Decision No. 13,166

(April 29, 1994)

Neal Howard Rosenberg, Esq., attorney for petitioner

SOBOL, Commissioner.--Petitioner, a tenured elementary school teacher of common branches in Community School District No. 17, appeals the decision of a hearing panel convened pursuant to Education Law '3020-a recommending his dismissal. The appeal must be dismissed.

Petitioner has been a teacher in respondent school district for twenty-three years. Petitioner had been the subject of verbal and written warnings about the use of corporal punishment and excessive force against students. Subsequent to those warnings, on October 21, 1991 and November 14, 1991, petitioner allegedly used excessive force against two students. Based upon the two incidents, respondent preferred one charge with two specifications of conduct unbecoming a teacher against petitioner.

The charge asserts that petitioner was insubordinate, used excessive force and/or corporal punishment upon his students and otherwise engaged in conduct unbecoming his position. The specifications are:

Hearings were held over seven days between May 27, 1992 and February 18, 1993. In a decision dated April 6, 1993, the panel found petitioner not guilty of Specification IA and guilty of Specification IB, and recommended dismissal.

In finding petitioner guilty of Specification IB, the majority found that because petitioner's actions on November 14, 1991 occurred after prior warnings against such behavior, this alone was a basis for dismissal. However, the panel further held that petitioner had commented to an administrator a few months prior to the November 14, 1991 incident that he would be back in the district offices because students may run into his elbows. The panel found that this comment, coupled with the November 14, 1991 incident, was not mere coincidence but a premeditated attempt by petitioner to cause the administration to relieve him of his classroom duties and return him to a position in the district office. The panel further held that petitioner's dismissal was necessary to prevent further injuries to students.

Petitioner challenges the finding of guilt on Specification IB and pleads in the alternative that dismissal is too harsh. Respondent contends the finding of guilt was based on substantial evidence and that dismissal was appropriate, in view of the prior warnings and the nature of the offense.

Concerning the finding of guilt on Specification IB, the panel's decision was based in large part on the credibility of the witnesses. I will not substitute my judgment for that of a panel unless there is clear and convincing evidence that its 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, 33 Ed Dept Rep ___, Decision No. 13104, dated February 22, 1994; Appeal of Le Pore, 28 Ed Dept Rep 425). Moreover, the record reflects that petitioner's own statements in an accident report and his testimony regarding the November 14, 1991 incident are contradictory. This inconsistency, coupled with the testimony of witnesses the panel deemed credible, supports the panel's finding of guilt.

The remaining issue is whether dismissal is warranted. In determining whether to substitute my judgment for the hearing panel's, the question is whether the discipline imposed is proportionate to the offense (Appeal of Bruno; 31 Ed Dept Rep 503; 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, aff'd 56 NY2d 687; Shurgin v. Ambach, 83 AD2d 665, aff'd 56 NY2d 700). To warrant dismissal, charges must be both substantial and substantiated (Appeal of Bd. of Trustees of Community School District No. 6, 29 Ed Dept Rep 33; Matter of Bd. of Ed., North Syracuse CSD, 23 id. 1; Matter of Mockler, supra). Also pertinent is the teacher's fitness to carry out his or her professional responsibilities (Matter of Bott, 41 NY2d 265; Appeal of Bd. of Ed., Pleasantville UFSD, 31 Ed Dept Rep 262).

In reviewing the record, I find the charges sufficiently substantial and substantiated to warrant petitioner's dismissal. The record supports the panel's findings that petitioner was not only on notice regarding his improper conduct, but his subsequent actions demonstrate that he intentionally injured a student. Accordingly, I find no basis to substitute my judgment for the panel's recommendation that petitioner's employment be terminated.

THE APPEAL IS DISMISSED.

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