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Decision No. 13,381

Appeal of the BOARD OF EDUCATION OF THE LINDENHURST UNION FREE SCHOOL DISTRICT from action of the chairperson of a '3020-a hearing panel concerning charges against S.P., a tenured teacher.

Decision No. 13,381

(March 23, 1995)

Cahn, Wishod & Lamb, Esqs., attorneys for petitioner, Eugene L. Wishod, Esq., of counsel

Phillips, Weiner & Quinn, Esqs, attorneys for respondent, Robert L. Weiner, Esq., of counsel

SOBOL, Commissioner.--Petitioner Board of Education of the Lindenhurst Union Free School District ("petitioner") challenges an action of the chairperson of a hearing panel convened pursuant to Education Law '3020-a to hear disciplinary charges against S.P., a tenured teacher. The appeal must be dismissed.

On April 6, 1994, petitioner found probable cause to prefer three disciplinary charges against S.P. S.P. requested a hearing, which was conducted on August 30, September 1, September 27 and September 30, 1994. By the September 30th session, all but one of petitioner's witnesses had testified. Petitioner's remaining witness was apparently an expert who was expected to testify about the harm children suffer in connection with pedophilia. Before that expert witness testified, however, the panel chairperson stated that, unless the expert's testimony could show that S.P. was guilty of the charges, petitioner had failed to establish S.P.'s guilt. The chairperson then analyzed the evidence already presented and

opined that continued hearings were unnecessary. Petitioner's counsel objected to the procedure and the conclusions announced by the chairperson. S.P.'s counsel moved to dismiss the charges on the grounds that petitioner failed to establish a primafacie case.

The hearing resumed and petitioner's expert witness testified about the dangers posed to children by the pattern of behavior allegedly engaged in by S.P. Petitioner then rested its case, and the panel began deliberation on S.P.'s motion to dismiss. By letter dated October 7, 1994, one of the panel members resigned from the panel. Pursuant to 8 NYCRR 82-2.11(f), the Commissioner of Education appointed a replacement panel member.

Petitioner then commenced a proceeding pursuant to Article 78 of the Civil Practice Law and Rules in Supreme Court, Suffolk County. By order to show cause dated October 11, 1994, all further action in the '3020-a proceeding was stayed. On October 28, 1994, the temporary stay was vacated and the Article 78 proceeding was subsequently dismissed for lack of subject matter jurisdiction. Petitioner commenced this appeal on October 28, 1994. To date, the panel has not issued a decision in connection with S.P.'s motion to dismiss.

Petitioner and respondent advance various arguments regarding the validity of the procedure used by the panel chairperson and the statements made by him. It is well settled, however, that the Commissioner of Education will not review interlocutory actions taken prior to the final decision of a hearing panel on the charges (Appeal of Silla, 34 Ed Dept Rep 102; Appeal of St. Cyr, 27 id. 351). The actions of the chairperson challenged in this case are precisely that: interlocutory actions. Accordingly, the petition must be dismissed as premature.

If S.P.'s motion to dismiss is denied and the panel ultimately finds him guilty of the charges, petitioner's claims will be moot. If the motion to dismiss is granted, petitioner may seek review of the panel decision either by an appeal to the Commissioner of Education or by a proceeding in State Supreme Court initiated pursuant to Article 78 of the New York State Civil Practice Law and Rules (Education Law '3020-a[5]). At that time, petitioner has the right to raise both procedural and substantive challenges.

THE APPEAL IS DISMISSED.

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