Decision No. 13,589

(April 1, 1996)

MILLS, Commissioner.--The Board of Education of the City School District of the City of New York ("petitioner") appeals the determination of a hearing panel convened pursuant to Education Law '3020-a, which found Andre Cadet ("respondent") guilty of conduct unbecoming a teacher and imposed a six-month suspension. The appeal must be sustained in part.

Respondent is a tenured teacher of physical education in the Julia Richman High School. At the time of this appeal, respondent had been a high school teacher for approximately 12 years. On October 14, 1992, petitioner found probable cause to prefer two charges against respondent based on his alleged romantic relationship with a student and for his failure to answer questions from the Office of the Special Commissioner of Investigations for the New York City Board of Education ("SCI").

On December 11, 1992, a pre-hearing conference was held which addressed the issue of whether the Special Commissioner from the SCI would be allowed to serve as counsel or co-counsel with petitioner's counsel in the '3020-a proceeding. The panel chair denied this request in a written decision dated January 14, 1993. On the first and second days of the hearing, respondent objected to a lack of specificity in the charges and requested that they be particularized. After lengthy procedural discussions and rulings from the panel chair, the charges were amended as follows:

In Particular

Specification II

A hearing was held over 11 days between January 22 and October 21, 1993, which included an on-site visit to the high school on March 23, 1993. The panel met in executive session on February 1, 1994. On February 12, 1994, the panel issued its decision, finding respondent guilty of misconduct with regard to his romantic relationship with the student. The panel dismissed the charge of insubordination related to respondent's refusal to answer questions from the Special Commissioner. Based on its finding of guilt, the panel recommended respondent's suspension for six months without pay. Petitioner adopted the hearing panel's recommendation on March 9, 1994. Petitioner commenced this appeal on March 23, 1994.

Petitioner alleges that respondent is guilty of insubordination for failing to answer the questions of the Office of the Special Commissioner and seeks reversal of the hearing panel's decision. Petitioner also seeks respondent's dismissal. Respondent raises two procedural issues. He claims that the petition is not properly verified and does not contain a clear and concise statement of petitioner's claim. Respondent also contends that the panel's decision was proper and should not be set aside.

Before reaching the merits, I will address the procedural issues raised by respondent. 8 NYCRR 275.5 requires that a petition be verified by any person who is familiar with the facts underlying the appeal, pursuant to a resolution by the board of education authorizing the commencement of the appeal. Respondent claims that the petition was verified by the secretary to the board of education on March 22, 1994, but the board did not authorize the commencement of the appeal until 6:00 p.m. on March 23, 1994. Respondent, therefore, concludes that the petition was not properly verified. However, petitioner notes that the appeal was authorized on March 9, 1994 and offers the minutes of the board meeting to support its contention. It explains that petitioner board routinely holds a ratification vote of its decision to which an employee and his counsel are invited to make a public statement for the record regarding the board's prior action. My review of the minutes indicates that petitioner authorized this appeal on March 9, 1994. Therefore, respondent's objection is without merit.

Respondent also claims that petitioner has failed to demonstrate any basis upon which the relief can be granted. He contends that the petition does not contain "a clear and concise statement of the petitioner's claim showing that the petitioner is entitled to relief, and shall further contain a demand for the relief to which the petitioner deems himself entitled" (8 NYCRR 275.10; Appeal of Moessinger, 34 Ed Dept Rep 246; Appeal of Lawson, 33 id. 427; Appeal of Mitzner, 32 id. 403). My review of the record indicates that the petition more than adequately summarizes petitioner's claims and makes a clear demand for relief, i.e., respondent's dismissal. There is thus no basis for respondent's objection.

Turning to the merits, petitioner argues that respondent is guilty of insubordination for failing to answer questions posed by the Office of the Special Commissioner of Investigations. The SCI was created by both a board of education resolution and a companion Executive Order signed by the Mayor of the City of New York. It was established as an independent investigatory agency to root out unethical conduct, corruption and conflicts of interest within the New York City school system. The Executive Order compels cooperation from every board of education employee and states:

The June 27, 1990 Board of Education Resolution mirrors the Executive Order in relevant part, stating:

In addition to the authority cited above, petitioner claims that case law recognizes the right of a public employer to hold an employee accountable for a charge of insubordination when an employee refuses to answer questions regarding work-related conduct if immunity from criminal prosecution is granted [Gardner v. Broderick, 392 U.S. 273, 88 S.Ct. 1913 (1968); Uniformed Sanitation Men's Association v. Commissioner of Sanitation of the City of New York, 392 U.S. 280, 88 S.Ct. 1917 (1968); Garrity v. New Jersey, 385 U.S.493, 87 S.Ct. 6169 (1967)]. However, my review of these cases indicates that they are not applicable to the facts before me in this matter. The facts of this case differ significantly since criminal prosecution was not an issue here and the immunity granted to petitioner would not shield him from Education Law '3020-a charges.

The hearing panel chair concluded that the authority cited by petitioner regarding respondent's obligation to testify before the SCI was in conflict with Education Law '3020-a, since that statute is the sole method by which teachers can be disciplined in New York State. Since home rule principles found in the New York State Constitution generally give preference to State law where it conflicts with local law, respondent could not be forced to testify based on the Mayor's Executive Order and the Board's resolution. As the hearing panel chair notes in his decision, the unique provisions of Education Law '3020-a are the only means to discipline a tenured teacher in New York State and do not require an employee to testify at the 3020-a hearing. While the SCI offered respondent immunity from criminal prosecution, any finding of the SCI could have been used in the '3020-a proceeding, which is not criminal in nature. In view of the foregoing, I cannot find respondent guilty of the second specification, and thus affirm the finding of the hearing panel on this point.

Turning to the 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, 453 NYS2d 410; Matter of Shurgin V. Ambach, supra; Matter of Mockler v. Ambach, 79 AD2d 745, 434 NYS2d 809, lv to app den 53 NY2d 603, 439 NYS2d 1026). Upon careful review of the record, I find that the measure of discipline imposed by the hearing panel for the offense committed by respondent is disproportionately lenient.

On the evidence before it, the panel found respondent guilty of having a romantic relationship with a student, S.D. The panel noted that respondent had compromised his effectiveness as a teacher by pursuing a romantic relationship with a student which he should have known was inherently improper and which compromised him professionally. It recommended a penalty of six months' suspension, finding that while respondent displayed conduct unbecoming his position and prejudicial to the good order, efficiency and discipline of the service, respondent was not unfit to perform his obligations as a teacher. It noted that in allowing respondent to return to the classroom, the penalty imposed would permit him to reflect on his relationship with his students.

The record establishes that respondent pursued a romantic relationship with the student that was described by her as "intimate" and "monogamous." Clearly, respondent showed a gross lack of judgment in pursuing this relationship. When confronted by school officials with evidence of his conduct, respondent showed no remorse for his actions. Instead, respondent seemed to be under the mistaken impression that once a student turns 18 years of age, there is no barrier to a romantic relationship between student and teacher. Moreover, the testimony of other students showed that respondent was often involved in students' personal lives to a degree that is unsuitable in the context of a student/teacher relationship. Under those circumstances, a suspension of six months is too lenient. Suspension for an additional length of time is apparently necessary to impress upon respondent the seriousness of his conduct. Accordingly, petitioner is authorized to suspend respondent for three years without pay. I am not recommending respondent's dismissal at this time only because of his unblemished record of service before this incident, evidence of considerable dedication to his students and lack of any evidence indicating that respondent had a sexual relationship with the student.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the determination of the hearing panel is annulled insofar as it imposed a penalty of six months' suspension; and

IT IS FURTHER ORDERED that petitioner is authorized to suspend respondent without pay for a period of three years, which shall include any period of suspension already imposed.

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