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Decision No. 12,831

Appeal of COMMUNITY SCHOOL BOARD NO. 24 of the Board of Education of the City School District of the City of New York from a determination of a 3020-a hearing panel concerning charges against Francisco Olivares, a tenured teacher.

Decision No. 12,831

(November 4, 1992)

Hon. O. Peter Sherwood, Esq., Corporation Counsel, Lawrence E. Becker, Esq., Special Assistant Corporation Counsel, Thomas J. Shoener, Esq., of counsel, attorney for petitioner

J. Edward Cardoso, Esq., of counsel, attorney for respondent

SOBOL, Commissioner.--Petitioner appeals from the majority determination of a 3020-a hearing panel (the "panel") which dismissed all disciplinary charges brought against respondent Francisco Olivares, a tenured teacher ("respondent"). Petitioner requests that I reverse the panel's findings, substitute my opinion for that of the panel, find respondent guilty of the charges, and authorize petitioner to terminate respondent's services. The appeal must be dismissed.

Petitioner, the Board of Education of Community School District No. 24, met in executive session on October 26, 1989, and determined that there was probable cause to prefer charges against respondent. The original charges were subsequently amended. In the amended charges, petitioner alleged that respondent's actions, as set forth in the specifications, constituted conduct unbecoming his position and prejudicial to the good order, efficiency, and discipline of the service, as well as substantial cause rendering respondent unfit to properly perform his obligations to the service. The first specification of charges read:

Respondent did, between November 9, 1988 to December 14, 1988, between the hours of about 10:54 a.m. and 12:54 p.m. at 98-50 50th Avenue, Corona, County of Queens, act in a manner likely to be injurious to the physical, mental and moral welfare of A. S., a female child then 12 years old, by subjecting her to sexual contact, and by photographing her in suggestive poses. Respondent was then a male of about 39 years of age.

The second specification read:

A. Respondent did, on or about January 9, 1989, at or about 12:00 to 12:54 p.m. at 98-50 50th Avenue, Corona, County of Queens, subject P. R., a female child then 12 years old, to sexual contact by embracing her from behind and pressing his penis against her buttocks/hip area. Respondent was then a male of about 39 years of age.

B. Respondent did, on or about January 9, 1989, at or about 12:00 p.m. to 12:54 p.m. at 98-50 50th Avenue, Corona, County of Queens, act in a manner likely to be injurious to the physical, mental and moral welfare of P. R., a female child then 12 years old, by embracing her from behind and pressing his penis against her buttocks/hip area. Respondent was then a male of about 39 years of age.

These charges are substantially the same as criminal charges which were brought against respondent in Supreme Court, Queens County. The criminal charges originally resulted in a conviction, which was subsequently reversed by the Appellate Division, Supreme Court, because of a jurisdictional defect.

Respondent requested a hearing pursuant to Education Law '3020-a and it was held over a two-month period ending in May 1990. In presenting its case, the district relied entirely on the testimony of the Assistant District Attorney, who had prosecuted the criminal action, and invoked the doctrine of collateral estoppel as its reason for not introducing any other witnesses in support of the charges. Respondent testified, as did two other witnesses on his behalf. In August 1990 the panel issued a decision rejecting petitioner's reliance on collateral estoppel. The panel decision permitted petitioner to introduce direct evidence in support of the specifications and charges. Hearings resumed and took place between October 1990 and January 1991. Petitioner, in introducing proof on the charges, provided testimony from the two students who were identified in the charges, as well as the testimony of other district staff. Respondent offered testimony from other students as well as district staff. Both petitioner and respondent introduced documentary evidence in support of their respective positions.

In a July 1991 decision, the panel determined that petitioner had failed to prove any of the specifications, dismissed all charges and expunged respondent's records. The board-appointed panel member dissented, finding that the charges had been proven and concluding that the appropriate penalty was termination of respondent's services. This appeal ensued.

The only witnesses to what actually occurred between respondent and the individual students were the students and respondent. Therefore, and absent any collateral or extrinsic evidence tending to prove or disprove the charges against respondent, proof of the charges depends upon an assessment by the panel members of the credibility of the witnesses. In this case, the panel majority found petitioner's witnesses' testimony incredible and not worthy of belief, and on that basis found that petitioner had failed to prove, by a preponderance of evidence, the charges against respondent.

The first charge alleged that respondent acted in a manner likely to be injurious to the physical, mental and moral welfare of a student, by subjecting her to sexual contact and by photographing her in suggestive poses. After discussion of all the testimony of all the students and respondent Olivares as well as that of other witnesses who testified to matters related to the incident, the panel majority found the student's testimony not credible, and rejected it. The panel also determined that the specification limited the period during which respondent's actions could be considered by the panel in substantiation of the charges. Since the student's testimony related in part to an alleged incident which took place some time subsequent to the last day contained in the specifications, the panel rejected the student's testimony with respect to an alleged fourth encounter in determining the charges against respondent. The panel, therefore, concluded that petitioner failed to prove by a preponderance of the evidence that respondent subjected the student to any sexual contact.

With respect to that portion of the first specification of the charges relating to endangering the student's welfare by photographing her in suggestive poses, the panel first noted that none of the photographs allegedly taken by respondent were offered in evidence or produced at the hearing. The panel, therefore, considered testimony by other witnesses as to photographs they allegedly saw, as well as testimony by the student as to the type of photographs taken by respondent. The panel found some internal inconsistencies in the testimony provided by the student, and it accepted the testimony of respondent, as confirmed by other witnesses, as to the nature of the photographs which were taken. The panel concluded that, as respondent Olivares testified, the photographs showed the student in typical modeling poses. The panel noted that one of petitioner's witnesses could not characterize the photographs which he saw as suggestive, although he described them as "inappropriate." The panel, therefore, concluded that petitioner had failed to establish by a preponderance of the evidence that respondent photographed the student in suggestive poses and dismissed the first specification.

The second specification alleged that respondent physically embraced the second student, and that this constituted activity likely to be injurious to the student's physical, mental and moral welfare. Based upon the testimony, the panel concluded that some form of physical contact occurred. Respondent testified that he was assisting the student in understanding or working with some mathematical concept, that he perceived that the student was nervous or upset, and did give her an embrace. He testified that while in that embrace certain portions of his body came in contact with that student, but that he did not have any salacious intent in doing so. The panel considered the student's testimony, and, after evaluation, decided that the testimony was not credible. The panel concluded that there was no evidence of any salacious intent on the respondent's part. The panel noted that although respondent's actions may have been misconstrued by the student, this did not constitute a basis for finding respondent guilty. The panel, therefore, concluded that petitioner failed to prove the allegations set forth in those specifications relating to the second student, and determined that that charge must also be dismissed.

The dissenting panel member found the testimony of both students credible and, on that basis, found the charges proven, and recommended termination of respondent's employment.

Petitioner contends that the panel's findings of fact are contrary to the weight of the evidence. Petitioner also contends that the panel chair abused his discretion in permitting extrinsic evidence concerning collateral acts on the part of the student witnesses to be introduced on the issue of credibility, while not permitting petitioner to introduce evidence of collateral acts of respondent. Petitioner argues that the majority of the panel improperly impeached the student's testimony based upon the evidence of collateral acts. Petitioner further contends that the panel chair abused his discretion in permitting extensive cross-examination of several prosecution witnesses, and lastly argues that the panel improperly relied on petitioner's failure to introduce any photographs as a basis for concluding that petitioner had not proved its case against respondent.

Respondent's answer essentially controverts all of petitioner's allegations. Respondent contends that there was no abuse of discretion by the panel chair in ruling on the introduction of evidence, that the panel properly determined that petitioner's primary witnesses lacked credibility, and that that determination was a proper basis for concluding that petitioner failed to demonstrate by a preponderance of the evidence that respondent was guilty of the charges.

The burden of proof under '3020-a of the Education Law rests on the complainant, which in this case is the board of education. Charges and specifications can be found to be proven only where the complainant can produce a "preponderance" of the evidence in support of a charge. In all such cases, of course, the evidence must be credible evidence (Appeal of the Board of Education of the Greater Johnstown City School District, 30 Ed Dept Rep 89). Where the credibility of witnesses is the primary basis of the hearing panel decision, I will not substitute my judgment for that of the panel unless there is clear and convincing evidence that the panel determination of credibility is inconsistent with the facts (Matter of LePore, 28 id. 425, 429). I have carefully reviewed the record in this proceeding and I have considered petitioner's arguments. I find no evidence in the record that the decision of the panel is inconsistent with the facts, and I, therefore, find no basis to set aside its decision.

Petitioner's arguments are focused primarily upon rulings made by the chair of the hearing panel concerning the admission of witness testimony. Petitioner's argument that the panel chair abused his discretion in permitting respondent to introduce evidence of collateral issues in respondent's attack on the credibility of witnesses against him is without merit. Petitioner's argument is premised on the rules of evidence applicable in civil proceedings in this State. However, Education Law '3020-a(3)(c) provides that disciplinary hearings against tenured teachers shall not require "compliance with technical rules of evidence" (Soucy v. Board of Education of North Colonie Central School District, 51 AD2d 628). In Jerry v. Board of Education of City School District of City of Syracuse, 50 AD2d 149, the court held that a teacher disciplinary hearing was not required to employ the technical rules of evidence, that its aim was to assemble all relevant, material and reliable evidence which would contribute to an informed result, and evidence technically inadmissible, irrelevant, or even in some degree prejudicial would not require reversal unless its admission violated fundamentals of a fair hearing. While it is true that the panel chair did admit evidence of issues collateral to the charges on cross-examination of petitioner's student witnesses, I do not find that this violated the fundamentals of a fair hearing. The testimony concerned whether or not one of petitioner's witnesses answered truthfully when asked whether she had ever cut classes. The technical rule of evidence which would disallow the introduction of such evidence in a civil proceeding is intended to avoid extended forays into tangential matters to the detriment of the determination of the primary issues before the court. In this case, I find that the collateral issues did not unduly burden the factfinders in their determination of the issues before them. Since the technical rules of evidence are not applicable, I find no basis for sustaining petitioner's argument. The panel's determination that the testimony of the first student witness lacked credibility was based upon its finding that the witness could not accurately remember details of the four incidents in which she was allegedly involved with respondent, that she was confused as to the date, whether or not she had a pass to go to certain rooms, and whether or not she had asked if another student could go with her on one of the occasions. Her testimony did not coincide with testimony she had given in the previous criminal trial which had occurred approximately one year before the hearing. In addition, when the witness was asked whether she had previously had any ill feelings against respondent she responded negatively. This testimony directly conflicted with her testimony in the previous criminal proceeding in which she stated she wanted to "get" respondent before he had allegedly done anything to her because she did not like what he purportedly had done to her fellow students and friends. Furthermore, her testimony that when she graded papers for respondent there were no other students in the room with her at any time, conflicts directly with testimony of another student that she had been with the complaining witness when the witness graded papers for respondent. I, therefore, find that there is no evidence in the record before me that the panel majority improperly determined not to credit the testimony of complainant's first student witness.

I reach the same conclusion with respect to the second complaining witness who testified for petitioner. In her testimony she stated that the first complaining witness had told her about respondent's alleged conduct with the first student. In her direct testimony the first complaining student witness stated that she had not told the second student about the incident which had allegedly occurred between her and respondent. The panel found that there were many other consistencies between the testimony of the second complaining student witness and that of respondent, particularly concerning what occurred when respondent had embraced the student in a classroom while they were discussing the student's difficulty with a certain mathematics problem. However, several aspects of the second complaining student witness' testimony were found to be not worthy of belief, and the panel, therefore, discredited her testimony concerning her perception of respondent's intent when he embraced her. The panel found that the student had embellished her testimony about the incident and had fabricated other portions of her testimony. The panel determined that petitioner had failed to prove by a preponderance of the evidence that respondent subjected the second student to sexual contact, and also failed to prove by the same measure that respondent acted in a manner likely to be injurious to the student's physical, mental and moral welfare. The panel stated that its determination in this respect was not to be construed as a finding that respondent's conduct with the student was appropriate. However, the panel found that the appropriateness of that conduct was not an issue which was before it for decision.

One additional argument raised by petitioner requires comment. Petitioner argues that the hearing officer erred in not permitting further questioning of respondent and another prosecution witness concerning the existence of other acts of respondent to show notice, intent, plan or design (People vs. Molineux, 168 NY 264). I find that while the courts have permitted evidence of that nature to be introduced, they have not done so where the other incidents sought to be testified to were separate and independent transactions, and where the actions were not in pursuit of any preconceived plan or design. Unless there is such a relation of time, place or circumstance that the bare evidence as to one of the acts in and of itself tends to prove the occurrence of the other act, such evidence has not been permitted (People vs. Grutz, 212 NY 72, 79; People vs. Spillman, 309 NY 295). Having reviewed the offer of proof made by petitioner and compared it with the nature of the charges against respondent, I do not find that testimony as to the alleged existence of these other actions by respondent would have satisfied the standard. Furthermore, and as noted by respondent, a great deal of the testimony objected to did eventually come into the record at a different time.

In conclusion, I find no basis in the record to substitute my judgment for that of the panel.

THE APPEAL IS DISMISSED.

END OF FILE