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Decision No. 13,367

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

Decision No. 13,367

(March 3, 1995)

Williams & Brown, Esq., attorneys for petitioner, Thomas F. Brown, Esq., of counsel

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

SOBOL, Commissioner.--The Board of Education of the Limestone Union Free School District ("petitioner") appeals the determination of a hearing panel convened pursuant to Education Law '3020-a. The appeal must be sustained.

Respondent has been an elementary school teacher in petitioner's schools for 25 years. On or about December 21, 1992, petitioner found probable cause to prefer charges against respondent. A hearing was conducted over four days between March 30, 1993 and January 25, 1994. On or about March 8, 1994, the panel issued a decision finding respondent guilty of five specifications of insubordination and conduct unbecoming a teacher. Specifically, the panel found that respondent twice instructed students in a fourth grade class to tell one of their classmates, in the presence of the child's mother, how the child had misbehaved. The panel also found that respondent directed a student's mother not to tell the student's father that a student had received detention. Additionally, the panel found that respondent announced and set up a boxing match between two fourth grade students, although he ultimately canceled the fight. Finally, the panel found that respondent informed a parent that he was unconcerned about cheating that was allegedly occurring in his classroom. The panel found respondent not guilty of 8 other specifications, and recommended suspension without pay for nine months. Neither party to this appeal challenges the panel's findings of guilt. Accordingly, the sole issue before me for review is penalty. Petitioner contends that the penalty is too lenient and requests respondent's termination. Respondent does not challenge the penalty.

As Commissioner, I may substitute my judgment for that of the hearing panel regarding the penalty imposed (Matter of Mockler v Ambach, et al., 79 AD2d 745, lv to app den 53 NY2d 603; Matter of Kloepfer v Commissioner, et al., 82 AD2d 974, affd 56 NY2d 687; Matter of Shurgin v Ambach, 83 AD2d 665, affd 56 NY2d 700). In determining whether to substitute my judgment for the panel's, I must review the measure of discipline imposed and determine whether it is proportionate to the offense (Matter of Mockler v Ambach, et al., supra). My review of the record in this case shows that, in reaching its penalty recommendation, the panel accorded insufficient weight to respondent's previous '3020-a convictions (Appeal of Bd. of Educ. of Johnsburg CSD, Decision No. 13303, December 8, 1994; Appeal of Bd. of Educ., Tuxedo UFSD, 33 id. 626). In 1990, respondent pled guilty to conduct unbecoming a teacher for inappropriate conduct towards parents as well as corporal punishment. Respondent received a three-month suspension without pay. On March 17, 1993 respondent was found guilty of inappropriately restraining a child in a classroom and was issued a letter of reprimand. These previous disciplinary actions against respondent demonstrate a consistent exercise of poor judgment. Evidence of that same poor judgment permeates the instant record. Previous findings of guilt which indicate a pattern of poor judgment that could be harmful to students should not have been disregarded by the panel (Appeal of Bd. of Educ., Tuxedo UFSD, supra).

I find that respondent's actions demonstrate a continued lack of professional judgment. Based upon the record before me I find termination of respondent's employment is warranted at this time. The nine-month suspension without pay which was imposed by the panel is insufficient, based upon respondent's past transgressions, to impress upon him that his conduct is unacceptable and cannot continue. It must be noted that a previous suspension without pay failed to sharpen respondent's judgment. Although respondent has taught at petitioner's district for over 25 years, the welfare of students must be given consideration over the length of respondent's service (Appeal of Bristol, 33 Ed Dept Rep 202). To impose the penalty of dismissal, charges pursuant to Education Law '3020-a must be both substantial and substantiated (Appeal of Tranberg, 32 Ed Dept Rep 34). On the record before me, I find that this standard has been satisfied.

THE APPEAL IS SUSTAINED.

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

IT IS FURTHER ORDERED that petitioner be, and hereby is, authorized to terminate the services of respondent upon receipt of this decision.

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