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Decision No. 13,068

Appeal of the BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK from a determination of a '3020-a hearing panel concerning charges against Elliott Factor, a tenured teacher.

Decision No. 13,068

(December 22, 1993)

Lawrence E. Becker, Esq., attorney for petitioner, Everett N. Hughes, Esq., of counsel

James R. Sandner, Esq., attorney for respondent, Claude I. Hersh, Esq., of counsel

SOBOL, Commissioner.--Petitioner, the Board of Education of the City School District of the City of New York (the "board"), appeals the decision of a hearing panel (the "panel") convened pursuant to Education Law '3020-a. Petitioner does not dispute the panel's findings of guilt but seeks an order increasing the penalty. The appeal must be dismissed.

Respondent is a tenured teacher of biology and general science and has been employed in petitioner's school district for twenty-three years. Prior to the subject proceeding, respondent had not been the subject of disciplinary charges under Education Law '3020-a. On or about June 26, 1991, the board preferred one charge against respondent for incompetency, inefficiency and conduct unbecoming his position. This charge contained six particulars:

A. On or about November 20, 1990, at a team meeting/parent conference attended by the parent of a student E.G., respondent sat by the windows reading a newspaper. Respondent displayed a lack of interest in the student and exited the meeting before its conclusion.

B. On or about November 30, 1990, respondent said to Assistant Principal Sybil Silberman: "You got one shoved up your ass last year and you'll get this shoved up your ass, too," or used words to that effect. Respondent's outburst was made in the presence of some students and a teacher.

C. On or about December 6, 1990, when student J.B. raised his hand to ask a question after returning to class from the bathroom, respondent stated: "I understand it's time for you to wipe your ass again," or used words to that effect.

D. On one or more occasions during the 1990/91 school year, on a school day, respondent called one or more of his students "stupid."

E. On one occasion during the 1990-91 school year, on a school day, respondent referred to several students as "drowning in a pool of shit," or "sinking in a pile of shit," or used words to that effect.

F. On February 8, 1991, respondent threw two students out of his class and did not permit them to return that day or to attend classes on February 12 and 13, 1991.

A hearing was held pursuant to Education Law '3020-a over seven days between December 18, 1991 and June 2, 1992. In a March 12, 1993 decision, the panel unanimously found respondent guilty of sub-specifications B, C, D, E, and F. The panel found sub-specification I-A was not proven and held that if proven, it would not have warranted further disciplinary action. The panel recommended a penalty of 30 days' suspension without pay.

As noted above, petitioner does not dispute the panel's findings. Instead, the board asserts that the panel's penalty recommendation is disproportionate to the offenses. Petitioner thus seeks to increase the penalty to a one-year suspension. Respondent counters that the actions giving rise to the charges are isolated instances in his career and that any greater penalty would be punitive.

In deciding whether to substitute my judgment for the hearing panel's, the relevant inquiry 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). Informing this inquiry is the principle that penalties are not to punish, but to impress upon a teacher the inappropriateness of his conduct and to serve as warnings against future improper conduct (Appeal of Community School District No. 24, 30 Ed Dept Rep 445). A teacher's record is also relevant to the issue of penalty (Appeal of Community School District No. 2, 32 Ed Dept Rep 391; Appeal of BOCES of Rockland County, 29 Ed Dept Rep 406). In this case, respondent has served the school district for twenty-three years without other incidents giving rise to '3020-a charges. Under the circumstances, a thirty-day suspension without pay seems appropriate to impress upon respondent the seriousness of the offense and to discourage respondent from such conduct in the future. Accordingly, I find no basis to substitute my judgment for that of the panel.