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Decision No. 13,236

Appeal of THE BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK from the determination of a hearing panel convened pursuant to Education Law '3020-a relating to Albert O'Rourke, a tenured school psychologist.

Appeal of THE BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK from the determination of a hearing panel convened pursuant to Education Law '3020-a relating to Albert O'Rourke, a tenured school psychologist.

Decision No. 13,236

(August 2, 1994)

Hon. Paul A. Crotty, Corporation Counsel, attorney for petitioner, Lawrence E. Becker and Everett N. Hughes, Esqs., of counsel

James R. Sandner, Esq., attorney for respondent, Paul H. Janis, Esq., of counsel

SOBOL, Commissioner.--Petitioner, the Board of Education of the City School District of the City of New York ("the district"), appeals the decisions of two hearing panels convened pursuant to Education law '3020-a which found respondent guilty of charges filed against him and recommended penalties of suspension without pay totaling one year and three months. These two appeals involve the same parties and related issues. Therefore, I am consolidating the appeals for decision. The appeals must be sustained in part.

Respondent is a tenured school psychologist, who has worked for the district since 1982. On June 21, 1989, respondent was suspended with pay and reassigned from his position with the District 26 committee on special education in Queens County, pursuant to Education Law '3020-a, pending a finding on charges of incompetent and inefficient service and unprofessional and insubordinate behavior. The charges consist of two specifications. Specification I contains particulars "a through d" and Specification II contains particulars "a through p". The specifications allege that respondent failed to evaluate a student, failed to "clock out" of work on several days, failed to attend a meeting, failed to inform his supervisors of an anticipated absence until 3:00 p.m. the day before the absence, failed to converse civilly with a supervisor and told her "Don't waste your time talking about this--just write it up.", sent a supervisor a stocking filled with coal and used inappropriate language on numerous occasions.

On December 4, 1991 and January 22, 1992, while the June 21, 1989 charges were pending against respondent, two more sets of charges were filed against him for insubordination, disruptive behavior and unprofessional conduct. These charges were consolidated for hearing and consisted of four specifications with numerous particulars. The specifications allege rudeness with his supervisor, bumping into his supervisor in the hallway and then stating "I'm going to get you", the use of profanity and other inappropriate remarks, failure to complete work necessitating the reassignment of his work to other employees, leaving work without permission, inappropriate comments to co-workers, leaving a message for the acting chairperson of the program for which he worked indicating that the individual should immediately contact his doctor because the results of his blood test were in, refusal to meet with his supervisor, forging signatures of his supervisor on time sheets and being absent from work without authorization.

A hearing was held on fourteen days between June 26, 1991 and August 18, 1992, on the June 21, 1989 charges. This panel issued its decision on July 25, 1993, finding respondent guilty of insubordination, neglect of duty and conduct unbecoming his position for failure to test a student, attend meetings, "clock out" of work, inform supervisors of a planned absence and rude, hostile, unprofessional and improper conduct and not guilty on some of the remaining charges. The panel recommended a one-year suspension without pay. The December 4, 1991 and January 22, 1992 charges were consolidated, and a hearing was held on these charges on fourteen days between February 11, 1992 and April 21, 1993. The decision of this panel was issued on June 16, 1993, finding respondent guilty of charges relating to the accumulation of work, having an uncooperative attitude, demonstrating a lack of respect for supervisors, exhibiting conduct unbecoming his position, leaving work without permission, making improper comments to supervisors and imprinting his supervisor's name on time sheets and not guilty on some of the remaining charges. This panel recommended a penalty of a 90 day suspension without pay.

Petitioner disputes the panels' findings of not guilty and alternatively asserts even if the panels' findings of not guilty are to be sustained, the penalties imposed by the panels are too lenient. Petitioner seeks to have me overrule the panels' findings and order respondent's dismissal. Respondent claims that the appeals are untimely because they were commenced more than 30 days after the panel decisions were rendered. Further, respondent asserts there was improper service and no authority of petitioner to appeal the panel decisions. Additionally, respondent contests the panels' findings of guilt and seeks dismissal of all charges and revocation of the suspensions.

Concerning respondent's assertion that the appeals must be dismissed for improper service, Commissioner's Regulation '275.8 requires personal service of a petition, except substitute service is acceptable, when, after diligent effort, petitioner is unable to personally serve respondent (8 NYCRR 275.8; Appeal of the Board of Education of the South Huntington Union Free School District, 33 Ed Dept Rep 281). The record reflects that petitioner did make diligent, but ultimately unsuccessful efforts to effect service. Petitioner then requested permission from my Office of Counsel to use substitute service, and such permission was granted. Substitute service was subsequently made, and respondent's claim of improper service is without merit.

Respondent additionally argues that these appeals were not commenced within thirty days of the decision complained of, as required by 8 NYCRR 275.16. The record reflects that petitioner received the decision of the hearing panel for the December 4, 1991 and January 22, 1992 charges on June 23, 1993. Substitute service for this appeal was properly made on July 22, 1993, within thirty days of the receipt of the decision. Petitioner received the decision from the hearing panel for the June 21, 1989 charges, on July 30, 1993, and substitute service was properly made on August 25, 1993, within thirty days of the date of receipt of that decision. Therefore, the appeals are timely.

Respondent also contends that petitioner instituted these appeals without prior authorization from the Board of Education of the City of New York. The record reflects that the Board authorized an appeal of the June 16, 1993 decision on July 7, 1993 and of the July 25, 1993 decision on August 25, 1993. Therefore, respondent's assertion is without merit.

Turning to the merits of these appeals, I will not substitute my judgment for that of a panel unless there is clear and convincing evidence that their determinations on the credibility of witnesses and the viability of other evidence are 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 433; Appeal of LePore, 28 Ed Dept Rep 425). This record reflects that respondent was absent without permission and did commit numerous acts constituting insubordination and conduct unbecoming a teacher. Furthermore, the charges relating to the submission of timesheets with respondent's insertion of his supervisor's name was clearly improper. Respondent's reliance on the panel's use of the term "civil fraud" to support his assertion that the panel found him guilty of something for which he was not charged, is misplaced. Read in context, that expression was merely a characterization of the panel's finding of respondent's guilt for the charge relating to the submission of timesheets with respondent's imprint of his supervisor's name. Therefore, I have no basis to overturn the panel's findings of guilt.

With regard to the charges for which respondent was not found guilty by the panels, I will not set aside a panel's decision which is based on credibility of witnesses unless there is clear and convincing evidence it 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 LePore, supra). The record reflects there was conflicting testimony and that the panel found some testimony credible and other testimony incredible. Therefore, because the panel relied upon the credibility of witnesses to resolve the conflicting testimony, I will not set aside the panel's findings of guilt.

The remaining issue is whether the penalty is appropriate. In determining whether to substitute my judgment for a 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). Also pertinent is the teacher's fitness to carry out his or her professional responsibilities (Matter of Bott, 41 NY2d 265; Appeal of the Board of Education of the Pleasantville UFSD, 31 Ed Dept Rep 262). A penalty must be imposed which is sufficient to act as a deterrent to repetition of the improper conduct and impress upon respondent that the 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).

The record reflects that after the first set of charges was filed against respondent, his insubordination and other improper conduct continued. Such conduct even continued after a second set of charges was filed. Because respondent did not modify his behavior subsequent to the filing of these charges, I conclude that he was not sufficiently impressed that his behavior was unacceptable. Moreover, it must be noted that this unacceptable course of conduct continued over an extended period of time. Consequently, I find the panels' aggregate penalties of one year and three months suspension without pay to be insufficient to impress upon respondent the severity of his conduct. Therefore, I am imposing a two-year suspension without pay.

I have considered the parties' remaining contentions and find them without merit.

THE APPEALS ARE SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that petitioner is authorized to suspend respondent for two years without pay in accordance with this decision.

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