Decision No. 13,057

(November 30, 1993)

Louis N. Orfan, Esq., attorney for petitioner

Judge & Duffy, Esqs., attorneys for respondent, Monica A. Duffy, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals the determination of a hearing panel convened pursuant to Education Law '3020-a finding respondent guilty of conduct unbecoming a teacher and insubordination and recommending a $5,500 fine. Petitioner asks me to reverse the panel's determination on the issue of penalty and authorize respondent's dismissal. The appeal must be sustained in part.

Respondent has been employed as a music teacher by petitioner Locust Valley Central School District ("the district") since September 1974. She received tenure in 1977. By memoranda dated June 3, 1981 and June 28, 1982 respondent's building principal, Anne V. Young, directed respondent to comply with district policy regarding corporal punishment. In the memoranda, Dr. Young specifically ordered respondent to refrain from physical contact with students who did not conform to behavioral expectations. She instructed respondent to use only verbal directions, and to send noncompliant students to the principal's office. Both memoranda included copies of District Policy No. 5131.2, which was applicable at the time.

Despite the 1981 and 1982 warnings, petitioner was involved in an incident on May 17, 1989 ("the May 17 incident") wherein she allegedly struck students M. H. and G. F. on the head to quiet them during a music class. By memorandum dated June 9, 1989, the superintendent of schools reminded respondent of the 1981 and 1982 memoranda and, in light of the May 17 incident, stated,

On November 15, 1989 ("the November 15 incident"), respondent allegedly slapped the face of student Y. P. M. when he fell against the keys of respondent's classroom piano. Consequently, on February 13, 1990, the district invoked Education Law '3020-a, charging respondent with conduct unbecoming a teacher and insubordination for the May 17 and the November 15 incidents. A panel convened, and conducted a '3020-a hearing on 19 days between June 5, 1990 and January 28, 1992. In an undated decision received by the district on June 22, 1992, the panel found respondent guilty of conduct unbecoming a teacher and insubordination in connection with the November 15 incident and recommended a fine of $5,500. The panel refused to consider the May 17 incident, however, finding that the superintendent's June 9, 1989 memorandum had "resolved" that issue between the parties. The district commenced this appeal on July 16, 1992.

Respondent argues that the petition does not contain a clear and concise statement of the district's claim, as required by the Regulations of the Commissioner of Education (8 NYCRR 275.10). To be sure, the petition is not "concise." I find, however, that the petition does contain a statement which is "sufficiently clear to advise the respondent of the nature of petitioner's claim" (8 NYCRR 275.10; Matter of Board of Educ. of City School Dist. of the City of Poughkeepsie, 20 Ed Dept Rep 681, 682). Respondent's objection to the petition is, therefore, dismissed.

Petitioner argues that the panel erred in refusing to consider the May 17 incident. Respondent, on the other hand, contends that the superintendent's June 9, 1989 memo ("the superintendent's memo") constituted a formal disciplinary reprimand for the May 17 incident which precluded the district from imposing further discipline. Respondent argues, therefore, that the panel's determination was proper. I cannot agree.

Respondent relies on Holt v Board of Educ. of Webutuck Central School Dist. (52 NY2d 625). The issue in Holt was whether written criticism of a tenured teacher's performance can be placed in the teacher's permanent personnel file without affording the teacher a hearing pursuant to Education Law '3020-a. The Court of Appeals answered in the affirmative, provided the document is an administrative evaluation issued by a single administrator, the purpose of which is to instruct and not to punish (id., at 633). As the court observed, such an evaluation "is by no means as damaging as a formal reprimand issued by the board of education as the result of a determination of misconduct made by an impartial hearing panel" (id., at 633). Holt, therefore, confirms that written criticism of a teacher's performance does not always constitute "discipline" within the meaning of '3020-a.

Rejecting respondent's contention to the contrary, I find that the superintendent's memo did not constitute a disciplinary reprimand. The memo was an administrative evaluation issued by a single administrator, the clear purpose of which was to advise respondent of the district's expectations and to warn her that failure to comply with directives such as the 1981 and 1982 memoranda could result in disciplinary action. Although no formal disciplinary use can be made of administrative evaluations "unless and until a timely charge of misconduct is made and the procedural requirements of section 3020-a of the Education Law have been fulfilled" (Holt v Board of Educ., 52 NY2d 625, 634, supra), the May 17 incident was timely and properly pleaded in both charges against respondent (cf., Engel v Sobol, 161 AD2d 873). As an administrative evaluation, the superintendent's memo did not preclude the board of education from bringing those charges (see, e.g., Matter of Board of Educ. of City School Dist. of City of New York, 24 Ed Dept Rep 163, 166). The panel's refusal to consider the events of May 17, 1989, therefore, was error.

Petitioner appeals on the issue of penalty alone. Because the panel made no formal findings of fact regarding the May 17 incident, however, I cannot address the appropriateness of the penalty without determining, first, whether petitioner established respondent's guilt by a preponderance of the credible evidence (Matter of Martin v Ambach, 67 NY2d 975). My authority to make such a determination is set forth in Matter of Shurgin v Ambach (56 NY2d 700).

Although it made no formal findings regarding the May 17 incident, the panel decision states in a "discussion" section, "[t]he evidence shows that [respondent] did more than simply touch the heads of [G. F. and M. H.]." The record supports this statement. At the time of the incident, respondent's class was watching a videotape. When one student caused a disruption, the class began to laugh. Respondent, who was standing behind the students, simultaneously struck M. H. and G. F. on the backs of their heads with her open palms, to make them stop laughing. At the hearing, G. F. testified that the blow caused his head to rock forward and that, although it did not hurt, it came as a "shock." He described the blow as having been delivered with "middle" level force. M. H. testified similarly. Respondent admits she touched the students' heads, but testified that she did so only with the ends of her fingers, with "slight pressure."

Although the testimony of respondent and the students conflicts regarding the degree of force, it is undisputed that respondent physically touched M. H. and G. F. for a disciplinary reason, i.e., to make them stop laughing. Respondent testified, "I walked over behind them and not wanting to call out again, I wanted to draw their attention to the fact that everyone else had stopped and they were still at it." This action, regardless of the degree of force used, constituted a direct violation of the June 3, 1981 and June 11, 1982 memoranda, both of which instructed respondent "to use only verbal directions (with no physical touching) when dealing with youngsters who refuse to conform to normal behavioral expectations." Having reviewed the record before me, I find that petitioner properly established respondent's guilt of insubordination and conduct unbecoming a teacher regarding the May 17 incident, by a preponderance of the credible evidence.

Neither petitioner nor respondent disputes the panel's finding of guilt regarding the November 15 incident. Accordingly, I will not disturb the panel's findings on that issue.

I turn now to the matter of penalty. 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 Coop. Educ. Servs., 32 Ed Dept Rep 358, 363; Appeal of Board of Educ. of Allegany Central School Dist., 27 Ed Dept Rep 35, 37). Contending that the $5,500 fine is a disproportionately lenient penalty, petitioner seeks authority to terminate respondent's employment. Respondent's conduct can be neither condoned nor excused (see, Appeal of City School Dist. of City of Elmira, 30 Ed Dept Rep 68, 73). I find, however, that the facts of this case do not warrant dismissal. Instead, I find that suspension would be a more appropriate penalty. Consequently, I authorize petitioner to suspend respondent without pay for a period of six months.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the determination of the hearing panel be and the same hereby is annulled insofar as it refused to consider the charges relating to the May 17 incident and, further, insofar as it imposed a fine of $5,500; and

IT IS FURTHER ORDERED that petitioner is authorized to suspend respondent without pay for a period of six months.

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