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Decision No. 12,864

Appeal of COMMUNITY SCHOOL DISTRICT NO. 2, from a determination rendered by a hearing panel, pursuant to '3020-a of the Education Law, concerning charges preferred against Mary McAuliffe, a tenured teacher.

Decision No. 12,864

(December 28, 1992)

Hon. O. Peter Sherwood, Corporation Counsel, attorney for petitioner, Lawrence E. Becker and Claudia V. Grinberg, Esqs., of counsel

James R. Sandner, Esq., attorney for respondent, James J. Brady, Esq., of counsel

SOBOL, Commissioner.--Petitioner, Community School District No. 2, appeals from a decision of a hearing panel convened pursuant to Education Law '3020-a which dismissed portions of the charges against respondent and imposed a letter of reprimand for those charges for which respondent was found guilty. Respondent cross-appeals from the panel's determinations of guilt and from its ruling that Specification I(A) was not time barred. The appeal must be dismissed. The cross-appeal is sustained in part.

On December 6, 1988, petitioner found probable cause to bring charges against respondent consisting of two specifications. The first specification contains four subspecifications (A-D). The charges allege incompetent and inefficient service, a violation of the Board of Education's bylaws related to corporal punishment and conduct unbecoming a teacher. A panel was convened and hearings were held between June 23, 1989 and September 24, 1990. The panel issued an undated decision which was received by petitioner on June 7, 1991. The panel found respondent guilty of Specification I(B) and II(A); guilty in part of Specification I(A) and I(C); and not guilty of Specification I(D). The panel recommended a letter of reprimand. Both parties appealed.

Petitioner contends that the hearing panel made errors of laws and fact in its decision. Petitioner requests that I substitute my judgment for that of the hearing panel and find respondent guilty of Specification I(D) and the portion of Specification I(A) that was dismissed, and increase the penalty to a one-year suspension without pay.

Respondent has raised one procedural issue which I will address first. Respondent contends that the entire Specification I(A) was time barred under Education Law '2590(j)(7). Respondent maintains that the acts referred to in this specification occurred on or about June 13, 1988, but the charges were not served on respondent until January 3, 1989. Respondent asserts that since Education Law '2590(j)(7)(c) provides that no charges shall be brought against a teacher more than six months after the occurrence of alleged misconduct or incompetency except where the charges of misconduct would constitute a crime, the panel should have dismissed Specification I(A) as time barred. Further, respondent contends that the panel erroneously found that the word "brought" means when the charges are filed with the clerk or secretary to the board.

In response to respondent's affirmative defense, petitioner asserts that Specification I(A) is not time barred because the six-month statute of limitations runs from the date on which the charges are voted and not from the date of service of the charges on the employee. In this case, petitioner mailed the packet containing the charges on December 9, 1988 by certified mail, return receipt requested, by regular mail and through the district office mail. The packets were mailed to the wrong home address, and the green receipt card was never returned to the district office. On January 3, 1989, the charges were personally delivered to respondent at school. Petitioner further asserts that respondent waived her claim of timeliness because she did not raise this claim until one year and four months after being served.

In Board of Education, Community School District No. 32, 21 Ed Dept Rep 204, Maida v. Ambach, et al.; Supreme Court, Albany County, Special Term; Hughes, J.; judgment granted dismissing petition to review; aff'd 97 AD2d 572, the Commissioner construed "brought" to mean service of the charges upon a teacher. In Maida, the Commissioner found that while certain of the charges were time barred, the respondent teacher had waived his right to raise this claim. In that appeal, the teacher filled out, signed and returned to the board the request for a hearing form and a form identifying his hearing panel choice. This material was received by the teacher within the six-month limitations period. Subsequently, prior to the hearing, the teacher's counsel made a motion to dismiss the charges based upon lack of jurisdiction because of the failure of the board of education to include a copy of the charges with the other information and materials that were previously mailed to the teacher. Between the time of the teacher's return of the forms and the making of the motion, the teacher had requested and received a copy of the charges. The Commissioner found that the teacher's signing of the hearing form, acknowledging receipt of the charges, as well as his selection of a panel member to represent him at the hearing, estopped him from contesting timeliness. Thus, a teacher may not indicate receipt of disciplinary charges, allow the limitations period to run, and then claim that he or she never, in fact, received a copy of the charges.

In this case, respondent does not dispute that she received a copy of the charges on January 3, 1989. Upon receipt of the charges, respondent made a timely request for a hearing and also moved, through her attorney, for dismissal of Specification I(A) at the conclusion of petitioner's direct case. Unlike the Maida appeal, it was the board which discovered in December that the return receipt had not been returned by respondent and that the materials had been misaddressed. Upon making this discovery, petitioner arranged to have the charges personally served on respondent at the earliest opportunity following the winter break. Respondent did not by her actions induce petitioner to believe that the charges had been received by her in December, when they were first mailed. Under these circumstances, I cannot find a waiver of respondent's timeliness claim. A waiver does not arise merely because respondent requested and appeared at the hearing (see Appeal of Cuoco, 31 Ed Dept Rep 95). I, therefore, direct that the portion of the hearing panel's decision which found respondent guilty of a portion of Specification I(A) be vacated and dismissed as time barred.

I will now discuss the merits of the remaining charges. Both parties have requested that I substitute my judgment for that of the hearing panel with respect to its findings of fact. However, I have repeatedly held that where the panel determination rests in a large part on determinations 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 LePore, 28 Ed Dept Rep 425; Matter of Community School Board No. 18, 21 id. 216), or unless the panel's decision is contrary to the weight of the evidence and the hearing panel has not adequately explained its rejection of otherwise convincing testimony (Matter of Shurgin v. Ambach, 56 NY2d 700, 451 NYS2d 722; Matter of McNamara v. Commissioner, 80 AD2d 660, 436 NYS2d 406; Matter of NYC Bd. of Ed., 26 Ed Dept Rep 544).

With respect to Specification I(B), petitioner alleges that respondent committed an act of corporal punishment by pushing a student's forehead with her hand. The panel found respondent guilty of unprofessional behavior by intentionally touching the child's forehead, but that the act did not constitute corporal punishment. The panel adequately discussed the credibility of the student witnesses and compared their version of events with respondent's testimony. Respondent has not provided clear and convincing evidence that the panel erred in its judgment of the credibility of the witnesses. Accordingly, I find no basis to substitute my judgment for the hearing panel's determination.

The panel also found respondent guilty of Specification I(C) in that she engaged in unprofessional conduct by telling the class that if they didn't "shut up", she would rip up their test papers. The panel dismissed that portion of this specification which alleged that respondent made other hostile comments to the class. The panel found credible the testimony of four students to support a finding that respondent made the alleged statement. Further, the panel found that respondent's testimony that she used French to tell the class to "close their mouths" and that she suggested to them that their papers would be "confiscated" was consistent with the substance of the students' testimony. While the students did not all testify using the exacts words in the charge, I find that respondent has not demonstrated that the panel erred in its findings or analysis. I, therefore, find no basis to substitute my judgment for the panel's determination.

The panel found respondent not guilty of Specification I(D) which alleged that respondent yelled at a first grade student, telling him to "shut up", "stand up" and "put his arm out", and then caused him to hit his shoulder against the wall in the lunchroom. Petitioner asserts that the panel erroneously failed to credit the testimony of the student who testified that respondent took his right arm, walked him around to the lunchroom wall, and swung him around, causing his shoulder to hit the wall. Petitioner further maintains that the panel erroneously dismissed the charge because there was no corroborating testimony from other children or adults in the lunchroom. The parties are essentially arguing about the credibility of the student, a first grader, and that of the student's mother, who testified that the child told her about the incident the evening that it happened. In this instance, however, there is not clear and convincing evidence that the determinations of the hearing panel as to the credibility of the student and his mother were inconsistent with the facts. Accordingly, I decline to substitute my judgment for that of the panel.

The panel found respondent guilty of Specification II(A) (unprofessional conduct) because she looked at D.M.'s empty seat and told the class "no wonder it is so quiet today, he is not here." The panel found that respondent put her hands together as if praying, looked up at the ceiling and said "Thank God". Again, with respect to this charge, the panel carefully analyzed the testimony of the students who described the events and remarks in the classroom on the day in question and compared their testimony to that of respondent. Taken as a whole, the panel considered the students' version of what was said to be more credible than respondent's report of those events. Respondent has not provided clear and convincing evidence that the panel's findings were contrary to the facts. I, therefore, find no basis to substitute my judgment for that of the hearing panel.

Petitioner asserts that a letter of reprimand is inadequate and disproportionately lenient because respondent was on written and oral notice by two different principals in two different school years that she had acted inappropriately with students and was explicitly warned prior to the instant offenses. Petitioner, therefore, asserts that a stiffer penalty is needed to defer such future conduct. Respondent contends that the charges, even if true, are deminimis and, therefore, a letter of reprimand is excessive and should be vacated in light of respondent's record as a teacher for 40 years. In making its recommendation, the panel concluded that none of the charges of which respondent had been found guilty were of a serious nature. However, the panel indicated that the incidents showed that respondent did not exercise good judgment either in what she said, how she said it or in what she did. The panel gave consideration to the fact that respondent had not been previously charged under '3020-a during her more than 40 years of service in the district. Given all of the circumstances, I find that the penalty imposed was not disproportionately lenient.

THE APPEAL IS DISMISSED.

THE CROSS-APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the determination of the hearing panel with respect to Specification I(A) be hereby annulled and dismissed in its entirety.

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