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Decision No. 13,226

Appeal of the BOARD OF EDUCATION OF THE WAYNE-FINGER LAKES BOARD OF COOPERATIVE EDUCATIONAL SERVICES from a determination rendered by a hearing panel convened pursuant to Education Law '3020-a concerning disciplinary charges against Donald Bogart, a tenured school psychologist.

Decision No. 13,226

(July 22, 1994)

Mahoney, Berg & Sargent, Esqs., attorneys for petitioner, Nicholas J. Sargent, Esq., of counsel

Chamberlain, D'Amanda, Oppenheimer & Greenfield, Esqs., attorneys for respondent, Michael T. Harren, Esq., of counsel

SOBOL, Commissioner.--Petitioner, the Board of Education of the Wayne-Finger Lakes Board of Cooperative Educational Services (the "Board"), appeals the decision of a hearing panel (the "panel") convened pursuant to Education Law '3020-a to hear disciplinary charges against Donald Bogart ("respondent"), a tenured school psychologist. The appeal is sustained in part.

Respondent has been employed by petitioner as a school psychologist since 1974. On November 2, 1992, petitioner preferred one charge against respondent for conduct unbecoming a teacher. The charge contained seven specifications:

1. On or about November 18, 1991 Donald Bogart willfully engaged in conduct unbecoming a school psychologist in that while in the Secondary Autistic classroom at Midlakes High School, he said to J.A. "move you stupid shit."

2. On or about May 4, 1992, Donald Bogart willfully engaged in conduct unbecoming a school psychologist in that while in the Secondary Autistic classroom at Midlakes High School, he lost his temper and became angry at the teacher, Jill McLellan and her aide, Sue Evans.

3. On or about May 4, 1992, Donald Bogart willfully engaged in conduct unbecoming a school psychologist in that while in the Secondary Autistic classroom at Midlakes High School, he verbally abused the teacher Jill McLellan and her aide, Sue Evans, by yelling at them and using the words "fuck" and "shit" while yelling at them.

4. From November, 1989 until in or about June, 1991, Donald Bogart willfully engaged in conduct unbecoming a school psychologist by engaging in a sexual relationship with Beverly A., the mother of J.A., a student Donald Bogart was counseling during the same time period.

5. From November, 1989 until in or about June, 1991, Donald Bogart willfully engaged in conduct unbecoming a school psychologist by utilizing his sexual relationship with Beverly A. and his influence on her as a result thereof to persuade her to advise the BOCES Superintendent Dr. Harold E. Bowman that Donald Bogart's video therapy with her son J.A. was effective and that his assigned duties should not be changed.

6. From September, 1990, until in or about December, 1990, Donald Bogart willfully engaged in conduct unbecoming a school psychologist by leaving his duties at Williamson Middle School approximately three times per month, arriving at the apartment of Beverly A. by 3:00 p.m., thus leaving his duties prior to their completion, for the purpose of engaging in sexual relations with Beverly A., the mother of J.A., a student Donald Bogart was counseling during this same time period.

7. From November, 1989 until in or about June, 1991, Donald Bogart willfully engaged in conduct unbecoming a school psychologist by abusing his professional position as a school psychologist and his position of confidence with a parent of a student he counseled for the purpose of engaging in a sexual relation- ship with said parent, to wit: Beverly A.

A hearing was held on the charge pursuant to Education Law '3020-a over six days between January 5, 1993 and March 16, 1993. In its undated decision, the panel found respondent guilty of specifications two and three, and recommended a penalty of one month suspension without pay.

Petitioner now asserts that it proved all the specifications by a preponderance of evidence. It therefore seeks to have me overrule the panel's not guilty findings and order respondent's dismissal. Petitioner further contends that the panel improperly dismissed specification 1 merely because the date of the incident alleged was incorrect. Respondent maintains that the incorrect date prevented him from preparing a proper defense. He, therefore, argues that the panel properly dismissed the charge.

Upon careful review of the record before me, I find that the panel improperly dismissed specification 1. While the charges brought under '3020-a must be specific enough to enable a teacher to defend against them (Adrian v. Bd. of Ed., 60 AD2d 840), they need not be as specific as charges in a criminal proceeding and should not be dismissed too readily (Appeal of the Bd. of Ed. of the City School District of the City of New York, 32 Ed Dept Rep 666; Matter of Greenberg, 23 id. 48; Matter of Bd. of Ed., Sewanhaka CHSD, 22 id. 440). As stated in Matter of Bott v. Bd. of Ed., 41 NY2d 265:

...disciplinary charges against teachers are not criminal proceedings. Indeed, their primary function is not punitive, but rather the determination of the fitness of the teachers against whom they may be brought to continue to carry on their professional responsibilities.

Furthermore, the failure of a charge to specify the correct date of an incident and of a witness to testify to the correct date does not, in and of itself, necessarily undermine the weight of testimony, which demonstrated, in this case, that an incident did, in fact, occur (Appeal of Friedland, 25 Ed Dept Rep 25). Although the panel found petitioner's witness credible on the exchange alleged in specification 1, it determined that it could not have occurred on November 18, 1991, as stated in the specification. Respondent's testimony -- that he was not in attendance at the school on that date -- is unrefuted by petitioner. The panel is therefore incorrect that the omission of the correct date, even though petitioner did prove the comment was made, necessitates the dismissal of the charge. Although the date stated in the charge was not accurate, respondent was fully apprised of the specific incident for which he was being charged and able to prepare an appropriate defense. Accordingly, any error in the charge was insignificant and did not prejudice respondent. Therefore, the panel determination dismissing the charge on specification 1 is annulled. Moreover, because petitioner did prove the comment was made, I find respondent guilty of specification 1.

There was conflicting testimony regarding specifications 4, 5, 6 and 7, of which the panel found respondent not guilty. In resolving that conflict, the panel assessed the credibility of the witnesses. In issues of credibility, I will not substitute my judgment for that of the panel unless there is clear and convincing evidence that its determination of credibility is inconsistent with the facts (Appeal of Newman, 33 Ed Dept Rep 613; Appeal of the Board of Education of the City School District of the City of New York, 33 id. 433; Appeal of Le Pore, 28 id. 425). I find no basis to substitute my judgment in this case. Specifically, specifications 4 and 7 allege that the relationship between respondent and Beverly A. occurred from November 1989 until June 1991, while J.A. was a student being counseled by respondent. The panel found the testimony of Beverly A. and respondent to be credible in establishing the length of their sexual relationship to be only from April or May 1990 until January 1991. The panel further found that respondent's professional interaction with J.A. during this time was limited and that J.A. was not in counseling with respondent. Therefore, the specification, as written, was unproven. The panel further found that, although respondent and Beverly A. were engaged in a sexual relationship for approximately eight months, the relationship did not impact upon respondent's job functions.

I am also unpersuaded by petitioner's assertion that the panel erred in its refusal to credit J.A.'s testimony provided through facilitated communication. Petitioner claims the facilitated communication proves respondent's relationship with Beverly A. affected respondent's professional duties. The panel, after hearing the facilitated testimony, held that even if it had accepted J.A.'s testimony as factually accurate, the testimony did not demonstrate any nexus between respondent's conduct with Beverly A. and respondent's professional duties as a school psychologist. Petitioner's contention that the panel is bound by the standard used by a court to establish the accuracy of facilitated communication, as cited in Matter of Luz P., 189 AD2d 274 (2nd Dept. 1993), is rejected. Matter of Luz P. requires a court to compare the responses given by a child witness questioned through facilitated communication with the child's responses to the court's independent inquiries to the child outside of the presence of the facilitator. The hearing panel is not bound by this case since administrative proceedings are not bound to the same evidentiary standards as courts of law (State Administrative Procedure Act '306; Freyman v. Board of Regents of the University of the State of New York, 102 AD2d 912, app. dismissed 64 NY2d 645; Matter of Jerry v. Bd. of Ed., 50 AD2d 149, app. dismissed 39 NY2d 1057, mot for lv to app den 40 NY2d 847).

Moreover, in this case, petitioner selected the procedure for questioning the witness and the facilitator. It also submitted questions for the facilitator to ask. The panel observed the testimony of J.A. over a closed circuit television and then carefully reviewed literature relating to the use of facilitated communication. Under the circumstances, this procedure can hardly be deemed to be arbitrary or capricious. Furthermore, it would be ludicrous to accept petitioner's argument that the procedure it selected must be deemed inadequate. Accordingly, I will not set aside the panel's findings on these specifications.

The panel's determinations on specifications 5 and 6 were also based in large part upon its assessment of the credibility of witnesses. As noted above, the Commissioner will not substitute his judgment for that of a panel unless there is clear and convincing evidence that the 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, supra; Appeal of Le Pore, supra). The panel's conclusion on specification 5 was based on Beverly A.'s testimony that respondent had not done video therapy with J.A, and the specification, as written, was therefore unsupported by the evidence. Beverly A. testified that respondent had asked her to contact the superintendent to "put in a good word for him". However, the panel found the testimony did not support the allegation that this call was made solely because of the relationship between respondent and Beverly A. or because respondent had any influence over Beverly A. More importantly, the panel held that the superintendent's decision to transfer the school psychologist was made independent of any conversation with Beverly A. Accordingly, respondent's request that Beverly A. contact the superintendent and her subsequent conversation with him does not substantiate the charge of conduct unbecoming a teacher.

With respect to specification 6, the panel accepted the truth and accuracy of respondent's testimony that he did not, as the specification alleges, leave his job assignment early three times per month to arrive at the apartment of Beverly A. by 3:00. There is no basis in the record to reverse the panel on this specification.

The remaining issue is the determination of an appropriate penalty. 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 Pleasantville UFSD, 31 Ed Dept Rep 262).

Because I annulled the panel's determination on specification 1, and found him guilty of the charge, I find it is appropriate to increase the penalty recommended by the panel. The record reflects that the essence of respondent's misconduct does not go to his services rendered as a school psychologist. Instead, on one occasion he made inappropriate comments to colleagues, and on another occasion also made an inappropriate comment to a student. While it cannot be disputed that such comments should not have been made, the findings do not impugn respondent's ability to carry out his professional duties and, therefore, do not justify his dismissal. However, a penalty must be imposed which is sufficient to deter further similar conduct and impress upon respondent that his behavior is unacceptable (Appeal of the Board of Education of the Poughkeepsie City School District, 32 Ed Dept Rep 547; Appeal of the Board of Education of the City School District of the City of New York, 29 id. 228). Accordingly, I increase the penalty from one month suspension without pay to two months suspension without pay.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the hearing panel decision is reversed to the extent that I find that the charge contained in specification 1 is sufficiently specific, and

IT IS FURTHER ORDERED that the hearing panel decision is annulled to the extent that I find respondent guilty of the actions set forth in specification 1, and

IT IS FURTHER ORDERED that petitioner is hereby authorized to impose a two month suspension without pay against respondent.

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