Decision No. 13,104

(February 22, 1994)

Hon. Paul A. Crotty, Corporation Counsel, attorney for petitioner, Barry Weisman and Everett N. Hughes, Esqs., of counsel

James R. Sandner, Esq., attorney for respondent, Conrad W. Lower, Esq., of counsel

SOBOL, Commissioner.--Petitioner, the Board of Education of the City School District of the City of New York, appeals the decision of a hearing panel convened pursuant to Education Law '3020-a, which found respondent not guilty of all charges filed against him. The appeal must be sustained in part.

Respondent is a tenured teacher of chemistry, who taught at the Bronx High School of Science from 1982 to 1989. Respondent was subsequently excessed from his position, and reassigned to Samuel Gompers High School for the 1989-1990 school year. On February 21, 1990, petitioner found probable cause to prefer two charges alleging the infliction of corporal punishment on students and/or conduct unbecoming during the 1988-89 and 1989-90 school years. A hearing panel was convened in accordance with Education Law '3020-a and Article 21-E of the applicable collective bargaining agreement and, on August 9, 1991, petitioner received the panel's decision.

In separate opinions, the panel majority, consisting of the employee-appointed and the board-appointed panel members, found respondent not guilty. The panel chairperson dissented from the panel's determination, finding respondent guilty of six of ten specifications with respect to the charge concerning the 1988-89 school year, and not guilty of all six specifications of the charge concerning the 1989-90 school year. The dissent recommended that respondent receive a reprimand as a penalty. Petitioner now challenges the panel majority's determination and requests permission to suspend respondent for one year.

On September 13, 1992, I issued an interim order indicating that petitioner need not implement the panel decision pending my final determination on the merits of this appeal.

Petitioner contends that the separate opinions of the panel majority do not support dismissal of the charges. Petitioner requests that I substitute my judgment for that of the panel majority and find respondent guilty of all charges. In the alternative, petitioner requests that I adopt the findings of the dissenting panel chairperson and suspend respondent for one year.

Respondent contends that any deficiencies in the panel majority's determination were due to its inexperience in preparing a panel report and that the panel majority is willing and able to more fully explain the basis for its decision on remand. Respondent requests that I accept for filing and consideration an amended hearing panel majority report. Respondent further contends that if I do not accept the amended report, then the matter must be remanded to the panel for findings. Lastly, respondent claims that petitioner violated Education Law '3020-a and 8 NYCRR 276.1(a) by suspending respondent prior to the issuance of an interim order.

Subsequent to the issuance of the panel's decision, it appears that respondent's attorney at the '3020-a hearing prepared a proposed amended panel majority report. By letter from the attorney, dated August 19, 1991, each member of the panel, including the chairperson, was provided with a copy of the proposed amended report. The letter, addressed to the chairperson, requested that the panel majority issue an amended report to clarify the panel majority's decision and indicated that the draft amended report was included to expedite the matter and could be used or disregarded as the panel members saw fit. By letter dated August 28, 1991, the panel chairperson replied that he was without power to entertain the attorney's application because the panel's role was concluded and its jurisdiction ended with the transmittal on August 1, 1991 of the panel report to the State Education Department's School District Employer-Employee Relations Unit. However, apparently before they received a copy of the chairperson's determination, the two panel majority members, after discussing the matter with each other but not with the panel chairperson, signed and submitted the amended report, as drafted by the attorney, for filing with the Employer-Employee Relations Unit. By letter dated September 9, 1991, the Employer-Employee Relations Unit returned the amended panel majority report on the grounds that the panel lacked jurisdiction over the matter since the panel findings and recommendations had been forwarded by the panel chairperson on August 1, 1991 and received by the Unit on August 5, 1991.

After this appeal was commenced, respondent submitted an affidavit of the employee panel member explaining why the panel majority members submitted the amended report. Petitioner then attempted to move to strike the affidavit and supporting exhibits, which included the proposed amended report. Petitioner requests that I reprimand respondent's attorney for engaging in exparte communications with panel members. Since there is no provision for motion practice in appeals to the Commissioner of Education pursuant to Education Law '310, I will address the matter raised by the motion in the context of this decision.

The Commissioner of Education has no jurisdiction over complaints of professional misconduct by attorneys appearing in '3020-a hearings. Moreover, the facts before me do not demonstrate improper exparte contacts by respondent's attorney. Respondent's attorney submitted a draft amended hearing panel majority report to the panel members, with a copy to petitioner's attorney. At the time he did so, the '3020-a proceeding had concluded and the panel was already divested of jurisdiction. Thus, the communication did not take place in the context of the proceeding. Nor do I find any impropriety in respondent's attorney's subsequent meeting with panel members to prepare the affidavit for submission in this appeal. By the time of the meeting, the '3020-a proceeding was over; thus, the attorney's action could not have possibly interfered with the conduct of the case.

Respondent contends that I should accept the amended report for filing and consideration in this appeal because the panel chairperson allegedly did not declare the hearing closed in accordance with 8 NYCRR 82.10(i) before the amended report was submitted. That section provides, in pertinent part, that "[t]he chairperson of the panel shall declare the hearing concluded, and shall forward the findings and recommendations...to the commissioner." The hearing transcript indicates that on May 23, 1991, after the presentation of the attorneys' closing arguments, the chairperson thanked the attorneys for their presentations and stated "We will render a decision as soon as possible." The transcript then indicates that "at 2:15 o'clock, p.m., the hearing was concluded." There is no indication in the record that the hearing was subsequently reopened for the taking of additional evidence or that any subsequent adjournments were requested or granted by either party. I find that the hearing was concluded, at the very latest, when the chairperson submitted the panel recommendations and findings to the Employer-Employee Relations Unit on August 1, 1991. Therefore, as of that date, the panel's jurisdiction over the matter ended, and the amended report must be rejected.

Respondent next contends that if the amended report is not accepted, the matter must be remanded to the panel for the issuance of findings in accordance with 8 NYCRR 82.10(i). That section provides, in pertinent part, that the panel "...shall set forth the reasons and the factual basis for the determination." Respondent alleges that the panel majority's opinions do not comply with '82.10(i). Upon careful review of the majority's opinions, I find that they demonstrate at least minimal compliance with '82.10(i).

Both majority panel opinions set forth, in a manner sufficient for me to review, the reasons and factual basis for the votes to dismiss all charges. The employee panel member found insufficient evidence to sustain the charges because he did not believe the individuals testifying against respondent. He found that these witnesses were biased against respondent or motivated by a desire to transfer out of respondent's class or "get even" with respondent because he was a strict disciplinarian. The board panel member also found insufficient evidence to sustain the charges against respondent, noting that all charges against respondent "were not accurate." The board panel member chose to credit testimony and other evidence indicating that respondent "served well as a member of the teaching profession in his field of science" and "that he was very competent and professional at all times with his students in mind as he directed his classes including the laboratory activities" over other evidence tending to establish respondent's guilt of the charges.

The Commissioner of Education has broad authority to substitute his judgment for that of the hearing panel, even where the panel's determination has a rational basis and is not arbitrary. Where the Commissioner has so acted, his determination will be upheld so long as it has a rational basis (Matter of McNamara v. Comm'r., 80 AD2d 660; Matter of Shurgin v. Ambach, 83 AD2d 665, affd. 56 NY2d 700). However, the Commissioner will not ordinarily substitute his judgment for that of a hearing panel unless the panel decision is contrary to the weight of evidence and the hearing panel has not adequately explained its rejection of otherwise convincing testimony (Appeal of the Board of Education of the Floral Park-Bellerose Union Free School District, 32 Ed Dept Rep 482). After careful review of the record, I find that some aspects of the panel's determination must be set aside, as they are plainly contrary to the weight of the record evidence.

The first charge against respondent, alleging "the infliction of corporal punishment and/or conduct unbecoming his position" during the 1988-89 school year at the Bronx High School of Science, consists of ten specifications. Specification (1)(A) states "On one or more occasions during the 1988-89 school year, on a school day, Respondent referred to members of the white race as the "inferior color" as compared to his "superior color". He allegedly also announced to "all lighter-skinned people" that "the club is closed," the "club" consisting of dark-skinned blacks. Respondent testified that he did use the term "superior hue", but in the context of describing the properties of skin with high levels of melanin in affording superior protection from ultra-violet light. Four students' testimony suggests that respondent at times made racially related statements outside the context of a scientific or academic discussion of melanin and its properties. However, their testimony is contradicted by the testimony of respondent and three other students, who stated that such comments were made solely in the context of discussion of the properties of melanin. Where, as here, the panel's determination rests in large part on determinations of witness credibility, I will not substitute my judgment for that of the panel majority unless there is clear and convincing evidence that the determination of credibility is inconsistent with the facts (Appeal of LePore, 28 Ed Dept Rep 425). Upon the record before me, petitioner has not provided clear and convincing evidence sufficient for me to substitute my judgment for that of the panel majority which found respondent not guilty of this specification. Accordingly, I will not disturb the panel's finding with respect to specification (1)(A) of charge one.

Specification (1)(B) states "On one or more occasions during the 1988-89 school year, on a school day, Respondent told his students that he did not want his daughter to marry an Arab, which he pronounced "Ay-rab." Respondent admits he made the statement and pronunciation but contends that he meant it in a joking manner, as a way he and his family refer to a Somali acquaintance of theirs who is dating one of respondent's daughters. Even if such statement was made in a humorous manner, it is improper conduct for a teacher to use such a derogatory term with his students. Therefore, I find respondent guilty of specification (1)(B) of charge one.

Specification (1)(C) states "On one or more occasions during the 1988-89 school year, on a school day, Respondent told his class: "I never had a black student worth anything except for one," and "the blacks here are lazy". Respondent contends that he never "told his class" those statements and denies saying that he "never had a black student worth anything except for one." Respondent testified that he did tell certain African American students that they were "lazy", but that he made such comments in an effort to motivate the students to do better academically. Respondent testified that, knowing that some persons may be offended by such remarks, he would not make such remarks again and would attempt to motivate students differently. While it appears that respondent's comments may have been made in a bona fide attempt to motivate students, it is inappropriate for a teacher to make disparaging remarks to students based on their race or ethnicity. Accordingly, I find respondent guilty of specification (1)(C) of charge one.

Specification (1)(D) states "On one or more occasions during the 1988-89 school year, on a school day, Respondent told a student from an immigrant family to "get back on the boat and go back to your country." Respondent testified that, at the request of the department chairperson, he was distributing scholarship information for African American students at the beginning of his class and that one student "said I was being bigoted" and questioned why this was being done during class time, since the information was only for African American students. Respondent said that he explained to the student that he was instructed to distribute the information and that the student became upset and said he shouldn't have to listen to this on his time when respondent should be teaching chemistry. Respondent told the student that he was discharging his duties and that the student "became a little irritated." Respondent then testified:

Respondent testified that he "probably wouldn't say that" now, because "even if it didn't bother me, it obviously upset other people" and "it may have upset [the student] but he just didn't show it." I agree with the dissenting panel chairperson's conclusion that respondent's remarks were "insensitive, rude and offensive and quite unbecoming a teacher" and constituted misconduct. I, therefore, find respondent guilty of specification (1)(D) of charge one.

Specification (E) states that "On one occasion during the 1988-89 school year, on a school day, Respondent told [a] Student ... `I hate Japanese.'" Respondent testified that he had said to the student that he hated the Japanese government for derogatory comments made by the Japanese prime minister about African American and Latino people. The student in question testified that on one occasion he needed respondent's permission to sign out of his class and in "a private exchange between me and him and in front of the class...[respondent] asked me why I was going to Japan, and he says to me, `I hate the Japanese'... And he said, `Let me tell you why I hate the Japanese. They are a very racist society, 'something to that effect ..." Another student testified that respondent "was talking in particular about the Japanese government when they made public statements about how African Americans in the United States were destroying America." Again, I agree with the dissenting panel chairperson's conclusion that respondent's statement that he hates a national group or government, for whatever reason, is teaching hate and constitutes misconduct. Accordingly, I find respondent guilty of specification (1)(E) of charge one.

Specification (1)(F) states that "On one occasion during the 1988-89 school year, on a school day, Respondent told [a] student ... that [the student] deprived a young boy or girl from the ghetto of coming to Bronx High School of Science because he took a course to pass the entrance examination." Respondent testified that he called the student to the blackboard to convert a fraction into a decimal and that he became amazed when the student could not perform the calculation. Respondent stated that he asked the student "How did you get here?" and after the student told respondent that he took a crash course to pass the entrance exam, respondent testified that he told the student "in other words, you're depriving some kid from the ghetto from having a seat because you were able to take an exam and maybe someone more deserving deserved your seat." Respondent testified that at the time he made the remark he was amazed and not thinking and that "in retrospect it probably was insensitive." Respondent's remarks to the student were inappropriate, insensitive and divisive and constitute misconduct. Accordingly, I find respondent guilty of specification (1)(F) of charge one.

Specification (1)(G) charges respondent with making demeaning remarks to a student involving a play on words using the student's first name. Upon careful review of the record, I find insufficient evidence to establish misconduct and, therefore, find respondent not guilty of specification (1)(G) of charge one.

Specification (1)(H) states that "On one or more occasions during the 1988-89 school year on a school day, Respondent referred to Principal Milton Kopelman, Assistant Principal Jack Kligman and other members of the faculty at Bronx High school of Science as "racist," "racist bastards," and "racist pigs." In his testimony, respondent admitted telling students that the high school administration or individual administrators were racist. Assistant Principal Kligman testified that he observed respondent call Principal Kopelman a racist. I agree with the conclusion of the dissenting panel chairperson that respondent's remarks were "potentially disruptive and clearly at cross-purposes with his role as a teacher and with the teaching process" and constitute misconduct. Accordingly, I find respondent guilty of this specification (1)(H) of charge one.

Specification (1)(I) states that "On one or more occasions during the 1988-89 school year, on a school day, Respondent called one or more of his students "stupid." At least five students testified that respondent made such remarks to his students. At least two students testified that respondent never made such remarks. Respondent testified that he didn't recall making such remarks. The panel majority dismissed the specification and the panel chairperson found that since the administration did not deem these acts to be of sufficient severity to warrant a timely warning, the specification should be dismissed. Determination of this specification rests largely on assessments of witness credibility and, on the record before me, I find that petitioner has failed to provide clear and convincing evidence sufficient for me to substitute my judgment for that of the panel (Appeal of LePore, 28 Ed Dept Rep 425). Therefore, I will not disturb the panel's finding with respect to specification (1)(I) of charge one.

Specification (1)(K) states that "On or about December 21, 1988, Respondent pushed [a] student ... with great force." Respondent denies that he pushed or otherwise used excessive force on the student in question, who was not in respondent's class. Respondent claims that one of his students, was in the hallway outside of respondent's classroom talking to the student he allegedly pushed, and that when respondent asked his student to come into the classroom and asked the other student to leave, the other student refused. Respondent testified that he took the other student by her right elbow and put his hand on her shoulder and again asked her to leave. When she refused to leave, respondent proceeded to Mr. Kligman's office. Several students also testified about the incident. One student testified that respondent "was pushing her away and he didn't want her around" and described the push as "aggressive, but it wasn't abrupt. It was more of a push to get her away." A second student testified that he saw the two students talking, and heard respondent tell one of the students to "get off my floor," and saw respondent push the student "with tremendous force and she just went flying." A third student testified that respondent pushed the girl with "an excessive amount of force" that caused her to fall back seven to eight feet. As in specifications (1)(A) and (1)(I) above, the panel's determination with regard to this specification rests on determinations of witness credibility. Upon the record before me, petitioner has not provided clear and convincing evidence sufficient for me to substitute my judgment for that of the panel majority which found respondent not guilty of this specification (Appeal of LePore, supra). The first student witness' description of the force used differs from that of the two other student witnesses. I note that neither of the students directly involved testified at the hearing. It appears from the record that respondent acted in an attempt to remove the other student so that his student would attend class and that the student resisted respondent's direction that she leave. There appears to be sufficient question about the credibility of the student witnesses that the hearing panel could property conclude respondent did not use excessive force. Therefore, I find respondent not guilty of specification (1)(K) of charge one.

The second charge alleges "the infliction of corporal punishment and/or conduct unbecoming his position" during school year 1989-90 at the Samuel Gompers High School and consists of six specifications. Neither the panel majority nor the dissenting panel chairman found any merit to this charge or its specifications. Specifications (2)(A) through (2)(E) all depend on assessments of witness credibility and I find that petitioner has failed to provide clear and convincing evidence sufficient for me to substitute my judgment for that of the panel (Appeal of LePore, supra). Specification (2)(F) states that "On one occasion during the 1989-90 school year, on a school day, Respondent told [a] student ... that he would grow up to be on welfare." It appears that respondent may have made this comment to motivate the student to do better academically. While more effective means could arguably be found to encourage students, I do not find that the making of such a remark rises to the level of misconduct.

Turning to the issue of penalty, it is well settled that the Commissioner of Education has broad authority to assess an appropriate penalty (Matter of Levyn v. Ambach, 56 NY2d 912; Matter of Shurgin v. Ambach, 83 AD2d 665, aff'd 56 NY2d 700; Matter of Mockler v. Ambach, 79 AD2d 745, lv to app den 53 NY2d 603). In proceedings under Education Law '3020-a, a penalty must be imposed which is sufficient to act as a deterrent to repetition of the improper conduct and to impress upon the teacher that the behavior is unacceptable (Appeal of the Board of Education of the Poughkeepsie City School District, 32 Ed Dept Rep 547). Since the specifications proven do not involve an isolated incident but instead show a persistent course of conduct by respondent in making improper and insensitive remarks to his students, I find the appropriate penalty to be a three-month suspension without pay.

Lastly, with regard to respondent's contention that petitioner violated Education Law '3020-a and 8 NYCRR 276.1(a) by suspending respondent prior to the issuance of an interim order, such matter became moot with my issuance of the interim order on September 13, 1992. The Commissioner of Education decides only matters in actual controversy and will not render a decision concerning a controversy which subsequent events have laid to rest (Appeal of Kaske, 32 Ed Dept Rep 363).

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

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