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Decision No. 13,287

Appeal of the BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF POUGHKEEPSIE from a determination rendered by a hearing panel pursuant to Education Law '3020-a concerning disciplinary charges against respondent, tenured teacher.

Decision No. 13,287

(November 3, 1994)

Shaw & Silveira, Esqs., attorneys for petitioner, David S. Shaw, Esq., of counsel

Bernard F. Ashe, Esq., attorney for respondent, Gerard John DeWolf, Esq., of counsel

Petitioner Board of Education of the City School District of the City of Poughkeepsie appeals the determination of a hearing panel convened pursuant to Education Law '3020-a which dismissed charges brought against respondent. The appeal must be dismissed.

Respondent has been an elementary school teacher with the Poughkeepsie City School District since 1966. During this period she taught at the Warren School for 24 years. At the beginning of the 1991-1992 school year, respondent was assigned to the W.W. Smith Magnet School. During the 1992-1993 school year, respondent taught third grade at that school.

The charges relate to a single incident which occurred on May 27, 1993. On June 7, 1993, respondent met in executive session and found probable cause to prefer charges against respondent. The charges were:

CHARGE I - MISCONDUCT AND/OR CONDUCT UNBECOMING A TEACHER AND/OR INCOMPETENCE

In that on or about May 27, 1993, at approximately 2:10 P.M., at the Smith Magnet School, respondent, a tenured teacher of the District, grabbed a student by his arm and flung him into the wall in the hallway near her classroom. Respondent then grabbed the student by both arms and pushed him against the wall.

CHARGE II - INSUBORDINATION

In that on or about May 27, 1993, at approximately 2:10 P.M., at the Smith Magnet School, respondent, a tenured teacher of the District, grabbed a student by his arm and flung him into the wall in the hallway near her classroom. Respondent then grabbed the student by both arms and pushed him against the wall. Such conduct is in direct contravention of the Board of Education's written policy on corporal punishment, Policy No. 5314.

Hearings were held on September 15 and October 1, 1993. At the hearing, petitioner presented three witnesses: a teacher assistant who witnessed the incident, the building principal and the school nurse. Respondent testified on her own behalf. In its decision issued December 13, 1993, the hearing panel determined that petitioner had failed to establish that respondent was guilty of the charges.

Petitioner maintains that the panel's finding was against the weight of the evidence. Specifically, petitioner claims that respondent's testimony was inconsistent with her statement made at the time of the initial investigation and that the hearsay testimony of the student involved and the testimony of the eye witness support a finding of guilt against respondent. Petitioner alleges that the hearing panel erred in giving absolutely no weight to the hearsay statements of the student as reported to the building principal on the day after the incident. Petitioner also alleges that the panel's determination that the testimony of the eyewitness was inaccurate and unreliable has no foundation in the record of the hearing and that the panel's reasons for rejecting the credible testimony of the witnesses were not satisfactorily or adequately explained. Petitioner further contends that respondent's admission that she placed her hands on the student amounts to actionable conduct upon which the charges can be sustained regardless of a credibility determination. Petitioner requests that I substitute my judgment for that of the panel and impose a penalty of dismissal or long-term suspension without pay. Respondent contends that the decision of the panel is supported by the record.

In reviewing the determination of a hearing panel rendered pursuant to Education Law '3020-a, the Commissioner of Education has the power to substitute his judgment for that of the hearing panel on findings of fact and to make new findings (Matter of Shurgin v. Ambach, 56 NY2d 700; Matter of McNamara v. Comm'r, 80 AD2d 660). However, the Commissioner will not ordinarily substitute his judgment for that of a hearing panel unless the panel decision is contrary to the weight of the evidence and the hearing panel has not adequately explained its rejection of otherwise convincing testimony (Appeal of Bd. of Ed., NYC, 34 Ed Dept Rep , Decision No. 13245, dated August 22, 1994; Matter of Bd. of Ed., NYC, 24 id. 284; Matter of Bd. of Ed., Sewanhaka CHSD, 23 id. 463).

Where the credibility of witnesses is the primary basis of the hearing panel's decision, the Commissioner will not substitute his 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 Gibbs, 33 Ed Dept Rep 684; Appeal of Bd. of Ed., NYC, 32 id. 666; Appeal of LePore, 28 id. 425). I have carefully reviewed the record in its entirety and find no basis to overturn the panel's determination on the credibility of the witnesses.

Although there were some discrepancies in the witnesses' testimony, a review of the panel's decision indicates that after carefully weighing their respective testimony, the panel found respondent's testimony more credible than that of the eyewitness. Contrary to petitioner's allegation that the panel's reasons for rejecting the witness' testimony were inadequately explained, the panel devoted more than an entire page of its decision to explaining why it deemed respondent's testimony more reliable. It also explained its evaluation of the other testimony offered by petitioner. The panel separately considered each sentence of the charges and determined that petitioner failed to prove by a preponderance of the evidence that respondent committed the actions charged, namely, that she grabbed the student by his arm and flung him into the wall, or that she then grabbed the student by both arms and pushed him into the wall. Because petitioner failed to prove the allegations of misconduct, the panel determined that the charge of insubordination must also fail, since both charges were based on the same actions.

The panel's determinations regarding the credibility of the witnesses are not inconsistent with the evidence adduced at the hearing. Thus, upon the record before me, petitioner has not provided clear and convincing evidence sufficient for me to substitute my judgment for that of the panel.

Petitioner argues that regardless of the resolution of any dispute as to the credibility of the witnesses, respondent's admission that she placed her hands on the student amounts to actionable conduct. Petitioner contends that respondent's actions constitute, at a minimum, insubordination because they violate petitioner's Policy No. 5314 on corporal punishment. That policy provides in relevant part:

No teacher, administrator, officer, employee, or agent of this district shall use corporal punishment against a student.

"Corporal punishment" is defined as any act of physical force upon a student for the purpose of punishing that student, except as otherwise provided in the next paragraph of this policy.

In situations in which alternative procedures and methods not involving the use of physical force cannot reasonably be employed, any of the above enumerated persons may use reasonable force for the following purposes:

....4. to restrain or remove a pupil whose behavior is interfering with the orderly exercise and performance of school district functions, powers, and duties, if that student has refused to comply with a request to refrain from further disruptive acts.

Respondent admitted that she took hold of the student's arm and escorted him out of the room, that this specific action was not preceded by a verbal command to leave the classroom and that she put the student against the wall and held both his arms. However, respondent did not admit to the actions described in the charges, and the panel determined that petitioner failed to prove that respondent committed the specific acts enumerated in the charges. Furthermore, the panel also stated that

[t]he requirements of due process mandate that the Respondent not be judged for any acts not charged. The panel refrains, therefore, from any comment or assessment of Respondent's actions in taking [the student] out of the classroom by holding tightly to his arm or in swinging [the student]'s body around so that she could grasp both of his arms.

Because petitioner has failed to provide me with sufficiently clear and convincing evidence to warrant the substitution of my judgment for that of the panel on the charge of insubordination, I decline to do so.

THE APPEAL IS DISMISSED.

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