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Decision No. 12,648

Appeal of the Board of Education of the City School District of the City of New York from a determination rendered by a hearing panel pursuant to Education Law '3020-a concerning charges against Donald Cogan, a tenured school psychologist.

Decision No. 12,648

(February 6, 1992)

Hon. O. Peter Sherwood, Corporation Counsel, attorney for petitioner, Esdras Tulier, Esq., of counsel

James R. Sandner, Esq., attorney for respondent, Mitchell H. Rubenstein, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals from the determination of a hearing panel convened pursuant to Education Law '3020-a, which dismissed a charge preferred against respondent. The appeal must be dismissed.

Respondent was a tenured school psychologist in petitioner's school district at the time of the alleged incidents. He had been employed in that capacity for over 27 years. A single charge of unfitness, and conduct unbecoming respondent's position and prejudicial to the good order, efficiency and discipline of the service, was brought against respondent on October 19, 1988. The charge, which was based upon one incident, states in pertinent part:

On or about June 9, 1988, respondent requested student M.O. to pose for nude photographs and offered to take M. O. to his apartment where he could kiss her and do `you know what.'

Hearings were held on six separate dates, beginning in March 1989 and ending February 9, 1990. The panel majority, in a decision dated August 28, 1990, dismissed the charge against respondent because it did not find the student witness credible. The panel minority, without opinion, disagreed and recommended that respondent be found guilty of the charge.

Petitioner contends that the panel erred in not accepting the testimony of other teachers, who although they had not witnessed the event, could supply corroborative evidence about respondent's state of mind and the sole eye-witness' state of mind. Petitioner contends that the corroborative evidence, in conjunction with the student's testimony, is sufficient to support a finding of guilt. Petitioner requests that I substitute my judgment for that of the panel, find respondent guilty of the charge preferred and impose a penalty of dismissal.

Respondent contends that because the petition was not appropriately verified, petitioner has not properly commenced this appeal. It is uncontroverted that the panel's findings were received by petitioner on September 23, 1990 and that petitioner decided to appeal the panel's findings in an executive session on October 17, 1990. It is also undisputed that petitioner did not adopt a resolution deciding to appeal the findings of the hearing panel until October 24, 1990, 31 days after receipt of the findings.

The Commissioner's regulations provide: "The petition shall be verified . . . pursuant to a resolution of [the] board authorizing the commencement of such appeal on behalf of such . . . board" (8 NYCRR '275.5). Despite the fact that there was no resolution to take an appeal to the Commissioner until October 24, 1990, petitioner's attorney verified the petition and served it on October 23, 1990. Petitioner's attorney was without authority to verify the petition in this matter. Accordingly, I find that the verification of the petition does not comply with the requirements of 8 NYCRR '275.5, and that the petition must therefore be dismissed.

Even if this procedural irregularity were excused, the appeal would also be dismissed on the merits. The burden of proof in a teacher tenure hearing under Education Law '3020-a is on the complainant. In Appeal of the Board of Education of the Greater Johnstown City School District (30 Ed Dept Rep 89), I noted that:

Guilt may only be found on a charge or specification where there is a preponderance of evidence to support that charge. Martin v. Board of Education, 67 NY 2d 975 (1986), 502 NYS 2d 991; Matter of the Board of Education of the City of New York, 29 Ed Dept Rep 302 (1990). The term `evidence' used in those cases refers to `credible evidence'. Matter of Strongin v. Nyquist, 44 NY 2d 943 (1978). . . .

In matters involving credibility of witnesses, I have repeatedly held that `where the panel determination rests in a major part on determination of witness credibility, I will not substitute my judgment for that of the panel unless there is clear and convincing evidence that the determination of credibility is inconsistent with the facts' (Matter of Community School Board No. 18, 21 Ed Dept Rep 216 (1981), Matter of LePore, 28 Ed Dept Rep 425 (1989). Thus, for me to substitute my judgment in this matter there must be facts sufficient to demonstrate in a clear and convincing fashion that the panel was wrong on its determination of credibility of the witnesses. Stated another way, I will not `ordinarily substitute my judgment for that of a hearing panel as to the credibility of the witnesses testifying at a hearing, unless the panel's decision is contrary to the weight of the evidence and the hearing panel has not adequately explained its rejection of otherwise convincing testimony' (Matter of Shurgin v. Ambach, 56 NY 2d 700 (1982), 451 NYS 2d 722; Matter of McNamara v. Commissioner, 80 Ad 2d 660 (1981), 436 NYS 2d 406; Matter of NYC Board of Ed., 24 Ed Dept Rep 284 (1985); Matter of Board of Ed., Sewanhaka CHSD, 23 id. 463 (1984); Matter of NYC Board of Education, 26 id. 544 (1987)).

The issue, therefore, is whether the hearing panel's decision is contrary to the weight of the evidence or whether it failed to explain its rejection of otherwise convincing testimony. The record shows that the hearing panel carefully analyzed each witness' testimony. It had particular difficulty with the testimony of the sole eyewitness. The panel found that the student who made the accusation was not credible because she demonstrated a propensity towards misstating facts, and an inability to recall key events regarding her encounters with respondent. The panel correctly concluded that without corroborating evidence, the charge, as drawn by petitioner, would have to be dismissed.

Petitioner argues that it is appropriate to infer that respondent made the offensive statement to the student because other witnesses produced by petitioner testified about respondent's apparent interest in the student. No witness, however, was able to testify whether respondent actually made the statement to the student. The panel found that petitioner simply did not prove that respondent actually engaged in the conduct with which he was charged. Petitioner bears the burden of proof in Education Law '3020-a proceedings. In the instant matter, petitioner failed to show by a preponderance of the evidence that respondent engaged in the conduct charged. Accordingly, I find no basis to substitute my judgment for that of the panel.