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Decision No. 13,201

Appeal of the BOARD OF EDUCATION OF THE CARTHAGE CENTRAL SCHOOL DISTRICT from a determination of a '3020-a hearing panel concerning charges against Gary Rosintoski, a tenured teacher.

Decision No. 13,201

(June 10, 1994)

O'Hara & O'Connell, P.C., attorneys for petitioner, Dennis G. O'Hara, Esq., of counsel

Bernard F. Ashe, Esq., attorney for respondent, Ivor R. Moskowitz, Esq., of counsel

SOBOL, Commissioner.--Petitioner, the Board of Education of the Carthage 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, insubordination and inefficiency and incompetency and authorized his suspension at half pay for one year. Petitioner seeks to terminate respondent's services. The appeal must be sustained in part.

Respondent is a tenured physical education teacher who has taught physical education in petitioner's elementary schools for approximately 26 years. On or about June 22, 1992, petitioner found probable cause to prefer charges against respondent. Charge I alleged 14 specifications of conduct unbecoming a teacher. Charge II alleged 12 specifications of insubordination and Charge III alleged 8 specifications of inefficiency and incompetency. Some of the specifications in charges I, II and III were identical and repeated as the basis of more than one charge.

A hearing was conducted over 10 days between November 4, 1992 and July 22, 1993. In a decision dated October 4 and 5, 1993, the panel found respondent guilty of conduct unbecoming a teacher (Charge I) in connection with these specifications:

Specification 1 On April 3, 1990 you were extremely disrespectful to a parent, insubordinate to an administrator, and exhibited improper behavior by loudly arguing in a sarcastic and defensive manner during a parent conference. William Brown, Director of HPER/Athletics, notified you on April 9, 1990 that your conduct was unprofessional and would not be tolerated in the future.

Specification 2 In June of 1990, you instigated a verbal shouting match with teacher Diane Huckabee with respect to the school olympics. When Ms. Huckabee disagreed with your opinion and expressed her belief that such games should be fun rather than a competition, you raised your voice and refused to listen to her concerns. This argument was overheard by both students and faculty.

Specification 3 On November 2, 1990, you were rude and insensitive to an overweight female student when you warned her to "be careful not to sit on anyone."

Specification 8 On March 20, 1991, you used physical force on [a student] during a square dance exercise, by grabbing him by the shoulder and lifting him up on to his tiptoes hard enough to leave red marks on his body. You then dragged him to the "proper" position, grabbed his arm and pushed him into place. At no time did you inform him as to what he did "wrong" or instruct him as to the "correct" moves.

This incident resulted in a May 10, 1991 letter from Superintendent Ken Rishel, warning you against any use of physical force for the purposes of punishment or out of anger and frustration. You had previously been warned against the use of corporal punishment, and you were provided with a copy of the District's policy on the same on or about June 24, 1987 with respect to a prior incident on the school playground when you used excessive force against a child. In addition, the District policy on corporal punishment has been provided to you in the teacher handbook at the beginning of each year.

Specification 10 On January 17, 1992, when [a parent] came to inquire as to what happened to her son during intramurals, you initially ignored her while you continued to shoot baskets. You then approached [the parent] until you stood toe to toe, yelling and glaring at her, and waving your arms in a threatening manner. You shouted that she had interrupted your practice and that her son was rude and obnoxious. When the parent went to leave the building, you followed her down the hallway and continued to yell at her about interrupting your practice.

Specification 12 On or about February 24, 1992, you were unprofessional in both tone and demeanor during a discussion with principal Suzanne Tingley in the cafeteria. You spoke to her son aggressively and so loudly that you attracted the attention of students and faculty, despite her request for you to lower your voice.

The panel also found respondent guilty of insubordination (Charge II) in connection with the incidents set forth in specifications 8 and 10 of Charge I and the following specification:

Specification 8 In February of 1992, you acted in an intimidating and threatening manner by yelling at the night cleaner, Mrs. Haskins, for reporting her observation of unsupervised children at an evening basketball activity conducted by you.

The panel further found respondent guilty of incompetency and inefficiency in connection with the incidents set forth in specifications 3 and 8 of Charge I and the following specification:

Specification 8 On June 4, 1992, you disregarded the Head Custodian's warning regarding the mowing of school grounds, when you brought your class into an area which was currently being mowed. This action unnecessarily endangered the safety of your students and would not have occurred had you listened to morning announcements as required, wherein all personnel were directed to stay off of the grassy area behind the school until 11:00 a.m.

The panel recommended that respondent "be suspended for a period of one year at half salary." By resolution dated October 18, 1993, petitioner adopted the panel's recommendation to suspend respondent for one year. However, petitioner further determined that while the first six months of respondent's suspension would be without pay, he would be restored to the payroll for the final six months of his suspension.

Petitioner challenges that determination of the panel on several grounds. First, petitioner notes that the panel did not make any determinations of guilt or innocence with respect to three specifications of Charge I. Petitioner contends that the weight of credible evidence requires a finding that respondent is guilty of those specifications. While the Commissioner of Education may review the evidence and make findings of fact with respect to the three specifications at issue (Shurgin v. Ambach, 56 NY2d 700), my review of the record does not support petitioner's contention that the specifications were established by a preponderance of credible evidence. Accordingly, there is insufficient basis to find respondent guilty of those charges.

Petitioner also contends that the panel's determination that respondent is not guilty of specification 11 of Charge I, specifications 2, 3, 9 and 12 of Charge II and specification 7 of Charge III is arbitrary because it is inconsistent with other findings of the panel. As noted above, some of the specifications of Charges I, II and III were identical and repeated as the basis of more than one charge. It is noteworthy that the elements of proof for each of the three charges (conduct unbecoming a teacher, insubordination and incompetency and inefficiency) differ. For instance, while a teacher's action in a particular circumstance may not support a charge of insubordination because the teacher was not previously directed against performing the act in question, that same act could nonetheless constitute conduct unbecoming a teacher. The record indicates that the panel considered the acts, concluded that in some instances the same action required a finding of guilt of more than one charge, but that in other instances a finding of guilt of one charge did not contain all of the necessary elements to find respondent guilty of another charge involving the same action. Upon review, I find that the panel correctly found respondent not guilty of the charges at issue and such finding is not inconsistent with the panel's finding of guilt on other charges.

Petitioner also maintains that the panel's determination that respondent is not guilty of 14 other specifications is contrary to the weight of the credible evidence. Respondent asserts that the panel's determination on the specifications for which he was found guilty is also contrary to the weight of the evidence. Upon review of the record, I find the parties' assertions on this issue unpersuasive. I have repeatedly held that where the panel's determination rests in large part on determinations of witness credibility, I will not substitute my judgment for that of the panel unless there is clear and convincing evidence that the determination of credibility is inconsistent with the facts (Appeal of LePore, 28 Ed Dept Rep 425; Matter of Community School Board No. 18, 21 id. 216). I find no basis in the record to reach the conclusion that the panel's determination of credibility in this case is in error.

The final issue before me is the appropriateness of the penalty. Petitioner contends that the penalty recommended by the panel is not authorized by statute. Respondent contends that the penalty imposed by petitioner is not consistent with the recommendation of the panel. Both parties are correct. In recommending a penalty under '3020-a of the Education Law, a hearing panel is limited to one of the penalties set forth in that section, i.e., "a reprimand, a fine, suspension for a fixed time without pay or dismissal." (Emphasis supplied). A panel may not recommend a penalty of suspension at reduced pay, as the panel did in this instance (Matter of Adrian v. Bd. of Ed., 60 AD2d 840; Matter of Bd. of Ed., Sachem CSD, 25 Ed Dept Rep 325). Additionally, the penalty recommended by the panel would allow respondent to receive half-pay for an entire year while performing no services for the district. This result is clearly inconsistent with '3020-a and I, therefore, find the panel's penalty recommendation inappropriate.

As to the penalty actually imposed by petitioner, respondent is correct that it was not authorized by the panel. Moreover, petitioner's action of suspending respondent without pay for six months and then paying him for six months while the suspension continues is also not a penalty authorized by '3020-a. Pursuant to that penalty, respondent would receive full compensation for six months while performing no duties for the district. In addition to not being authorized by '3020-a the penalty imposed by petitioner may constitute an illegal gift of public funds (State Constitution, Article VIII, Section 1).

The Commissioner of Education is empowered to determine the appropriateness of a penalty imposed under '3020-a (Shurgin v. Ambach, supra; Gevyn v. Ambach, 56 NY2d 912). In determining the appropriateness of the penalty in the present case I must take into account the fact that respondent has taught for approximately 26 years and that the record does not indicate any previous disciplinary proceedings against him. The penalty must also be sufficient to impress upon respondent that the behavior for which he was found guilty is completely unacceptable and must not continue. Accordingly, I find that the appropriate penalty is a six-month suspension without pay. In calculating the period of suspension, petitioner must take into account any period of suspension without pay already served by respondent.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that petitioner is authorized to suspend respondent without pay for a period of six months, to include the period of any suspension which respondent may have already served.

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