Ingerman, Smith, Greenberg, Gross, Richmond, Heidelberger & Reich, Esqs., attorneys for petitioner, Warren Richmond, III, Esq., of counsel

Kaplowitz & Galinson, Esqs., attorneys for respondent, Daniel Galinson, Esq., of counsel

Decision No. 12,641

(January 27, 1992)

SOBOL, Commissioner.--Petitioner, the Board of Education of the Sachem Central School District, appeals from the determination of a hearing panel relating to charges preferred against William Burrows pursuant to '3020-a of the Education Law. Petitioner requests that I annul the hearing panel determination on penalty, and that I authorize petitioner to terminate respondent's services as a teacher. The appeal must be dismissed.

On June 21, 1989, petitioner found probable cause for charges of conduct unbecoming a teacher and insubordination against respondent William Burrows. Respondent Burrows requested a hearing and one was held, commencing October 20, 1989 and concluding July 23, 1990. The charges related to two incidents in which respondent Burrows allegedly engaged in inappropriate conduct, and verbally abused and berated school administrators in the presence of other individuals. The incidents occurred off school premises and after school hours. During the course of the hearing some of the specifications of the charges were withdrawn by petitioner. A portion of the district's case against respondent Burrows hinged upon the fact that a previous disciplinary action was terminated with the stipulation that in the future Burrows would comport himself in an appropriate manner with administrators and when in the presence of other faculty members.

Upon conclusion of the hearings, the hearing panel issued a decision finding Burrows guilty of those charges which had not been withdrawn by petitioner, and imposed a penalty of suspension without pay for four months. In reaching its conclusion as to penalty, the panel carefully reviewed the nature of respondent's conduct, and the relationship between that conduct and respondent's function in the school environment. The panel concluded that if the conduct occurred within the school setting, the panel would have recommended the termination of respondent's services as a teacher. The panel found, however, that since the conduct occurred after school hours and off school grounds, the connection between respondent's conduct and his position as a teacher was not so direct as to require termination of his services.

Petitioner contends that the penalty imposed was arbitrary and capricious and that it was unduly lenient. Petitioner contends that notwithstanding the fact that respondent's conduct occurred after school hours and off school premises, it had a severe and deleterious impact on the operation of petitioner's school system. Petitioner, therefore, requests that I annul the panel determination on penalty and that I authorize petitioner to terminate respondent's employment.

Respondent contends that this proceeding must be dismissed because the notice of petition and petition were never served upon him. Respondent also contends that the panel allegedly failed to allow him to introduce evidence in mitigation of any assessment or penalty, and that therefore the penalty imposed should be vacated. With respect to the penalty requested by petitioner, respondent contends that no evidence was introduced at the hearing which demonstrates that his misconduct warrants the termination of his services.

Failure to effect proper service of the petition in this proceeding would divest me of jurisdiction, and, therefore, respondent's contention that he was never properly served with the petition will be discussed first. Section 275.8(a) of the Commissioner's regulations requires that each named respondent in an appeal be personally served with the petition and other supporting papers. An affidavit of service attached to the notice of petition and petition in this matter states that respondent Burrows was personally served at 8:40 p.m. on November 5, 1990, at an address in the town of Mattituck, New York. However, respondent Burrows has attached an affidavit to his answer in which he alleges that he was never served with the moving papers in this proceeding on the date and time in question. Respondent Burrows alleges that he left that address at approximately 7:15 p.m. that evening and returned at approximately 10:15 or 10:30 p.m. after playing tennis with several friends in another town. Respondent Burrows has also submitted affidavits signed by his wife, Patricia Burrows, in which she alleges that the petition was not served on the date and time stated in the affidavit of service. In addition, respondent has submitted the affidavits of two of his tennis partners, Robert Boden and Brian Keller, which state that respondent Burrows was playing tennis with them in Westhampton, New York on November 5, 1990 at the time in question. In response to this affirmative defense, petitioner has submitted a reply in which an affidavit from the original process server is included. In that affidavit the process server alleges that he is certain that he served respondent Burrows at the time and place referenced in the original affidavit of service.

In order to prevail in an appeal, the petitioner bears the burden of establishing those facts necessary to secure the relief requested (Matter of Summerville, 27 Ed Dept Rep 46; Matter of Elkins; 27 id. 99). In this case, as in any other appeal, it is incumbent upon petitioner to establish that personal service was properly made upon respondent Burrows. Failure to demonstrate that personal service was accomplished in accordance with 8 NYCRR '275.8(a), requires dismissal of the appeal as to the party not served (Appeal of Gonzales, 28 id. 231). In this case, the affidavits of the process server for petitioner conflict with respondent's affidavit and that of his wife and two of the tennis players. Petitioner has failed to offer anything to corroborate the affidavit of the process server or to contradict the affidavits of respondent's wife or tennis partners. Since petitioner bears the burden of proof, I must find under these circumstances that petitioner has not satisfied his burden of demonstrating that proper service was made upon respondent Burrows, and, therefore, the appeal must be dismissed.

Even if I were to find that proper service had been demonstrated, my review of the record would also lead me to conclude that the appeal should be dismissed. The relief sought by petitioner relates solely to the penalty imposed by the hearing panel. Petitioner requests that I substitute my judgment for that of the panel and authorize termination of respondent's services. While there are instances in which such relief may be granted (Matter of the Bd. of Educ. of the Duanesburg C. S. D., 18 Ed Dept Rep 387; Matter of Shurgin v. Ambach, 83 AD2d 665, aff'd 56 NY2d 700), the penalty imposed in this case is not disproportionately lenient such that it would justify a change in the penalty.

In assessing the penalty, the panel reasoned that had respondent's misconduct occurred in the school setting, termination would have been appropriate. However, given the fact that the misconduct occurred after school hours and in a social setting, the panel concluded that termination was not justified. The panel balanced the nature of the misconduct against its connection with respondent's function as a teacher and, in the exercise of its discretion, determined that there was sufficient connection between respondent's misconduct and his position as a teacher to warrant a suspension without pay for a period of approximately four months. Based upon my review of the record, I cannot conclude that the penalty imposed is disproportionately lenient. I also join in the panel's admonition that respondent refrain from any further repetition of this type of conduct.

THE APPEAL IS DISMISSED.

END OF FILE

---