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Decision No. 12,900

Appeal of the Board of Education of the Town of Webb Union Free School District from a determination of a '3020-a hearing panel concerning charges against Kimberley Ehrensbeck, a tenured guidance counselor.

Decision No. 12,900

(March 29, 1993)

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

Bernard F. Ashe, Esq., General Counsel, New York State United Teachers, attorney for respondent, Terrence F. Nieman, Esq., of counsel

SOBOL, Commissioner.--Petitioner, the Board of Education of the Town of Webb Union Free School District (the "board"), appeals from the decision of a '3020-a hearing panel (the "panel") to dismiss all disciplinary charges filed against respondent, Kimberley Ehrensbeck, a tenured guidance counselor ("respondent"). Petitioner requests that I reverse the panel's findings, find respondent guilty of all charges, and authorize termination of her employment. The appeal must be dismissed.

Petitioner hired respondent in 1986 as a guidance counselor. In April 1988, the board granted her tenure. Thereafter, in July 1988, the board hired Superintendent Gilbert. During the 1988-89 school year, respondent was on child-care leave. In May 1989, while still on leave, respondent was asked to meet with Superintendent Gilbert. At the same time, Mrs. Pope, a retired guidance counselor, was hired to fill respondent's position while she was on leave. During that time, Mrs. Pope prepared a critical report on the district's guidance services. In June 1989, Superintendent Gilbert shared the report with respondent who objected to several of its conclusions. Without addressing any of respondent's objections, the "Pope report" became the basis for a memorandum entitled "1989-90 Goals and Evaluation Process," which was presented to respondent September 27, 1989. Respondent resumed her duties as a guidance counselor in the district in August 1989.

Except for one memorandum dated September 13, 1989, respondent did not receive any reports on her job performance from August to December. On December 2, 1989, the superintendent spoke to respondent about the need to improve her computer skills. Thereafter, on December 22, 1989, respondent alleges that the superintendent gave her the choice of either resigning from her position or working under the direct supervision of Mrs. Pope. Respondent did not resign. On January 2, 1990, when respondent returned from vacation, her office was occupied by Mrs. Pope, while a smaller office was under construction for her. Between January 3, 1990 and June 7, 1990, respondent received 68 memoranda from Superintendent Gilbert and Mrs. Pope relating to her job performance. Almost every memorandum demanded respondent's immediate written response.

On June 12, 1990, petitioner preferred five charges pursuant to Education Law '3020-a against respondent. The charges were:

Charge 1 - been insubordinate

Charge 2 - conducted herself in a manner unbecoming a teacher

Charge 3 - been inefficient

Charge 4 - been incompetent

Charge 5 - neglected her duty

The charges included 69 specifications. None of the specifications indicate the charges to which they apply. Many of the specifications relate to respondent's failure to respond to the 68 memoranda she had received during the 1989-90 school year from Mrs. Pope or the superintendent. Some of the specifications incorporate by reference previous specifications relating to respondent's failure to respond to a particular memorandum. Often, the underlying memoranda, upon which her failure to respond became the basis of a specification, demanded her response within three days, while it presumed her behavior to be unprofessional or conduct unbecoming a teacher. Essentially, the memoranda upon which many of the specifications relied accused respondent of improper conduct before giving her the opportunity to respond. Typical of this type of accusation is specification ss, which is based on a memorandum captioned "conduct unbecoming a teacher, insubordination." Apparently, respondent declined to respond to many of the memoranda. Her failure to respond became the basis of many of the specifications.

Hearings were held on 11 days between October 12, 1990 and April 29, 1991. On August 7, 1991, the panel issued its decision, dismissing all of the charges. The panel's decision was based upon its finding that the specifications of misconduct were neither substantial nor substantiated by the evidence. The board-appointed panel member dissented, and recommended respondent's termination based on his finding that all the charges had been proven. This appeal ensued.

Petitioner urges that the Commissioner adopt the dissenting opinion and find respondent guilty of the charges and authorize termination of her employment. Respondent contends that the panel's decision was proper and should not be set aside. Further, respondent asserts that both the petition and the underlying '3020-a charges should be dismissed because they fail to provide clear and concise statements and effectively deny her an adequate opportunity to prepare and present her defense.

The Commissioner's regulations at 8 NYCRR '275.10 require that a petition provide a clear and concise statement of the claims upon which the petitioner seeks relief. Where a party represented by counsel offers only conclusory allegations, the petition must be dismissed for failing to satisfy its burden of proof (Appeal of Community School District No. 21 of the Board of Education of the City School District of the City of New York, 29 Ed Dept Rep 299). The petition in this appeal is 90 pages long and seeks the wholesale reversal of the panel's determination. The petition does not provide any particulars relating to the specific charges or finding. Instead it refers, in a conclusory manner, to respondent's acts of "misconduct". Similarly, the charges preferred against respondent in the underlying '3020-a proceeding lack specificity. As indicated earlier, the 69 specifications are listed without reference to any of the five charges. As such, neither the charges preferred by the board of education nor the petition filed in this appeal provide sufficient clarity to enable respondent to prepare an adequate defense. Consequently, the petition must be dismissed.

Even if I had reached the merits of petitioner's claims, the appeal would have been dismissed. 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, it will not be set aside (Matter of Shurgin v. Ambach, 56 NY2d 700; Appeal of Perazzo, 30 Ed Dept Rep 308). In dismissing the charges, the panel found that many of the specifications involved respondent's failure to adhere to deadlines specified in memoranda. Finding that these memoranda made unreasonable demands for written responses to their serious accusations of misconduct, the panel concluded that respondent's failure to comply with the requests did not constitute misconduct.

The panel found, and I concur, that respondent's performance did not constitute insubordination, incompetence, conduct unbecoming a teacher, inefficiency or neglect of duty. Instead, as the panel concluded, it appears that petitioner created a work environment that made it virtually impossible for respondent to perform her job and, at the same time, respond to the barrage of memoranda. As the panel found, the record reflects respondent's dedication to her job, as exemplified by her voluntary attendance at computer training even before she returned to her job in 1989. Furthermore, rather than giving respondent a genuine opportunity for remediation, petitioner continued to find fault in her work and demand her explanation. At the same time, she was effectively demoted, given a smaller office and bombarded with memoranda accusing her of misconduct. Based upon the record, I find no basis to conclude that the panel's determination was clearly erroneous or contrary to the weight of evidence.

Furthermore, the panel also found that many of the specifications allege acts of misconduct that are incorporated into other allegations of misconduct, which served only to compound the charges. Typical of this type of charge is one of the specifications that allege respondent failed to submit an explanation for behavior described in three previous memoranda. The panel found, and I concur, that in light of the short time respondent was given to respond to such charges, her failure to respond did not constitute misconduct.