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Decision No. 13,397

Appeal of the BOARD OF EDUCATION OF THE GREENBURGH CENTRAL SCHOOL DISTRICT No. 7 from a determination rendered by a hearing panel pursuant to Education Law '3020-a concerning disciplinary charges against Robert DeMichele, a tenured teacher.

Decision No. 13,397

(April 7, 1995)

Arnold B. Green, Esq., attorney for petitioner, Giacchino J. Russo, Esq., of counsel

James R. Sandner, Esq., attorney for respondent, Paul H. Janis, Esq., of counsel

SOBOL, Commissioner.--The Board of Education of Greenburgh Central School District No. 7 ("petitioner") appeals the decision of a hearing panel (the "panel") convened pursuant to Education Law '3020-a to hear disciplinary charges against Robert DeMichele ("respondent"). Petitioner requests that I find respondent guilty of all charges, annul the one and one-half year suspension imposed by the panel and authorize respondent's dismissal. The appeal must be dismissed.

Respondent has been a high school physical education teacher with the Greenburgh Central School District since 1974. On April 16, 1993, petitioner preferred one charge against respondent for immoral conduct and conduct unbecoming a teacher. The charge contained twelve specifications:

I. It is claimed by a student, A.H., that on or about March 9, 1993, and/or March 10, 1993, at Woodlands High School Gym, Robert DeMichele asked her, "When are you going to give me your phone number because you're graduating. Don't say anything because you'll get me in trouble."

II. It is claimed by a student, A.H., that on several occasions during 1993, when Robert DeMichele was at the school district's Optional School, which she attended, he continued to request her home phone number.

III. It is claimed by a student, A.H., that earlier in the 1992/1993 school year, Robert DeMichele tried to kiss said student, A.H., on the neck, but was unsuccessful and instead kissed her arm as a result of the student pulling her arm away. The student did not give consent to the attempt by Robert DeMichele to kiss her on the neck.

IV. It is claimed by a student, A.H., that since she enrolled in Greenburgh Central School District No. 7, as a 10th grade student in the 1990/1991 school year, Robert DeMichele has used sexual harassment when dealing with her, i.e., his comments to her are often of a sexual nature and that he has physically touched or grabbed her on more than one occasion around the waist and hugged her, all without consent on the part of A.H. On one occasion, Robert DeMichele commented to A.H. how good her shoulders looked.

V. It is claimed by a student, A.H., that since she enrolled in Greenburgh Central School District No. 7 as a 10th grade student in the 1990/1991 school year, Robert DeMichele has used sexually provocative language and has touched her on improper parts of her body without her permission when dealing with her, i.e., his comments to her are often of a sexual nature and that he has physically touched or grabbed her on more than one occasion around the waist and hugged her, all without consent on the part of A.H. On one occasion, Robert DeMichele commented to A.H. how good her shoulders looked.

VI. It is claimed by a number of students that Robert DeMichele has been very flirtatious with many female students during the 1991/1992 and 1992/1993 school years, i.e., he uses sexually provocative language in dealing with the students, touches female students on the hip and waist and has female students sit on his lap.

VII. On at least one occasion since the beginning of the 1993 school term in January, 1993, it is claimed by a student, V.S., that Robert DeMichele has requested the student to feel his butt. He used words to the following effect: "V., why don't you feel my butt. I have dimples on my butt. Why don't you feel my dimples."

VIII. A student, V.S., has claimed that during the 1991/1992 school year Robert DeMichele in Woodlands High School Gym got on top of V.S. while she was resting on a gym mat. She further claims that she was lying on her back and that when Robert DeMichele got on top of her, he grabbed her backside with his hands and squeezed it.

IX. It has been claimed by a number of students that during the 1991/1992 and 1992/1993 school years, Robert DeMichele has been seen kissing female students on the hand and arm in an attempt to work his way to the student's neck in order to kiss the student on the neck.

X. V.S. has claimed that while playing basketball during the 1991/1992 and 1992/1993 school years with her and other female students, Robert DeMichele intentionally pushed his backside into her backside for no reason other than to make sexually provocative contact with her.

XI. A student, A.H., claims that she was told by another student that during the 1992/1993 school year the student observed Robert DeMichele standing over her in class, without her knowledge, and looking down her blouse.

XII. It is claimed by a number of students that they have witnessed Robert DeMichele during the 1991/1992 and 1992/1993 school years making physical contact with female students with his hands in sexually provocative areas of their bodies, such as their hips and waists. In all instances there did not appear to be consent on the part of the students to the physical contact.

A hearing was held on the charges over four days between June 14, 1993 and September 13, 1993. On November 4, 1993, the panel unanimously found respondent guilty of the following:

1. The Respondent is guilty of immoral conduct and conduct unbecoming a teacher as charged in specification I, III, VI, VII and VIII. The Respondent is not guilty with respect to the remaining specifications.

2. With regard to penalty, the Panel recommends that the Respondent be suspended for a period of one and one-half years, beginning in January of 1994; that during the suspension period he obtain regular therapy from a licensed professional psychiatrist, psychologist or social worker concerning the proper interaction with female students; and that he not be reinstated except upon the submission of proof of such therapy.

The school district appealed seeking to have me find the teacher guilty on all charges and terminated. The teacher also appealed seeking a remand to the panel. I annulled the decision and held that the panel failed to make findings of fact to support its determination. I further held that the penalty was improper and that the determination was devoid of analysis and therefore inadequate. I remanded the matter to the hearing panel for a proper determination and held that until such time as a proper determination is issued by the panel, the teacher must remain suspended with pay pending a decision in accordance with Education Law '3020-a (Appeal of Bd. of Educ., Greenburgh Central School District and Robert DeMichele, 33 Ed Dept Rep 526). On April 14, 1994, the hearing panel issued a new decision and this appeal followed.

Petitioner seeks an order increasing the panel's penalty to dismissal. Respondent seeks an order overturning the panel's findings of guilt and remanding the case to the hearing panel for more specific findings.

Before reaching the merits, I will address a procedural matter. I reject respondent's argument that the panel's most recent findings violate 8 NYCRR '82.10(i). Pursuant to that section, a hearing panel must set forth the reasons and the factual basis for its determination. Furthermore, a decision which is devoid of analysis and fails to state the facts upon which the decision is based must be annulled on procedural grounds and remanded for a proper determination (Kinsella v. Board of Education, 378 F Supp 54, aff'd without opinion 542 F.2d 1165; Appeal of DeMichele, supra; Appeal of Cauley, 33 Ed Dept Rep 359; Matter of Driscoll, 15 id. 200). The panel determination currently before me sufficiently sets forth the factual basis for the determination and contains an analysis as to why those facts support the panel's findings. Accordingly, I find no basis to remand this decision for yet another determination.

Turning to the merits, the panel's findings were based largely upon its assessment of witness credibility. I will not substitute my judgment for that of the panel unless there is clear and convincing evidence that the panel determination of credibility is inconsistent with the facts (Appeal of Bd. of Educ., Pine Bush Central School District, 33 Ed Dept Rep 412; Appeal of Bd. of Educ., City School District of the City of New York, 32 id. 666; Appeal of Community School Board No. 24, 32 id. 282; Appeal of LePore, 28 id. 425). Specifically, the panel found A.H.'s testimony more credible than respondent's in establishing that on or about March 9 or 10, 1993, respondent asked A.H. for her telephone number before graduation and then cautioned her not to reveal the request. While respondent denies this, he testified to having dated former students after they graduated. The panel further held A.H.'s testimony more credible than respondent's in establishing that during the 1992-93 school year, respondent attempted to kiss A.H. on her neck and kissed her arm while she was pulling away from respondent. Respondent denies this, but testified that he may have kissed other students' arms once or twice during the 1992-93 school year. The panel also found A.H.'s testimony more credible than respondent's in proving that during the 1990-91 school year, respondent grabbed A.H. around her waist, hugged her and commented upon her appearance. While respondent also denies this allegation, he admitted that he had put his arms around students' waists and may have touched students' hips.

The panel also found V.S. more credible than respondent in establishing that in January 1993, respondent asked V.S. to feel his "butt" and that during the 1992-93 school year, respondent got on top of V.S. and touched her buttocks while she rested on a gym mat. While respondent denies these incidents, he testified to discussing students' sex lives with them during class, giving students advice on sexual matters fairly often and to having some students sit on his lap during the 1991-92 and 1992-93 school years. He further testified that he may have touched female students on parts of their bodies, probably with his hands, and that he had massaged the neck or back of female students on a couple of occasions.

I have reviewed the record in this proceeding. I find the panel's findings of credibility consistent with the facts. Accordingly, I find no basis to overturn the panel's determination that respondent is guilty of specifications I, III, VI, VII and VIII. Therefore, respondent's request to annul the panel's findings of guilt is denied.

Turning to the question of penalty, the Commissioner of Education is authorized to impose a proper penalty and is not bound by the decision of the hearing panel (Shurgin v. Ambach, 83 AD2d 665, aff'd 56 NY2d 700; Matter of McNamara v. Commissioner, 80 AD2d 660; Appeal of Bd. of Educ., Pine Bush Central School District, supra). Fixing an appropriate penalty 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; Shurgin v. Ambach, supra). Penalties are not to punish, but to impress upon a teacher the inappropriateness of conduct and to serve as warnings against future improper conduct (Appeal of Bd. of Educ., Pine Bush Central School District, supra; Appeal of Bd. of Educ., City School District of the City of New York, 33 Ed Dept Rep 338; Appeal of Bd. of Educ., Community School District No. 24, 30 id. 445). A teacher's record is also relevant to the issue of penalty (Appeal of Bd. of Educ., Community School District No. 2, 32 Ed Dept Rep 391; Appeal of BOCES of Rockland County, 29 id. 406).

The panel held that the foregoing conduct constitutes immoral conduct and conduct unbecoming a teacher. The panel held that respondent's conduct extended beyond the limits of congeniality and became sexual in nature. The panel further held that respondent's verbal and physical advances constituted a violation of the physical and personal privacy of students as well as an abuse of his pedagogical authority. Accordingly, the panel found respondent guilty of immoral conduct and conduct unbecoming a teacher as alleged in Charge 1, specification I, III, VI, VII and VIII, and not guilty of all other specifications. The panel recommended a one and one-half year suspension.

Respondent's testimony reflects a propensity to engage in discussions and to have physical contact with students that is clearly outside the bounds of his pedagogical functions. Respondent must be more sensitive to the types of conversations he has with students and understand that conversations about sexual activities are completely improper. Further, the physical contact, which respondent testified to having with female students, is likewise improper and unacceptable. Respondent is now on formal notice that the nature and tone of his conversations with students and contact with them must be altered. Respondent has been employed by this school district since 1974 without incident giving rise to disciplinary charges. Given the longevity of respondent's unmarred employment with the school district, I find that the one and one-half year suspension without pay is appropriate to impress upon respondent the seriousness of the offenses and to discourage respondent from such conduct in the future. Accordingly, I find no basis to substitute my judgment for that of the panel regarding penalty.

THE APPEAL IS DISMISSED.

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