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Decision No. 13,137

Appeal of the BOARD OF EDUCATION OF THE GREENBURGH CENTRAL SCHOOL DISTRICT No. 7 from a determination rendered by a hearing panel pursuant to Education Law '3020-a concerning disciplinary charges against Robert DeMichele, a tenured teacher.

Appeal of ROBERT DeMICHELE from a determination rendered by a hearing panel pursuant to Education Law '3020-a concerning disciplinary charges.

Decision No. 13,137

(March 24, 1994)

Bacharach, Green & Bass, P.C., Esqs., attorneys for the board of education, Giacchino J. Russo, Esq., of counsel

James R. Sandner, Esq., attorney for Robert DeMichele, Paul H. James, Esq., of counsel

SOBOL, Commissioner.--The Board of Education of Greenburgh Central School District No. 7 (the "board") and Robert DeMichele, a tenured teacher, appeal the decision of a hearing panel (the "panel") convened pursuant to Education Law '3020-a to hear disciplinary charges against Mr. DeMichele. Since both appeals relate to the same proceeding, they have been consolidated for decision. The board requests that I find the teacher guilty of all charges, annul the one and one-half year suspension imposed by the panel and authorize the termination of Mr. DeMichele's services. Mr. DeMichele seeks a remand to the panel for a decision in compliance with law and reinstatement to his position as a tenured teacher pending a proper decision of the panel. The board's appeal must be denied, and Mr. DeMichele's appeal must be sustained.

Mr. DeMichele has been tenured as a high school physical education teacher with the Greenburgh Central School District since 1974. On April 16, 1993, the board preferred one charge against Mr. DeMichele for immoral conduct and conduct unbecoming a teacher. The charge contained twelve specifications:

I. It is claimed by a student, A.H., that on or about March 9, 1993, and/or March 10, 1993, at Woodlands High School Gym, Robert DeMichele asked her, "When are you going to give me your phone number because you're graduating. Don't say anything because you'll get me in trouble."

II. It is claimed by a student, A.H., that on several occasions during 1993, when Robert DeMichele was at the school district's Optional School, which she attended, he continued to request her home phone number.

III. It is claimed by a student, A.H., that earlier in the 1992/1993 school year, Robert DeMichele tried to kiss said student, A.H., on the neck, but was unsuccessful and instead kissed her arm as a result of the student pulling her arm away. The student did not give consent to the attempt by Robert DeMichele to kiss her on the neck.

IV. It is claimed by a student, A.H., that since she enrolled in Greenburgh Central School District No. 7, as a 10th grade student in the 1990/1991 school year, Robert DeMichele has used sexual harassment when dealing with her, i.e., his comments to her are often of a sexual nature and that he has physically touched or grabbed her on more than one occasion around the waist and hugged her, all without consent on the part of A.H. On one occasion, Robert DeMichele commented to A.H. how good her shoulders looked.

V. It is claimed by a student, A.H., that since she enrolled in Greenburgh Central School District No. 7 as a 10th grade student in the 1990/1991 school year, Robert DeMichele has used sexually provocative language and has touched her on improper parts of her body without her permission when dealing with her, i.e., his comments to her are often of a sexual nature and that he has physically touched or grabbed her on more than one occasion around the waist and hugged her, all without consent on the part of A.H. On one occasion, Robert DeMichele commented to A.H. how good her shoulders looked.

VI. It is claimed by a number of students that Robert DeMichele has been very flirtatious with many female students during the 1991/1992 and 1992/1993 school years, i.e., he uses sexually provocative language in dealing with the students, touches female students on the hip and waist and has female students sit on his lap.

VII. On at least one occasion since the beginning of the 1993 school term in January, 1993, it is claimed by a student, V.S., that Robert DeMichele has requested the student to feel his butt. He used words to the following effect: "V., why don't you feel my butt. I have dimples on my butt. Why don't you feel my dimples."

VIII. A student, V.S., has claimed that during the 1991/1992 school year Robert DeMichele in Woodlands High School Gym got on top of V.S. while she was resting on a gym mat. She further claims that she was lying on her back and that when Robert DeMichele got on top of her, he grabbed her backside with his hands and squeezed it.

IX. It has been claimed by a number of students that during the 1991/1992 and 1992/1993 school years, Robert DeMichele has been seen kissing female students on the hand and arm in an attempt to work his way to the student's neck in order to kiss the student on the neck.

X. V.S. has claimed that while playing basketball during the 1991/1992 and 1992/1993 school years with her and other female students, Robert DeMichele intentionally pushed his backside into her backside for no reason other than to make sexually provocative contact with her.

XI. A student, A.H., claims that she was told by another student that during the 1992/1993 school year the student observed Robert DeMichele standing over her in class, without her knowledge, and looking down her blouse.

XII. It is claimed by a number of students that they have witnessed Robert DeMichele during the 1991/1992 and 1992/1993 school years making physical contact with female students with his hands in sexually provocative areas of their bodies, such as their hips and waists. In all instances there did not appear to be consent on the part of the students to the physical contact.

A hearing was held on the charge pursuant to Education Law '3020-a over four days between June 14, 1993 and September 13, 1993. On November 4, 1993, the panel unanimously found Mr. DeMichele guilty of the following:

1. The Respondent is guilty of immoral conduct and conduct unbecoming a teacher as charged in specification I, III, VI, VII and VIII. The Respondent is not guilty with respect to the remaining specifications.

2. With regard to penalty, the Panel recommends that the Respondent be suspended for a period of one and one-half years, beginning in January of 1994; that during the suspension period he obtain regular therapy from a licensed professional psychiatrist, psychologist or social worker concerning the proper interaction with female students; and that he not be reinstated except upon the submission of proof of such therapy.

Beginning with the penalty imposed, Education Law '3020-a(4) authorizes a panel to impose only the penalty of reprimand, fine, suspension for a fixed time without pay or dismissal. A hearing panel is limited to one of the penalties set forth in the statute and may not recommend mandatory counselling (Matter of Bd. of Ed., Uniondale UFSD, 26 Ed Dept Rep 499; Matter of McSweeney, 128 A.D.2d 847). Clearly, this panel's recommendation that Mr. DeMichele undergo counseling is not proper and must be annulled.

With regard to the panel's findings, I agree with Mr. DeMichele's assertion that the panel failed to make findings of fact to support its determination. Section 82.10(i) of the Regulations of the Commissioner requires that a panel set forth the reasons and the factual basis for the determination. Furthermore, a decision which is devoid of analysis and fails to state the facts upon which the decision is based must be annulled on procedural grounds and remanded for a proper determination (Kinsella v. Board of Education, 378 F Supp 54, aff'd without opinion 542 F.2d 1165; Appeal of Cauley, 33 Ed Dept Rep 359; Matter of Driscoll, 15 id. 200). The panel's decision in this case is devoid of reasoning and fails to state even one fact upon which it is based. The panel's decision must therefore be annulled, and until such time as a proper determination is issued by the panel, the teacher must remain suspended with pay pending a decision in accordance with Education Law '3020-a.

Since I find the determination inadequate to support a substantive review consistent with Education Law '310, I make no determination on the merits of the substantive claims raised in this proceeding.

THE APPEAL OF THE BOARD OF EDUCATION IS DISMISSED, and

THE APPEAL OF ROBERT DEMICHELE IS SUSTAINED.

IT IS ORDERED that the panel's determination of November 4, 1993 is hereby annulled. Petitioner DeMichelle must remain suspended with pay and the panel is directed to proceed expeditiously and in accordance with this decision.

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