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Decision No. 12,893

Appeal of the BOARD OF EDUCATION OF THE FLORAL PARK-BELLEROSE UNION FREE SCHOOL DISTRICT from a determination rendered by a hearing panel pursuant to Education Law '3020-a concerning charges against Fran Jordan Carlson, a tenured teacher.

Decision No. 12,893

(March 3, 1993)

Pelletreau & Pelletreau, Esqs., attorneys for petitioner, Kevin A. Seaman, Esq., of counsel

Kaplowitz & Galinson, Esqs., attorneys for respondent, Daniel Galinson, Esq., of counsel

SOBOL, Commissioner.--Petitioner, the Board of Education of the Floral Park-Bellerose Union Free School District, appeals from the decision of a hearing panel convened pursuant to Education Law '3020-a, which unanimously found respondent guilty of two charges brought against her and dismissed two other charges. Petitioner seeks an order finding respondent guilty of the two dismissed charges and a determination that respondent be suspended for one year without pay. The appeal must be dismissed.

The district is an elementary school district, serving only students in kindergarten through grade 6. By notice dated December 11, 1990, petitioner preferred charges against respondent, a tenured remedial reading teacher who had been employed by petitioner for more than 18 years at the time of the incidents in question. The notice contained the following charges:


You are guilty of conduct unbecoming a teacher and neglect of duty in that on October 15, 1990 you were observed in a public phone booth within the John Lewis Childs School at 11:00 a.m. while your second grade remedial reading class was left unsupervised from 10:50 a.m. to 11:20 a.m.


You are guilty of conduct unbecoming a teacher and moral turpitude in that you advised Principal Cozart at 11:20 a.m. on October 15, 1990, in explaining your absence, that you "had been looking for your students"; subsequently, you admitted to the principal that you had not been looking for your students but had been confused as to whether or not the subject remedial reading class had been scheduled for October 15, 1990.


You are guilty of conduct unbecoming a teacher, neglect of duty and moral turpitude in that on October 5, 1990, you were observed in your motor vehicle on Plainfield Avenue, Floral Park at 3:27 p.m. when the sign-out sheet for said date indicated that you had left at 4:00 p.m.


You are guilty of conduct unbecoming a teacher and neglect of duty in that on numerous occasions during the 1990-91 school year, you had been observed in the public phone booth at the John Lewis Childs School at times when you possessed preparation period assignments.

A hearing was conducted in three sessions commencing on March 12, 1991 and ending on March 4, 1992. In a decision dated August 31, 1992, the panel unanimously found respondent guilty of the first two charges, involving her absence from her classroom on October 15, 1990. A fine of two days salary was assessed. The panel found respondent not guilty of the two remaining charges. This appeal ensued.

Petitioner contends that despite the panel's finding of not guilty in connection with Charges III and IV, respondent is guilty of those charges and should be suspended without pay for one year. Respondent contends that the panel's determination is supported by the record.

On review of the determination of a hearing panel rendered pursuant to Education Law '3020-a, the Commissioner has the power to substitute his judgment for that of the hearing panel with regard to findings of fact and to make new findings (Matter of Shurgin v. Ambach, 56 NY2d 700; Matter of McNamara v. Comm'r, 80 AD2d 660). However, I will not ordinarily substitute my judgment for that of a hearing panel unless the panel decision is contrary to the weight of evidence and the hearing panel has not adequately explained its rejection of otherwise convincing testimony (Shurgin, supra; Matter of NYC Bd. of Ed., 24 Ed Dept Rep 284; Matter of Bd. of Ed., Sewanhaka CHSD, 23 id. 463). On the present record, I find no basis for substituting my judgment for that of the hearing panel on its finding of not guilty as to Charges III and IV.

In connection with Charge III, petitioner relies upon the testimony of the superintendent, who alleged that on October 5, 1990 he saw respondent in her car approximately one-half mile from school at three minutes before dismissal time (3:30 p.m.) when the sign-out sheet for that day indicated that respondent had left at 4:00 p.m. Testimony supplied by the school principal, however, indicates that the superintendent was mistaken as to when he observed respondent and that he probably observed her at least ten minutes later than when he presumed.

As for the time sheet for Friday, October 5, 1990, the record indicates that respondent forgot to sign out that day. The superintendent testified that when he arrived at the school he checked the time sheet and saw that she had not signed out. When the respondent returned on Tuesday, October 9th, four days later (Monday, October 8th was a holiday), the school secretary informed her that she had omitted to sign out on October 5th and asked her what time she left. Respondent did not remember, but said it was not later than 4 p.m., whereupon the secretary apparently placed that time on the sheet. Accordingly, I conclude that the panel's determination of not guilty in connection with Charge III is supported by the record.

Regarding Charge IV, petitioner maintains that on numerous occasions during the first six weeks of the 1990-91 school year, petitioner used the public telephone booth at school during her preparation period. While petitioner does have a written policy which provides that preparation time may not be used for personal business, the record indicates that the policy has not been consistently enforced. In addition, the record shows that no mention of respondent's use of the telephone was ever made to her by administrators until after the time in question. The record also indicates that because of domestic problems, respondent did use the phone a number of times during the school's lunch period. However, there is insufficient evidence that she used the phone extensively during her preparation period. Based on the foregoing, I conclude that the panel's determination of not guilty in connection with Charge IV is also supported by the record.

I have reviewed petitioner's other contentions, including those with respect to penalty, and find them without merit.