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Decision No. 12,670

Appeal of the BOARD OF EDUCATION OF THE SOUTH HUNTINGTON UNION FREE SCHOOL DISTRICT from the decision of a hearing panel concerning disciplinary charges preferred against Daryl Sharpe pursuant to Education Law '3020-a.

Decision No. 12,670

(March 20, 1992)

Lawrence F. Spirn, Esq., attorney for petitioner

James R. Sandner, Esq., attorney for respondent, Paul H. Janis, Esq., of counsel

SOBOL, Commissioner.--Petitioner, the Board of Education of the South Huntington Union Free School District, appeals from a determination by a hearing panel convened pursuant to Education Law '3020-a to hear disciplinary charges preferred against respondent Daryl Sharp, a tenured teacher. Petitioner requests that I affirm the panel's findings of misconduct, that I reverse that part of the panel's decision which dismissed the charges against respondent, and that I find respondent guilty and authorize petitioner to dismiss him. The appeal must be sustained in part.

On or about September 5, 1990, petitioner preferred charges of conduct unbecoming a teacher and immoral conduct against respondent. The charges allege that on or about April 25, 1988 "respondent knowingly and unlawfully criminally" harassed an attorney who was representing petitioner in connection with another '3020-a proceeding against respondent, and that respondent was convicted of violating New York Penal Code '240.25, harassment.

The charges allege that on or about April 25, 1988, at approximately 4:30 p.m., after a hearing had been conducted concerning disciplinary charges against him, respondent harassed the school district's attorney by following her in his car from petitioner's district offices to a shopping mall, through several aisles of parked vehicles and through another group of stores located south of the shopping mall, at which point the attorney parked, fled her car and ran into a store. Both charges are premised upon the same allegations of fact and violations of the Penal Code.

Respondent requested a hearing which was held on January 15, 1991. Petitioner's attorney at the time of the alleged incident, Ann Scricca, Esq., testified, as did respondent and respondent's department chairman. Ms. Scricca testified that as she left the district offices after one day of the hearing, she entered the adjacent parking lot with John Gravina, the chairman of the mathematics department in which respondent then served. When Ms. Scricca and Mr. Gravina entered the parking lot, they saw respondent seated in his vehicle looking at them. The two remained in the parking lot for 15 minutes until they thought respondent had left. Ms. Scricca then got into her car and left the parking lot to go home. As she reached the exit of the parking lot, she saw respondent in his car directly behind her. Respondent then closely followed Ms. Scricca's car for some distance, despite Ms. Scricca's attempt, through means of varying her speed and the routes she took--including driving in the wrong direction through parking aisles in the shopping mall parking lot--to place some distance between her car and respondent's. Ms. Scricca's testimony as to what occurred in the school district office parking lot was corroborated by Mr. Gravina. Respondent disputed Ms. Scricca's testimony and testified that while he did park his vehicle in the same parking lot as Ms. Scricca, at the conclusion of the hearing he entered his car and drove home. Respondent further testified that while he may have followed the same route as Ms. Scricca, he did not follow her nor did he see her vehicle while he was en route.

Petitioner also introduced a copy of an order of the District Court, Suffolk County, finding respondent guilty of a violation of New York Penal Law '240.25, harassment, based upon the same incidents described in Ms. Scricca's testimony. The panel issued its decision in or about the second week of May 1991. The panel unanimously found that petitioner proved by a preponderance of the evidence the factual allegations against respondent. The panel also unanimously concluded that respondent's testimony was not credible. However, a majority of the panel dismissed the charges because it found that:

...the record is barren of any concrete evidence to support a finding that Respondent's ability to continue to carry out his functions as a teacher has been impaired by his misconduct. In a similar vein, there is no evidence in the record to allow the panel to conclude that other legitimate interests of the district had been damaged by Respondent's misconduct.

The decision of the panel majority further stated:

The absence of an articulated and proven nexus between Respondent's misconduct and his role as a teacher, or the bona fide interest of the district that touch on this role, constrains the panel to find that Respondent's misconduct amounted to neither conduct unbecoming a teacher nor immoral character. As to the immoral character charge, the Panel would offer a final observation that Respondent's misconduct constitutes the lowest grade offense in the New York Penal Law. There is nothing inherent in the harassment conviction to support a conclusion that the convicted individual's character is immoral.

In a dissenting opinion, the board-appointed panel member determined that the charges should not be dismissed because:

Respondent did intentionally engage in an attempt to intimidate the school district attorney who must be considered an employee of the South Huntington Board of Education. At the time of the respondent's action the attorney was representing the board of education and administration in legal proceedings against the respondent in a '3020-a Education Law Proceedings action to obtain penalty or dismissal of respondent. This incident can be compared with a state prosecutor trying a case and having a defendant take action against him or her or having a defendant attempt to influence or intimidate said prosecutor. This action directly interferes with the attorney for the school board and the '3020-a Education Law system.

The linkage of malice and attempt to intimidate an authority figure of a school district was clear and charges against respondent would be appropriate.

Petitioner appeals from that part of the panel finding which concluded that respondent's conduct lacked a nexus to the legitimate interests of the district sufficient to warrant discipline. Petitioner contends that respondent's harassment of Ms. Scricca was an intentional effort to thwart the district's authority to discipline tenured teachers pursuant to Education Law '3020-a. Petitioner contends that efforts to harass legal representatives of school districts while they pursue their statutory duties is conduct adverse to the legitimate interests of the school district. Petitioner also contends that the panel finding of misconduct by respondent cannot be regarded as off-duty or off-premises conduct since the conduct was closely connected with a '3020-a hearing, a purely school-related function. Petitioner does not challenge the panel findings concerning the immoral conduct charge and therefore this decision will not address that issue.

Respondent denies that his conduct constitutes grounds for finding him guilty of the charges of conduct unbecoming a teacher or immoral character. Respondent, therefore, requests that I issue an order affirming the decision of the panel dismissing the charges and specifications against him.

Pursuant to Education Law '3020-a, boards of education are authorized to bring disciplinary charges against tenured teachers when a board concludes that a teacher has committed misconduct. When a board of education brings such charges, it prosecutes them through attorneys retained by the school district to present proof of the charges to a hearing panel under '3020-a. Therefore, when an attorney is presenting evidence concerning charges against a tenured teacher, the attorney is acting on behalf of the school district in pursuit of functions which the Legislature has authorized the district to perform. In this case, respondent's harassment of petitioner's attorney was, in my judgment, conduct directly related to a legitimate school function. There is nothing in the record to suggest that respondent's conduct was motivated by anything other than the fact that the attorney was prosecuting him. Harassment or attempted intimidation of a school employee by a tenured teacher is not conduct that a board of education should be required to ignore (Matter of the Bd. of Ed. of the CSD of the City of New York, 22 Ed Dept Rep 48). Additionally, and although the record establishes that respondent's course of conduct began on school property when he began following petitioner's attorney in the school parking lot, the mere fact that the majority of respondent's actions occurred off-school premises would not insulate him from '3020-a proceedings (Appeal of the Bd. of Ed. of the Frontier Central School District, 23 Ed Dept Rep 339; affirmed at 124 AD2d 854; cf. Matter of Pollnow, 22 id. 547). I, therefore, find that the panel erred in concluding that there was an insufficient nexus between respondent's conduct and the school district's legal interests to warrant discipline. Based upon my review of the record, I conclude that petitioner has proven by a preponderance of the evidence that respondent engaged in conduct unbecoming a teacher.

In presenting its case against respondent in the '3020-a hearing, petitioner offered for consideration by the panel, evidence relating to petitioner's request for the penalty to be assessed which was to be considered only if the charges were proven. Since the panel did not sustain the charges, that evidence was not considered. Under the circumstances, this matter must be remanded to the hearing panel to determine a penalty, and to allow the parties to present arguments as to whether or not this other evidence is relevant to penalty.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the hearing panel decision is reversed to the extent that I find that the record demonstrates that respondent engaged in conduct unbecoming a teacher, and the matter is remanded to the panel for a determination as to the penalty to be imposed.

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