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Decision No. 13,187

Appeal of the BOARD OF EDUCATION OF COMMUNITY SCHOOL DISTRICT NO. 24 from a determination of a '3020-a hearing panel concerning charges against Lawrence Fornaro, a tenured teacher.

Decision No. 13,187

(May 23, 1994)

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

James R. Sandner, Esq., attorney for respondent, John J. Naun, Esq., of counsel

SOBOL, Commissioner.--Petitioner, the Board of Education of Community School District No. 24, appeals the determination of a hearing panel convened pursuant to Education Law '3020-a which found respondent Lawrence Fornaro guilty of one count of inefficient service and one count of insubordination and authorized a fine of $250.00. Petitioner seeks a determination that respondent was also guilty of eight other charges and that a more severe penalty is warranted. The appeal must be dismissed.

Petitioner is a tenured science teacher, who was employed at respondent's Intermediate School 61 during the 1991-92 school year. On March 27, 1992, petitioner found probable cause to bring charges against respondent pursuant to Education Law '3020-a. The charges contained 14 separate allegations. A hearing was conducted over three days between September 16, 1992 and January 28, 1993. In a decision issued on or about December 3, 1993, the panel found respondent guilty of inefficient service because he failed to attend one of his classes and insubordination because he failed to reply to an inquiry regarding one of his classes. The panel found respondent not guilty of all other charges and recommended a $250.00 fine.

Petitioner maintains that the panel's not guilty finding was against the weight of the evidence. Specifically, petitioner contends that evidence presented at the hearing established that respondent failed to report to the principal's office when requested to do so, made an obscene gesture toward several staff members, responded in a hostile manner to administrators on three occasions and allowed students to "trash" a classroom. Respondent contends that the decision of the panel is supported by the record.

In reviewing the determination of a hearing panel rendered pursuant to Education Law '3020-a, the Commissioner has the power to substitute his judgment for that of the hearing panel on findings of fact and to make new findings (Matter of Shurgin v. Ambach, 56 NY2d 700; Matter of McNamara v. Comm'r, 80 AD2d 660). 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 (Shurgin, supra; Matter of Bd. of Ed., NYC, 24 Ed Dept Rep 284; Matter of Bd. of Ed., Sewanhaka CHSD, 23 id. 463).

On the present record, I find no basis to substitute my judgment for the hearing panel's finding of not guilty. In connection with petitioner's allegations that respondent failed to report to the principal's office when requested to do so, the panel noted that circumstances relating to respondent's medical condition prevented him from being notified that he was to report to the principal. Upon my review, I find that determination of the panel to be supported by the record.

Regarding the allegations that respondent made an obscene gesture toward several staff members, the record shows that on several occasions respondent was observed using his middle finger to rub his nose or neck. The record indicates that several individuals considered the gesture obscene. However, as noted by the panel, respondent may have merely been clumsily rubbing his nose or neck and may not have intended to convey an obscene gesture. The panel also noted that respondent ceased making this gesture after being made aware that others were offended by it. Again, my review of the record supports the determination of the panel on this issue.

As for the remaining allegations that respondent responded in a hostile manner to administrators and that he allowed students to disrupt a classroom, the panel found that there was insufficient evidence to find respondent guilty of those charges. In a disciplinary proceeding against a teacher, the burden of proof is on the board of education (Appeal of Spain, 33 Ed Dept Rep , Decision No. 13167, dated May 2, 1994; Appeal of Bd. of Ed., Malone CSD, 33 id. 108). After reviewing the record, I find no basis to substitute my judgment for that of the panel on these charges. There is no indication how the classroom in question became unsettled nor is there adequate proof that Mr. Fornaro responded to petitioner's administrators in an inappropriate manner.

I have reviewed petitioner's other contentions, including those with respect to penalty, and find them without merit.