Decision No. 13,048

(November 17, 1993)

Lawrence F. Spirn, Esq., attorney for petitioner

James R. Sandner, Esq., attorney for respondent

SOBOL, Commissioner.--Petitioner, the Board of Education of the South Huntington Union Free School District, appeals the penalty determination made by a hearing panel convened pursuant to Education Law '3020-a to hear disciplinary charges preferred against respondent Daryl Sharpe, a tenured teacher. Petitioner requests that I annul the one-semester suspension imposed by the panel and authorize the termination of respondent's services. The appeal must be dismissed.

This is an appeal from a hearing panel determination issued pursuant to an earlier decision of the Commissioner, Appeal of the Board of Education of the South Huntington U.F.S.D., 31 Ed Dept Rep 371. In that decision, I modified the panel determination since I found that respondent's conduct did, indeed, constitute conduct unbecoming a teacher. The matter was remanded to the panel for assessment of an appropriate penalty, and the panel suspended respondent without pay for one semester. Petitioner now challenges the penalty imposed.

Respondent raises two procedural issues which I must consider before addressing the merits. Respondent contends that petitioner failed to personally serve upon him a copy of the petition as required by 8 NYCRR '275.8, alleging that petitioner merely left a copy with a neighbor without diligently searching for respondent. Petitioner's affidavit sets forth its efforts to effect personal service upon respondent. My Office of Counsel, upon being contacted by petitioner's counsel and told of the circumstances concerning attempted service, authorized substitute service. Substitute service has been made. Therefore, respondent's claim of improper service has no merit.

Respondent additionally argues that this appeal was not commenced within thirty days of the decision complained of, as required by 8 NYCRR '275.16. Counsel for petitioner alleges that the decision of the hearing panel was not received in his office until October 8, 1992 and that service by certified mail was received by respondent on November 9, 1992. In light of petitioner's allegations, it appears that substitute service was properly made within thirty days of the date of receipt of the decision, and, therefore, the appeal should not be dismissed for laches.

A detailed explanation of the facts which gave rise to the underlying appeal by the board of education is contained in Appeal of the Board of Education of the South Huntington Union Free School District, supra, and will not be repeated here. Petitioner contends that the penalty imposed by the panel is inadequate in light of the conduct engaged in by respondent and the history of earlier disciplinary proceedings against him. Petitioner argues that the only appropriate penalty in this case is termination of respondent's services.

Respondent counters that the panel correctly found that the record was devoid of evidence to suggest that his misconduct impaired his ability to teach. Respondent contends that the panel properly weighed the seriousness of the charges and respondent's past history, and reasonably concluded that a suspension without pay for one-half of the school year was appropriate. Respondent also alleges that the Appellate Division's reversal of the original criminal conviction undermines both the panel's finding of guilt and its penalty determination.

In the reply, petitioner contends that the Appellate Division's reversal was on procedural grounds, and that there is a basis in the record, independent of the criminal conviction, for both the finding of guilt and the penalty.

In determining whether I should substitute my judgment for that of a hearing panel, the issue is whether the discipline imposed is proportionate to the offense (Matter of Mockler v. Ambach, 79 AD2d 745, lv to app den 53 NY2d 603; Matter of Kloepfer v. Commissioner, et al., 82 AD2d 974, aff'd 56 NY2d 687; Shurgin v. Ambach, 83 AD2d 665, aff'd 56 NY2d 700). Where a request is made for authority to terminate a teacher's services, it is also pertinent to question the teacher's fitness to carry out his or her professional responsibilities (Matter of Bott, 41 NY2d 265; Appeal of Pleasantville UFSD, 31 Ed Dept Rep 262).

In its original decision, the panel concluded that the record was barren of any evidence to support a finding that respondent's ability to function as a teacher was impaired by the misconduct with which he was charged. Although both parties were offered an opportunity on remand to introduce additional evidence, both declined. The record reflects that respondent has twice previously been charged with misconduct. The first instance related to petitioner's sending various communications to the board of education and its president and signing the names of other individuals to these communications. This resulted in a settlement between petitioner and respondent in which respondent accepted a reprimand issued by petitioner. The second incident of misconduct concerned respondent's malfeasance for falsely reporting higher student grades for his classes on a year-end examination. This proceeding resulted in a panel determination of guilt and a forty-five day suspension without pay. The panel decision stated, in part ". . . repetition of similar conduct should result in respondent's termination." In reaching its conclusion as to the appropriate penalty to be imposed, the panel also noted that there are criminal charges pending against respondent based upon the same conduct which led to this disciplinary proceeding. In the panel's judgment, it was not appropriate to seek vindication of any societal interests which would be addressed in the criminal proceeding, nor did it feel that it was incumbent upon the panel to vindicate the personal rights of Mrs. Scricca (the target of respondent's actions.) Therefore, the panel focused exclusively on the effect of respondent's misconduct on his ability to function as a teacher. In light of its earlier finding of lack of any evidence that the latest disciplinary finding impaired respondent's ability to teach, the panel concluded that a six-month suspension without pay was serious enough to take into account the misconduct established in the current proceeding as well as respondent's earlier misconduct.

Moreover, respondent's argument that the Appellate Division reversal of the criminal conviction requires either nullification of the panel determination or a remand is without merit. There is sufficient evidence in the record to support the panel finding of guilt independent of the criminal conviction, and the panel expressly stated that its penalty determination was not related to the criminal proceedings.

I, too, have analyzed all of these factors. Based upon the record before me, I cannot conclude that the panel's penalty determination is disproportionate to the offense, or that the panel erred in concluding that the record does not support a finding that respondent is unable to carry out his professional duties (Bott, supra). The penalty of suspension without pay for six months is sufficient to impress upon respondent the seriousness of his misconduct in this case. While it is true that the earlier panel decision suggested termination of services, its recommendation was based upon a future finding of repetition of similar conduct. I do not find that respondent's earlier misconduct was repeated in this case.

THE APPEAL IS DISMISSED.

END OF FILE

---