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Decision No. 12,993

Appeal of the MALONE CENTRAL SCHOOL DISTRICT from a determination rendered by a hearing panel pursuant to Education Law '3020-a concerning charges against Maureen Dumont, a tenured teacher.

Decision No. 12,993

(August 30, 1993)

Scolaro, Shulman, Cohen, Lawler & Burstein, P.C., attorneys for petitioner, Henry F. Sobota, Esq., of counsel, on the appeal only

Bernard F. Ashe, Esq., attorney for respondent, Ira Paul Rubtchinsky, Esq., of counsel

Mr. and Mrs. Black, amicuscuriae, Poissant & Nichols, P.C., attorneys for amicus, Thomas A. Grue, Esq., of counsel

SOBOL, Commissioner.--Petitioner, the Malone Central School District, appeals from the decision of a hearing panel convened pursuant to Education Law '3020-a which unanimously found respondent, Maureen Dumont, guilty of two charges brought against her and dismissed six other charges. Petitioner seeks an order finding respondent guilty of five of the six dismissed charges and authorizing petitioner to dismiss respondent. The parents of the student named in the charges against respondent submit an amicuscuriae brief on behalf of petitioner. The appeal must be sustained in part.

On or about November 27, 1990, the district's board of education found probable cause to prefer eight charges against respondent, a tenured English teacher at the district's middle school. The basis for all of the charges was the allegation that respondent had an improper relationship with a student. The charges were:

1. Sexual contact with a student, to wit "Jack Black."

2. Misconduct in taking advantage of the teacher-student relationship to advance a personal, sexual relationship with a student.

3. Misconduct in engaging in conduct with a student that is unbecoming a teacher and detrimental to the reputation of the School District and its operations.

4. Lack of integrity in representing to the Superintendent of the school and the parents of Jack Black that she would discontinue any contact with the child when, in fact, she continued to have a relationship with the child that continues to the present time.

5. Disobedience of the directive of the Superintendent of Schools not to have any contact with Jack Black in the future.

6. Moral terpitude [sic] in engaging in conduct that is distructive [sic] of the character and mental well-being of a child in the School District.

7. Lack of judgment and character required of a school teacher.

8. Endangerment of the well-being of the child.

A hearing was held over eleven days between May 1, 1991 and July 9, 1992. On or about October 2, 1992, the panel unanimously found respondent guilty of charge 3, conduct unbecoming a teacher, and charge 7, lack of judgment, because she had engaged in a relationship with the student over the objections of his parents. The panel dismissed the six remaining charges. The panel majority recommended that respondent be suspended without pay for the balance of the 1992-93 school year. The dissenting panel member recommended that respondent be suspended only to the end of January of the 1992-93 school year.

Initially, petitioner challenged the panel's dismissal of charges 1, 2, 4, 5, 6 and 8, but in its memorandum of law, petitioner withdrew its challenge to the panel's dismissal of charge 5, insubordination. Petitioner contends that: the panel chairman erred in refusing to admit into evidence side F of a certain tape recording and a transcript thereof; the panel erred in drawing an adverse inference against the district because the student did not testify; the panel erred in imposing an improperly high burden of proof upon the district and the panel erroneously rejected the convincing testimony of one of the student's friends. Petitioner also argues that the penalty imposed by the panel, suspension without pay until the end of the 1992-93 school year, is excessively lenient and urges that I authorize respondent's dismissal. In addition, petitioner maintains that the panel properly admitted tape recordings of phone conversations between the student and respondent. Lastly, petitioner requests that I schedule a settlement conference to settle the record on appeal.

Respondent contends that the panel's decision was proper and should not be set aside. Respondent requests that I deny petitioner's application to settle the record and maintains that side F of a certain tape recording and a transcript thereof were properly excluded from evidence. Respondent further requests that I rule that all of the tape recordings submitted by petitioner, including those in evidence, were inadmissible as being obtained in violation of law. Lastly, respondent urges that I substitute the word "Anonymous" for the name of respondent and prevent public dissemination of her name and potentially injurious information in the record and pleadings.

Prior to addressing the merits of this appeal, I will address several preliminary matters raised by the parties.

Respondent requests that I substitute the word "Anonymous" for her name in the caption and take additional steps to prevent public dissemination of her name and potentially injurious information in the record and pleadings before the Commissioner, including tape recordings. There is no requirement in the law that confidentiality be maintained in an appeal from the determination of a '3020-a hearing panel (Appeal of Anonymous, 30 Ed Dept Rep 321). In this case, there has been a final adjudication of the charges brought against respondent. The large amount of publicity following the hearing does not require that I substitute the word "Anonymous" in the caption or that I take any additional steps to prevent public dissemination of respondent's name. I also deny respondent's request to prevent public dissemination of the record and pleadings to the extent such information is subject to disclosure under the Freedom of Information Law.

Petitioner requests that I schedule a settlement conference to settle the record on this appeal. There is no authority in the Education Law or the regulations which enables me to "settle the record." Therefore, petitioner's request to settle the record is denied.

In their amicus brief, the parents of the student have alleged bias on the part of the panel. Because neither petitioner nor respondent have raised the issue of bias in their pleadings or briefs, that issue is not properly before me. Moreover, the amicus brief merely contains unsworn conclusory allegations of bias. Amicus have not submitted any proof of bias in affidavits or other credible form. Based on the allegations in the amicus brief, I am unable to conclude that there is any basis to set aside the panel's decision on this ground.

I turn now to the merits of this appeal. On review of the determination of a hearing panel rendered pursuant to Education Law '3020-a, the Commissioner has the power to substitute his judgment for that of the hearing panel with regard to findings of fact and to make new findings (Matter of Shurgin v. Ambach, 83 AD2d 665, aff'd 56 NY2d 700; Matter of McNamara v. Commr., 80 AD2d 660). However, I will not ordinarily substitute my judgment for that of a hearing panel unless the panel 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 NYC Bd. of Ed., 24 Ed Dept Rep 284; Matter of Bd. of Ed., Sewanhaka CHSD, 23 id. 463). On the present record, I find no basis for substituting my judgment for that of the hearing panel on its finding of not guilty as to charges 1, 2, 4, and 6. However, I find that the panel erred in dismissing charge 8, endangerment of the well-being of the child.

Initially, I will address the parties' contentions regarding the admissibility of tape recorded phone conversations between the student and respondent. The record before me indicates that the student's father recorded a number of his son's phone conversations with respondent by means of a recording device he installed in his home. At the hearing, petitioner attempted to prove several of the charges with these tape recordings. Respondent objected to the tapes' admissibility and argued that the tapes were recorded in violation of the State and Federal "eavesdropping" statutes. Petitioner argued that respondent should have moved to suppress the tapes in Supreme Court pursuant to CPLR '4506 and her failure to do so resulted in a waiver of the right to object. Furthermore, petitioner argued that the father's recordings did not violate applicable law because the father, as his son's guardian, consented to the recordings. The panel chairman, after receiving briefs from the parties, denied respondent's motion to suppress.

In his decision, the panel chairman also ruled that the district had to establish a proper foundation to admit the tape recordings into evidence. On the basis of this decision, the panel chairman refused to admit side F of a certain tape recording and a transcript thereof.

On appeal, petitioner asks me to reverse the panel chairman's ruling denying the admissibility of side F and the transcript. Petitioner further asks me to consider the excluded evidence. Respondent argues that the panel chairman's ruling should be upheld. Respondent also asks me to reconsider whether any of the tapes should have been admitted into evidence.

Although compliance with the technical rules of evidence is not required in a '3020-a hearing, evidence must be relevant, material, reliable and contribute to an informed result (Matter of Jerry v. Bd. of Ed. of City School Dist. of City of Syracuse, 50 AD2d 149, 159). Furthermore, tape recordings of conversations may be received in evidence only if the tapes are shown to be authentic, audible, intelligible, unerased and unaltered (Appeal of Greenberg, 23 Ed Dept Rep 48).

At the hearing, the panel chairman refused to admit side F and a transcript thereof on the ground that the tape had been "dubbed or duped" and was not original. The testimony in the record indicates that side F was not an original tape but had been consolidated from other tapes. The original tapes which were consolidated were erased. There is insufficient testimony in the record to establish that side F is accurate and reliable. Accordingly, I refuse to reverse the panel chairman's ruling denying the admissibility of side F and the transcript thereof. For the purposes of this appeal, I will disregard all references to the excluded evidence in the petition, petitioner's memorandum of law and in the amicus brief.

Based on my review of the applicable law, I also decline to reverse the panel chairman's decision denying respondent's motion to suppress the tapes. CPLR '4506 provides that any evidence obtained by illegal eavesdropping is inadmissible in any hearing or proceeding before any department, officer, agency or other authority of the State. Under this section, an aggrieved party in a proceeding must make a motion before a justice of the Supreme Court in order to suppress the contents of an unlawfully recorded conversation. In this case, respondent never made a motion in Supreme Court, although the record indicates that respondent was aware of CPLR '4506 and had the opportunity to move. Therefore, I find that respondent waived her right to object to the tapes' admissibility on the ground that they were unlawfully recorded. Because I find that respondent waived her right to object, I need not reach the issue of whether a parent has the legal capacity to consent to the taping of a phone conversation between his or her minor child and a third party.

I will now address the specific charges against respondent. In connection with charges 1 and 2, petitioner argues that the testimony of the student's friend, certain writings by respondent and the tape recorded phone conversations between the student and respondent all establish that respondent engaged in sexual contact with the student and was involved in a personal, sexual relationship. To support the charge of sexual contact, petitioner relies heavily on the testimony of the student's friend who testified to two "kissing incidents". Respondent acknowledged that the first incident occurred but explained that the student impulsively kissed her. She denied that the second incident occurred. The panel did not credit the friend's testimony regarding the second kissing incident because the friend admitted lying on previous occasions and because he never mentioned the incident when questioned by respondent's investigator. I find that the panel adequately explained its reasons for rejecting the friend's testimony. In addition to admitting the first "kissing incident", respondent also admitted that on other occasions she hugged and kissed the student on the cheek and top of the head to comfort him. The panel credited respondent's testimony and found that she "acted in a motherly way and that there was nothing sexual about the contact involved."

With regard to the charge of "taking advantage of the teacher-student relationship to advance a personal, sexual relationship with a student", petitioner maintains that the tape recordings and writings by respondent prove that a sexual relationship existed. Petitioner urges me to recognize the teacher's use of sexual innuendo in her telephone conversations with the student. The panel acknowledged that the tapes contain language that makes no sense. However, the panel refused to "read meanings into" the conversations absent any testimony from the participants as to what they meant. The panel found that a considerable amount of the tapes were devoted to the trivia of small town life although there were repeated expressions of affection between the student and respondent. I have reviewed the transcripts of the tapes and, although I do not condone the conversations, I agree with the panel that the tapes do not establish sexual contact. The student's therapist noted in her file that the student denied any physical relationship. Moreover, respondent steadfastly denied any "sexual relationship". Accordingly, I conclude that the panel's determination of not guilty in connection with charges 1 and 2 is supported by the record.

In connection with charge 4, petitioner contends that respondent exhibited "lack of integrity" in representing to the superintendent and the student's parents that she would discontinue any contact with the student when, in fact, she continued to have a relationship with him. The record shows that respondent met with the superintendent in October 1989 and in early January 1990. On neither occasion did respondent say that she would discontinue all contact with the student. The record also shows that respondent told the student's parents that she would "step back" and respect their parental rights. The panel found, and the record shows, that the respondent continued to have contact with the student. However, the panel found that this continued contact did not show a "lack of integrity" since respondent was motivated by a desire to help a student she liked and who was very troubled. In fact, the record indicates that the student attempted suicide at one point after respondent told him that they could not see each other. The panel found that respondent continued the contact out of concern for the student's well being and safety. Based upon the record and the ambiguity of charge 4, I find that there is no basis for reversing the panel's judgment as to the credibility of witnesses. I also find that the panel considered the fact that respondent continued the relationship over the parents' objections in finding respondent guilty of charge 3, conduct unbecoming a teacher. I must, therefore, decline to reverse the panel's finding of not guilty in connection with charge 4.

Regarding charge 6, "moral turpitude" in engaging in conduct that is destructive to the mental well-being of the child, petitioner maintains that respondent's relationship with the student actually harmed his mental or emotional well-being. The panel found, among other things, that there was no evidence that respondent harmed the student in any way. The testimony of the student's therapist is inconclusive on the issue of harm. The therapist testified that she thought the student's continued contact with respondent hurt him in the sense that it increased tensions within his home. However, she also testified that she was not aware of respondent doing anything to harm the student or to hurt his feelings in any way. The record further indicates that the student had a poor relationship with his parents. The panel found that the student felt respondent was his "best friend", someone he could talk to about his problems, and if anything she was a "life line" for him. In addition, the student did not testify at the hearing that he suffered any harm. Accordingly, the panel's decision is not contrary to the weight of the evidence and I am constrained from reversing the finding of not guilty on charge 6.

I do not conclude, however, as did the hearing panel, that the lack of proof of actual harm precludes a finding of guilty on charge 8, endangerment of the child's well-being. The word "endanger" means to bring into danger, or imperil (Webster's Third New International Dictionary of the English Language, Unabridged [1981]). It does not, by definition, require actual harm. In fact, the crime of endangering the welfare of a child does not require that the mental or moral welfare of the child be proven to actually be impaired (Penal Law '260.10; People v. Doe, 137 Misc 2d 582; People v. Benu, 87 Misc 2d 139; People, on Complaint of Barber v. Caminiti, 28 NYS2d 133). Furthermore, there need be no specific intent to injure or impair the child's morals; it is enough if the acts were done by the accused knowingly, of his own free will, not by mere accident or inadvertence, and were of a character likely to impair the child's morals (Caminiti, supra).

A review of the record reveals several notes from respondent to the student. One of these notes reads, "Dear sweet Jack, You know what those beautiful brown eyes do to me! They make me want to hug you! It isn't easy sitting here across the room. I just can't help loving you and I am not supposed to! Lots of love, Mrs. Dumont." In another letter to the student, respondent begins with "My dearest Jack" and ends with "Much love, Maureen." In addition, the taped phone conversations contain repeated expressions of love by respondent. Respondent testified that she frequently used the word "love" and that she wrote the notes to make Jack feel happy about himself.

Notwithstanding respondent's stated intentions, I find that the content of the notes and taped conversations are clearly inappropriate and, in and of themselves, endangered the well-being of the student. In addition, the record reveals that respondent clearly understood that the student's parents objected to the relationship. Her continuation of the relationship, contrary to the parents' wishes, also endangered the student's relationship with his family. Accordingly, I find the panel's dismissal of charge 8 to be contrary to the weight of the evidence.

In this appeal, petitioner also argues that the panel erred in imposing an improperly high burden of proof on the district. In this regard, petitioner cites a statement by the panel that "[t]he facts ... [c]onsidered in their totality, ... should compel a finding against innocence." However, the panel also stated that guilt may only be found where there is a preponderance of credible evidence to support the charge (citing, Martin v. Ambach, et al., 67 NY2d 975). There is no evidence that the panel failed to apply the "preponderance of the evidence" standard. Accordingly, I find no basis for setting aside the panel's decision on this ground.

Lastly, petitioner argues that the panel erred in drawing an adverse inference against the district because it did not call the student to testify. Despite the panel's comment on the student's failure to testify, I refuse to reverse the panel's decision on this ground. In civil proceedings, the failure to testify does not permit the trier of fact to speculate about what an individual's testimony might have been nor does it require an adverse inference (Matter of Commr. of Social Services v. Philip De G., 59 NY2d 137). It does, however, allow the trier of fact to draw the strongest inference against an individual that the opposing evidence in the record permits (Id.). This rule has been applied to teachers who have failed to testify in '3020-a proceedings (Matter of Carangelo v. Ambach, 130 AD2d 898; Appeal of Barnwell, 30 Ed Dept Rep 247).

The burden of proof in a '3020-a proceeding is on the complainant, which in this case is the petitioner (Appeal of the Bd. of Ed. of City School Dist. of City of New York, 31 Ed Dept Rep 297; Appeal of the Bd. of Ed. of the Greater Johnstown City School District, 30 id. 89). The weight of the evidence shows that petitioner failed to meet its burden on several of the charges, which may be due in part to its failure to call the student to testify. The panel found the respondent's testimony to be credible. Therefore, I find that the panel's comment about the student's failure to testify did not affect the outcome since the panel's decision was based on the weight of the evidence before it, independent of the fact that the student did not testify.

Turning to the question of penalty, it is well settled that I may substitute my judgment for that of the hearing panel as to the nature of the penalty (Matter of Shurgin v. Ambach, supra; Matter of McNamara v. Commr., supra). This requires an assessment of the measure of discipline and whether it is proportionate to the offense (Matter of Mockler v. Ambach, 79 AD2d 745; Matter of Kloepfer v. Commr., et al., 82 AD2d 665, aff'd 56 NY2d 700; Matter of Shurgin v. Ambach, supra). Upon careful review of the record, I find that the measure of discipline imposed by the hearing panel is disproportionately lenient considering the grievous nature of the charges.

The record shows a gross lack of judgment in respondent's handling of a difficult situation. I find the extent of respondent's involvement in the student's life to be impermissible regardless of respondent's stated intentions. In particular, I find respondent's notes and repeated expressions of affection to an impressionable and troubled 14 year-old student to be clearly inappropriate.

Respondent's actions were well beyond the bounds of acceptable conduct for a teacher and role model. Accordingly, I find that the panel's suspension of respondent for approximately one year without pay does not adequately reflect the gravity of her behavior and that a suspension without pay for a total of two years should be authorized.

Finally, I must comment on the sloppy drafting of the charges against respondent. Petitioner is advised to make reasonable efforts in the future to follow more closely the charges enumerated in Education Law '3012(2).

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that such portion of the decision of the hearing panel as recommended the dismissal of charge 8 is annulled and that respondent be found guilty of charge 8; and

IT IS FURTHER ORDERED that such portion of the decision of the hearing panel which directed that respondent be suspended without pay for the balance of the 1992-93 school year (from the date its decision was filed with the State Education Department to June 30, 1993) and be reinstated at the start of the 1993-94 school year is annulled; and

IT IS FURTHER ORDERED that petitioner is authorized to suspend respondent without pay, for a total period of two years, which shall include any period of suspension already imposed.

END OF FILE