Decision No. 13,242

(August 4, 1994)

Neal H. Rosenberg, Esq., attorney for petitioner

Lawrence E. Becker, Esq., attorney for respondent, Katie R. Rabb,

Esq., of counsel

SOBOL, Commissioner.--Petitioner, a tenured teacher, appeals the determination of a hearing panel, convened pursuant to '3020-a of the Education Law, which found her guilty of incompetence and recommended her dismissal. The appeal must be dismissed.

In September 1987, respondent Community School District No. 20 of the City School District of the City of New York ("the district") employed petitioner as a teacher of common branches. Until October 1988, she served as a substitute or relief "music cluster" teacher. Thereafter, in accordance with her rights under the collective bargaining agreement, she elected to assume the position of a junior full-time third grade teacher which resulted in another teacher's lay off.

From October 24, 1988, when petitioner assumed her new classroom assignment, she experienced serious difficulties maintaining order. Thereafter, respondent observed and evaluated petitioner's performance continuously as she attempted unsuccessfully to teach the class.

Some of the incidents respondent observed included:

As petitioner's problems in the classroom mounted, respondent provided her with an assistant three times a week for 45 minutes. Given the extent of her difficulties, petitioner was temporarily relieved of her teaching duties for a week between November 17 and November 23, 1988 for intensive remediation. Respondent subsequently relieved petitioner of her classroom duties on December 15, 1988 after determining that the continuation of her teaching assignment posed a threat to the health and safety of her students.

On April 17, 1989, respondent found probable cause to prefer charges against petitioner based on 23 specifications alleging 88 separate acts involving "neglect of duty"; "unprofessional and incompetent behavior" and "insubordination". All of the charges were based upon incidents which had occurred in petitioner's classroom between November 4 and December 15, 1988.

Petitioner requested a hearing which was held over eleven days between March 20, 1990 and January 22, 1992. At the hearing, petitioner did not deny the allegations but raised several affirmative defenses. On May 11, 1992, the panel upheld all charges, rejected her affirmative defenses and recommended her dismissal.

Petitioner challenges the panel finding of incompetence, claiming, interalia, that her students were "very troubled" and included children who were improperly mainstreamed and needed special education. In addition, she claims that respondent failed to provide her with necessary guidance, classroom support, and opportunities to redeem herself; that the charges were brought in retaliation for her refusal to transfer to another school and that respondent failed to consider her past job success. Petitioner also asserts that the penalty of dismissal is too severe, in view of the timeframe upon which the charges were based.

Respondent denies petitioner's assertions and contends that her actions endangered the health and safety of her students. I have reviewed petitioner's contentions and find them meritless.

The purpose of a disciplinary proceeding is to determine a teacher's fitness to carry on his or her professional responsibilities (Matter of Bott, 41 NY2d 265; Appeal of LePore, 28 Ed Dept Rep 425; Matter of Board of Education, Brookhaven-Comsewogue UFSD, 21 id. 244). This case involves petitioner's fundamental fitness to teach. A teacher is incompetent if he or she is unable to provide a valid educational experience to his or her students (Appeal of Board of Cooperative Educational Services of Southern Westchester, 32 Ed Dept Rep 358, 363; Appeal of Bd. of Educ. of the City School District of the City of New York, 28 id. 302, 305).

The record before me is replete with instances demonstrating petitioner's inability to provide instruction. Several witnesses who observed petitioner's classroom performance testified that no instruction took place during their observations. Even more disturbing is the fact that several students were injured in petitioner's classroom while the entire class was in potential danger due to her inability to maintain adequate control. The record shows that on one day alone, eight students reported to the school nurse with injuries that occurred in petitioner's classroom.

Contrary to petitioner's assertion that she never received proper remediation, the record includes evidence of respondent's efforts at remediation, including, interalia, demonstration lessons by master teachers and instruction in class management and teaching techniques. In addition, the record reflects that ten or eleven students were removed from petitioner's classroom, five permanently, and that other teachers were able to manage petitioner's class during that same period. Moreover, despite respondent's efforts at remediation, petitioner's performance remained inadequate. Therefore, the evidence fully supports the panel's finding of petitioner's incompetence and its conclusion that it would be a disservice to the children in petitioner's classroom to require the district to retain her services.

Moreover, petitioner provides no evidence to support her claim that respondent brought these charges in retaliation for petitioner's refusal to accept a transfer. Moreover, respondent's administrators testified that petitioner's teaching assignment was made according to established policy consistent with the collective bargaining agreement. In addition, respondent's witnesses denied any retaliatory action was taken and testified that all available assistance was provided to promote petitioner's success.

To the extent the panel's finding of incompetence was based upon its evaluation of the credibility of witnesses who testified at the hearing, I will not substitute my judgment for the panel's barring 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, 32 Ed Dept Rep 666; Appeal of Community School Board No. 24, 32 id. 282; Appeal of LePore, 28 supra 425). Because I find no basis in the record before me to conclude that the panel erred in this regard, there are no valid grounds to set aside the panel's finding.

With regard to penalty, the Commissioner of Education may substitute his judgment for that of a hearing panel (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, 442 NYS2d 212, aff'd 56 NY2d 700). The penalty of dismissal recommended by the panel is appropriate upon a showing of incompetence (Matter of Linfield v Nyquist, 65 AD2d 846, 410 NYS2d 172 aff'd 48 NY2d 1005; Appeal of the Board of Education of the Monroe-Woodbury CSD, 26 Ed Dept Rep 103; Matter of Board of Education of Clinton CSD, 21 id. 152). In addition, a school district is not required to employ an incompetent teacher in the hope that he or she will eventually improve (Appeal of Board of Education of the Pleasantville UFSD, 31 Ed Dept Rep 262; Appeal of Board of Education of the Monroe-Woodbury CSD, supra). In cases where a teacher's incompetence endangers the health and safety of students, the interests of the children must be paramount. Petitioner's incompetence rendered her classroom an unsafe environment where her students suffered physical harm. Although the events leading up to petitioner's dismissal occurred over a brief period of time, I find dismissal appropriate in view of the gravity of the situation. Under the circumstances, the students' right to effective instruction in a safe environment far outweighs petitioner's claim for reinstatement (see, Appeal of Board of Education of the Pleasantville UFSD, supra; Matter of Board of Eduction of the Clinton CSD, supra; Matter of Board of Education of Community School District No. 5, 20 Ed Dept Rep 462). Consequently, I will not set aside the panel's decision authorizing petitioner's dismissal.

THE APPEAL IS DISMISSED.

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