Decision No. 13,111

(February 22, 1994)

SOBOL, Commissioner.--Petitioner, the Board of Education of the Longwood Central School District, appeals the determination of a hearing panel convened pursuant to Education Law '3020-a which found respondent guilty of conduct unbecoming a teacher, immoral conduct and insubordination and authorized his suspension without pay for one year. Petitioner seeks an order terminating respondent's employment. The appeal must be sustained.

Respondent is a tenured health teacher in the Longwood district. On April 5, 1990, petitioner found probable cause to prefer two charges against respondent -- conduct unbecoming a teacher and immoral conduct. The charges were based on an incident which took place on February 13, 1990, when respondent allegedly kissed a 16 year old female student and placed his hands on her buttocks. On June 19, 1990, petitioner found probable cause for a charge of insubordination. This new charge reiterated the original charges preferred on April 5, 1990 and added that such conduct was in violation of a directive previously issued to respondent.

A hearing was conducted over seven days between July 13, 1990 and October 17, 1991. In a decision dated March 23, 1992, the panel found respondent guilty of all charges and recommended suspension without pay for one year.

In its decision, the panel found that at approximately 7:50 a.m. on February 13, 1990, while the student was getting books from her locker, respondent approached her and started a conversation. At one point, he touched her face. Respondent then walked with the student down the hallway, checking doors along the way to see if any were unlocked. When he found the door to the men's room unlocked, he went in and asked the student to come in so he could "show her something." When the student refused that request, respondent walked out of the men's room, grabbed the student by the shoulders and forced her into a corner. Respondent then held her tightly and kissed her several times on the lips and cheek. Respondent next put his hands on the student's buttocks. The student pushed respondent away, but respondent did not release her until she pushed him a second time.

The panel found respondent's conduct reprehensible, noting that it had "serious doubts" about his continued qualifications as a teacher, but nevertheless declining to dismiss him. The panel's reason for not doing so was that no pattern of sexual misconduct had been established. The panel noted that the directive previously issued to respondent requested respondent to be aware of improper appearance, without specifically referring to sexual contact with a student. The panel, therefore, determined that petitioner had not conclusively established a pattern of sexual misconduct.

Neither party to this appeal challenges the panel findings on guilt. Accordingly, the sole issue for review is whether the penalty recommended by the panel is appropriate. Petitioner contends that it is too lenient, while respondent contends it is appropriate. As Commissioner, I may substitute my judgment for that of the hearing panel regarding the penalty imposed (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, affd 56 NY2d 687; Matter of Shurgin v. Ambach, 83 AD2d 665, affd 56 NY2d 700). In determining whether to substitute my judgment for that of the panel, I must review the measure of discipline imposed and determine whether it is proportionate to the offense. Respondent argues, and the panel accepted, that his employment may not be terminated for a single act of sexual misconduct, and that dismissal is not warranted unless there is a pattern of such conduct. That argument misconstrues the law. The central issue here is not whether respondent has been guilty of a pattern of misconduct, but whether respondent's actions are serious enough to merit termination, regardless of the absence of similar prior incidents.

Based upon the record before me, I find that respondent's conduct warrants dismissal. Respondent forcibly grabbed the student, pushed her into a corner, held her tightly against her will, kissed her several times, placed his hands on her buttocks and did not release her until she pushed him twice. This conduct was not only sexual in nature, but involved the use of force. Such conduct demonstrates respondent's unfitness to continue to carry on his professional responsibilities. The cases relied upon by respondent to argue against dismissal, do not involve forcible sexual conduct to the degree exhibited in this instance and are, therefore, rejected as inapposite.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that such portion of the decision of the hearing panel which recommended that respondent be suspended without pay for one year be, and the same hereby is, annulled; and

IT IS FURTHER ORDERED that petitioner be, and hereby is, authorized to terminate the services of respondent upon the receipt of this decision.

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