Decision No. 12,826

(October 26, 1992)

SOBOL, Commissioner.--Petitioner appeals from a determination by a hearing panel convened pursuant to Education Law '3020-a to hear disciplinary charges preferred against respondent Robert Ellis, a tenured teacher. Petitioner requests that I reverse the panel's decision, and that I find respondent guilty and authorize petitioner to dismiss him. The appeal must be dismissed.

On September 8, 1987, petitioner board of education voted to bring charges against respondent. Charges one and two relate to an alleged incident of corporal punishment. Charges three, four and five allege that respondent was insubordinate and guilty of conduct unbecoming a teacher when on three occasions he denied the allegations of inflicting corporal punishment.

On August 12, 1987, as set forth in charge one, respondent allegedly struck and kicked one of his pupils ("R.E."), causing his nose to bleed. In charge two, petitioner contended that on that same date respondent restrained R.E. by placing him under his desk for a period of time. On August 13, 19 and 20, 1987, respondent allegedly was insubordinate when he denied committing the acts alleged in charges one and two.

Hearings were conducted on four dates between November 4, 1987 and February 3, 1988. Respondent moved to dismiss the charges at the conclusion of petitioner's case. The panel granted that motion, 2 to 1. Petitioner appealed to the Commissioner of Education, and I sustained the appeal by decision dated April 28, 1989, Matter of the Appeal of the Board of Education of the Little Flower Union Free School District, 28 Ed Dept Rep 458. I found that the hearing panel, in considering the motion to dismiss, failed to view the evidence presented by petitioner in the light most favorable to petitioner. Therefore, I annulled the hearing panel's decision, and ordered the panel chairman to arrange for the continuation of the proceedings within 30 days of his receipt of the decision.

Two additional hearings were held on July 13, 1989 and November 13, 1989, at which respondent presented his direct case and the petitioner presented its rebuttal. The hearing panel issued a decision with the majority opinion, dated September 7, 1990, and a dissenting opinion by the employer panel member dated September 27, 1990. The panel majority found respondent not guilty of the charges and dismissed them. The dissenting opinion of the employer panel member found that the charges had been proven by a preponderance of the evidence.

Petitioner contends that the panel erred when it found respondent had not used inappropriate physical force on a handicapped student. Petitioner further contends that the panel erred when it accepted respondent's account of the incident, while rejecting the credible testimony of petitioner's eleven witnesses. Petitioner maintains that the panel erred when it did not credibly explain why it rejected the testimony of student witnesses and administrators.

Respondent contends that the panel majority properly considered numerous factors in reaching its determination. Respondent maintains that the panel majority found substantial discrepancies in the student witnesses' testimony regarding central details of the charges, and that R.E.'s direct testimony was riddled by inconsistencies. Further, during the course of cross-examination, R.E. recanted his direct testimony and claimed that the two students who had run away with him on the date of the incident had pressed him to lie to cause the school district to discharge respondent. In addition, there was a lack of any physical evidence establishing that respondent had struck R.E. in the nose. The panel also noted respondent's physical condition, which was not contested by petitioner, i.e., respondent could not use his right hand due to a job related injury in 1975; nor could he place great weight on his right big toe due to a canoe trip accident which occurred in July 1987. Respondent maintains that the panel carefully analyzed each individual's testimony and specifically indicated its reasons for discounting such testimony. Respondent contends that the panel's credibility determinations are not contrary to the weight of the evidence and are proper in all respects.

Respondent also asserts a number of affirmative defenses. As a first affirmative defense, respondent alleges that petitioner does not have personal jurisdiction over the respondent because respondent was not served in accordance with the Commissioner's regulations. By letter dated October 26, 1990, the Office of Counsel authorized alternate service upon respondent as follows:

Respondent claims that petitioner has not effected personal service pursuant to the alternate service provision indicated above since he has not received the October 26, 1990 letter and the notice of petition and petition by regular and certified mail. In addition, respondent maintains that his professional relationship with the office of James R. Sandner ended when the hearing panel rendered its decision and respondent had not authorized or requested that office to accept service of the notice of petition and petition challenging the panel majority's decision. Respondent therefore contends that this appeal should be dismissed.

Based upon a review of the record before me, I find that petitioner did effectuate service as authorized by my Office of Counsel. Petitioner's affidavits establish that the October 26, 1990 letter was attached to the notice of petition and petition and that these documents were sent to respondent at the 68 River Avenue, Riverhead, New York address. The return receipt indicates that the documents were signed for by a Theresa Hulse. She is one of two people who signed for respondent's paychecks which were sent to this same address by petitioner via certified mail. It is uncontroverted that respondent received and cashed his paychecks. Respondent nonetheless claims he never received the documents by regular or certified mail. Respondent admits in his affidavit that he learned of the commencement of this appeal when so informed by the law offices of James R. Sandner, Esq. Mr. John H. Jurgens, Esq. of the law office of James R. Sandner, Esq. admits in his affidavit that he received the October 26, 1990 letter and the notice of petition and petition, notwithstanding the fact that the affidavit of mailing contained several mistakes and misspellings. Under these circumstances, I find that respondent received notice of the instant appeal pursuant to the alternate service authorized by my Office of Counsel.

As an additional affirmative defense, respondent contends that petitioner has failed to plead that it passed a resolution

authorizing the commencement of the appeal in accordance with the Commissioner's regulation at '275.5, which provides that:

In response to the affirmative defense raised by respondent, petitioner has submitted board minutes from October 2 and 24, 1990. A review of these minutes discloses that, in fact, petitioner board did not pass a resolution authorizing the instant appeal. The October 2, 1990 minutes indicate that the board was in executive session when it discussed the instant case. The October 24, 1990 minutes indicate that the board went into executive session and during that session, discussed the instant appeal. In the minutes for neither meeting does it appear that a resolution was voted upon by the board. Nor does it appear from the minutes that there was a resolution that was proposed but not voted upon. Therefore, I conclude that the appeal must be dismissed because petitioner did not authorize the commencement of this appeal by formal action. I have reviewed respondent's other procedural affirmative defenses and find them without merit.

Before considering the merits of this appeal, I will discuss respondent's request that paragraph 9 of an affidavit submitted by the district's superintendent James J. Dobson, together with exhibit C attached to said affidavit, be stricken from the record because it is irrelevant, prejudicial, and scandalous. I find that those items are irrelevant and I have not considered them in rendering this decision.

Even in the absence of this procedural irregularity, the appeal would also be dismissed on the merits. The burden of proof in a teacher tenure hearing under Education Law '3020-a is on the complainant. Guilt may only be found on a charge or specification where there is a preponderance of evidence to support that charge. Martin v. Board of Education, 67 NY2d 975 (1986); Application of the Board of Education of the City of New York, 29 Ed Dept Rep 302; Appeal of the Board of Education of the Greater Johnstown City School District, 30 id. 89. In matters involving credibility of witnesses, I have repeatedly held that where the panel determination rests in a major part on determination of witness credibility, I will not substitute my judgment for that of the panel unless there is clear and convincing evidence that the determination of credibility is inconsistent with the facts (Matter of Community School Board No. 18, 21 Ed Dept Rep 216; Appeal of Le Pore, 28 id. 425).

The issue, therefore, is whether the hearing panel's decision was contrary to the weight of the evidence or whether it failed to explain its rejection of otherwise convincing testimony. The record in this case shows that R.E. changed his account of the alleged incident several times prior to the hearing and at the hearing itself. At the hearing he testified on direct examination that respondent had struck him, and then, on cross-examination, recanted his entire testimony. The hearing panel accepted R.E.'s recanted testimony because it was corroborated by the testimony of another student F.R., who had no motive to implicate respondent. Unlike student witnesses J.T. and J.P., F.R. had not run away with R.E. after the alleged incident. F.R. testified that R.E. had run under the desk and that respondent had only attempted to extract him from that location after unsuccessfully trying to persuade R.E. to come out from his hiding place.

After considering R.E.'s testimony, the hearing panel proceeded to analyze the testimony of the students in the classroom on the day of the alleged incident, and the administrators who met with or interviewed the students after the alleged incident. Particularly troubling in this appeal is that the district administrators failed to adhere to district policy and obtain written statements from the students. I find that the hearing panel did carefully analyze each witness' testimony and the inconsistencies between the testimony of the various witnesses. Two of the students who testified that respondent had struck R.E. were students who had run away from the classroom with R.E. shortly after the alleged incident. R.E. claimed at various times that those students had persuaded him to lie concerning the incident. In addition, the hearing panel noted that J.T. testified initially that respondent had placed R.E. under the desk, then changed his testimony indicating he did not see respondent do that. The panel also questioned whether it was physically possible for respondent to strike R.E. with an overhand right while R.E. was under the desk as described by J.T. The hearing panel also analyzed the students' testimony, since the desk in question was closed on the three sides facing the class, with the exception of a six to eight inch space along the bottom. Student witnesses K.C. and N.C. testified that respondent slammed R.E.'s head on the floor and/or kicked him but did not see respondent punch R.E. in the nose. The hearing panel found the testimony of student witness J.G. suspect because he was out of the room for a period of time and his version of the events was inconsistent with the testimony of the other students.

The administrators who testified did not add more specific details concerning the central events at issue, but instead confirmed that R.E. offered varying accounts of the alleged incident to the administrators. Given these circumstances, the credibility of the student witnesses was key, and the panel was not persuaded that the testimony supported the charges by a preponderance of the evidence. I cannot conclude that the credibility determinations made by the panel were clearly contrary to the weight of the evidence. Accordingly, I find no basis to substitute my judgment for that of the panel.

THE APPEAL IS DISMISSED.

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