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Decision No. 13,332

Appeal of the BOARD OF EDUCATION OF THE LIMESTONE UNION FREE SCHOOL DISTRICT from a determination rendered by a hearing panel convened pursuant to Education Law '3020-a concerning charges against Kevin Healy, a tenured teacher.

Decision No. 13,332

(January 17, 1995)

Williams, Hulburt & Brown, Esqs., attorneys for petitioner, Peter K. Hulburt, Esq., of counsel

Bernard F. Ashe, Esq., attorney for respondent, Ivor R. Moskowitz, Esq., of counsel

SOBOL, Commissioner.--Petitioner, the Board of Education of the Limestone Union Free School District, appeals the determination of a hearing panel convened pursuant to Education Law '3020-a which found respondent guilty of conduct unbecoming a teacher and imposed a reprimand. Petitioner seeks reversal of the panel's dismissal of three specifications and parts of two other specifications against respondent, together with authorization to terminate his services. The appeal must be sustained in part.

Respondent is a tenured teacher assigned to the Limestone Elementary School. On or about September 9, 1992, petitioner found probable cause to prefer two charges against respondent for insubordination and conduct unbecoming a teacher. Charge I - insubordination consists of two specifications. Specification #1 alleges that respondent used fellow students to humiliate and embarrass a student in his class, used inappropriate corporal punishment against another student, and encouraged an altercation between two students in his class. Specification #2 alleges that respondent conducted himself unprofessionally in handling questions and concerns raised by the parents of students in his class. In addition, Specification #2 alleges that respondent used inappropriate disciplinary procedures against student N.B., culminating on June 2, 1992 in a tirade of screaming at the student while only he and the student were in a classroom. During this incident, respondent is alleged to have refused to allow the child to leave the room. Finally, Specification #2 alleges that upon being informed by a student that cheating had occurred during one of his tests, respondent indicated that cheating was "alright" in his class because the children could not pass anyway.

Charge II - conduct unbecoming a teacher, consists of four specifications. Specification #1 alleges that during February 1992 a fellow teacher, Mrs. Renaud, observed respondent in the boys' lavatory acting in an inappropriate manner. Specification #2 alleges that on several occasions respondent was observed by elementary school students urinating in the boys' lavatory in a bizarre and unbecoming manner. Specifications #3 and #4 allege the same conduct contained in Specifications #1 and #2 of Charge I, respectively.

On October 19, 1992, respondent moved to dismiss the charges for lack of specification. Oral argument on this motion was heard on the first day of the hearing on December 1, 1992. The panel, by decision dated December 4, 1992, dismissed certain charges and specifications for lack of specificity. The panel dismissed Specification #1 of Charge I in its entirety because it contained no time reference except "on more than one (1) occasion... [during] ...the school year 1991-92." The panel also dismissed all of Specification #2 of Charge I due to lack of a sufficiently specific time period except that portion of the specification dealing with conduct involving student N.B. that allegedly occurred on June 2, 1992.

The panel also dismissed Specification #2 of Charge II because it contained no time reference other than "on several occasions." Specifications #3 and #4 were also dismissed for vague time references except for that portion of the specification relating to conduct alleged to have occurred on June 2, 1992.

The panel conducted a hearing on the remaining charges over five days between December 1992 and January 1993. On March 17, 1993, the hearing panel rendered its decision finding respondent guilty of that portion of Specification #4 of Charge II relating to respondent's refusal to allow student N.B. to leave a classroom by blocking the exit. The panel dismissed the remainder of the specification for lack of proof. The hearing panel also dismissed the insubordination charge because no evidence was offered that respondent's detaining of the child violated any school rule or policy. Finally, Specification #1 of Charge II relating to acts observed by Mrs. Renaud in the boys' lavatory was dismissed for lack of proof. Based on its findings of guilt, the panel recommended a penalty of a reprimand.

Petitioner contends that the hearing panel erred when it dismissed both specifications contained in Charge I except for that portion dealing with conduct that occurred on June 2, 1992. In particular, petitioner argues that the specification clearly indicates that the acts of humiliation and embarrassment of student N.B., the use of inappropriate corporal punishment directed towards W.T. and the encouragement of an altercation between W.T. and another student, J.M., all occurred at various times during the 1991-92 school year. Petitioner argues that because this conduct occurred throughout the 1991-92 school year the time references in the specifications were sufficient to apprise respondent of the charges against him. With respect to the portions of Specification #2 of Charge I that were dismissed, petitioner argues that a course of conduct involving N.B. occurred throughout the 1991-92 school year and climaxed on June 2, 1992. Petitioner additionally argues that respondent's lack of consideration for the concerns of at least one parent occurred throughout the 1991-92 school year.

With respect to Charge II, Specification #2, petitioner argues that it should not have been dismissed because it was based on the observation of elementary school students who have difficulty recalling specific dates. Petitioner contends that the remaining specifications in Charge II, #3 and #4, should not have been dismissed because the conduct occurred throughout the school year as previously stated in relation to Charge I. Petitioner also argues that any doubt concerning lack of specificity should have been cured by the affidavit of petitioner's counsel served on October 26, 1992, in answer to respondent's motion to dismiss.

Petitioner further contends that the panel's decision, finding respondent not guilty of several of the remaining charges and specifications or parts thereof, was arbitrary and capricious and not supported by the evidence. Petitioner argues that Mrs. Renaud's testimony concerning respondent's alleged behavior in the boys' lavatory was corroborated by the testimony of another teacher and a student teacher. With respect to the incident on June 2, 1992, involving student N.B., petitioner argues that the panel improperly evaluated respondent's inconsistent and contradictory testimony in finding respondent not guilty of the remaining portions of the specifications.

In addition, petitioner asserts that the panel erred in its finding that respondent's prior 3020-a convictions were irrelevant. Petitioner argues that, in view of these previous '3020-a convictions, the panel should have found the current charges against respondent substantial and substantiated and terminated his employment.

Respondent disputes neither the panel's findings of guilt nor the dismissal of the various specifications. Rather, respondent argues that the penalty of a reprimand should be affirmed.

Pursuant to Education Law '3020-a, the burden of proof in a teacher's disciplinary hearing lies with the complainant. To sustain a charge, complainant must establish the charges by a preponderance of the evidence (Martin v. Board of Education, 67 NY2d 975; Application of Bd. of Educ., City School District of the City of New York, 29 Ed Dept Rep 302). In matters involving credibility of witnesses, I have repeatedly held that "where the panel determination rests in a major part on determination of witness credibility, I will not substitute my judgment for that of the panel unless there is clear and convincing evidence that the determination of credibility is inconsistent with the facts" (Matter of Community School Board No. 18, 21 Ed Dept Rep 216; Matter of LePore, 28 id. 425). Thus, there must be facts sufficient to demonstrate in a clear and convincing fashion that the panel was wrong in its determination of the witnesses' credibility for me to substitute my judgment in this matter. Stated another way, I will not "ordinarily substitute my judgment for that of a hearing panel as to the credibility of the 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 Educ., City School District of the City of New York, 24 Ed Dept Rep 284; Matter of Bd. of Educ., Sewanhaka CHSD, 23 id. 463; Matter of Bd. of Educ., City School District of the City of New York, 26 id. 544).

With respect to the specifications that were dismissed for lack of specificity, the record indicates that subsequent to the chairperson's decision, petitioner redrafted the charges and amended charges were served on respondent. A separate '3020-a panel was convened to hear those charges. In view of those events, it is apparent that no purpose would be served by the reinstitution of the original charges and this issue is moot. The Commissioner of Education decides only matters in actual controversy and will not render a decision concerning a controversy which subsequent matters have laid to rest (Appeal of Scribani, 30 Ed Dept Rep 164; Appeal of Becker, 29 id. 419; Appeal of Vachon, 28 id. 276).

With respect to the remaining specifications considered by the panel, the panel found a lack of proof with respect to Specification #1 of Charge II. Mrs. Renaud was the sole witness of the alleged event and respondent denied the incident. The panel evaluated the witnesses' credibility and determined that petitioner had not proven the charges by a preponderance of the evidence. There is no evidence that the panel's determination was contrary to the facts, therefore, there is no basis to set aside the panel's decision.

With respect to Specification #2 of Charge I and Specification #4 of Charge II, concerning the June 2, 1992 incident with N.B., the panel found that the evidence did not establish that respondent engaged in a tirade against student N.B. The panel also found that although respondent stated to N.B. that he loved her in response to her statement that she hated him, this statement did not rise to the level of misconduct. The panel did conclude that respondent blocked the exit to the classroom and refused to allow the student to leave after she repeatedly asked to leave and became upset by his refusal. The record indicates that respondent, N.B. and N.B.'s mother testified concerning the June 2, 1992 incident. The mother overheard the exchange between respondent and her daughter as she was coming to pick up her daughter after school. In addition, the principal, Mr. Pionzio, who was called to the room by the mother, also testified as to the June 2, 1992 incident. Respondent asserted that he kept student N.B. after class to discuss issues relating to her talking out of turn and/or getting out of her seat and not completing her assignments. N.B. testified that she became upset at being detained by respondent because she was going to be late for her next class and would be "yelled at" by Mrs. Carroll. Respondent continued to talk and/or question her while the child attempted to leave the room. Respondent blocked the door which was ultimately opened by Mr. Pionzio, who entered the room with the student's mother. The panel evaluated the testimony and credibility of each of the witnesses who testified concerning the June 2, 1992 incident and concluded that the misconduct proven related to blocking the exit and refusing to let an obviously upset child leave. I cannot conclude that the panel's credibility determinations were clearly contrary to the weight of the evidence. Accordingly, I find no basis to substitute my judgment for that of the panel.

Finally, petitioner contends that the penalty imposed is inappropriate. Petitioner maintains that since the prior '3020-a conviction involved an incident of inappropriate corporal punishment, respondent has persisted in conduct injurious to his students and, therefore, should be terminated.

The Commissioner may substitute his judgment for that of a hearing panel with respect to the penalty imposed (Shurgin v. Ambach, supra; Matter of McNamara v. Commissioner, supra). In assessing the penalty in this instance, I find that the penalty recommended by the panel is too lenient. The hearing panel indicated in a footnote to its decision that it did not feel that respondent's prior 3020-a convictions were relevant in assessing the penalty for the misconduct presently under review. No reason was given for this conclusion. Based on the record before me, I find that respondent's prior 3020-a convictions are relevant to the instant proceeding. Respondent pled guilty to two specifications of conduct unbecoming a teacher: one involved yelling at the parents of a student who were attempting to have respondent address their questions and concerns and another involved an incident of corporal punishment against one of his students. Respondent was suspended for three months without pay.

While the conduct with student N.B. does not involve corporal punishment, it does involve inappropriate conduct with an elementary school child, as did the prior incident, and it occurred a mere three years after the corporal punishment incident. The conduct for which respondent was found guilty related to keeping N.B. from leaving a classroom by blocking the door after she repeatedly asked to leave and started crying at his refusal to accede to her request. Although the previous convictions and the present proceeding indicate a pattern of poor judgement, termination of his employment is not warranted at this time. Imposition of a six-month suspension without pay is appropriate to impress upon respondent that his conduct is unacceptable and must not continue.


IT IS ORDERED that such portion of the decision of the hearing panel which recommended that respondent be reprimanded 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 six months.