Decision No. 13,103

(February 18, 1994)

SOBOL, Commissioner.--Petitioner maintains that on April 14, 1993 her second-grade daughter, LaToya, was assaulted by Mrs. Josephine Lombardi, a tenured teacher at respondent's Graham Elementary School. In this appeal, petitioner requests that I terminate Mrs. Lombardi's employment pursuant to Education Law '306. The appeal must be dismissed.

Before reaching the merits, I must first address a procedural matter. Although petitioner seeks the dismissal of Mrs. Lombardi from her teaching position, petitioner has not joined the teacher as a party in this proceeding. Since a decision on the merits would involve the rights of Mrs. Lombardi, she is a necessary party to this appeal and, therefore, should have been joined as a party (Appeal of Reed, et al., 33 Ed Dept Rep 216; Appeal of Kalinowski, 32 id. 476; Appeal of Healy, 29 id. 391. There is no evidence that Mrs. Lombardi has been joined as a party in this appeal and, therefore, it must be dismissed.

With respect to the merits of the appeal, Education Law '306 authorizes the Commissioner to remove school officers under appropriate circumstances. For purposes of '306, "school officers" include trustees, members of boards of education, clerks, collectors, treasurers, district superintendents, or "other school officer[s]." A tenured teacher, however, is a school district employee, not a school officer, and is thus not subject to removal under Education Law '306 (Matter of Maskell, 17 Ed Dept Rep 385). Accordingly, petitioner's '306 claim must be dismissed for failure to state a claim upon which relief can be granted.

To dismiss or discipline a tenured teacher, charges must instead be instituted by the board of education pursuant to Education Law '3020-a. A board of education has broad discretion to determine whether to bring disciplinary proceedings against a tenured teacher (Appeal of Allert, 32 Ed Dept Rep 538; Appeal of Mitzner, 32 id. 15; Appeal of Magee, 30 id. 479). Where, as here, the district decides not to proceed, it must have a reasonable basis for concluding that disciplinary action is unwarranted (Appeal of Kantor, 31 Ed Dept Rep 319).

The record in this case indicates that on April 14, 1993, petitioner's daughter was scheduled to leave her regular second grade class to attend a remedial math class. When Mrs. Lombardi, the remedial math teacher, came to take LaToya and several other students to another classroom, LaToya stated that she did not want to go. Approximately thirty minutes later, when LaToya returned to her regular class, she told a parent associated with the Head Start Program, who was in the regular classroom, that Mrs. Lombardi "had grabbed her face and told her she would do what she is told to do." The Head Start parent took LaToya to the principal's office and telephoned petitioner.

Petitioner maintains that Mrs. Lombardi grabbed LaToya so hard that finger marks were left on the child's face, causing bruising and swelling. In support of that contention, petitioner submits an affidavit from the Head Start parent. She also submits the report of the treating physician at the Mount Vernon Hospital emergency room, where petitioner took LaToya for examination after the alleged incident. That report indicates no evidence of swelling or bruising, but lists "minor facial trauma" as a diagnosis, apparently based upon LaToya's reaction to the physician's examination of her.

At the time of the incident, respondent directed its attorney to investigate to determine if a disciplinary proceeding should be instituted against Mrs. Lombardi. As part of that investigation, the attorney interviewed petitioner, LaToya, the Head Start parent, LaToya's regular second grade teacher, Mrs. Lombardi, the principal, a secretary and two students who witnessed the incident. Mrs. Lombardi denied that she had touched LaToya. The regular teacher, the principal and a secretary, all of whom saw LaToya immediately after the incident in question, stated that the child's eyes were red and swollen from crying, but that there were no finger marks or bruises on her face. The two student witnesses stated that Mrs. Lombardi touched LaToya's face, but that there was no redness or marking on LaToya's face when the incident occurred, nor did Mrs. Lombardi touch LaToya with any force. Based on the statements made by the two student witnesses, the regular classroom teacher, the principal and the secretary, respondent concluded that Mrs. Lombardi had grasped LaToya's chin, but such touching did not amount to corporal punishment or assault. Respondent also concluded that LaToya was crying, not because she was physically assaulted, but because Mrs. Lombardi had insisted that LaToya go to another classroom for remedial math, something the child did not want to do. Therefore, respondent elected not to institute disciplinary proceedings against Mrs. Lombardi, but admonished her for her actions.

I have reviewed the affidavits and documents submitted in this matter. Based on the record before me, especially the information supplied by the two students who actually witnessed the incident in question, it appears that respondent had a reasonable basis for concluding that disciplinary action was unwarranted in this case.

I am concerned, however, about the conflicting statements of Mrs. Lombardi and the judgment she exercised in dealing with LaToya. While during the original investigation Mrs. Lombardi denied any touching of LaToya, in an affidavit submitted in this proceeding, Mrs. Lombardi denies "any contact with the infant petitioner which allegedly was of such severity that it constituted corporal punishment." She further explains that LaToya was crying not because of physical contact, but because she was upset and did not want to go with Mrs. Lombardi to another classroom. Under these circumstances, any physical touching of the child by Mrs. Lombardi was likely to make the child even more upset, and was probably not the best course of action to resolve the situation. The administration's admonition of Mrs. Lombardi should serve as a deterrent against such action in the future.

THE APPEAL IS DISMISSED.

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