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Decision No. 13,037

Application to reopen the appeal of the BOARD OF EDUCATION OF NYACK UNION FREE SCHOOL DISTRICT from a determination rendered by a hearing panel pursuant to Education Law '3020-a concerning charges preferred against Robert Lankau, a tenured teacher.

Decision No. 13,037

(November 4, 1993)

Plunkett & Jaffe, P.C., attorneys for petitioner, Kevin J. Plunkett, Esq., of counsel

James R. Sandner, Esq., attorney for respondent, Conrad W. Lower and James J. Brady,

Esqs., of counsel

SOBOL, Commissioner.--Petitioner, Board of Education of Nyack Union Free School District, seeks to reopen Decision No. 13001 (Appeal of Board of Educ. of Nyack UFSD, dated September 3, 1993). The application is granted.

In Nyack, I dismissed petitioner's appeal because petitioner had improperly used substituted service. Since I dismissed the appeal on procedural grounds, I did not reach the merits of the petition.

Petitioner contends that I erred in considering the issue of improper service because respondent did not assert it as an affirmative defense in his answer. Rather, it was raised for the first time in respondent's memorandum of law. Petitioner thus asks that I reopen this matter, find respondent guilty of Charge I - Specification 10 and Charge II, and order respondent dismissed.

Respondent contends that the application to reopen should be denied because petitioner has failed to demonstrate grounds for reopening. He also contends that the Commissioner has the power to rule on procedural defects suasponte, and that I was within my authority to consider the improper service despite the fact that it may not have been properly raised as an affirmative defense in the answer. Finally, respondent contends that since petitioner failed to raise its objection to the issue of substituted service in its reply, it has waived its right to raise the issue here.

Applications for reopening are governed by 8 NYCRR 276.8[a]. It provides:

Applications for reopening are addressed solely to the discretion of the commissioner, and will not be granted in the absence of a showing that the decision which is the subject of such application was rendered under a misapprehension as to the facts or that there is new and material evidence which was not available at the time the original decision was made.

In this case, the application to reopen must be granted since it appears that my determination was based upon a misapprehension of the scope of respondent's answer. I have reexamined the pleadings and find that respondent did fail to raise the specific issue of improper substituted service as an affirmative defense in his answer. Respondent contends that an affidavit submitted by his wife in support of his answer raised improper substituted service and that that affidavit should be incorporated into respondent's pleadings. I do not find this argument persuasive. While the affidavit does set forth facts about the service upon petitioner, it contains no claim that the method used was improper substituted service.

Respondent also contends that the Commissioner has the power to rule on procedural defects suasponte. Even if the Commissioner does have this power, I decline to exercise it in this case. The Commissioner has repeatedly refused to consider matters that are first raised in memoranda of law, when they should have been raised in the pleadings (Appeal of Johnson, 26 Ed Dept Rep 42; Appeal of Board of Education of the Windham-Ashland-Jewett Central School District, 26 id. 141; Appeal of Board of Cooperative Educational Services, 26 id. 196).

Moreover, respondent's reliance upon Matter of the Board of Education of the City School District of the City of New York, 21 Ed Dept Rep 447, to support his argument for suasponte review is misplaced. In that case, Commissioner Ambach did, indeed, dismiss an appeal for improper service, even though respondent did not raise the issue in his answer. The critical distinction between that case and this matter, however, is that the respondent in the New York City case never submitted an answer or any responsive papers -- in fact, respondent simply did not appear in the appeal. Implicit in Commissioner Ambach's decision to dismiss was the notion that respondent's failure to appear resulted from petitioner's failure to properly serve respondent. That is not the case here. Respondent has appeared, and there is no question that he received the petition and accompanying papers; he simply failed to raise proper service as an affirmative defense in his answer. Because the facts in this case differ materially from those in Board of Ed. v. City of New York, supra, that case does not compel the same result here.

Had I not dismissed the appeal on the procedural ground of improper substituted service, I would have sustained the petition and reversed Specification I(10). The panel found that such specification allegedly occurred some two years prior to the events cited in Charge I, Specifications 1 through 9, and found that the time frame involved made the evidence produced insufficient. However, the panel erred as a matter of law when it found that the charges in that specification were stale. Education Law '3020-a(1) permits the filing of charges within three years of the alleged incident. In this case, the alleged touching of the student occurred in the 1987-1988 school year. Since my review of the record indicates the student was credible and that respondent was found not guilty only because the charges were stale, I will reverse the panel's decision and find respondent guilty of Specification I(10).

Respondent also seeks reversal of the hearing panel's decision to dismiss Charge II -Insubordination. That charge was based on a conversation among respondent, his representative, and the superintendent concerning allegations that respondent had improperly touched a female student. However, in that meeting, the name of the student was not revealed to respondent nor were any details surrounding the alleged incident. The panel found that this charge was not proven by a preponderance of the credible evidence on the record. While the panel found that a meeting had taken place on March 29, 1989 with respondent, the testimony of those present was contradictory and revealed that vague references were made to an alleged incident with no clear directive from petitioner's superintendent. Absent a finding that a clear directive had been given to respondent to refrain from such activity in the future, his subsequent conduct could not be viewed as insubordination. I, therefore, find no basis to overturn the determination of the panel with regard to Charge II.

As to the penalty, petitioner asserts that the one-year suspension without pay imposed by the hearing panel is inadequate and disproportionately lenient to the offense committed. The Commissioner of Education has the authority to set aside the penalty recommended by a '3020-a panel and impose a different penalty (Shurgin v. Ambach, 56 NY2d 700; Appeal of the Board of Educ. of City School Dist. of City of Beacon, 28 Ed Dept Rep 503). This authority should be invoked, however, only when the recommended discipline is disproportionate to the degree of culpability of the tenured employee. Moreover, to impose a penalty of dismissal, charges pursuant to Education Law '3020-a must be both substantial and substantiated (id.).

Petitioner seeks respondent's dismissal based on my prior decision in Board of Education of South Colonie Central School District, 29 Ed Dept Rep 190. In that case, I authorized the termination of a teacher's services for offensive touching of female students and improper use of vulgar language. The record in that case, however, showed that the teacher in question was repeatedly warned concerning the highly offensive conduct. In this case, unlike that cited by petitioner, testimony at the hearing indicated that the inappropriate touching was never sexual in nature and the issue of whether or not respondent had been previously warned was not proven (Transcript P. 214). Respondent is a tenured teacher with twenty years of satisfactory performance who has never been the subject of any disciplinary actions. Thus, on the record before me, I find that the penalty recommended by the hearing panel is appropriate and should not be disturbed.

IT IS ORDERED that the decision set forth in the Appeal of the Board of Education of Nyack Union Free School District, 33 Ed Dept Rep ___, Decision No. 13001, dated September 3, 1993, is annulled, and

IT IS FURTHER ORDERED that the determination of the hearing panel is annulled to the extent it found respondent not guilty of Charge I - Specification 10, and

IT IS FURTHER ORDERED that the original appeal is otherwise sustained and the determination of the hearing panel with respect to the penalty is upheld.