Decision No. 13,044

(November 10, 1993)

Hon. O. Peter Sherwood, Corporation Counsel, attorney for respondent, Sergio J. Tuero,

Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals the determination of a hearing panel convened pursuant to Education Law '3020-a, which found her guilty of certain charges of misconduct and recommended her dismissal. The appeal must be dismissed.

Petitioner is a tenured teacher employed by respondent City School District of the City of New York (the "district"). In March 1990, following several incidents of alleged misconduct, respondent reassigned petitioner from a teaching position at Beach Channel High School ("Beach Channel") to clerical duty in the office of the Queens High School Superintendent. On June 22, 1990, respondent found probable cause to prefer charges against petitioner pursuant to Education Law '3020-a. Two specifications charged her with neglect of duty, insubordination, incompetence, conduct unbecoming a teacher and inefficient service. A panel convened, and a hearing was held on seven days between May 2, 1991 and February 28, 1992. In a unanimous decision dated July 20, 1992, the hearing panel found petitioner guilty of insubordination and recommended she be dismissed. Petitioner commenced this appeal on August 20, 1992.

Petitioner contends that her rights under Education Law '3020-a were compromised by alleged irregularities in the hearing process. She states,

Outside of this averment, petitioner supplies no evidence that the charges against her were "fraudulently" preferred or that respondent violated established legal procedure. The board of education unanimously found probable cause for the charges against petitioner at an executive session on June 20, 1990. The Education Law expressly requires the employing board of education to meet in executive session when determining the existence of probable cause for '3020-a charges (Education Law '3020-a[2]). Petitioner's argument regarding the private nature of respondent's meeting is, therefore, without merit.

Next, petitioner contends, "I was totally denied input in the selection of panelists as is required by the 3020a [sic] statute." She contests the appointments of all three members of the hearing panel. Petitioner's arguments cannot prevail. By statute, '3020-a hearings are held before a panel of three members (Education Law '3020-a[3][c]). The employee selects one panel member, the employing board of education selects one member and, generally, those two panel members select a third member, who serves as panel chair (Education Law '3020-a[3][c]; 8 NYCRR 82.7). In this case, petitioner was subject to a collective bargaining agreement which provided for an "expedited" selection process whereby, on a rotating basis, panel chairs were assigned automatically from a list of persons jointly agreed upon by respondent and the United Federation of Teachers. Pursuant to this provision ("Article 21-E"), Howard Edelman was appointed chair of petitioner's '3020-a panel. On August 2, 1990, petitioner's attorney advised respondent, "we have been unsuccessful in our efforts to secure a suitable panelist, and request that one be appointed." Pursuant to this request, the State Education Department's employer-employee relations unit appointed Allen Benezra to serve as the employee panel member (8 NYCRR 82.6). Respondent then selected George Hillman as the board of education panel member. By letter dated September 11, 1990, petitioner's attorney objected to Mr. Edelman's and Dr. Hillman's appointments and asked me to appoint all three members of the hearing panel.

Neither statute, regulation nor the applicable collective bargaining agreement vest petitioner or her attorney with the right to participate in selecting the panel chair or the employer panel member. Her arguments regarding the appointments of Mr. Edelman and Dr. Hillman are, therefore, unfounded. Regarding the appointment of Mr. Benezra, the attorney's letter of August 2, 1990 confirms that petitioner waived her right to select the employee panel member. Thus, the argument that petitioner was "totally denied input" in the selection of panelists is without merit.

Next, although the argument is inartfully presented, petitioner appears to contend she was prejudiced by lack of counsel at three of the seven hearing dates. I cannot agree. Petitioner was represented by attorney C. Vernon Mason. Mr. Mason's associate, Jean Bell, handled petitioner's case. Because she objected to the panel members and to the scheduling of hearing dates during the summer months, petitioner refused to attend the first day of the hearing. Consequently, although they were notified in advanced that the hearing would go forward in their absence, neither petitioner nor her attorney appeared on May 2, 1991. Thereafter, however, both petitioner and Ms. Bell appeared and participated fully in the hearing. On May 16, July 15, September 19 and September 23, 1991, Ms. Bell appeared on petitioner's behalf, registering objections to respondent's direct examination, cross-examining respondent's witnesses and presenting petitioner's direct case to the hearing panel.

Some time after the September 23 hearing date, Ms. Bell left Mr. Mason's law firm. Consequently, the panel chairman adjourned the next hearing date to December 12, 1991 so that another attorney in Mr. Mason's firm could become familiar with petitioner's case. Soon thereafter, however, petitioner fired Mr. Mason. The panel chairman denied petitioner's request to adjourn the December 12 hearing date, but agreed to reconsider the issue on the record when the hearing reconvened.

On December 12, 1991, petitioner appeared at the hearing, unrepresented by counsel. By that time, both sides had presented their direct cases and closing arguments were all that remained. Nonetheless, petitioner requested an adjournment of eight to ten weeks to find a new attorney. The panel chairman granted her request, adjourning the date for closing arguments to February 28, 1992. On February 28, petitioner again appeared without counsel and presented closing arguments on her own behalf.

Tenured employees are entitled to be represented by counsel in '3020-a proceedings (Education Law '3020-a[3][c]). Lack of counsel in an administrative proceeding, however, is not a basis, in and of itself, for reversal of the administrative decision (Appeal of Tranberg, 32 Ed Dept Rep 34, 36). Rather, where the right to counsel is created by statute, as it is in '3020-a proceedings, lack of counsel does not affect the validity of the hearing unless the petitioner demonstrates prejudice or unfairness in the proceeding (id.). Petitioner has not demonstrated any such prejudice. Her lack of representation on May 2, 1991 was the direct result of her own decision to forego the hearing. On the four hearing dates thereafter, Ms. Bell vigorously represented petitioner's interests. After dismissing her counsel, petitioner had months to retain a new attorney, but failed to do so. I note, as well, that she represented herself quite competently on December 12, 1991 and February 28, 1992. In light of the foregoing, I cannot conclude that petitioner was prejudiced by lack of counsel.

Turning to the merits, there is ample evidence before me that petitioner's conduct between January 1989 and March 1990 was repeatedly insubordinate and unbecoming her position as a teacher. On January 9, 1989, petitioner's supervisor, Carl Field, directed her to meet with him in his office during the seventh period. Petitioner did not appear for the meeting. When Mr. Field later confronted her, petitioner stated she had come to the office, but Field was not there. Mr. Field, however, testified that he was in his office for the entire seventh period, that he never left for any reason and that, contrary to her claim, petitioner had not appeared. The panel found Field's testimony credible.

Four of the subspecifications involved petitioner's defiance of a school policy requiring teachers to keep their classroom doors closed during class time. Mr. Field had reminded petitioner of this policy several times, both verbally and in writing. Petitioner admits she was aware of the policy. Nonetheless, she continued to teach with her classroom doors open. On several occasions, Mr. Field closed petitioner's door while she was teaching, only to have petitioner immediately reopen the door.

Another school policy prohibited staff from posting items above the school's time clock without permission from Sal Sanjamino, an assistant principal. Although Mr. Sanjamino had reminded staff of this policy in October 1989, petitioner chose to violate the rule on February 1, 1990 by posting a copy of her rating evaluation. When Sanjamino approached petitioner to discuss the issue, she screamed loudly that he was a bigot, a racist and "the most undignified person that ever walked the earth." Petitioner's explosive behavior took place in the attendance office, in the presence of four students, two teachers, two paraprofessionals and a union official.

The most disturbing incidents of misconduct were those in which petitioner involved students in her disputes with the administration. Following one of her encounters with Mr. Field, petitioner discontinued the lesson she had been teaching and, instead, instructed students to write letters about Field to the school principal. With petitioner's consent and encouragement, the letters were uniformly critical of Mr. Field.

On another occasion, when Mr. Field attempted to observe petitioner's class, petitioner stated that she did not wish to be observed and that she would not teach if Field remained in the classroom. When Mr. Field remained, petitioner gave the class a writing assignment and refused to teach. At the end of that class period, when Field asked for petitioner's lesson plans, petitioner addressed the students, instead. According to notes Mr. Field took at the time, petitioner said,

On yet another occasion, when Field asked petitioner for her lesson plans, she replied in the presence of students, "I don't want you coming into my class and disrupting it. Get out." When principal Hassan directed petitioner not to involve students in her disputes with the administration, petitioner replied, "I will, I will, I will."

On March 8, 1990, principal Hassan informed petitioner that she was being reassigned to clerical duty, effective the following day. The principal instructed petitioner to finish her classes for the day on March 8 and not to inform students of her pending reassignment. Later that day, however, Mr. Field entered petitioner's classroom and found her discussing the reassignment with her class. When Mr. Field reported this to the principal, Hassan decided that petitioner would not be permitted to teach her final class of the day.

On his way to inform petitioner of the principal's decision, Field encountered petitioner leading students through the hallway in the direction of the principal's office, instructing the students to tell Hassan that they did not want petitioner to be removed from the classroom. At that point, the period ended and the students dispersed. Defying the principal's order, however, petitioner returned to her classroom to teach the final class of the day. Shortly thereafter, Hassan came to petitioner's classroom with a substitute teacher and instructed the students to follow the substitute into another room. Petitioner immediately told the students to remain in their seats. About one-third of the students remained in the classroom with petitioner, who instructed them to write letters to the Chancellor complaining about the incident they had witnessed.

The next day, despite a written directive to do so, petitioner refused to report to the office of the Queens High School Superintendent. Instead, she appeared and demanded entrance into Beach Channel. When she was denied admittance, a large number of students began running through the school and shouting, causing property damage and seriously disrupting order. Later that morning, petitioner and approximately 17 students from Beach Channel appeared at 110 Livingston Street demanding to see the Chancellor about petitioner's reassignment. Principal Hassan had not authorized any of the students to be absent from school for this purpose.

On these facts, the panel found petitioner guilty of the following subspecifications which, in the panel's view, constituted insubordination: subspecifications I-B, I-C, I-F(1)(c), I-G(1), I-G(2), I-H, I-I, I-K, II-B(4), II-D, II-G, II-H and II-K. Petitioner does not allege that the panel's findings lack support in the record. Rather, she argues, "[t]he glowing commendations included in my file, prior to my appointment to Beach Channel High School erase any notions of my being `insubordinate' ...." Having reviewed the above subspecifications, however, I find the record supports petitioner's guilt on each, by a preponderance of the credible evidence (see, Matter of Martin v Ambach, 67 NY2d 975; Appeal of Cuoco, 31 Ed Dept Rep 95, 98).

I turn now to the issue of penalty. The hearing panel unanimously recommended that petitioner be terminated from her employment. I find that the panel's recommendation should be upheld. The record before me is replete with examples of petitioner's insubordination and unprofessional conduct. Despite numerous warnings from her supervisors, petitioner made no attempt to remediate her inappropriate behavior. Indeed, the severity of her conduct intensified over time. Involving students in her disputes with school officials, moreover, was inexcusable. As the panel stated,

To impose the penalty of dismissal, charges pursuant to Education Law '3020-a must be both substantial and substantiated (Appeal of Cuoco, 31 Ed Dept Rep 95, 98, supra; Appeal of Community School Dist. No. 21 of the Board of Educ. of the City School Dist. of the City of New York, 29 Ed Dept Rep 299, 301). On the record before me, I find that this standard has been satisfied.

THE APPEAL IS DISMISSED.

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