Decision No. 13,097

(January 20, 1994)

Joan Goldberg, Esq., attorney for respondent

SOBOL, Commissioner.--Petitioner, the Board of Education of the Pine Bush Central School District (the "board"), appeals the decision of a hearing panel (the "panel") convened pursuant to Education Law '3020-a to hear disciplinary charges against respondent Christine Earles, a tenured teacher. Petitioner requests that I find respondent guilty of all charges, annul the two-year suspension without pay imposed by the panel and authorize the termination of respondent's services. Respondent seeks to have the panel's findings of guilt and the penalty annulled. Respondent's request is denied and petitioner's appeal must be dismissed.

Respondent is a tenured teacher of social studies and has been employed in petitioner's school district since 1985. Prior to the current proceeding, respondent had not been the subject of disciplinary charges under Education Law '3020-a. On January 15, 1991 and April 8, 1991, the board preferred two sets of charges against respondent for incompetency, conduct unbecoming a teacher and insubordination, and conduct unbecoming a teacher, respectively. The January 15, 1991 charges for insubordination, conduct unbecoming a teacher and incompetency contained eight particulars:

The April 8, 1991 charge of conduct unbecoming a teacher contained three particulars:

A hearing was held pursuant to Eduction Law '3020-a over fifteen days between July 10, 1991 and January 27, 1993. In a June 23, 1993 decision, the panel unanimously found, with regard to the January 15, 1991 charges, that the district had established by a preponderance of evidence particulars 1,2,3,4 and 5 but not 6,7 or 8. The panel further held that by establishing the conduct of particulars 1 and 2, respondent was guilty of the charges of insubordination and conduct unbecoming a teacher. However, the panel found that specifications 3, 4 and 5 did not constitute insubordination or conduct unbecoming a teacher. The panel also found respondent not guilty of the charge of incompetency. Consequently, the panel recommended a six-month suspension without pay for the January 15, 1991 charges.

Concerning the April 8, 1991 charges, the panel found respondent guilty of conduct unbecoming a teacher. However, the panel held that although respondent inappropriately rendered assistance to the students listed in the specifications, it could not conclude that respondent actually communicated the correct answers to the students. Rather, the evidence seemed to indicate that respondent inappropriately conversed with students while they were taking the examination. The panel thus recommended a suspension of one and a half years without pay.

Petitioner seeks an order overturning the panel's findings and seeks to have me find respondent guilty of all specifications of the January 15, 1991 charges (except they have withdrawn specification 8) and of the April 8, 1991 charge. Petitioner seeks termination of respondent's employment. Respondent contends this appeal is untimely pursuant to Commissioner's regulations '275.16. Further, respondent seeks an order overturning the panel's findings of guilt and dismissing all charges.

As a threshold matter, respondent contends that the appeal is untimely because it was allegedly commenced more than 30 days after the hearing panel rendered its decision. An appeal must be commenced within 30 days after the decision or act complained of (8 NYCRR '275.16). However, a party challenging the decision of a '3020-a hearing panel has 30 days from the date of the receipt of the hearing panel decision within which to initiate an appeal (In the Matter of the Board of Education of the City School District of the City of New York, 22 Ed Dept Rep 132; In the Matter of the Board of Education of the Valhalla UFSD, 19 id. 259). The record reflects that the hearing panel rendered its decision on June 23, 1993, that petitioner received it on June 28, 1993 and petitioner served its petition on July 28, 1993. Therefore, the appeal was commenced within 30 days of the receipt of the decision and is timely.

Concerning the merits of the appeal, the panel's findings with regard to the specifications of the January 15, 1991 and the April 8, 1991 charges were based largely upon its assessment of witness credibility. I will not substitute my judgment for that of the panel unless there is clear and convincing evidence that the panel determination of credibility is inconsistent with the facts (Appeal of the Board of Education of the City School District of the City of New York, 32 Ed Dept Rep 666; Appeal of Community School Board No. 24, 32 id. 282; Appeal of LePore, 28 id. 425). I have reviewed the record in this proceeding and find no basis to overturn the panel's determination that respondent is guilty of specifications 1 through 5 and not guilty of specifications 6 through 8. Therefore, respondent's request to annul the panel's findings of guilt is denied.

Specifically, the panel found that a committee grading system had been established, and that by her own admission, respondent did not follow such system. The panel found it incredible that respondent was unaware of the committee system for the grading of the 11th grade Regents examination, because the same system was used for the 10th grade Regents examination, and respondent had been involved in the grading of that examination. Furthermore, no efforts were made by the administration to segregate the students' examinations by teacher once the exams were completed. Indeed, respondent had to sort through all the exams to locate those of her students to grade them. Moreover, the panel held that respondent graded eight exams prior to the time the teachers had agreed to meet to begin the grading process, in a concerted effort to avoid using the committee system. In contrast, however, the panel held that the record does not establish that this committee grading system extended to a ban on a teacher reviewing and even changing the grades on his or her students' essay answers after the answers were subjected to the committee system. In view of the testimony and the record, the panel properly held that specifications 6, 7 and 8 were not established.

The panel's findings of guilt on the April 8, 1991 charges are based on witness credibility. The panel held that respondent improperly aided certain students. However, it did not conclude that respondent communicated the correct answers to these students -- only that she did communicate with students. After careful review of the record, I have no basis upon which to overturn that finding.

I disagree with petitioner's contention that the panel's finding of guilt on specifications 3 through 5 of the January 15th charges constitutes insubordination, conduct unbecoming a teacher and incompetence. I uphold the panel's findings that the record is devoid of any written directive prohibiting either changing grades or specifying any method for doing so, once the committee system had been completed. Therefore, a finding that respondent had changed grades cannot be the basis for charges of insubordination or conduct unbecoming a teacher.

Concerning the January 15, 1991 charge of incompetence, incompetence means that a teacher is unable to provide a valid educational experience for those students assigned to his classroom (Appeal of Board of Cooperative Educational Services of Southern Westchester, 32 Ed Dept Rep 358; Appeal of Board of Education of City School District of City of New York, 28 id. 302). The specifications supporting the charge of incompetence of which respondent was found guilty relate to the grading of one examination, not to her ability to teach her students. Accordingly, these facts do not make out a case for incompetence, and for this reason I decline to substitute my judgment for that of the panel.

Turning to the question of penalty, the Commissioner of Education is authorized to impose a proper penalty and is not bound by the decision of the hearing panel (Shurgin v. Ambach, 83 AD2d 665, aff'd 56 NY2d 700; Matter of McNamara v. Commissioner, 80 AD2d 660; Appeal of the Board of Education of the City School District of the City of New York, 32 Ed Dept Rep 666). Fixing an appropriate penalty requires an assessment of the measure of discipline and whether it is proportionate to the offense (Matter of Mockler v. Ambach, 79 AD2d 745, lv to app den 53 NY2d 603; Matter of Kloepfer v. Commissioner, et al., 82 AD2d 974; Shurgin v. Ambach, supra). Penalties are not to punish, but to impress upon a teacher the inappropriateness of conduct and to serve as warnings against future improper conduct (Appeal of the Board of Education of the City School District of the City of New York, 33 Ed Dept Rep ___, decision No. 13068, dated December 22, 1993; Appeal of Community School District No. 24, 30 id. 445). A teacher's record is also relevant to the issue of penalty (Appeal of Community School District No. 2, 32 Ed Dept Rep 391; Appeal of BOCES of Rockland County, 29 id. 406).

In seeking respondent's termination, petitioner relies upon several cases involving the termination of teachers for manipulating or changing answers such as Appeal of Board of Education of the Windsor Central School District, 25 Ed Dept Rep 99. Petitioner's reliance on this line of cases is misplaced, because the charges of which respondent was found guilty do not involve the alteration or manipulation of students' answers, but the failure of respondent to follow the committee system in grading an examination. Furthermore, respondent has served the school district since 1985 without incident giving rise to disciplinary charges. Under the circumstances, I find that a two- year suspension without pay is appropriate to impress upon respondent the seriousness of the offense and to discourage respondent from such conduct in the future. Accordingly, I find no basis to substitute my judgment for that of the panel on penalty.

THE APPEAL IS DISMISSED.

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