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Decision No. 13,167

Appeal of MINTA SPAIN from action of the Board of Education of Community School District No. 16 of the City School District of the City of New York regarding disciplinary action.

Decision No. 13,167

(May 2, 1994)

Field & Bryant, Esqs., attorneys for petitioner, Joel Field, Esq., of counsel

Levy, Gutman, Goldberg & Kaplan, Esqs., attorneys for respondent, Gail A. Wechsler, Esq., of counsel

SOBOL, Commissioner.--Petitioner, the Superintendent of Community School District No. 16 of the City School District of the City of New York, appeals the decision of a panel convened to hear disciplinary charges brought by the Board of Education of Community School District No. 16 ("respondent"). The appeal must be dismissed.

Petitioner has been the Superintendent of Community School District No. 16 since January 1987. On July 29, 1987, she entered into an employment agreement with respondent. Paragraph 4 of that agreement establishes respondent's disciplinary procedure and states:

The Community Board may remove the Community Superintendent only for cause, during the term of this Agreement. Such cause shall consist only of those matters enumerated in subdivision 7 (b) of Section 2590-J of the Education Law. The Community Board shall follow the procedure prescribed in subdivision 7 of Section 2590-j of the Education Law, in removing a Community Superintendent for cause.

Section 2590-j(7) provides in part:

Each community board shall have authority and responsibility with regard to trials of charges against any members of the teaching or supervisory service staffs of the schools within its jurisdiction as follows:

(a) No such employee who has served the full and appropriate probationary period prescribed by, or in accordance with law, shall be found guilty of any charges except after a hearing as provided by section three thousand twenty-a of this chapter.

(b) Charges may be initiated by the community superintendent against any such employee for any of the following offenses:

(1) . . . ;

(2) Neglect of duty;

(3) . . . ;

(4) Incompetent or inefficient service;

(5) A violation of the by-laws, rules or regulations of the city board, chancellor, or the community board; or

(6) . . . ;

(c) . . . No charges shall be brought more than six months after the occurrence of, the discovery thereof, or the date when discovery should have occurred upon the exercise of due diligence, of the alleged incompetency or misconduct except where the charge is of misconduct constituting a crime when committed.

On or about April 14, 1989, respondent served petitioner with three charges containing eight specifications, including Charge II, specification 1, which states:

Charge II: Neglect of duty. Education Law '2590-j(7)(b)(2).

Specification 1: On March 10, 1988, the Office of Appeal and Review recommended that the probationary service of [a teacher] be discontinued. You did not bring a resolution to this effect before the Community School Board until February 8, 1989, and did not supply any information or documentation to support said resolution.

A hearing was conducted over nine days between June 21, 1989 and July 13, 1989. On August 3, 1989, the panel chairman informed the parties that the panel had deliberated on this matter and:

The determination of the Panel is that, while the Respondent Dr. Minta Spain was found guilty of certain Specifications within the Charges, the Penalty to be appropriately assessed against her involves neither termination nor suspension from her position.

Dr. Minta Spain should, therefore, be immediately reinstated to her position as Superintendent of Schools, with all the powers and authority of that office . . .

The full Decision of the Panel will be forwarded . . . just as soon as the same has been completed and executed by all Panel Members.

Petitioner, who had been suspended with pay, was immediately reinstated. The panel's full decision was issued on or about November 17, 1989. The panel found petitioner guilty of neglect of duty of Specification 1 of Charge II and recommended a fine of $4,500. Petitioner was found not guilty of all other charges. Petitioner commenced this appeal, but the parties asked that any decisions be held in abeyance while they pursued a settlement of this matter. Settlement discussions between the parties were ultimately unsuccessful.

Petitioner contends that respondent failed to establish, by a preponderance of the evidence, any neglect of duty on her part as alleged in Specification 1 of Charge II. Moreover, petitioner contends, assuming arguendo, that she was guilty of Specification 1, the penalty of a fine of $4,500 is excessive. Respondent denies those contentions.

This appeal does not involve a true disciplinary proceeding commenced pursuant to Education Law '3020-a since it involves disciplinary charges against a school superintendent, a non-tenured employee. However, pursuant to the written employment agreement between the parties and as stipulated on the record before the hearing panel, the parties agree that it is to be reviewed in the same manner as a '3020-a proceeding.

In a disciplinary proceeding against an educator the burden of proof is on the board of education (Appeal of Bd. of Ed., Malone CSD, 33 Ed Dept Rep 108; Appeal of the Bd. of Ed., City School District of the City of New York, 31 id. 297). After reviewing the record, I find no basis to substitute my judgment for that of the panel. The record clearly establishes that petitioner delayed for almost a year before taking proper action to terminate the employment of an unsatisfactory probationary employee. During that period, the teacher in question was permitted to linger at district offices without any meaningful role while on the district's payroll.

Turning to the question of penalty, the Commissioner of Education is authorized to impose a proper penalty and is not bound by the decision of the hearing panel (Shurgin v. Ambach, 83 AD2d 655; aff'd 56 NY2d 700; Matter of McNamara v. Commissioner, 80 AD2d 660; Appeal of Bd. of Ed., City School District of the City of New York, 32 Ed Dept Rep 666). Fixing an appropriate penalty requires an assessment of the measure of discipline and whether it is proportionate to the offense (Matter of Mockier v. Ambach, 79 AD2d 745; lv to app den 53 NY2d 603; Matter of Kloepfer v. Commissioner, et al., 82 AD2d 974; Shurgin v. Ambach, supra). Penalties are not to punish, but to impress upon the individual the inappropriateness of conduct and to serve as warnings against future improper conduct (Appeal of the Bd. of Ed., City School District of the City of New York, 33 Ed Dept Rep 338; Appeal of Community School District No. 24, 30 id. 445). A person's past 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 id. 406).

Petitioner's failure to act in a timely manner in the disciplinary matter cost the district substantial money at a time when the district lacked sufficient staff. The panel recognized that petitioner was faced with numerous challenges which placed demands on her time and adversely affected her ability to expeditiously deal with this matter. These difficulties, however, do not excuse her failure to address this issue for almost a year. Accordingly, I find no basis to substitute my judgment for that of the panel on penalty.