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Decision No. 13,620

Appeal of BOARD OF EDUCATION OF THE WELLSVILLE CENTRAL SCHOOL DISTRICT from the determination of a hearing panel convened pursuant to Education Law '3020-a concerning charges against Ronald Angood, a tenured guidance counselor.

Decision No. 13,620

(June 8, 1996)

Hogan & Sarzynski, attorneys for petitioner, Edward Sarzynski, Esq., of counsel

Janet Axelrod, General Counsel, National Education Association of New York, attorney for respondent, Robert W. Klingensmith, Jr., Esq., of counsel

MILLS, Commissioner.--Petitioner, the Board of Education of the Wellsville Central School District, appeals the decision of a hearing panel convened pursuant to Education Law '3020-a, which found Ronald Angood ("respondent") guilty of neglect of duty and recommended his suspension without pay until the second semester of the 1996-97 school year. The appeal must be sustained in part.

Respondent is a tenured guidance counselor at petitioner's middle school, where he has been employed since 1988. In June 1994, petitioner preferred charges of conduct unbecoming his position, incompetence, neglect of duty, and insubordination against respondent pursuant to Education Law '3020-a, seeking termination. A hearing was held pursuant to Education Law '3020-a on seven dates between January 17, 1995 and April 10, 1995. By decision dated June 20, 1995, the hearing panel found respondent guilty of neglect of duty and recommended his suspension without pay until the second semester of the 1996-97 school year -- approximately three semesters. This appeal ensued.

Petitioner seeks reversal of the findings on the dismissed charges and respondent's termination or, alternatively, a finding that the 1 1/2 year suspension without pay is disproportionately lenient and termination. Petitioner contends that the panel erred in assessing the penalty by not considering respondent's past behavior.

As a preliminary matter, I accept the panel's findings of fact based on witness testimony. The panel heard substantial testimony from a number of witnesses concerning district policy and respondent's actions. The panel also evaluated respondent's testimony, crediting certain of his explanations and not others. With respect to findings of fact in matters involving credibility of witnesses, 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 McCreery, 34 Ed Dept Rep 426; Appeal of the Bd. of Educ., Greater Johnstown City School District, 30 id. 89). Based on the record before me, I find no reason to substitute my judgment for the panel's factual findings. Therefore, based on these findings, I will address the issues of whether petitioner has met its burden of proof with respect to the dismissed charges and whether the penalty is proportionate to the offenses.

Petitioner based the charges of conduct unbecoming, incompetence, and neglect of duty on five subcharges:

A. Failure to follow proper procedures in dealing with a student who had indicated suicidal thoughts or behavior;

B. Failure to prepare accurate records of activities involving students, contrary to his responsibilities as a guidance counselor;

C. Failure to meet with teachers in a timely manner in regard to the transitioning of students, contrary to his responsibilities as a guidance counselor;

D. Failure to provide a written report for use by the committee on special education, contrary to his responsibilities as a guidance counselor; and

E. Failure to meet with students, contrary to his responsibilities as a guidance counselor.

Petitioner cited one to eleven specifications in support of each of the five subcharges. The panel sustained eleven specifications and dismissed nine, with one sustained-in-part and dismissed-in-part. Based on these findings, the panel sustained four of the five subcharges -- A, B, D, and E above -- and dismissed subcharge C.

First, petitioner argues that subcharge C should not have been dismissed. Subcharge C stated, "You failed to meet with teachers in a timely manner in regard to the transitioning of students, contrary to your responsibilities as a guidance counselor." The one specification in support of subcharge C alleges:

By memorandum dated March 3, 1994, you were asked to make contact with certain teachers and to meet soon with them in regard to the transition of special education students from one building and grade level to another. You were aware or should have been aware of the importance of such a meeting and you failed to meet with the teachers in a timely manner. Although you met with them on or about May 18, 1994, you did so only after being reminded by Ken Canfield, the Director of Pupil Personnel Services. Such conduct is contrary to your responsibilities as a guidance counselor.

The March 3 memo instructed respondent to "meet with them as a group." Although respondent met with most of the named personnel on an individual basis, he did not meet with them as a group until reminded to do so. Because the specification did not refer to a group meeting, the panel dismissed the specification, and therefore subcharge C, for failing to prove the specification as written.

Petitioner contends that since the panel acknowledges that the March 3 memo instructed respondent to meet with certain specified teachers as a group and since the memo is referred to in the specification, it is against the weight of the evidence, as well as against the panel's findings, to dismiss the specification. I agree. Since petitioner's duty to meet with certain teachers was created by the March 3 memo, that duty was to be carried out in the manner described in the memo, including the list of meeting participants, the purpose of meeting, and the manner of meeting. Accordingly, specification 1 of subcharge C and subcharge C are sustained. Therefore, all five subcharges (A through E) of the charges of conduct unbecoming a teacher, incompetency and neglect of duty are sustained.

Petitioner contends that the charge of conduct unbecoming respondent's position should not have been dismissed. While the panel found respondent guilty of four subcharges, it found respondent not guilty by limiting its definition of "conduct unbecoming" to behavior that is inappropriate or unseemly, and "truly unbecoming." Petitioner argues that the panel found that respondent provided deceptive and misleading information to his superiors concerning a potentially suicidal student and failed to provide legally required counseling to disabled students. I agree that providing deceptive and misleading information goes beyond neglect of duty and is sufficiently inappropriate to constitute conduct unbecoming to respondent's position as a guidance counselor. Therefore I sustain the charge that respondent engaged in conduct unbecoming a teacher.

Petitioner also requests that dismissal on the charge of incompetency be reversed. While the panel found respondent guilty of four subcharges, it found respondent not guilty of incompetence defined as "an inability to provide a valid educational experience for those students assigned to his classroom" (citing Bd. of Educ., City School District of the City of New York, 28 Ed Dept Rep 302). The panel explained that there was no indication that respondent was incompetent in performing his duties as a guidance counselor other than in the specific instances which were the basis for the sustained specifications, which were not sufficient to find respondent incompetent. I agree with the panel's determination. Even with subcharge C being sustained, respondent's improper actions are insufficient to determine that respondent is unable to perform his duties as a guidance counselor.

Petitioner argues that the charge of insubordination should not have been dismissed. Petitioner based the charge of insubordination on the following four subcharges:

A. Failure to prepare accurate records of activities involving students, contrary to previous directives given by a supervisor;

B. (None listed or discussed.)

C. Failure to meet with teachers in a timely manner in regard to the transitioning of students, contrary to his responsibilities as a guidance counselor;

D. Failure to prepare a written report for use by the committee on special education contrary to previous directives given by a supervisor; and

E. Failure to meet with students, contrary to previous directives given by a supervisor.

Petitioner cited one to eleven specifications in support of each of the four subcharges. The panel determined that petitioner failed to establish that respondent was insubordinate in any manner and dismissed the charge of insubordination. The panel cites previous decisions which require actions that were "wilful, or in deliberate defiance of either a direct order or an established rule" (Matter of the Bd. of Educ., City School District of the City of Elmira, 23 Ed Dept Rep 163; Appeal of Community School District 24, 30 id. 445) and failed to find that respondent's failures were indicative of a wilful or deliberate intent to not comply with his supervisors' directives.

Petitioner argues that respondent was functioning according to a detailed Action Plan and that he knew, or should have known, that he was not to deviate from the plan without permission and that he was to keep accurate and detailed records of his activities. Therefore, petitioner argues, his failure to do so constitutes insubordination. I disagree. Respondent's failure to comply with instructions constitutes neglect of duty, but petitioner has not established that respondent's actions were in wilful or deliberate defiance of his supervisors' directives.

Arguing that the penalty imposed is too lenient, petitioner asserts that the hearing panel should have considered respondent's performance during the previous school year which resulted in an agreement between the parties. Specifically, petitioner agreed not to prefer tenure charges against respondent at that time in exchange for his acknowledgement of wrongdoing, service without pay, and adherence to an individual action plan remediating his previous performance deficiencies. It is well settled that a hearing panel may only consider evidence of prior disciplinary convictions, and then only on the issue of penalty (Appeal of Cargill, 29 Ed Dept Rep 38; Appeal of Bd. of Educ., Sachem Central School District at Holbrook, 25 id. 325; Matter of Community School Bd. 22, 22 id. 307). Therefore, I will not consider respondent's prior performance in evaluating the penalty.

In determining whether to substitute my judgment for that of a hearing panel, the standard is whether the discipline imposed is proportionate to the offense (Appeal of the Bd. of Educ., City School District of the City of New York, 35 Ed Dept Rep 35; Appeal of Bruno, 31 id. 503; Matter of Mockler v. Ambach, 79 AD2d 745, lv to app den 53 NY 2d 687). Also pertinent is the person's fitness to carry out his or her professional responsibilities (Appeal of the Bd. of Educ., City School District of the City of New York, supra; Matter of Bott, 41 NY2d 265; Appeal of the Bd. of Educ., Pleasantville UFSD, 31 Ed Dept Rep 262). A penalty must be imposed which is sufficient to deter repetition of the improper conduct and impress upon respondent that the behavior in question is unacceptable (Appeal of the Bd. of Educ., City School District of the City of New York, supra; Appeal of the Bd. of Educ, Poughkeepsie City School District, 32 Ed Dept Rep 547). In light of the additional charge which I am sustaining -- conduct unbecoming a teacher -- for providing deceptive and misleading information to his superiors, I authorize petitioner to suspend respondent for two years without pay.

I have reviewed the parties' remaining contentions and find them without merit.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the determination of the hearing panel be and the same hereby is annulled insofar as it dismissed the charge against respondent of conduct unbecoming a teacher and imposed a penalty of a suspension until the second semester of the 1996-97 school year;

IT IS FURTHER ORDERED that petitioner is authorized to suspend respondent without pay until the end of the 1996-97 school year.

END OF FILE