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Decision No. 12,714

Appeal of PATRICIA BRUNO from a determination rendered by a hearing panel pursuant to Education Law "3020-a concerning charges brought by the Board of Education, Community School District No. 9.

Decision No. 12,714

(June 16, 1992)

James R. Sandner, Esq., attorney for petitioner, Karen D. Primack, Esq., of counsel

Lawrence E. Becker, Esq., attorney for respondent, Thomas J. Shoener, Esq., of counsel

SOBOL, Commissioner.—Petitioner, a tenured teacher of common branches in Community School District No. 9, appeals from the decision of a hearing panel convened pursuant to Education Law "3020-a recommending her dismissal. Petitioner does not dispute the panel's findings of guilt but seeks an order modifying the penalty. The appeal must be dismissed.

Petitioner has been a teacher in respondent school district for twenty-eight years. On April 12, 1988 and May 4, 1988 petitioner allegedly struck several students. Despite warnings, on January 3, 1989 petitioner was involved in another physical altercation, this time with a six year old student. Following its investigation of the last incident, respondent preferred one charge with two specifications of conduct unbecoming a teacher based upon the three incidents.

The charge asserts that petitioner's conduct endangered the welfare of her students. Specification I-A alleges that on April 12, 1988 petitioner hit five different students. In one of the incidents, the teacher allegedly hit the child's head against a wall and pushed him to the floor. Another count, alleging that the teacher used profanity, was withdrawn. Specification I-B alleges that on May 4, 1988, petitioner hit another student. Specification II alleges that petitioner used excessive force against a six year old student in her class on January 3, 1989, when she dragged him down the hall yelling "I'm never going to give you candy again."

Hearings were held over six days between September 22, 1989 and July 11, 1990. In a decision rendered on January 29, 1991, the panel found petitioner guilty of Specification I-A and Specification II, but not guilty of Specification I-B, and recommended her dismissal. In finding petitioner guilty of certain charges, the panel determined that she used excessive force and that her expressions of anger constituted improper behavior. The panel's decision recommending petitioner's termination was based, in part, on its finding that she expressed no remorse for her behavior. In recommending her dismissal, the panel was further persuaded that if respondent "… is returned to duty as a classroom teacher there… [was] a high probability that this unacceptable conduct would continue."

Petitioner does not dispute the panel's findings. Instead, she asserts that the actions giving rise to the charges were isolated incidents. As such, she argues that the panel's recommendation to dismiss her was disproportionate to the offense. Petitioner seeks a suspension in lieu of dismissal.

Respondent asserts that petitioner's claim that her misconduct did not constitute a pattern of behavior is not supported by the record and that the panel's dismissal recommendation was appropriate. To support its contentions, respondent provides, with its pleadings, copies of letters to petitioner warning her against the use of corporal punishment. Those documents, however, were not introduced before the hearing panel.

As a threshold matter, petitioner objects to respondent's effort to introduce new evidence on appeal that could have been submitted to the hearing panel. As with a reopening of a Commissioner's decision, the new evidence will not be considered if it was available at the time of the original proceeding (Application of Robert, 31 Ed Dept Rep 330; Application of Thibodeau, 30 id. 206; Matter of Polizzi, 15 id. 38). Because the documents in question were available at the time of the hearing but were not offered into evidence, they will not be considered here.

The remaining issue is whether dismissal is warranted. In determining to substitute my judgment for the hearing panel's, the question is whether the discipline imposed is proportionate to the offense (Matter of Mockler v. Ambach, 79 AD2d 745, 434 NYS2d 809 lv to app den 53 NY2d 603, 439 NYS2d 1026; Matter of Kloepfer v. Commissioner, et al., 82 AD2d 974, 440 NYS2d 785 aff'd 56 NY2d 687, 451 NYS2d 732; Shurgin v. Ambach, 83 AD2d 665, 442 NYS2d 212; aff'd 56 NY2d 700). To warrant dismissal, charges must be both substantial and substantiated (Appeal of Bd. of Trustees of Community School District No. 6, 29 Ed Dept Rep 33; Matter of Bd. of Ed., North Syracuse CSD, 23 id. 1; Matter of Mockler, supra). Also pertinent is the teacher's fitness to carry out his or her professional responsibilities (Matter of Bott, 41 NY2d 265, 392 NYS2d 406; Appeal of the Pleasantville UFSD, 31 Ed Dept Rep 262).

In reviewing the record, I find the charges sufficiently substantial and substantiated to warrant petitioner's dismissal. Petitioner was not only on notice regarding her improper conduct, but her subsequent actions demonstrate that she was not even able to control herself when working with a docile six year old child on a one-to-one basis. Petitioner does not dispute the panel's finding of guilt on two specifications that she struck several children and used excessive force with another. At the same time she expresses no remorse for her actions. Accordingly, I find no basis to substitute my judgment for the panel's recommendation that her services be terminated.