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Decision No. 13,369

Appeal of MARIANNE N. MCCREERY from a determination of a hearing panel convened pursuant to Education Law '3020-a concerning disciplinary charges brought against her by the Board of Education of the Babylon Union Free School District.

Decision No. 13,369

(March 10, 1995)

Cahn, Wishod & Lamb, Esqs., attorneys for petitioner, Robert H. Cohen, Esq., of counsel

Ehrlich, Frazer & Feldman, Esqs., attorneys for respondent, Jacob S. Feldman and James H. Pyun, Esqs., of counsel

SOBOL, Commissioner.--Petitioner appeals the determination of a hearing panel convened pursuant to Education Law '3020-a finding her guilty of insubordination, neglect of duty, conduct unbecoming a principal, incompetency and inefficiency. The panel also recommended petitioner's termination. The appeal must be sustained in part.

Petitioner is a tenured administrator who, for nearly 10 years, has been employed as principal of the elementary school operated by the Board of Education of the Babylon Union Free School District ("respondent"). On or about October 24, 1990, respondent preferred 67 charges and specifications against petitioner and suspended her with pay. On March 8, 1991, respondent revised those charges and specifications.

The charges were based on allegations that petitioner failed to comply with numerous directives of the superintendent, including failing to notify the superintendent of parental complaints, failing to submit written instead of oral communications as directed by the superintendent, failing to submit a master plan of classroom observations, discussing a quality circle program with a union representative, mishandling of a student suspension, failing to notify the superintendent of a teacher's miscarriage, submitting incomplete testing data, inappropriately modifying class lists, failing to file teacher observation reports as directed, hiring two playground monitors without prior approval, issuing a directive excluding students from the school building after school hours, failing to provide an orderly dismissal of grade school students and making inappropriate comments about the superintendent. Respondent brought charges and specifications on single incidents under several disciplinary headings, resulting in the 67 charges and specifications based on approximately 15 incidents.

A hearing was held over 33 days between October 3, 1991 and April 8, 1993. On June 11, 1993, in separate opinions, the hearing panel found petitioner guilty of Charges I, II, III, IV, V, VI, VII, XI, XII and XIII. The panel chair and employer panel member authorized petitioner's termination. The employee panel member dissented, noting that the preponderance of the charges occurred during 44 days when petitioner worked with respondent's new superintendent and attributed the problems to a conflict between personalities. The employee panel member also stated that, in his opinion, many of the charges were frivolous and that the disciplinary proceeding was brought to coerce petitioner to resign or retire. The dissent also opined that termination was extreme under the circumstances. Petitioner commenced this appeal on July 16, 1993.

Petitioner alleges that respondent failed to meet its burden of proof on the disciplinary charges for which she was found guilty. Petitioner also alleges that the penalty was excessive, that a letter sent to the Commissioner of Education from respondent during the course of the hearing improperly influenced and intimidated the panel, and that the panel chair made numerous erroneous evidentiary rulings. Petitioner requests reinstatement to her position or, alternatively, a new hearing by a newly constituted panel.

Respondent contends that it met its burden of proof. Respondent also asserts that the panel did not find petitioner's testimony credible and seeks reversal on the charges of which petitioner was found not guilty. Respondent further argues that the penalty of dismissal was appropriate under the circumstances.

Petitioner argues that the panel chair's evidentiary rulings deprived her of a fair hearing. Specifically, petitioner claims that she was prevented from submitting evidence relevant to her defense that respondent and the teachers' union conspired to oust her from her position. Petitioner also maintains that the chair allowed into evidence hearsay statements of the former superintendent who was available as a witness, permitted the use of unsigned, unsworn and incomplete deposition testimony to cross examine petitioner and wrongly denied a motion to strike the testimony of a witness, Dr. Fusco, because of an exparte contact with one of the panel members.

Compliance with the technical rules of evidence is not required in Education Law '3020-a hearings, unless admission of technically inadmissible evidence will violate fundamental fairness (Education Law '3020-a[3][c]; Matter of Carangelo v. Ambach, 130 AD2d 898, 900, appeal denied, 70 NY2d 609; Appeal of the City School District of the City of Elmira, 30 Ed Dept Rep 68, 71). The panel chair correctly ruled that the evidence of bias against petitioner was not relevant to the charges against her and declined to accept it. The chair also declined to strike the testimony of Dr. Fusco based on her exparte contact with one of the hearing panel members. During the course of the hearing, Dr. Fusco approached the employer panel member and told him that she was planning to file a lawsuit against petitioner's counsel and the Council of Administrators and Supervisors (CAS) at the conclusion of the hearing. The panel chair fully evaluated Dr. Fusco's statement to the panel member and its potential for bias (Transcript at page 2430). The fact that the witness made an inappropriate statement to a panel member does not invalidate that witness' testimony or necessarily taint the hearing. My review of the record indicates that Dr. Fusco's inappropriate contact with the panel member did not prejudice the hearing. The panel chair's admission of hearsay evidence and ruling that allowed petitioner to be cross-examined based on her deposition testimony were also appropriate. Because the record fails to support petitioner's contention that the chair's evidentiary rulings were so egregious as to violate the fundamental fairness, petitioner's request for a new hearing is denied.

Petitioner also alleges that the November 9, 1992 letter from the board president to the Commissioner of Education severely compromised the hearing. Petitioner relies upon Matter of Syquia, 180 AD2d 883, aff'd 580 NY2d 531, in support of her argument and motion for a mistrial. However, the facts of the instant case are distinguishable from Matter of Syquia, supra. In Matter of Syquia, one of the panel members received an additional $100 per diem fee for his services. This economic incentive gave the appearance of impropriety and therefore rendered the initial hearing void. In the present case, the letter from the Board president was not shown to give the appearance of impropriety because it in no way made the panel more amenable to the Board's position. Accordingly, I find no basis for concluding that the letter in question improperly influenced or biased the panel.

Petitioner alleges that respondent failed to meet its burden of proof and seeks to overturn the panel's findings of guilt. Respondent seeks a reversal of the not guilty findings. The burden of proof in a disciplinary hearing pursuant to Education Law '3020-a lies with the complainant. To prevail the complainant must establish the charges alleged by a preponderance of the evidence (Martin v. Board of Education, 67 NY2d 975; Application of the 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 hearing panel unless there is clear and convincing evidence that the determination of credibility is inconsistent with the facts" (Appeal of the Bd. of Educ., Greater Johnstown City School District, 30 Ed Dept Rep 89; Appeal of LePore, 28 id. 425; Matter of Community School Board No. 18, 21 id. 216). Thus, for me to substitute my judgment in this matter, there must be facts sufficient to demonstrate in a clear and convincing fashion that the panel erred in its determination of the credibility of the witnesses.

In this case, the panel heard substantial testimony from a number of witnesses concerning petitioner's actions. While the witnesses may have differed in their interpretation of petitioner's conduct, the panel assessed their credibility and concluded that petitioner was guilty of a number of the charges and specifications. In addition, the panel evaluated petitioner's testimony and concluded that she was not credible based on her inconsistent and contradictory statements. On this record, there is no basis for me to substitute my judgment for the hearing panel's findings of guilt on the charges against petitioner. Likewise, I find no factual or legal basis to reverse the panel's not guilty findings as respondent requests. Therefore, I decline to overrule the panel's determination on the charges.

Turning to penalty, it is well established that the Commissioner of Education may substitute his judgment for that of the hearing panel (Matter of Levyn v. Ambach, 56 NY2d 912; Matter of Shurgin v. Ambach, supra; Matter of Mockler v. Ambach, 79 AD2d 745, lv to app den 53 NY2d 603). To do so, the Commissioner must assess whether the discipline imposed is proportionate to the offense (Matter of Mockler v. Ambach, supra; Matter of Kloepfer v. Commissioner, et al., 82 AD2d 974, affd 56 NY2d 687; Appeal of Dubner, 33 Ed Dept Rep 192; Matter of Bd. of Educ., Center Moriches UFSD, 22 id. 113; Appeal of the Bd. of Educ., Malverne UFSD, 29 Ed Dept Rep 363, aff'd sub nom Matter of Malverne UFSD v. Sobol, 181 AD2d 371). While the panel in this case recommends petitioner's termination, the record indicates that petitioner has served respondent with a virtually unblemished record for approximately 10 years. As the dissenting panel member notes in his opinion, the preponderance of the charges against petitioner were brought over a 44-day period in which she worked with a new superintendent. Aside from a few letters of admonition in her file, there were no prior disciplinary actions against petitioner over the lengthy term of her employment. As the dissenting panel member notes, petitioner attempted to comply in many instances with the superintendent's directives, and often petitioner was found guilty of charges in which she was merely exercising the discretion normally accorded to a principal. On this record, petitioner's conduct does not merit termination. Furthermore, petitioner received no notice that her services were so unsatisfactory or that her practices as an administrator were so unacceptable that they required discontinuance.

While I concur with the panel's findings of guilt on the charges based on the preponderance of the evidence and the credibility of the witnesses, none of the offenses for which petitioner was found guilty were sufficiently serious to warrant termination of her employment. I find that a penalty of two years' suspension without pay is more appropriate than termination and will be sufficient to impress upon petitioner the seriousness of her actions and to serve as a deterrent to any future similar actions.

In view of this disposition, I will not address the parties' remaining contentions.

THE APPEAL IS SUSTAINED TO EXTENT INDICATED.

IT IS ORDERED that the determination of the hearing panel be and the same hereby is annulled insofar as it terminated petitioner's employment.

IT IS FURTHER ORDERED that petitioner be suspended without pay for a period of two years, commencing June 11, 1993, and terminating June 11, 1995.

END OF FILE