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Decision No. 13,274

Appeal of HENRIOT ZEPHIRIN from the determination of a hearing panel convened pursuant to Education Law '3020-a concerning disciplinary charges brought against him by the Board of Education of Community School District No. 17 of the City of New York.

Decision No. 13,274

(October 12, 1994)

Bruce K. Bryant, Esq., attorney for petitioner

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

SOBOL, Commissioner.--Petitioner, a tenured administrator, appeals the determination of a hearing panel convened pursuant to Education Law '3020-a. The panel found him guilty of conduct unbecoming his position, as well as conduct prejudicial to the good order, efficiency and discipline of the service, and recommended dismissal. Respondent cross-appeals the panel's not guilty determination on some of the charges and the panel's dismissal of other charges. Both the appeal and the cross-appeal must be dismissed.

In February 1987, the Board of Education of Community School District No. 17 of the City School District of the City of New York ("respondent") employed petitioner as its director of funded programs. In that position, petitioner was responsible for the administration of all programs funded by sources other than New York City tax levy monies. This included funds for special purpose or targeted education programs paid by outside funding sources such as private grants and city, state or federal funds.

In May 1989, the auditor general and the investigator general of the Board of Education of the City of New York began investigations into the district's operations. In October 1989, a management team was sent to assist in the district's operations. On January 14, 1990, the Chancellor directed respondent's superintendent to remove petitioner from his position as director of funded programs.

The record indicates that while petitioner was employed by respondent, he submitted a bid proposal containing false statements and false information which resulted in the award of the bid proposal to GMP, a company owned by his cousin. Apparently, petitioner also participated in the fraudulent over-ordering of books. On or about October 19, 1990, respondent found probable cause to prefer charges against petitioner.

In June 1990, the district attorney indicted petitioner on 52 counts, many of which related to petitioner's activities in the bid proposal and book over-order. On May 31, 1991 petitioner was found guilty of six counts, including defrauding the government, grand larceny and falsifying business records.

A hearing was conducted over 18 months between July 17, 1991 and January 28, 1993. On or about December 29, 1993, the panel found petitioner guilty of the charges in specifications I-A, I-B, II-A, II-C, III-A and III-E. The panel held that the preponderance of the evidence at the hearing supported the charges in specifications I-A and I-B. Petitioner was also found guilty of the charges in specifications II-A, II-C, III-A and III-E since they were also the subject of criminal proceedings in which petitioner was found guilty. The panel found petitioner not guilty of the charges in specifications I-F, III-I, VI and VII. The panel recommended dismissal as the penalty for the charges upon which it found petitioner guilty.

Petitioner alleges that the panel's finding of guilt was contrary to the weight of the evidence and he raises several defenses, including that the panel's decision was not supported by credible evidence, that his attorney-client privilege was violated and that his criminal conviction did not cover all of the specifications. Petitioner also alleges that the penalty of dismissal is excessive.

Respondent contends that the panel erred in dismissing specifications I-D, I-E, III-D, IV, V, VI-F, VIII-A and IX-A and in not finding petitioner guilty of specifications I-F, III-I, VI and VII. Respondent contends that the record supports the panel's determination of guilt, but that the preponderance of the credible evidence also establishes petitioner's guilt of the dismissed charges.

Before reaching the merits of the appeal, I will address the procedural issues raised by petitioner. He alleges that the charges in specification I-B are protected by the attorney-client privilege and are not admissible. Petitioner contends that those charges were based on a letter that petitioner wrote to the school district's attorney stating that the job secured by GMP's bid proposal was completed, when in fact, he knew that the work had not been done. This letter was admitted at the hearing. However, my review of the record indicates that the panel found petitioner guilty of the charges in specification I-B without considering the letter that petitioner claims is protected by the attorney-client privilege. Instead, it relied on the testimony of respondent's witnesses that petitioner submitted four purchase orders totalling $39,600 to pay for the GMP contract. Because the panel found petitioner guilty of the charges in specification I-B without relying on his letter to the school district's attorney, I decline to dismiss the appeal on that basis.

Petitioner also alleges that the charges in specifications II-A and II-C, constituting fraudulent over-ordering of books and filing of false and misleading purchase orders, were not the subject of his criminal conviction. However, the panel concluded that the criminal charge encompassed the allegations in II-A and II-C, and III-A and III-E, particularly noting that count No. 2 of the indictment (Defrauding the Government), covered the duration of petitioner's employment with the district (from November 1987 to February 1990), not just the brief period of time in which the events of specifications III-A and III-E took place. Count No. 2 consisted of charges that petitioner engaged in an ongoing scheme to defraud the government and, as a result, appropriated governmental funds to himself in excess of $1,000. The panel concluded that petitioner was not able to rebut the presumption of guilt. My review of the record supports the determination of the panel.

Respondent's contention that the panel erred in dismissing specifications I-D, I-E, III-D, IV, V, VI-F, VIII-A and IX-A is without merit. The panel dismissed the charges in specification I-D, I-E, III-D, IV and VI-F because these charges failed to satisfy the requirements of Education Law '3590-j(7) and were therefore time barred. Under '3590-j(7), charges that do not constitute a crime when committed must be filed within six months of the time the Board of Education knew, or should have known with due diligence of the alleged conduct. Since the charges in specifications I-D, I-E, III-D, IV and VI-F do not allege criminal conduct and the charges were filed outside of the requisite time period they were properly dismissed by the panel. The charges in specifications V, VIII-A and IX-A were dismissed after the presentation of respondent's case on petitioner's motion because the panel found insufficient evidence to sustain these charges. I find nothing in the record to overturn the panel's decision to dismiss these charges.

Respondent also contends that the panel erred in not finding petitioner guilty of specifications I-F, III-I, VI and VII. The panel found that the preponderance of the evidence did not support the charges in specification I-F because it did not credit the testimony of Mr. Paret with respect to this charge, and absent any other supporting evidence, it could not rely solely on petitioner's bank records. The panel also found that the preponderance of the evidence could not support the charges in specification III-I since this charge was not a subject of the criminal conviction and there was no other credible evidence offered in support of it. Finally, the panel concluded the evidence fell short of sustaining the charges in specifications VI and VII because Article 6 of the collective bargaining agreement specifically authorizes the compensation of administrative personnel for per session work. In addition, the panel concluded, based on a preponderance of the evidence, that petitioner submitted a waiver request for his work, and that he was involved in summer programs activities during the relevant years. My review of the record supports the panel's finding of not guilty with respect to these charges.

Turning to the merits of the appeal, a review of the panel's determination indicates that after carefully analyzing the testimony of the witnesses, it found some witnesses more credible than others and based its decision on that assessment of credibility. Where the credibility of witnesses is the basis for the hearing panel's decision, I will not substitute my judgment for that of the panel unless there is clear and convincing evidence that the panel's determination of credibility is inconsistent with the facts (Appeal of Bd. of Ed., NYC, 32 Ed Dept Rep 666; Appeal of Community School Board No. 24, 32 id. 282; Appeal of LePore, 28 id. 425). Stated another way, the Commissioner of Education will not ordinarily substitute his judgment for that of a hearing panel as to the credibility of witnesses testifying at a hearing, unless the panel's decision is contrary to the weight of the evidence and the hearing panel has not adequately explained its rejection of otherwise convincing testimony (Matter of Shurgin v. Ambach, 56 NY2d 700; Matter of McNamara v. Commissioner, 80 AD2d 660; Matter of Bd. of Ed. of the City School District of the City of New York, 24 Ed Dept Rep 284; Matter of Bd. of Ed., Sewanhaka CHSD, 23 id. 463). Based on my review of the record, I find that the panel's decision is not contrary to the weight of the evidence. Therefore, I have no basis to overturn 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; Shurgin v. Ambach, supra).

In determining an appropriate penalty, the panel noted that the petitioner had been involved in misconduct of a criminal nature over an extended period of time. In addition, the panel found no circumstances that would mitigate the extent of his misconduct. The record also reflects that petitioner was found guilty of serious charges of significant misappropriation of public funds. Therefore, I find no basis in the record before me to overturn the panel's recommendation of dismissal.

I have reviewed petitioner's remaining contentions and find them without merit.

THE APPEAL AND CROSS-APPEAL ARE DISMISSED.

END OF FILE