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Decision No. 12,988

Appeal of the BOARD OF COOPERATIVE EDUCATIONAL SERVICES OF TOMPKINS-SENECA-TIOGA COUNTIES from a determination rendered by a hearing panel pursuant to Education Law '3020-a concerning charges against Flora McDowell, a tenured teacher.

Decision No. 12,988

(August 18, 1993)

Matthew R. Fletcher, Esq., attorney for petitioner

Bernard F. Ashe, Esq., attorney for respondent, Ivor R. Moskowitz, Esq., of counsel

SHELDON, Acting Commissioner.--Petitioner appeals from the determination of a hearing panel convened pursuant to Education Law '3020-a. The panel found respondent, a tenured teacher, guilty of: insubordination in failing to obey a directive relative to the mainstreaming of a student; incompetence in failing to supervise her students properly; and conduct unbecoming a teacher in using certain terms in referring to her students. The panel also found respondent not guilty on a number of other charges. The panel imposed a fine of $10,000 to be paid over a twelve-month period in equal installments through payroll deduction. Petitioner asks that I authorize termination of respondent's services. The appeal must be dismissed.

Respondent has been employed by petitioner BOCES since September 1982 and was granted tenure in 1985. During the time period covered by the charges, respondent was responsible for the instruction of special education classes comprised primarily of learning disabled students. She also taught students classified as mentally retarded and emotionally disturbed.

On October 16, 1991, petitioner board found probable cause for a series of charges initiated by the district superintendent. The charges consisted of one charge of incompetence containing a number of subdivisions, five charges of insubordination or neglect of duty and one charge of conduct unbecoming a teacher. The charges overlap somewhat, and in several instances the same conduct was charged as both incompetence and insubordination. A hearing panel convened on December 17, 1991 and took testimony on ten separate days between December 17, 1991 and May 24, 1992. The record contains approximately 1300 pages of testimony and 66 exhibits.

On July 6, 1992, the hearing panel rendered its unanimous decision. The panel found respondent guilty of insubordination (charge 5) in that she disregarded specific instructions given to her by her supervisor concerning the mainstreaming of one of her students, although it found that there was no adverse impact on the student; guilty of incompetence (a small portion of charge 1) in that she neglected to observe school policies regarding supervision of students, allowed students to remain outside the classroom and on at least one occasion locked a student out of the classroom; guilty of conduct unbecoming a teacher (charge 7) in that she addressed her students in inappropriate and derogatory terms; and not guilty of misconduct with respect to all other specifications. The panel cited past evaluations indicating that respondent was a teacher capable of handling her job and achieving improvement and stated its specific finding that termination was not warranted. Instead, it imposed a fine.

Petitioner commenced this appeal prior to the beginning of the 1992-1993 school year. Respondent requested a stay of imposition of the fine in installments, which application was denied on September 28, 1992.

Petitioner contends that the panel chair made errors in granting a motion by respondent dismissing a portion of one of the charges and in denying several motions by petitioner to amend, consolidate, or conform the charges to the evidence in several instances. Petitioner argued that the record as a whole justifies respondent's dismissal. Petitioner further argues that certain portions of the panel decision are inconsistent and are therefore arbitrary and capricious, because the panel found that certain conduct had occurred, but found respondent guilty only of insubordination or conduct unbecoming a teacher, while finding her not guilty of incompetence. Petitioner asks that I substitute my judgment for that of the hearing panel and authorize respondent's dismissal.

Respondent contends that the hearing panel was incorrect in finding her guilty of any of the charges, but does not appeal the panel decision, nor does she appeal the penalty imposed. She simply requests that the petition be dismissed.

The hearing panel found respondent guilty of insubordination for failing to obey a directive relative to mainstreaming a student. Specifically, respondent was ordered to prepare a written recommendation to the chair of the committee on special education (CSE) to facilitate the mainstreaming of one of her students. Respondent admits to placing a telephone call to the chair of the CSE, instead of writing, as she was ordered to do by her supervisor. In this sense respondent was insubordinate, but the record indicates that the standard mainstreaming procedure would require a student's case manager to prepare the written recommendation for the student. Respondent was not the case manager for the student involved. Respondent testified that she requested assistance as to how to prepare a written recommendation and when she did not receive any help she placed a call to the chair of the CSE to obtain further information on the requirements of a written recommendation. Although I agree that respondent was insubordinate for not following an order of a supervisor as required, it is important to note that the supervisor was deviating from the mainstreaming procedure in place at the time. Furthermore, respondent did prepare the required written recommendation at a later date. The panel also found that the student was not harmed by the teacher's insubordination.

The hearing panel also found respondent guilty of incompetence in failing to supervise her students properly. The record supports the panel's decision in that respect. There is ample testimony by teachers, administrators and students that respondent's students were often found outside her class without passes which are required by BOCES policy. This problem of students being outside class without passes was brought to respondent's attention on various occasions by both the principal and assistant principal, but respondent failed to follow their directives to correct the problem. I agree with the hearing panel's finding that students were often out of class without passes, but these facts support the conclusion that respondent was insubordinate for failing to follow her supervisors' directives to issue passes rather than showing that respondent was incompetent in supervising her students.

The most serious charge against respondent was for conduct unbecoming a teacher in the use of inappropriate language directed toward her students. The panel found respondent guilty of using the terms "stupid" and "retards" in referring to her students. The evidence in the record supports the panel's conclusion that respondent used this completely inappropriate and unacceptable language in reference to her students. There is repeated testimony from her special education students, other students, teachers and administrators that respondent used this type of language. On one occasion, another teacher placed a student from her class in respondent's special education class to complete a makeup exam. Respondent claims to have told her fellow teacher that this student should "get credit for taking the test under handicapping conditions" because the student was taking the exam while a class was being conducted around him. The special education students testified that respondent made a statement about the student getting credit for "taking the test with handicapped students." Although it is unclear as to exactly what the respondent said in this particular instance, the students interpreted respondent's comments as a slur against them. The panel made a valid point that as a special education teacher, respondent should be more sensitive to how her comments could be construed by her students. I do not take the use of inappropriate language directed toward students lightly. The heavy financial penalty imposed by the panel should impress upon respondent the seriousness of her actions and prevent any repetition of this conduct in the future.

With respect to the penalty imposed on respondent, petitioner requests that I authorize termination of respondent's services. It is well settled that I may substitute my judgment for that of the hearing panel when the penalty is disproportionate to the offense (Appeal of Board of Educ. of Allegany Central School Dist., 27 Ed Dept Rep 35, 37; Shurgin v. Ambach, 83 AD2d 665, aff'd 56 NY2d 700). I am unwilling to substitute my judgment for that of the panel in this matter and find that the penalty of a $10,000 fine paid over a twelve month period in equal installments by payroll deduction is appropriate and proportionate to the offense.

I have reviewed petitioner's other contentions and I find them without merit.