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Decision No. 13,290

Appeal of the BOARD OF EDUCATION OF THE WARSAW CENTRAL SCHOOL DISTRICT from a determination rendered by a hearing panel convened pursuant to Education Law '3020-a concerning disciplinary charges against William Manning, Jr., a tenured teacher.

Decision No. 13,290

(November 22, 1994)

Harris, Beach & Wilcox, Esqs., attorneys for petitioner, James A., Spitz, Jr. and Andrea M.

B. Terrillion, Esqs., of counsel

Janet Axelrod, Esq., attorney for respondent, Robert W. Klingensmith, Jr., Esq., of counsel

SOBOL, Commissioner.--Petitioner, the Board of Education of the Warsaw Central School District, appeals the decision of a panel convened pursuant to Education Law '3020-a to hear disciplinary charges brought against William Manning, Jr., a tenured teacher. The appeal must be sustained in part.

On October 16, 1991, petitioner found probable cause to prefer a disciplinary charge against respondent Manning for incompetent and insufficient service and conduct unbecoming a teacher. An additional charge of conduct unbecoming a teacher was preferred against respondent on November 19, 1991. On January 18, 1992, the chairman of the hearing panel appointed to hear the charges consolidated the two sets of charges.

The charge of incompetency and inefficiency is based on eight specifications. Specifically, in Charge number 1, respondent is charged with failing to forward payments to a book company after collecting money from his students, sleeping in the teacher's lounge during his preparatory period, failing to provide instruction to his class on May 20, 1991, falling asleep in class, failing to order review books for non-Regents students in his Regents class, not involving non-Regents students in review classes, sending a student to photocopy material and failing to turn in a report of students experiencing academic difficulties.

Charge number 2 contains ten specifications charging respondent with conduct unbecoming a teacher for a number of violations of the Vehicle and Traffic Law. Specifically petitioner alleges that on March 22, 1986 and on July 13, 1990 respondent operated a motor vehicle while under the influence of alcohol, was arrested and subsequently convicted of violating the Vehicle and Traffic Law; on April 6, 1990 respondent, while operating a motor vehicle, struck a guardrail causing property damage, left the scene of the accident and was subsequently charged and convicted for failure to keep right and leaving the scene of an accident; on October 3, 1991 respondent operated an uninsured vehicle while under the influence of alcohol, was arrested and charged with felony driving while intoxicated, failure to keep right and operation of an uninsured vehicle; and on October 4, 1991 respondent reported absent due to illness when he was not, in fact, sick.

A hearing was held on five dates, ending on April 15, 1992. During the course of the hearing, the hearing panel chairman dismissed specification 3 of Charge 1 which alleged respondent failed to provide instruction to his class on May 20, 1991 and specification 5 of Charge 1 which alleged respondent failed to order review books for non-Regents students in his Regents class. The panel chairman's decision was based on his finding that those two specifications were the subject of a prior grievance proceeding.

The hearing panel chairman also dismissed specifications 8 and 9 of Charge 2 relating to respondent's arrest in 1986 for driving while intoxicated. The chairman found that, because the 1986 incident resulted in a conviction for driving while ability impaired (DWAI), the specifications were time barred because the misconduct did not fall within the "crime" exception to the three year statute of limitations under '3020-a. The chairman dismissed the specifications but held that the 1986 conduct could be considered by the panel for the purpose of determining an appropriate penalty.

On July 16, 1992 the panel issued its decision. With respect to Charge 1, the hearing panel found respondent guilty of falling asleep in class on one occasion, not involving non-Regents students in review classes, sending a student to photocopy material and failing to turn in a report of students experiencing academic difficulties. With respect to Charge 2, the panel found respondent guilty of specification 10, reporting absent due to illness, when he was not, in fact, ill. Based on the findings of guilt on those specifications, the panel imposed a penalty of a reprimand.

In addition, the panel noted that respondent did not dispute the remaining specifications contained in Charge 2 relating to his operation of a motor vehicle while intoxicated. However, the panel found that the teacher should not be disciplined for his off duty, alcohol-related driving problems. The panel ruled that it was not bound to observe prior rulings of the Commissioner of Education which held that teachers are role models for students and, as such, certain conduct - although occurring out of school - provides a basis for imposing discipline under '3020-a (see, Ellis v Ambach, 124 AD2d 854; Appeal of the Bd. of Educ., Canandaigua City School District, 25 Ed Dept Rep 387). Instead the panel opined that there must be a nexus between a teacher's off-duty conduct and his actual teaching performance. The panel rejected the role model argument that students will follow the examples set by teachers. The panel found that petitioner had presented no evidence that showed the teacher's conduct affected his classroom performance or the behavior of his students. After reviewing specifications 1 through 8 of Charge 2 for the purpose of determining penalty, the panel reasoned that, based upon the above analysis, the conduct did not warrant any further penalty.

Petitioner appeals the panel's decision and seeks authorization to dismiss the teacher. Petitioner contends that the panel chairman erred in finding specifications 3 and 5 of Charge 1 the subject of a prior grievance proceeding and in finding that the 1986 specifications were time barred. Petitioner also asserts the panel erred in disregarding the "role model" standard and requiring a nexus between off-duty conduct and actual teaching performance as a basis for determining an appropriate penalty. Petitioner contends that the penalty of reprimand is insufficient and seeks authorization to dismiss respondent.

Respondent does not dispute the panel's findings or the penalty imposed.

Petitioner initially challenges dismissal of specifications 3 and 5 of Charge 1. Those specifications respectively allege that respondent failed to provide instruction to his class on May 20, 1991 and failed to order review books for non-Regents students in his Regents class. The record indicates that the same conduct was described in a counselling memorandum petitioner previously placed in respondent's file. The record further shows that respondent challenged the memorandum in a grievance proceeding claiming, in part, that the memorandum was based upon inaccurate information. As a result of the grievance proceeding, petitioner agreed to delete all reference to those two allegations in the memorandum.

Petitioner claims that its deletion of the allegations pursuant to the grievance proceeding was attributable to procedural errors in placing the memorandum in respondent's file, rather than resolution of a dispute over the accuracy of the allegations. However, the panel chairman noted that, in its transmittal letter forwarding the corrected memorandum, petitioner's superintendent reiterated that respondent's grievance was based, in part, on his challenge to the accuracy of the information contained in the original memorandum and offered the corrected memorandum "as a resolution" of the grievance. I find, therefore, that the panel chairman's determination that specifications 3 and 5 of Charge 1 were the subject of a prior grievance is supported by the record. Accordingly, such specifications were properly dismissed.

Petitioner also challenges as time barred the dismissal of specifications 8 and 9 of Charge 2 alleging that in October 1986 respondent operated a motor vehicle while under the influence of alcohol, was arrested and subsequently convicted of a violation of the Vehicle and Traffic Law. Education Law '3020-a(1) provides:

(N)o charges under this section shall be brought more than three years after the occurrence of the alleged ... misconduct, except when the charge is of misconduct constituting a crime whencommitted (emphasis supplied).

In the present case respondent was initially charged with the crime of driving while intoxicated but subsequently pled guilty to the traffic infraction of driving while ability impaired (DWAI).

Petitioner argues that, notwithstanding respondent's DWAI conviction, the conduct charged constituted a "crime when committed" and, therefore, may properly be a basis for charges pursuant to Education Law '3020-a. Respondent argues that, because he was convicted by a criminal court only of the traffic infraction of DWAI and a traffic infraction does not fit within the "crime" exception of the '3020-a statute of limitations, the panel chairman properly dismissed specifications 8 and 9.

In dismissing the 1986 specifications the panel chairman cited Matter of the Bd. of Educ., East Irondequoit CSD, 20 Ed Dept Rep 634, for the proposition that '3020-a does not require that a criminal conviction be entered in order to satisfy the "crime exception" and that a panel is directed to compare the factual allegations of the '3020-a charges to the appropriate Penal Law section. However, the panel chairman distinguished the present case by noting that the decision in East Irondequoit did not indicate whether charges had also been brought against the teacher in a criminal court and, if so, whether the court found the teacher innocent or, as in this case, guilty of a lesser charge. The panel chairman also cited Appeal of the Bd. of Educ., Canandaigua City School District, supra, for the holding that a "traffic infraction does not constitute a crime and is exempt after three years."

I find that, in determining whether specifications 8 and 9 came within the crime exception, the panel chairman erroneously distinguished this case from the East Irondequoit decision, and that his reliance on respondent's subsequent DWAI conviction in 1986 is misplaced. As stated in East Irondequoit, the statutory language is unequivocal and clear on its face. The statutory language does not require that the conduct result in a criminal conviction. Indeed, a conviction for a lesser offense may be entered for a myriad of reasons and is not determinative of a school district's ability to bring charges against a teacher, so long as the '3020-a charge involves misconduct constituting a crime when committed. Since the statutory language is not ambiguous, it must be interpreted as it reads (McKinney's Stats '92b; NY Ambassador, Inc. v NYC Bd. of Standards and Appeals, 114 NYS 2d 901, rev'donothergrounds, 281 AD 342, aff'd 305 NY 791; Matter of Bd. of Educ., East Irondequoit CSD, supra). Therefore, the panel chairman improperly dismissed specifications 8 and 9 of Charge 2 as time barred. I note, however, that the panel did consider respondent's conduct in 1986 in determining the penalty imposed.

Turning to the issue of penalty, it is well settled that the Commissioner may substitute his judgment for that of a hearing panel regarding the penalty imposed (Matter of Levyn v Ambach, 56 NY2d 912; Matter of Shurgin v Ambach, 83 AD2d 665, aff'd 56 NY2d 700). In assessing the penalty in this instance, the hearing panel determined that it was not bound by prior decisions of the Commissioner of Education and need not consider whether respondent's conduct undermined his capacity to act as a role model for students. I find that, in failing to consider specifications 1 through 9 of Charge 2 for penalty purposes and refusing to consider the impact of the conduct described therein on respondent's capacity to serve as a role model for students, the panel acted contrary to established law (see, Ambach v Norwich, 441 US 68; Ellis v Ambach, 124 AD2d 854; Matter of Bd. of Educ., Canandaigua City School District, supra).

The primary purpose of a disciplinary hearing is to determine a teacher's fitness to carry out professional responsibilities (Matter of Bott v Bd. of Educ., 41 NY2d 265). Respondent's conduct involving his operation of a motor vehicle while intoxicated as well as his subsequent DWI and DWAI convictions raises a serious question as to his capacity to act as a role model for his students (see, Bd. of Educ., Canandaigua City School District, supra). In recent years the problem of drunk drivers has become a matter of increasing public concern, reflected in increases in penalties imposed for alcohol-related vehicular offenses and the establishment of organizations dedicated to the prevention of drunk driving. Indeed, evidence presented at the hearing established that the issue of drunk driving was a significant subject addressed by student organizations in petitioner's school district and that the district conducted programs aimed at preventing students from drinking and driving. The impact of respondent's conduct on his capacity to act as a role model takes on particular significance in this instance in view of petitioner's attempts to combat drunk driving through school programs and events. I find, therefore, that respondent's conduct adversely impacts upon his ability to function as an example for students (Ambach v Norwich, supra; Ellis v Ambach, supra) and that such conduct also compromises the credibility of the school district's position and programs against drunk driving.

Petitioner contends that respondent's misconduct warrants dismissal. The record indicates that, with the exception of the panel's findings in connection with Charge 1, his performance in the classroom has been satisfactory. Where a teacher's misconduct warrants disciplinary action, satisfactory classroom performance may be considered in determining the measure of the penalty imposed. Therefore, I do not find respondent's dismissal is warranted at this time (see, Appeal of the Bd. of Educ., Sachem CSD, 31 Ed Dept Rep 277). However, a penalty sufficient to impress upon respondent the serious nature of his misconduct and his need to address his alcohol-related problem is necessary. Although respondent has acknowledged his problem and attempted to address it by enrolling in a rehabilitation program, he was not successful in that attempt. Imposition of a penalty of suspension without pay for a period of two years is appropriate to impress upon respondent that his behavior is unacceptable and to constitute a warning of the consequences of continued misconduct.

Finally, subsequent to the initiation of this appeal petitioner made two applications to submit documents for my consideration which were not available for submission at the hearing. My review in appeals brought pursuant to Education Law '3020-a is limited to the record that was before the hearing panel (Appeal of Rheinhold, 30 Ed Dept Rep 166). Consequently, the additional documents presented by petitioner are not properly before me and cannot be considered.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the penalty of a reprimand imposed by the hearing panel be and hereby is annulled, and

IT IS FURTHER ORDERED that respondent be suspended without pay for a period of two years.

END OF FILE