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Decision No. 13,024

Appeal of GLORIA TRANSLATEUR from a determination of a hearing panel in a proceeding pursuant to Education Law '3020-a and the Board of Education of the City School District of the City of New York.

Decision No. 13,024

(October 19, 1993)

Neal H. Rosenberg, Esq., attorney for petitioner

Hon. O. Peter Sherwood, Esq., Corporation Counsel, attorney for respondent, Sanjay Malhotra, Esq., of counsel

SOBOL, Commissioner.--Petitioner is a tenured teacher whose services were terminated as a result of disciplinary charges brought against her by the Community Board of Community School District No. 2 pursuant to Education Law '3020-a. Petitioner appeals the panel's determination of guilt as well as its recommendation of termination. Petitioner requests that I annull the panel determination of guilt and reinstate her as a tenured teacher. The appeal must be dismissed.

At the time of the events giving rise to the disciplinary proceeding against her, petitioner, a tenured common branch teacher, was serving as a Content Area Reading Teacher (`CART') at Public School 1 in Community School District No. 2. On or about January 9, 1990, the Community Board of Community School District No. 2 found probable cause to prefer charges against petitioner. The charges alleged insubordination, incompetent and inefficient service, conduct unbecoming and prejudicial to the good order, efficiency and discipline of the service, and unfitness. Petitioner was also charged with violating Chancellor's Regulation No. C-603, by failing to properly notify her superiors of absence for personal business.

The particulars for the first specification of charges allege that petitioner failed to effectively control and appropriately teach her classes. The second specification alleges that petitioner failed to submit adequate lesson plans. The third specification charges that petitioner failed to adequately supervise her students, violating school safety rules. The fourth specification charges that petitioner failed to follow proper procedure when she phoned her principal to advise him that she would not be in school because of personal business.

After fourteen days of hearing, the panel unanimously decided that the charges of incompetence, failure to control students, and failure to submit lesson plans as related in specifications 1 and 2 had been proven by a preponderance of the evidence. The panel determined that specifications 3 and 4 relating to petitioner's alleged violations of school safety rules and Chancellor's regulation had not been proven. The panel also unanimously concluded that, contrary to petitioner's allegations, she had received appropriate notification that charges had been brought against her. With respect to penalty, the panel voted 2 to 1 in favor of terminating petitioner's service as a teacher. This appeal followed.

Petitioner contends that she was given insufficient notice of the charges against her, alleging that the notification letter was not delivered in a proper and timely manner. With respect to the substance of the charges, petitioner contends that the panel's finding was arrived at in a manner which did not protect her interest as a tenured teacher under Education Law '3020-a. Specifically, petitioner alleges that she was assigned to a new program which provided services in a school where 80% of the children were performing below grade level. Petitioner further alleges that the principal testified that she was in need of special assistance and contends that no such assistance was provided. Consequently, petitioner contends that it was improper to charge and dismiss her during the first four months of her service in the program.

Respondent contends that the panel correctly found that petitioner received proper notice, both orally and in writing, that the board would be considering charges against her. Respondent further contends that petitioner did receive notice that charges were preferred against her after the board so voted. Respondent also contends that the record contains ample evidence to support the findings of the hearing panel, and that in light of those findings, termination of petitioner's services is appropriate. As a procedural matter, respondent contends that the relief petitioner seeks, i.e. reinstatement to her position, can only be granted by the community school district where she was employed. Since petitioner failed to name and serve the community school district as a party, respondent contends that the appeal must be dismissed.

Turning first to respondent's claim that petitioner failed to name and serve the appropriate community school district as a party, it is clear that it is the action of the Community Board of Community School District No. 2 which petitioner challenges. Therefore, the Community Board of Community School District No. 2 is a necessary party to this appeal. Because petitioner failed to name and serve the proper party in this proceeding, the appeal must be dismissed (Matter of Miguel A. Ramos-Davila, 15 Ed Dept Rep 264).

The appeal must also be dismissed on the merits. Notwithstanding petitioner's contentions, the record amply supports the hearing panel's decision that petitioner did receive notice of the charges and was served with the charges after they had been voted by Community School Board No. 2. Furthermore, the evidence in the record more than supports the panel's findings on the charges, as well as its determination to terminate petitioner's services. The record contains evidence of repeated observations by petitioner's principal, as well as observations by a special assistant to the superintendent, that petitioner's performance for the first part of the 1989-90 school year reflected failure to control her class, failure to submit appropriate lesson plans and incompetence. Petitioner's general response to these findings is that she should not have been blamed for them, since she was in a new program, i.e. the CART program, and that she should have been given time to adjust her teaching methods and performance to the requirements of the new program. At the hearing, the principal responded to this claim in this way:

If you have a teacher who is causing you a problem when you observed her and you had these specialists, why didn't you ask them to give her special attention?

a. Because the problem was not in writing or inserting reading into her program, the problem was in other areas like classroom management, issues of safety, as well as pedagogical techniques that are not peculiar to writing or reading, but should be within the repertoire of any common branch teacher. (Emphasis supplied)

Thus, it was in basic areas of teaching ability that petitioner was found deficient, not in any areas which could be described as specialized qualifications necessary to perform in the CART program. Additionally, this was not the first time that petitioner's deficiencies in these areas were brought to her attention. Petitioner's principal for the years preceding 1989 testified that he had also observed petitioner in her classroom and had provided her with several notices concerning the need to correct the same or similar deficiencies in her classroom teaching performance. Those records reflect that the previous principal not only observed petitioner, but provided her with written notice concerning her inability to control her classroom and to maintain appropriate discipline among the students.

As to the measure of discipline, when a teacher has been found guilty of charges of inefficient and incompetent service, termination from employment is an appropriate penalty (Linfield v. Nyquist, 48 NY2d 1005; Matter of the Board of Education of Onondaga Central School District, 20 Ed Dept Rep 176). In this case, it is the welfare of the students and their ability to receive competent teaching services that must be given foremost consideration, not

merely petitioner's length of service (Appeal of Le Pore, 28 Ed Dept Rep 425).