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Decision No. 13,303

Appeal of the BOARD OF EDUCATION OF THE JOHNSBURG CENTRAL SCHOOL DISTRICT from a determination of a '3020-a hearing panel concerning charges against Mary McSweeney, a tenured teacher.

Decision No. 13,303

(December 8, 1994)

Judge & Duffy, Esqs., attorneys for petitioner, H. Wayne Judge, Esq., of counsel

Bernard F. Ashe, Esq., attorney for respondent, Kevin H. Harren, Esq., of counsel

SOBOL, Commissioner.--Petitioner, the Board of Education of the Johnsburg Central School District, appeals the determination of a hearing panel convened pursuant to Education Law '3020-a which found respondent guilty of one charge of incompetency and not guilty of five other charges. The panel recommended that respondent be suspended without pay for 20 weeks. Petitioner seeks a determination that respondent is guilty of all charges. Petitioner also seeks authorization to terminate respondent's services. The appeal must be sustained in part.

Respondent has been employed as an elementary school teacher in petitioner's schools since 1968. On or about September 13, 1993, petitioner found probable cause to prefer charges against respondent. The charges were subsequently amended. They allege that respondent made inappropriate remarks to a fourth grade student, humiliated another student, made inappropriate comments to the parents of a student, improperly gave a student a ride in her car, permitted her fourth grade class to wear Halloween costumes on October 31, 1991 against written instructions from the building principal and brought her entire class to the school office to make a telephone call.

A hearing was conducted over four days between November 22, 1993 and March 24, 1994. On or about June 15, 1994, the panel issued a decision in which it found respondent guilty of using inappropriate language while talking with a student about two other students. Specifically, the panel found that respondent said to a fourth grade student "fuck means sex." The panel found respondent not guilty of the remaining five charges and recommended that respondent be suspended without pay for 20 weeks.

Petitioner contends that the panel's findings of not guilty on five charges were against the weight of the evidence. Respondent denies that contention.

In reviewing the determination of a hearing panel rendered pursuant to Education Law '3020-a, the Commissioner 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, 83 AD2d 665, 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 evidence and the hearing panel has not adequately explained its rejection of otherwise convincing testimony (Shurgin, supra; Matter of Bd. of Ed., NYC, 24 Ed Dept Rep 284; Matter of Bd. of Ed. Sewanhaka CHSD, 23 id. 463). Where the credibility of a witness 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 Bd. of Ed., NYC, 32 Ed Dept Rep 666; Appeal of LePore, 28 id. 425).

The charges against respondent regarding the alleged humiliation of a student and inappropriate remarks to the parents of a student rested on testimony given by petitioner's witnesses. That testimony was contradicted by testimony presented by respondent's witnesses, which indicated that the testimony supplied by petitioner's witnesses was either incorrect or unreliable. Based on its assessment of the evidence presented on those two charges and the credibility of the witnesses, the panel determined that respondent was not guilty of those charges. After reviewing the entire record, I find that the findings and conclusions of the panel are supported by the record.

Turning to the charge that respondent improperly gave a student a ride in her car, the record indicates that the student lived next door to respondent, was a playmate of respondent's daughter and had ridden with respondent in her car on prior occasions. On the day at issue, respondent drove the student after school to the Town of Minerva about 8 miles from school before taking him home. The record is not clear, but respondent apparently drove to Minerva to pick up her daughter. In light of the fact that the student's mother did not know that respondent was driving her son home on that day, respondent's action was improper. The panel noted that respondent may have exercised poor judgment in this matter, but stated:

Respondent was acting in a neighborly capacity, as opposed to her pedagogical capacity, and that she may have acted in disregard of her neighbor's parental concern is unrelated to her duties as an employee of the District.

The panel's assessment of this issue is correct. Respondent clearly should have notified the student's mother and obtained her consent before driving the student home. However, her failure to do so does not rise to the level of professional misconduct.

Moreover, the record simply does not support the charge that respondent disobeyed a directive to teachers forbidding students in grades 4 or higher from wearing Halloween costumes to school. The record does show that during the morning session of October 31, 1991, the students in respondent's fourth grade class gave oral book reports. As part of those presentations, each student dresses as a character in the story being reported. Once the reports were completed, the students returned to normal clothes. There is no indication that the students used the costumes to celebrate Halloween or that they participated in the Halloween activities sponsored by the school involving Halloween costumes. Moreover, the record indicates that respondent had employed the practice of having students give oral book reports in costume for many years with the apparent consent of the administration.

The charge that respondent acted improperly in bringing her class to the main office to make a telephone call is also baseless. The record shows that while taking her class to the playground for recess, respondent stopped at the main office and made a short phone call. The call was work-related and involved a deadline to be met that morning. Since respondent's schedule did not afford her any free time until almost 2:00 p.m., the panel concluded that respondent's actions were proper. I do not find that determination unreasonable under the facts of this case.

Petitioner also contends that the decision of the hearing panel is defective because it is conclusory and devoid of findings of fact, as required by 8 NYCRR 82.10(i). That contention is rejected. The panel's decision separately deals with each charge and sets forth its findings and conclusions as to each charge.

Turning to the question of penalty, petitioner contends that the penalty is too lenient, while respondent contends it is appropriate. The Commissioner of Education is authorized to impose a proper penalty and is not bound by the actions of the hearing panel (Shurgin v. Ambach, supra; Matter of McNamara v. Commissioner, supra). This requires an assessment of the measure of discipline and whether it is proportionate to the offense (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).

Based on the record before me, I find that the penalty recommended by the panel is too lenient. I note that respondent has been found guilty in two previous disciplinary proceedings. In 1978, respondent was found guilty of starting a fire in her classroom with students present. At that time, she was reprimanded. In 1986, she was found guilty of making inappropriate remarks concerning the school performance and home situations of students. In one case, respondent attributed poor scholastic performance to parental separation. In another case, poor performance was attributed to the student's father living with a woman not his wife. In a third instance, students were discussed openly in class, to the embarrassment of the students affected. At that time, respondent was suspended without pay for a semester. In determining the penalty in this case, the hearing panel improperly disregarded the disciplinary charge for which respondent was found guilty in 1978. Moreover, the panel apparently disregarded the fact that the previous findings of guilt and the present proceeding indicate a pattern of poor judgment that could be harmful to students (SeeAppeal of Bd. of Ed., Tuxedo UFSD, 33 Ed Dept Rep 626).

While I find respondent's actions lacking in professional judgment, however, termination of her employment is not warranted. Rather, a penalty must be imposed which is sufficient to impress upon respondent that her conduct is unacceptable and must not continue. Accordingly, I find that the appropriate penalty is a one-year suspension without pay. In calculating the period of suspension, petitioner must take into account any period of suspension without pay already served by respondent.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that such portion of the decision of the hearing panel which recommended that respondent be suspended without pay for 20 weeks be, and the same herein is, annulled.

IT IS FURTHER ORDERED that petitioner be, and hereby is, authorized to suspend respondent without pay for a period of one year, to include the period of suspension which respondent may have already served pursuant to the hearing panel's decision.

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