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Decision No. 13,142

Appeal of KEVIN and CATHLEEN EARL from action of the Board of Education of the LeRoy Central School District regarding disciplinary action against Robert DeVito, a tenured teacher.

Decision No. 13,142

(April 5, 1994)

Harris, Beach & Wilcox, Esqs., attorneys for respondent board of education, Alfred L. Streppa, Esq., of counsel

E. Robert Fussell, Esq., attorney for respondent DeVito


SOBOL, Commissioner.--Petitioners appeal the failure of the Board of Education of the LeRoy Central School District ("respondent") to find probable cause to bring charges pursuant to Education Law '3020-a against Robert DeVito ("DeVito"), a tenured teacher. The appeal must be dismissed.

At the end of the 1992-93 school year, respondent became aware that DeVito may have made inappropriate remarks to students. Respondent's superintendent investigated the facts surrounding this matter and determined, by resolution on June 22, 1993, not to pursue '3020-a charges against DeVito, but to instead enter into a settlement agreement with him. Under the terms of that settlement, DeVito agreed to pay a $750 fine and attend "sensitivity training."

Petitioners now ask that I invalidate the settlement between respondent and DeVito and compel respondent to bring disciplinary charges against DeVito. Respondents contend that the board had a reasonable basis for settling this matter with DeVito and that the settlement is fair.

A board of education has broad discretion to determine whether disciplinary action against a tenured employee is warranted (Appeal of Anderson, 33 Ed Dept Rep 322; Appeal of Allert, 32 id. 538; Appeal of Mitzner, 32 id. 15). However, there must be a reasonable basis for concluding that disciplinary action is unwarranted (Appeal of Anderson, supra; Appeal of Mitzner, supra). In this case, respondent investigated DeVito's behavior and determined disciplinary action was warranted after DeVito admitted to having made inappropriate remarks. DeVito's discipline included a fine and mandatory sensitivity training. Additionally, DeVito wrote a public letter of apology and was prohibited from attending graduation ceremonies.

Moreover, the $750 fine imposed by respondent is commensurate with penalties imposed in decisions rendered by '3020-a hearing panels for similar offenses (see Appeal of Tolhurst, 29 Ed Dept Rep 383, in which a teacher was fined $2000 for causing a student to read over the public address system a statement which was derogatory to women; see also Appeal of Board of Education of the City School District of the City of New York, 27 id. 177, in which a tenured teacher received a fine of $750 for writing a vulgar phrase in a ninth grade student's autograph book). Finally, there is no indication in the record that DeVito has been the subject of any previous disciplinary action. Based on the foregoing, I find that respondent acted reasonably in reaching this settlement and not pursuing the matter further.