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Decision No. 12,854

Appeal of BOARD OF COOPERATIVE EDUCATIONAL SERVICES OF SOUTHERN WESTCHESTER from a determination of a hearing panel rendered pursuant to Education Law '3020-a concerning charges against Gerard J. Murphy, a tenured teacher.

Decision No. 12,854

(December 21, 1992)

Plunkett & Jaffe, P.C., attorneys for petitioner, Phyllis S. Jaffe, Esq., of counsel

James R. Sandner, Esq., attorney for respondent, John H. Jurgens, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals from the determination of a hearing panel convened pursuant to Education Law '3020-a, which found respondent guilty of certain charges of misconduct and not guilty of others, and recommended a one-year suspension without pay. The appeal must be dismissed.

Respondent is a teacher of culinary arts employed by petitioner Board of Cooperative Educational Services of Southern Westchester ("BOCES"). On May 28, 1991, respondent was asked to prepare a cake for a graduation party at the women's unit of the Westchester County Correctional Facility (the "facility"). The graduation ceremony, scheduled for May 29, 1991, marked the conclusion of a vocational training course which had been taught at the facility by a BOCES teacher ("Mr. Wheeler"). In accordance with the request, a cake was prepared on May 29, 1991, during one of respondent's classroom periods. The record indicates that approximately 10 to 12 students were present. It appears, however, that only one student ("R.F.") was assigned to prepare the graduation cake.

When the cake was done, respondent instructed R.F. to get a hacksaw blade from another BOCES classroom, to dull it and boil it in water. At the time, respondent was conferring with the school psychologist ("Dr. Levner") regarding a student's progress. Having joked with respondent earlier about objects one might insert in a cake headed for prison, Dr. Levner asked respondent if he was seriously considering putting a hacksaw blade into the cake. Respondent replied in the affirmative. Although Dr. Levner did not take respondent seriously, he commented, "even if you are not serious, it's not proper to involve a student." Respondent's teaching assistant, Ms. Rei, also advised respondent not to involve R.F. and not to put the blade in the cake.

When the blade was boiled, respondent instructed R.F. to wrap it in plastic and put it in the cake. R.F. asked respondent if he was serious, and respondent replied, "yes, but we'll do this as a joke." R.F. wrapped the blade in plastic, but refused to put it in the cake. Upon R.F.'s refusal, respondent admits that he placed the blade into the cake, leaving approximately two to three inches sticking out, and placed the cake in the refrigerator.

The record indicates that BOCES and the facility have an ongoing collaboration and that BOCES graduation ceremonies take place regularly at the facility. Respondent had been asked on several prior occasions to prepare cakes for these ceremonies. The record also indicates that BOCES' principal of adult and continuing education ("Mr. Dworetzky") was usually the one to pick up the cakes from respondent's classroom for delivery to the facility. On May 29, 1991, however, an emergency prevented Mr. Dworetzky from leaving his office. He therefore asked Mr. Wheeler, who had never met respondent, to pick up the cake and bring it to the facility.

The graduation ceremony was scheduled for 1:00 p.m. Because of a bomb scare, however, Mr. Wheeler was unable to enter respondent's building until approximately 12:45 p.m. Pursuant to Dworetzky's instructions, moreover, Wheeler still needed to stop at a grocery store to purchase soda and snack chips before proceeding to the facility. Mr. Wheeler testified, therefore, that he was in a great hurry when he finally reached respondent's classroom. Respondent testified that Mr. Wheeler came into the classroom, introduced himself and said he was there "to pick up the cake for Harold Dworetzky." Respondent further testified that he then pulled the blade out of the cake and showed it to Wheeler, saying, "show this blade to Harold." According to respondent, he then placed the blade back in the cake, with approximately two to three inches showing, and handed the cake to Wheeler. Mr. Wheeler testified that, sometime during their exchange, respondent stated, "this will give somebody a new lease on life." Wheeler admitted, however, that his attention was not focused on respondent's words because he was in such a hurry. Apparently, Wheeler never realized that there was a blade in the cake.

Respondent and Dworetzky were personal friends who frequently exchanged jokes in the course of their friendship. Respondent testified that he assumed Mr. Wheeler would take the cake to Dworetzky, that Dworetzky would "see the blade and have a laugh about it," and that Wheeler and Dworetzky would go on to the facility together, as usual. He did not clarify this with Wheeler, however, and in fact Wheeler proceeded directly to the grocery store and the facility, without stopping to see Dworetzky. Wheeler, who was known to the correction officers, was permitted to carry the cake into the facility without being searched. Later, while cutting the cake, the warden of the women's unit discovered the blade. The warden confiscated the blade and a full investigation ensued, after which the facility agreed not to press criminal charges against respondent.

On June 12, 1991, BOCES found probable cause pursuant to Education Law '3020-a to file charges against respondent of immoral character ("Charge I"), conduct unbecoming a teacher ("Charge II") and incompetence ("Charge III"). Notice of the charges was served on respondent on June 14, 1991, and a hearing panel was convened. The hearing was held on five dates between September 25, 1991 and December 3, 1991. In March 1992, with one member dissenting, the panel found respondent guilty on all charges and specifications except for specifications 5 and 9 of Charges I and II and specifications 1-4 of Charge III. The panel recommended suspension without pay for one year. This appeal ensued.

Charges I and II contain eleven identical specifications. As indicated, the hearing panel found respondent guilty of all specifications under Charges I and II except for specifications 5 and 9. Specification 5 of Charges I and II states:

Mr. Murphy directed a student in his charge to knowingly and unlawfully conspire to introduce dangerous contraband into a detention facility, such act constituting a felony.

Specification 9 of Charges I and II states:

Mr. Murphy, knowingly and unlawfully, had dangerous contraband introduced into a detention facility, such act constituting a felony.

The panel majority stated:

The Panel believes that it is beyond the scope of its statutory authority to make any determination that certain conduct of Respondent would constitute a crime, absent a showing that Respondent had been actually convicted of a crime, which would establish a primafacie case on a charge of conduct unbecoming a teacher.

BOCES contends that the panel's finding on this point was erroneous. On the record before me, I cannot agree.

When disciplinary charges involve teachers tenured by a board of cooperative educational services, '3020-a hearing panels are authorized to determine whether the teacher's conduct constitutes insubordination, immoral character, conduct unbecoming a teacher, inefficiency, incompetency, physical or mental disability, neglect of duty or failure to maintain certification (Education Law '3014[2]). Notably, a '3020-a panel is not authorized to determine whether a teacher's conduct constitutes a crime. BOCES argues that specifications 5 and 9 did not ask the panel to find respondent guilty of a crime. Rather, BOCES suggests that specifications 5 and 9 were intended merely to show "that conduct engaged in by respondent, far from being the practical joke he claims it to be, was so egregious as to equate to a felony under New York Law." It is impossible to "equate" respondent's behavior with a felony, however, without determining whether respondent did, in fact, commit a crime. Decisions of the Commissioner of Education have held that proof of conviction of a felony raises a rebuttable presumption of misconduct under '3020-a (Appeal of Board of Educ. of Allegany Central School Dist., 27 Ed Dept Rep 35, 37). Conduct cannot be deemed "criminal," however, until so proven in an appropriate judicial forum. Without evidence of conviction, therefore, the '3020-a panel lacks authority to determine whether a teacher's conduct rises to the level of criminal behavior. Consequently, I find the panel was correct in dismissing specifications 5 and 9.

As indicated, the panel found respondent guilty of the remaining specifications under Charges I and II, which essentially set forth the facts of the hacksaw blade incident. The panel found that respondent's guilt on these specifications constituted conduct unbecoming a teacher (Charge II), but not immoral character (Charge I). On the record before me, I agree. Respondent's actions were inexcusably negligent and reflected extremely poor judgment. As such, they certainly constituted conduct unbecoming a teacher. I am satisfied, however, that respondent never intended the blade to reach the facility, nor did he intend to embarrass his employer. The testimony convinces me that, however poorly conceived, respondent saw the blade as a joke intended for his friend, Mr. Dworetzky, and that he fully expected Dworetzky to remove the blade before the cake reached the facility. Respondent's failure to foresee the scenario that, in fact, unfolded was grossly negligent. The panel was correct, however, in finding that respondent's actions did not constitute immoral character.

Charge III alleged incompetency. The four specifications under Charge III assert that respondent was incompetent because he taught his students to commit an unlawful act. Again, the panel found that it lacked authority to determine the criminal nature of respondent's behavior. The panel found that,

since Respondent can not [sic] be found to have engaged in a criminal act, it follows that Respondent cannot be found to have taught an unlawful act when that act is based on the same conduct which the Panel is not empowered to deem as criminal.

In light of my finding above, regarding the panel's authority to make criminal determinations, I will not disturb the panel's conclusion.

The panel found, in any event, that BOCES had not shown respondent to be incompetent. "In a classroom situation, incompetence in its simplest terms means that a teacher is unable to provide a valid educational experience for those students assigned to his classroom" (Appeal of Board of Educ. of City School Dist. of City of New York, 28 Ed Dept Rep 302, 305). As the panel observed, respondent's conduct was grossly irresponsible. There is no evidence in the record, however, that respondent is unable to provide a valid educational experience for his students. To the contrary, parent and student witnesses, as well as other BOCES employees, testified that respondent is a dedicated and effective teacher and a well-respected mentor for his students. Aside from this one incident involving poor judgment, respondent's eleven-year tenure at BOCES has been commendable. For these reasons, I decline to substitute my judgment for that of the panel.

Contending that suspension for one year is a disproportionately lenient penalty, BOCES seeks authority to terminate respondent's employment. The Commissioner of Education may substitute his judgment for that of a hearing panel regarding the penalty to be imposed against a tenured employee (Appeal of Board of Educ. of Allegany Central School Dist., 27 Ed Dept Rep 35, 37, supra). On the record before me, however, I decline to do so. As the panel found, this incident represents a single, isolated occurrence of poor judgment and negligence over respondent's eleven years of successful teaching. Respondent not only acknowledged his misconduct, he took full responsibility for his actions, demonstrating sincere remorse and regret. He appears to understand that his "practical joke" was a serious offense, and testified that he would never repeat such an act. Respondent's conduct can be neither condoned nor excused. However, I cannot conclude that he is unfit to teach (id.). It is apparent that respondent has learned from his mistake, and that he is not likely to repeat such conduct. I find, therefore, that the recommended penalty of suspension for one year without pay is appropriate.