Decision No. 14,064

(December 23, 1998)

MILLS, Commmissioner.--Petitioner appeals the determination of a hearing panel which found him guilty of certain charges brought against him by respondent and recommended that his services be terminated. The appeal must be sustained in part.

On September 8, 1993, respondent board of education found probable cause to prefer charges of neglect of duty, insubordination and misconduct against petitioner, a tenured teacher in respondent's district. The charges were amended on January 12, 1994. There were a total of 28 specifications under Charge I, Neglect of Duty; 25 specifications under Charge II, Insubordination; and 22 specifications under Charge III, Misconduct. Many of the specifications were listed under more than one charge. The charges, as amended, relate to alleged incidents which occurred during the 1990-91, 1991-92 and 1992-93 school years.

Petitioner requested a hearing pursuant to Education Law "3020-a. The hearing was held on 33 separate dates commencing in February 1994 and ending in November 1995. In its written report, dated February 29, 1996, the panel unanimously found petitioner guilty, in whole or in part, of 25 specifications related to Charge I, Neglect of Duty; 6 specifications related to Charge II, insubordination; and 1 specification related to Charge III, misconduct. The panel dismissed the majority of the specifications relating to insubordination and misconduct on the ground that such specifications were identical to specifications contained in Charge I of which the petitioner had been found guilty. The panel found that petitioner's excessive absences, failure to maintain classroom discipline, failure to abide by rules governing student records and grades, and petitioner's consistent pattern of willful misconduct, including insubordination, were all grounds for termination under existing case law and the decisions of the Commissioner. The panel recommended that petitioner's employment be terminated because there was no indication that petitioner would function any differently if returned to his duties and petitioner's failure to comprehend the gravity of his misconduct rendered his rehabilitation impossible, futile and potentially detrimental to students.

Petitioner then commenced this appeal, and in essence argues that the charges sustained by the panel are not supported by the evidence and that dismissal is an excessive penalty. Petitioner also contends that the panel's determination was affected by the panel's allegedly biased conduct of the hearing in violation of petitioner's due process rights. In addition, petitioner alleges that respondent failed to follow its collective bargaining contract with the Syracuse Teachers Association. Petitioner requests that the determination of the hearing panel be set aside and that petitioner be reinstated as a teacher in respondent's district with full pay and all other benefits of such position.

Respondent denies petitioner's allegations and contends that the panel's determination is supported by the record and that the penalty of dismissal is appropriate. Respondent also contends that the appeal should be dismissed for failure to state a claim upon which relief may be granted and for untimeliness.

I will first address respondent's procedural defenses. A petition must contain a claim showing that petitioner is entitled to relief, a demand for the relief, and must be sufficiently clear to advise respondent of the nature of petitioner's claim and the act(s) complained of (8 NYCRR "275.10; Appeal of Brousseau, 37 Ed Dept Rep 295). I find that petitioner's claims and the relief requested are sufficiently stated in the petition so as to enable respondent to adequately address petitioner's claims in its answer and memorandum of law. Accordingly, I decline to dismiss the appeal for failure to state a claim.

An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of (8 NYCRR "275.16). The record indicates that petitioner commenced this appeal on April 12, 1996, which is within 30 days of March 14, 1996, the date he received the hearing panel's determination. Therefore, I find that the appeal is timely (Appeal of Jackson, 26 Ed Dept Rep 444 judgmt grtd dis pet to rev judgmt grtd dis pet to rev sub nom.Jackson v. Sobol, et al., 170 AD2d 718; Appeal of Bd. of Ed. of Rochester City School District, 19 id. 262).

Petitioner alleges that the hearing panel was arbitrary, capricious and unreasonable and acted in a biased manner toward petitioner, resulting in a denial of due process. Specifically, petitioner alleges that the panel cut off petitioner's attorney's direct and cross examination of witnesses; excused witnesses called on behalf of the school district for trivial reasons and failed to require their return to testify or complete cross-examination; allowed hearsay testimony and inadmissible testimony by District witnesses and excluded hearsay testimony by petitioner's witnesses; refused to require witnesses to answer subpoenas; and improperly permitted amendment of the charges against petitioner.

With respect to the amendment of the charges, the record indicates that at a prehearing conference held January 11, 1994, respondent's attorney made a motion to amend the charges against petitioner to make them more specific. Although respondent's attorney was apparently under the impression that the motion had been granted, there is nothing in the prehearing conference minutes which indicates that the hearing chairperson granted, denied or otherwise took action with respect to the motion. However, the record indicates that on February 16, 1994, the first day of the hearing, the hearing chairperson granted respondent's motion to consolidate the amended charges with the original charges. It appears from the hearing transcript that the amended charges were approved by the Board of Education on January 12, 1994 and served by mail on petitioner on or about January 14, 1994. Section 82-2.11(d) of the Regulations of the Commissioner of Education provides that:

While it is apparent that respondent has not complied with the five day time requirement of section 82-2.11(d), since the motion to consolidate was not granted until the day of the hearing, the issue is whether this procedural defect prejudiced petitioner (Matter of Gaby, 11 Ed Dept Rep 184; Matter of Grzywacz, 11 Id. 187). In general, charges brought against a tenured teacher pursuant to Education Law "3020-a must be sufficiently clear to apprise the teacher of the reasons for the hearing and to allow the teacher to prepare a defense (Grzywacz, supra) and a tenured teacher may not be disciplined for a reason not specified in the charges (Matter of Soucy v. Bd. Of Ed., 41 AD2d 984, app dis 33 NY2d 653; Matter of Coderre, 15 Ed Dept Rep 346). In Matter of Bd. of Ed. of the Sewanhaka Central High School District, 23 Ed Dept Rep 463, the Commissioner affirmed a panel chairman's denial of a school district's motion to amend specifications after the close of the district's case and after the teacher's attorney had completed cross-examination, since under the circumstances presented in that appeal it would have effectively deprived the teacher of a full and fair opportunity to cross-examine the building principal. However, in the present appeal the motion to consolidate was granted at the beginning of the district's case, and it appears from the record that petitioner received a copy of the amended charges sometime around January 14, 1994, over one month before the first hearing date. Furthermore, although certain additional charges have been added, the amended charges are, for the most part, the same as the original charges except organized under separate groupings for misconduct, neglect of duty and incompetence and with certain specific details added. In addition, the charges were amended on the first day of a hearing that was conducted on 33 separate days over the course of approximately one and one-half years. Accordingly, in the absence of any demonstrated prejudice against petitioner, I find that petitioner was given timely and sufficient notice of the amended charges so as to enable him to prepare an adequate defense, despite respondent's failure to comply with the time limitation set forth in section 82-2.11(d).

Petitioner also contends that the hearing panel improperly dismissed Specification 2 of Charges I through III in that the Board of Education had not authorized the withdrawal and the Panel Chair had no authority to permit it. Petitioner's contention is without merit. There is no requirement in the Education Law that a board of education authorize the withdrawal of a specification. Education Law "3020-a only requires the board of education to vote to bring charges, not to withdraw them. The school district attorney, as counsel to the board, was authorized to make the motion to withdraw the specification and the Panel Chair was authorized to rule on it. In any event, at the time of the hearing, the current Director of Personnel testified that on Wednesday, January 12, 1994, the Board of Education voted to amend the charges to withdraw specification 2 in charges I through III. Petitioner's allegation that the specification was included in the charges to create bias against petitioner is mere speculation, unsupported by the record. Petitioner claims that the withdrawal of the specification prevented him from using the specification to impeach the principal with evidence that the principal had been forced to apologize in writing for a similar charge in 1987, and thereby demonstrate the principal's alleged long-standing grudge against petitioner. However, this is purely conjectural. It is equally, if not more probable, that the panel, upon hearing such evidence, would merely decide to dismiss Specification 2. Therefore, petitioner has not established that he is aggrieved by the dismissal of the specification and I find that the dismissal of the specification was proper.

Petitioner's allegations that the Panel denied his due process rights by restricting direct and cross examination, excusing witnesses, selectively allowing hearsay testimony and inadmissible testimony, and refusing to require witnesses to answer subpoenas, are all without merit.

With respect to subpoenas, petitioner does not include with his petition a copy of any subpoena which was allegedly not enforced, there is no indication in the record that petitioner made any motion to enforce a subpoena and, in any event, there is no authority for a Panel Chair to enforce a subpoena. The proper recourse is to seek a Court order of enforcement (Matter of Bd. of Ed. of the Highland Falls-Fort Montgomery Central School District, 22 Ed Dept Rep 96). The record indicates that at several stages of the proceeding, petitioner was informed of the need to obtain a court order to enforce a subpoena. In addition, the Panel Chair requested petitioner to supply him with copies of any subpoenas and affidavits of service which petitioner claimed were not obeyed, and petitioner failed to put any such documents into evidence.

Petitioner makes no more than a general allegation that the Panel Chair improperly restricted his direct and cross-examination of witnesses, selectively permitted hearsay and inadmissible evidence and improperly excused witnesses. Petitioner fails to cite specific instances in the record to support the allegation and establish that he was prevented from presenting his case (Matter of Ungerer, 17 Ed Dept Rep 48). The technical rules of evidence do not apply to a "3020-a disciplinary hearing, and all evidence that is relevant to the charge, including hearsay, is admissible (Appeal of Bd. of Ed. of Community School District #22, 30 Ed Dept Rep 238). My review of the record shows that petitioner was allowed extensive cross-examination of the District's witnesses. For example, the Clary Middle School Principal and the Nottingham High School Principals were each allowed to be cross-examined over the course of three days. The hearing resulted in a transcript of almost 4500 pages and well over 100 exhibits. In addition, petitioner was permitted to call over forty witnesses. The record indicates that in instances where examination by petitioner's attorney was curtailed or ended, or a witness excused, it was done to preclude repetitious or irrelevant testimony or because the cross-examination was beyond the scope of the witness' direct testimony. To prevail upon an allegation of bias on the part of the hearing panel, petitioner must demonstrate "actual" bias against him (Amos v. Bd. of Ed. of Cheektowaga Union Free School District, 54 AD2d 297, aff'd 43 NY2d 706; Appeal of Tranberg, 32 Ed Dept Rep 34). Upon the record before me, I find that petitioner has failed to establish that the Hearing Panel's conduct of the hearing was biased against petitioner or otherwise denied petitioner his due process rights.

For the first time in his memorandum of law, petitioner raises a claim that the charges are barred by the statute of limitations. A memorandum of law may not be used to belatedly add new assertions which are not part of the pleadings (Appeal of Coombs, 34 Ed Dept Rep 253) and therefore petitioner's statute of limitations claim will not be considered. However, even if petitioner's statute of limitations claim was properly before me, I note that petitioner erroneously cites a six month statute of limitation, which is applicable only to charges brought in the City School District of the City of New York. For all other school districts, the applicable statute of limitations at the time the charges were brought was three years [Education Law "3020-a(1)]. All of the charges were brought within three years of the occurrence of the underlying acts.

Petitioner's contention that respondent violated the collective bargaining agreement by preferring charges under Education Law section 3020-a, instead of placing him on a corrective action plan, is also without merit. Provisions relating to corrective action plans are set forth in The Model for Teacher Evaluation ("Model"), which provides for the implementation of a corrective action plan for those teachers who fail to meet the evaluation criteria set forth in the Model. Section G(2)(i) of Article XXV- Unit One Contract, which establishes grievance procedures, provides that the binding arbitration provisions set forth in that section shall only apply to cases involving the intent to dismiss a teacher for failing to meet the evaluation criteria set forth in the Model. The contract specifically provides that "[d]isciplinary action taken by the District against a teacher for reasons other than [failing to meet the Model's evaluation criteria] shall be pursued according to existing statute or regulations, i.e. Section 3020-a of the New York State Education Law." The President of the Syracuse Teachers Association, called as a witness by petitioner, testified that the Model and the grievance procedures were not intended to displace the procedures under Education Law section 3020-a.

The Commissioner of Education is empowered to substitute his judgment for the findings and penalty recommendation of the hearing panel (Matter of Shurgin v. Ambach, 83 AD2d 665, aff'd 56 NY2d 700; Matter of Levyn v. Ambach, 56 NY2d 912). The determination of the hearing panel must be supported by a preponderance of the credible evidence (Matter of Martin v. Ambach, 67 NY2d 975; Matter of Friedland v. Ambach, 135 AD2d 960, appeal dismissed 71 NY2d 992, Appeal of Cuoco, 31 Ed Dept Rep 95). The hearing panel is in the best position to determine which witnesses to rely upon and, therefore, the Commissioner will not ordinarily substitute his judgment for that of the panel with respect to the credibility of witnesses (Appeal of Bd. of Ed. of Community School District #22, supra). In order for the Commissioner to substitute his judgment for that of the panel, there must be clear and convincing evidence that the panel's determination of credibility is inconsistent with the facts, or that the panel's decision is contrary to the weight of evidence and the panel has not adequately explained its rejection of otherwise convincing testimony (Appeal of Gibbs, 33 Ed Dept Rep 684; Appeal of the Bd. of Ed. of Community School District No. 2, 32 id. 391).

With regard to Charge I Neglect of Duty, Specification 1, the record establishes that during the 1991-92 school year, the petitioner failed to perform his required teaching duties, in that he failed to request instructional materials for the 1992-93 school year, failed to grade worksheets, tests or lab books and failed to keep an adequate attendance register for his classes. One of the teaching assistants assigned to assist petitioner in the Fall of 1991 testified that petitioner did not have any lesson plan book; that there were missing attendance cards; that she didn't see any attendance book in the classroom and consequently she kept her own attendance book; that she never saw petitioner grade a paper during the time she was there; that at the time she began her assignment in petitioner's classroom, there were stacks of papers awaiting grading; that petitioner told her that "he really didn't need to keep grades on the students because he could tell by the work that they did what their ability level was" and "[h]e could base their grades on their ability level and work within the classroom"; and that in November 1991 petitioner failed to bring in his students' lab books on the day that grades were due. The teaching assistant's testimony is supported by the testimony of a former Director of Personnel and the Clary Middle School principal. Petitioner's contention that petitioner was not assigned to the Clary Middle School after the 1991-92 school year and thus did not need to order materials for the 1992-93 school year is without merit. The record indicates that it was the responsibility of the teacher to order such materials during the spring semester of the preceding school year.

With respect to Charge I, Specifications 3 and 4, the record establishes petitioner's neglect of duty in that petitioner failed to call the principal in accordance with school policy to inform him that petitioner would be absent on January 9 and 10, 1992. The principal testified that the policy in effect at that time required that a teacher who was to be absent on a particular day must call either the principal or the principal's designee, the vice-principal. At the hearing, petitioner testified that he did not call the principal but instead called the principal's secretary, who was not designated to receive such calls.

With respect to Charge I, Specification 5, the record establishes petitioner's neglect of duty in that petitioner failed to clean his classroom and remove his personal effects. The principal testified that he, the vice-principal and the head custodian inspected petitioner's classroom in July 1991, approximately one to two weeks after the school year had ended, to determine if the room was suitable for a summer school program. They found the classroom in "utter shambles . . . books were all over the shelves, nothing was put away, beakers, test tubes were on the lab table . . . [t]he storeroom . . . was unenterable, because it was so congested with materials. There was a stench in the room and upon further investigation we found an aquarium with a rat barely alive and the carcass of the rat next to it which had been left there unattended . . ."

With respect to Charge 1, Specification 6, the record establishes petitioner's neglect of duty in that during the Summer of 1991 petitioner was employed as a science teacher in respondent's Summer School Program and he failed to perform his required teaching duties in that he failed to submit recorded grades and submit the official teacher records sheets at the end of the summer school term, and that on August 28, 1991, he failed to fax his student's grades to the Director of Middle Schools, despite being directed to do so by the Director and petitioner's statement to the Director that he would do so. The coordinator of the summer school program testified that summer school teachers are required to hand in their student's grades on the last day of summer school and that he was unable to locate petitioner's grades at the end of the summer school program. The Director of Middle Schools testified that the summer school coordinator contacted him about petitioner's missing grades and that on August 27, 1991, the Director had a chance meeting with petitioner, during which petitioner stated that he did not have the grades at the time, that the grades were in Connecticut and that petitioner would fax the grades to him either that afternoon or the next morning. The Director testified that he did not receive the grades either that afternoon or the next morning and that they were phoned in to his secretary several days later.

With respect to Charge 1, Specification 7, the record establishes petitioner's neglect of duty in that petitioner failed to respond to a February 18, 1992 letter directing him to contact the District to arrange for an exam with the District's physician so that he could return to his teaching duties; failed to respond to a second letter, dated March 17, 1992, directing him to report to a meeting at the District Personnel Office, and that petitioner did not contact the District to arrange for the required examination until the District indicated by letter dated April 30, 1992, that he would not be paid any longer because he had exhausted his sick leave as of that date and that the District would prefer disciplinary charges. The record indicates that petitioner began a 28 day personal leave of absence on or about January 22, 1992; that the Director of Personnel sent petitioner a certified letter, dated February 18, 1992, requiring him to submit to an exam by the district physician pursuant to Education Law section 913 to determine his mental and physical capacity to return to teaching, and directing that he contact the District to arrange for the examination; that no response was received from petitioner; that a second certified letter, dated March 17, 1992, was then sent to petitioner by Federal Express directing petitioner to report to the Personnel Director's office for a meeting on March 20, 1992; that petitioner failed to appear for the meeting and did not call to explain his failure to appear; that a letter dated March 30, 1992 was sent by express mail to petitioner directing petitioner to call the Personnel Director's office to arrange for an exam; that following the March 30th letter, an appointment with the District's physician was scheduled for April 8, 1992; that petitioner's attorney notified the Personnel Director the night before the appointment that he would not appear; that a certified letter, dated April 30, 1992, was subsequently sent to petitioner stating that petitioner had exhausted his personal illness days and therefore would not be paid beyond April 30th and that Personnel Director would recommend that respondent begin proceedings to move to terminate petitioner's employment. The record further indicates that after the April 30th letter was sent, an examination was scheduled and performed and petitioner was found able to return to work.

With respect to Charge I, Specification 9, the record establishes petitioner's neglect of duty in that petitioner failed to report to work on June 3, 1992 and did not return to work until June 8th, despite an agreement reached at a meeting held on June 1, 1992, and attended by petitioner's attorney, that petitioner would report to work on June 3rd. The record, including the testimony of the Director of Personnel and petitioner, indicates that the Director of Personnel sent a letter by express mail to petitioner directing him to report to her office on June 3, 1992 for his return to work that day at Levy Middle School, that petitioner failed to appear on that day and did not appear until June 8, 1992. At the hearing, petitioner admitted that he received the memorandum and in response to his attorney's question "Did you agree to return on June 3rd?", petitioner testified "I told them I'd be able to return when I get paid."

With respect to Charge I, Specifications 10 and 11, the record establishes petitioner's neglect of duty in that during the 1992-93 school year, petitioner failed to instruct or superficially covered critical areas in his general science classes which students were responsible for and were tested on during the final exams, and petitioner failed to adequately instruct his students in that he handed out worksheets to the students and then gave them the answers without any instruction or discussion. These findings are supported by the testimony of the teacher on special assignment in administration, the Nottingham High School principal, the Biology Department Chairperson, a teaching assistant assigned to one of petitioner's students and a resource teacher assigned to two students in petitioner's class, and exhibits introduced during their testimony. In addition, several students testified, consistent with the findings, with respect to petitioner's practices relating to the worksheets.

With respect to Charge I, Specifications 12 through 16, the record establishes petitioner's neglect of duty in that on December 11, 1992, petitioner arrived ten minutes late to class and failed to take attendance and failed to maintain order in the class while showing a film; that on November 24, 1992 petitioner gave a test to his Applied Biology Class and failed to give his students the necessary information to complete the test, and gave the same test the next day without going over the first test or reviewing the information tested; that on December 15, 1992 petitioner lost several students' exams on Chapter 20; that on December 15, 1992, petitioner gave his students the correct answers to the exam for Chapter 20 and allowed students to change their incorrect answers to get a better grade, but did not give back the questions to the test so that the students could relate the answers to specific questions; and that on January 22, 1993 petitioner gave a test while showing a movie at the same time. These findings are supported by the testimony of the teaching assistant and the resource teacher, and exhibits introduced during the testimony, and corroborated by the testimony and exhibits of the teacher on special assignment in administration and the Nottingham High School Principal. Furthermore, in his testimony petitioner admitted that he lost several students' exams on Chapter 20 and admitted that he gave the test while showing a movie.

With respect to Charge I, Specifications 17 through 20, the record establishes petitioner's neglect of duty in that during the 1992-93 school year, petitioner marked several students as withdrawn from his class despite the fact that they had not been disenrolled; that during the 1992-93 school year, petitioner recorded between 4 and 24 absences per marking period for students who had not been in school at all during the times petitioner marked them present, including one homebound student who was marked absent 25 days during the 1993 Spring semester despite her not having been in attendance since January 1993; that during the 1992-93 school year, petitioner gave a student two separate grades for the same course; and that during the 1992-93 school year, petitioner failed to adequately fill out his grade sheets and intentionally gave all his students credit for their science class whether they failed or passed the course. These findings are supported by the testimony of the Nottingham High School Principal, and exhibits introduced during the principal's testimony. Furthermore, petitioner testified that if he did not see students for one, two or three months he would mark them withdrawn; admitted sometimes marking the homebound student as present; admitted giving one student two separate grades; and admitted to improperly giving students credit as alleged in Specification 20.

With respect to Charge I, Specifications 21 through 25, the record establishes petitioner's neglect of duty in that he failed to report his absences as required by District policy, on June 24, 25, 28 and 29, 1993; failed to submit his exam grades and final grade reporting in a timely manner at the end of the 1992-93 school year; and petitioner refused to speak by telephone with school officials who attempted to contact him during the time period from June 24–29, 1993. The record establishes that petitioner was absent on June 24, 25, 28 and 29, 1993 and that his final examination and grade results were due on Friday, June 25, 1993. When petitioner was absent from work on Thursday, June 24th, the Biology Department Chairperson tried to call petitioner at his home several times, but was unsuccessful. On Friday, June 25th, petitioner's wife handed in some information, but it was incomplete. The Chairperson continued to try to call petitioner to have him explain the information so that the students' grades could be determined but again was unsuccessful. The Nottingham High School principal testified that teachers who were going to be absent were required to call the teacher on special administrative assignment if they were going to be absent. The teacher on special assignment testified that on Thursday evening, she received a message on her answering machine indicating that petitioner would be absent on that same day. She reported the confusing message to the principal on Friday morning, noting that the call had been made on Thursday evening but stated that he would be absent on Thursday. She testified that she did not receive notification from petitioner that he would be out on Friday. When petitioner was absent on Friday, District staff attempted to call petitioner but could not get a response. The principal, using a phone number the District had for petitioner, managed to speak with someone who he believed to be petitioner's mother but that individual hung up the phone. When the principal called the number again, the phone was picked up and then hung up. The principal continued to attempt to call petitioner unsuccessfully on Monday and Tuesday, when petitioner again was again absent and failed to report his absences to the teacher on special administrative assignment.

With respect to Charge I, Specification 26, the official District Absence Detail Reports for the 1990-91, 1991-92 and 1992-93 school years, which were introduced into evidence during the testimony of respondent's Coordinator of Payroll and Personnel, establish that petitioner was absent on the following days: February 8, 1991; April 15, 16, 17, 18, 19, 29 and 30, 1991; May 1, 2, 3, 6, 7, 8, 9, 10, 13, 14, 15, 16, 17, 20, 22, 23, 24, 30 and 31, 1991; and June 3, 5, 14 and 21, 1991. With respect to Charge I, specification 27, the Absence Detail Report records establish that petitioner was absent on the following days: September 20, 1991; October 25, 1991; November 13, 18, 19, 22, 25 and 26, 1991; and January 9 and 10, 1992. I do not find that petitioner was absent on September 4, 1991 since petitioner testified that he was not absent that day, the Absence Detail Reports do not indicate such absence and there is nothing else in the record which establishes such absence. With respect to Charge I, specification 28, the Absence Detail Reports establish that petitioner was absent on the following days: October 5, 6, 7, 8, 9, 13, 14, 15, 16, 19, 20, 21, 22, 23, 26, 27, 28, 29 and 30, 1992; November 2, 3, 4, 5, 6 and 10, 1992; January 11 and 12, 1993; February 2, 3, 4 and 5, 1993; May 5, 6 and 7, 1993; and June 24, 25 and 28, 1993. With respect to the absences alleged for December 14 and 16, 1992, while such absences are not listed in the Absence Detail Reports, the absences are established by the testimony of respondent's teacher on special assignment at Nottingham and the records introduced during her testimony, as well as petitioner's own testimony admitting such absences. With respect to the absence on May 4, 1993, it appears from the record that although petitioner was injured on that day, he was not charged with an absence and I do not find that he was absent on that day.

Respondent appears to contend that, with respect to disciplinary charges relating to excessive absences by a teacher, it is sufficient to merely establish the excessive absences forming the bases of the charges, and that it is not necessary to establish that the absences were without justification. However, this is true only with respect to absences relating to a charge of incompetence (Appeal of Bd. of Ed. of the Beacon City School District, 34 Ed Dept Rep 190); Appeal of Bd. of Ed. of Plainview-Old Bethpage CSD, 26 id. 555; Matter of Bd. of Ed. of Three Village CSD, 19 id. 74, aff'd sub nom. Matter of Bd. of Ed. v. Ambach, 84 AD2d 55, rev'd on other gnds 56 NY2d 792, reargument denied 57 NY2d 775). The underlying purpose of such a disciplinary charge is not to punish the teacher but rather to ensure that pupils are not adversely affected by educational disruption resulting from such absences; and to sustain a charge of incompetence based upon excessive absences, it is not necessary to establish that the teacher was malingering or that the teacher's absences were without justification (Appeal of Bd. of Ed. of the West Babylon UFSD, 27 Ed Dept Rep 415).

In this appeal, the respondent has preferred charges of neglect of duty based upon excessive absences. A teacher's repeated or continuing absences may constitute neglect of duty (Appeal of Cuoco, supra; Matter of Board of Education of the Plainview-Old Bethpage Central School District, supra). To establish neglect of duty, such absences must be without authorization given by anyone in authority (Appeal of Bd. of Ed. of the Peru Central School District, 31 id. 269, 273; Matter of Bd. of Ed. of the Broadalbin Central School District, 24 id. 51; Matter of Bd. of Ed. of the North Syracuse Central School District, 23 id. 1), or must otherwise result from petitioner's intentional or negligent failure to satisfactorily perform his duties (see Appeal of Bd. of Ed. of the Plainview-Old Bethpage Central School District, supra).

After reviewing the record, I find that Specifications 26 and 28 must be dismissed since most of the absences listed in the specifications are attributable to petitioner's illness or injury and the record fails to establish that such absences were unauthorized or the result of petitioner's intentional or negligent failure to satisfactorily perform his duties. With respect to Specification 26, I find that petitioner was suffering from Depression during the period April 9 to June 2, 1991; that he was placed on leave of absence from April 16 until his return on June 3, 1991 and referred to a professional counselor through respondent's Employee Assistance Program; and that petitioner's absences on June 5, 14 and 21, 1991 are attributable to petitioner's appointments with the professional counselor. With respect to Specification 28, I find that petitioner's absences during the period from October 5 to November 10, 1992 are attributable to a back injury petitioner sustained on September 30, 1992; that petitioner's absences on December 14 and 16, 1992, February 2, 3, 4 and 5, 1993 and June 24, 25 and 28, 1993 also appear to relate to petitioner experiencing back pain, as indicated by petitioner's testimony and notes from petitioner's physician which were introduced into evidence; and that petitioner's absences on May 5, 6 and 7 are attributable to a head injury sustained by petitioner on May 4, 1993. The record fails to include any medical testimony or evidence to effectively rebut the evidence in the record that such absences are attributable to petitioner's illness. Therefore, the aforementioned absences must be excluded from determining whether petitioner is guilty of neglect of duty based upon excessive absences. After excluding these absences, there are only two remaining dates, February 8, 1991 and June 3, 1991, relating to Specification 26, and two remaining dates, January 11 and 12, 1993, relating to Specification 28, and such absences cannot be deemed sufficiently excessive, even if proven unexcused or unauthorized, to sustain their respective Specifications.

With respect to Charge I, Specification 27, petitioner testified that his absences on October 25, 1991, November 18 and 19, 1991 and January 9 and 10, 1992 were attributable to illness. Since there is nothing in the record to contradict petitioner's testimony, these absences must be excluded in determining whether to sustain this specification. However, I find that there is sufficient evidence in the record to sustain Specification 27 based upon petitioner's absences on September 20, 1991 and November 13, 22, 25 and 26, 1991. Petitioner admitted in his testimony that he was absent on September 20, 1991 and that the absence "could have been a personal day." The Absence Detail Report indicates that petitioner's absence on that date was charged to personal illness. Petitioner testified that he "believed" he took a personal day on November 13, 1991 to take his mother to the doctor. The Absence Detail Report indicates that his absence on that day was charged to personal illness, and petitioner failed to explain why it was necessary for him to take the entire day off. Petitioner could not recall why he was absent on November 22, 1991 and petitioner testified that on November 25 and 26, 1991, he "[c]ould have been ill. I'm not sure about those days".

With respect to Charge II Insubordination, Specification 5, there is insufficient evidence to establish that petitioner is guilty of insubordination for calling, on or about January 27, 1991, two District staff members at their homes during the evening and criticizing Clary Middle School employees, including the principal. To sustain a charge of insubordination, the school district must prove that the teacher's actions were willful, or in deliberate defiance of either a direct order or an established rule (Matter of the Bd. of Ed. of the City School District of the City of Elmira, 23 Ed Dept Rep 163). When relying upon a prior reprimand or directive to a teacher, the school district must prove that such warning provided more than a vague direction for future conduct (Matter of the Bd. of Ed. of the Spencerport Central School District, 24 Ed Dept Rep 329). The Clary Middle School principal testified that the vice principal and a teacher on special assignment reported that petitioner had called them at home on January 27, 1991 and petitioner "expressed a great deal of anxiety, depression, upsettedness, over a whole range of issues and with the school, certain individuals in the school, certain things in his personal life" and petitioner "was critical of other teachers in the school not doing their jobs" and "was critical at some point of me not properly running the school". The statements of the vice principal and the teacher on special assignment describing the phone calls were also introduced into evidence and are consistent with the principal's testimony. However, while the principal testified that petitioner had "similar problems" with phone calls in the past during the 1986-1987 school year and at that time a conference was held and petitioner was "asked to stop making the phone calls (emphasis added)", there is no evidence of a previous direct order or an established rule against such conduct. Accordingly, I find that petitioner is not guilty of this specification. In view of my finding of not guilty, it is not necessary for me to address petitioner's contention concerning alleged violations of his constitutional rights with respect to this specification.

With respect to Charge II, Specification 7B., the record establishes petitioner is guilty of insubordination in that on or about August 27, 1991, the Director of Middle Schools directed petitioner to submit his summer school students' grades, and that petitioner indicated to the Director that the grades were out of town and that he would fax them to him the next morning, but failed to do so. The evidence in the record with respect to this incident is discussed above with respect to Charge I, Specification 6.

With respect to Charge II, Specification 9, the record establishes that during the 1992-93 school year, petitioner placed an order for equipment and charged it to the District's account, without the District's authorization and despite the District's previous warning to petitioner against such action, and petitioner failed to reimburse the District for such unauthorized charge, despite subsequent requests by the District that such reimbursement be made. This finding is established by the testimony of the Clary Middle School principal and the director of personnel and exhibits introduced during their testimony. The principal testified that after the petitioner had previously made unauthorized purchases, petitioner was notified by memo that he was prohibited from making further purchases, that he was responsible for purchases made, and that he was provided with a copy of the District's policy on ordering teaching supplies and equipment. The principal further testified that subsequently, after he received another overdue bill from a teachers' supply company, the principal called the company's collections manager and was informed that the order was placed by petitioner and billed to Clary Middle School.

With respect to Charge II, Specifications 22, 23 and 24, the record establishes that petitioner is guilty of insubordination in that he failed to report to work and failed to report his absence as required by District policy, on June 25, June 28 and June 29, 1993. The evidence relating to the incident underlying these specifications is discussed above with respect to Charge I, Specifications 21, 22 and 23.

With respect to Charge III Misconduct, Specification 8, petitioner contends that the charge must be dismissed since Education Law section 3012(2) does not include "misconduct" within the list of causes for which a tenured teacher may be disciplined pursuant to Education Law section 3020-a: "insubordination, immoral character or conduct unbecoming a teacher" (Ed.L. section 3012[2][a]) and "inefficiency, incompetency, physical or mental disability or neglect of duty" (Ed.L. section 3012[2][b]). Respondent contends that misconduct charges have been upheld against teachers who are disrespectful to their superiors and cites Matter of Bd. of Ed. of Uniondale Union Free School District, 26 Ed Dept Rep 498. However, in that case, the Commissioner found that such conduct constitutes insubordination which is "likely to undermine the discipline necessary for the operation of a sound school system" (Uniondale UFSD, supra at p. 501, citing Matter of Bd. of Ed., Duanesburg CSD, 18 Ed Dept Rep 387, judgmt grtd dis pet to rev sub nom, Mockler v. Ambach and Bd. of Ed., Duanesburg CSD, 100 M2d 717, aff'd 79 AD2d 745, lv to app den 53 NY2d 603). I agree with petitioner that since Education Law section 3012(2) does not include "misconduct", the conduct forming the basis of Charge III, Specification 8 must fall within one of the causes listed in the statue.

The specification alleges that: "[d]uring April and May, 1990, you ordered equipment totaling $285.11 from Science Kit and Boreal Laboratories without authorization from the District and charged the equipment to the District's account. You were made aware that such orders are unauthorized and are prohibited at a June 1, 1992 meeting. These bills were again forwarded to you on or about December 10, 1992 with the directive that you take the necessary action to ensure payment is made. To date, no payment has been made."

The only cause listed in Education Law section 3012(2) that would encompass this conduct is insubordination. However, Charge II Insubordination, Specification 8, which contained identical language to that found in this specification (Charge III, Specification 8), was dismissed by the Panel, on the ground that the District failed to establish a "willful disobedience of a directive." Therefore, I find that Charge III, Specification 8 must be dismissed.

To impose a penalty of dismissal, charges pursuant to Education Law section 3020-a must be substantial and substantiated (Appeal of Thompson, 33 Ed Dept Rep 592). I find this standard met in that the charges and specifications sustained in this appeal consist of numerous and serious acts of neglect of duty and insubordination which demonstrate that it is highly unlikely that petitioner would function in a productive manner if he were to return to his position. Of particular concern are petitioner's failure to instruct his students, improper grading, loss of students' exams, failure to take attendance and failure to maintain order in class, as well as his failure to timely turn in students' grades, since these acts directly and adversely affected his students. Furthermore, petitioner's repeated failure to follow district procedures with respect to turning in grades and reporting absences undermines the discipline necessary for the operation of a sound school system (Matter of Bd. of Ed., Duanesburg CSD, supra). There is nothing in the record to indicate that there is any likelihood that petitioner will comply with future directives from his administrators if he is returned to his teaching position. The proper penalty in such circumstances is dismissal (Appeal of Jackson, supra; Appeal of Bd. of Ed. of the Sweet Home CSD, 25 Ed Dept Rep 457).

I have examined petitioners remaining contentions and find them to be without merit.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the decision of the hearing panel is annulled only to the extent that it found petitioner guilty of Charge I, Specifications 26 and 28, Charge II, Specification 5 and Charge III, Specification 8, and it is further

ORDERED that the remainder of the hearing decision is affirmed, and it is further

ORDERED that respondent be authorized to terminate petitioner's services.

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