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Decision No. 12,975

Appeal of PATRICIA WHEELER, PATRICIA HOUSER, TINA SMITH, SUSAN WHITE and ROSE DAVIS on behalf of Donna Wheeler, Walter Wheeler, John Houser, Nicole Smith, Christina White and Shandina Jerome from action of the Board of Education of the Cohoes City School District relating to failure to bring disciplinary action against a teacher.

Decision No. 12,975

(August 2, 1993)

Robert T. Law III, Esq., attorney for respondent

SOBOL, Commissioner.--Petitioners appeal from respondent's failure to initiate a disciplinary proceeding, at petitioners' request, against a tenured teacher in respondent's district. The appeal must be dismissed.

Prior to March 1993, each petitioner had at least one child who attended respondent's Harmony Hill Elementary School. On or about February 24, 1993, petitioners and one other parent presented six written complaints to the district alleging that the physical education teacher, Frank Ryan, physically and verbally abused their children. Specifically, petitioner Patricia Wheeler alleged that: on February 4, 1993, Mr. Ryan yelled at her daughter Donna and told Donna "that her mother and her do not run the school"; for the past three years Mr. Ryan physically and verbally abused her children; and on February 11, 1993 she observed Mr. Ryan grab a five year old student and pull him towards a wall. Petitioner Patricia Houser alleged that Mr. Ryan unduly pressured her son John about being late for school and made fun of the way John ran in front of his gym class. Petitioner Tina Smith claimed that Mr. Ryan verbally abused her daughter Nicole over the past three years; embarrassed her daughter in front of other students by yelling at her over a microphone; yelled in her daughter's face and grabbed her daughter by the arm to sit her in a circle. Petitioner Susan White alleged that Mr. Ryan physically and verbally abused her daughter Christina last year when he picked her up by her shirt and yelled in her face in front of her class; and yelled at her daughter in January 1993. Petitioner Rose Davis claimed that on February 5, 1993, while playing in gym class, Mr. Ryan yelled "move" and hit her daughter Shandina in the head. Another parent claimed that her children were afraid of Mr. Ryan.

Respondent's superintendent investigated these allegations, including interviews with complainants, their children and Mr. Ryan. The principal of Harmony Hill also investigated. He interviewed complainants, their children, witnesses and Mr. Ryan. As a result of these investigations, the superintendent concluded that there was insufficient evidence of corporal punishment, physical abuse or verbal abuse. Based on the lack of evidence to support the charges, the lack of a school policy prohibiting derogatory comments, and Mr. Ryan's seventeen years of service without any evidence of misconduct noted in his personnel file, the superintendent chose not to file formal disciplinary charges with the board of education. However, the superintendent determined that Mr. Ryan had made derogatory comments to some students and by letter dated March 9, 1993, the superintendent admonished Mr. Ryan and set forth several proscriptive mandates to improve his verbal interaction with students.

By letter dated March 12, 1993, petitioners requested that respondent discipline Mr. Ryan pursuant to Education Law '3020-a. By letter dated March 16, 1993 respondent's attorney notified petitioners that after reviewing the six complaints and the results of the superintendent's and principal's investigations, respondent decided not to proceed with disciplinary action and the matter would continue to be handled administratively by the superintendent. Petitioners commenced this appeal on March 23, 1993.

Petitioners contend that respondent improperly refused to commence a disciplinary proceeding pursuant to Education Law '3020-a. Petitioners further contend that the principal and superintendent did not adequately investigate their complaints and were not impartial in their investigations.

Respondent contends that the petition fails to state a claim and argues that petitioners' allegations are conclusory and not supported by affidavits or other evidentiary documents. Respondent further contends that its superintendent and principal conducted thorough investigations and the results of the investigations support the superintendent's administrative response and its determination.

As a threshold matter, I do not find that the petition is insufficient to state a claim. Section 275.10 of the Commissioner's Regulations provides that a petition:

shall contain a clear and concise statement of the petitioner's claim showing that the petitioner is entitled to relief, and shall further contain a demand for the relief to which the petitioner deems himself entitled. Such statement must be sufficiently clear to advise the respondent of the nature of petitioner's claim and of the specific act or acts complained of.

I note that petitioners are not represented by counsel. In such cases, a liberal interpretation of the rules is appropriate, particularly where there is no evidence of prejudice to the opposing party (Application of a Child with a Handicapping Condition, 28 Ed Dept Rep 519). I find that the petition adequately states petitioners' claim for relief and that respondent adequately addressed petitioners' allegations in its answer. Because respondent has failed to establish that it was prejudiced, I will not dismiss the appeal on that basis (Appeal of Schechter, et al., 28 Ed Dept Rep 118).

On the merits, and although there is no express request for relief stated by petitioners, I infer that what petitioners seek in this appeal is an order compelling respondent to take disciplinary action against Mr. Ryan. A board of education has broad discretion in determining whether disciplinary action against an employee is warranted (Appeal of Young, 26 Ed Dept Rep 152; Matter of Arcuri, et al., 20 id. 178; Matter of Maier, 18 id. 302). However, a board of education must have a reasonable basis to determine whether or not to proceed with disciplinary action (Matter of Bartlett, 19 Ed Dept Rep 412).

The record indicates that respondent's superintendent and principal conducted thorough investigations into petitioners' complaints. Both the superintendent and principal interviewed the complainants, their children and Mr. Ryan. In addition, the principal interviewed witnesses to several of the alleged incidents. These investigations took more than a week to complete. Although respondent found that there was insufficient evidence of physical abuse, corporal punishment or verbal abuse by Mr. Ryan, respondent concluded that Mr. Ryan yelled and made improper remarks to some students. The superintendent, after finding no prior complaints in Mr. Ryan's personnel file, issued a letter of admonishment dated March 9, 1993, which contained several proscriptive mandates. The letter directs Mr. Ryan, among other things, to tape himself teaching and to review and analyze the tape with the principal and school psychologist and to take an in-service course entitled Teachers Expectations and Student Achievement. In addition, the letter clearly directs Mr. Ryan to refrain from making any derogatory comments to students. While I do not condone Mr. Ryan's conduct, I cannot say, based on the record, that respondent abused its discretion in this matter.

Petitioners allege, in conclusory fashion, that respondent's principal and superintendent conducted inadequate and biased investigations. There is no proof that the investigations were inadequate or that interviewing additional witnesses would have altered the outcome of the investigations. In addition, petitioners failed to bring forward any proof that the principal and superintendent were not impartial.

Petitioners also maintain that previous complaints have been filed with the district regarding Mr. Ryan. Respondent's superintendent states in his affidavit that there is no evidence or any record of complaints being filed with the principal, superintendent or board of education concerning Mr. Ryan. Although petitioners dispute this statement, they have not submitted any affidavits or other forms of sworn proof to support their contention.

I note that in their papers petitioners have submitted new allegations by other parents concerning Mr. Ryan. While these allegations are not a subject of this appeal, and have not been considered by me, respondent in its affidavits has stated that it intends to investigate the new allegations. I request that a copy of respondent's report, as well as the follow-up to the March 9, 1993, letter to Mr. Ryan, be forwarded to the Department's Office of Teaching, upon completion.