegedly told respondent to go on the trip, but submit a letter to the board requesting leave approval. Respondent then called the individual who would be teaching in his absence. According to respondent, he decided to go to France only after being assured by that person that his classes would be covered. Respondent then left a message on the school's answering machine that he would be away during the week of February 24, 1991 and suggested that a particular substitute, previously used by the district, be obtained. On the way to the airport, respondent composed a letter to the board in which he requested approval for a leave of absence, explaining the circumstances under which the opportunity arose and the reason for his admittedly untimely request.

When respondent returned to work on March 5, the superintendent informed him that he was suspended pending the board's consideration of charges against him. On March 12, 1991 petitioner found probable cause to prefer charges of insubordination and neglect of duty against respondent. A hearing was held on May 14, 1991. On or about July 31, 1991 the hearing panel found respondent not guilty of the charges. This appeal ensued.

Petitioner maintains that respondent is guilty of insubordination since he was given specific instructions that he could not attend the bobsled competition in France, but willfully ignored those instructions. The hearing panel found that the superintendent told respondent that the board had supported his bobsledding activities at its January 15 meeting by only a 4 to 3 vote; and since one of the board members could be a swing vote, a vote on respondent's request could go either way. Respondent testified at the hearing that the superintendent further stated that "Based on that", (which respondent said he took as meaning based upon the superintendent not knowing how the board would vote on the matter), "I cannot recommend that you go." The superintendent admitted that he never unequivocally told respondent that he could not go. Based on that testimony, the panel determined that the superintendent never told respondent that he would not authorize respondent's request, but only that he could not recommend that respondent go. While the superintendent recalls parts of that conversation differently, the panel found the testimony of respondent on this issue credible.

On review of the determination of a hearing panel rendered pursuant to Education Law '3020-a, the Commissioner has the power to substitute his judgment for that of the hearing panel with regard to findings of fact (Matter of Shurgin v. Ambach, 56 NY2d 700; Matter of McNamara v. Comm'r., 80 AD2d 660). However, I will not ordinarily substitute my judgment for that of a hearing panel as to the credibility of witnesses unless the

panel's decision is contrary to the weight of the evidence and the hearing panel has not adequately explained its rejection of otherwise convincing testimony (Shurgin, supra; Matter of NYC Bd. of Ed., 24 Ed Dept Rep 284; Matter of Bd. of Ed., Sewanhaka CHSD, 23 id. 463). After reviewing the record, I find no basis to substitute my judgment for that of the hearing panel on this issue. The direction given to respondent by the

superintendent was simply too vague to support a charge of insubordination (see Appeal of Spencerport CSD, 24 Ed Dept Rep 329).

Petitioner also contends that, in absenting himself from his assigned duties without authorization, respondent is guilty of neglect of duty. Respondent maintains that in light of the fact that he did not know that his absence was unauthorized, that his classes were adequately covered in his absence, that the board president apparently never permitted respondent's late request for a leave to be acted upon by the entire board, that the board president only consulted with board members known to be opposed to respondent's absences for bobsledding and that all prior requests by respondent for leaves had been granted, he is not guilty of neglect of duty. The hearing panel found that "as a technical interpretation, respondent's absences from the classroom were without authorization", but determined that the circumstances cited by respondent did not sustain the charge of neglect of duty. I disagree. The position on this issue espoused by respondent and accepted by the hearing panel ignores the basic fact that respondent was absent without authorization given by anyone in authority. Such conduct constitutes neglect of duty (Matter of Studley v. Board of Ed., 53 AD2d 974). The circumstances cited by respondent and the hearing panel do not negate the fact that respondent was guilty of neglect. However, such circumstances should be considered in determining a proper penalty.

In light of the circumstances cited above and the fact that respondent's principal has described respondent as a very good teacher, termination of respondent's employment is not appropriate. Based on the record, however, I conclude that a fine of $1,000 is an appropriate penalty.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the determination of the hearing panel be and the same hereby is annulled insofar as it determined that respondent was not guilty of neglect of duty; and

IT IS FURTHER ORDERED that petitioner is authorized to impose a fine of $1,000 against respondent.

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