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Decision No. 13,196

Appeal of FRANKIE GIBBS from a determination rendered by a hearing panel convened pursuant to Education Law '3020-a by the Board of Education of the Bayport-Blue Point Union Free School District.

Decision No. 13,196

(June 10, 1994)

Donner, Hariton & Berka, P.C., attorneys for petitioner, Mitchell Gitten, Esq., of counsel

Cooper, Sapir & Cohen, P.C., attorneys for respondent, Robert E. Sapir, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals the decision of a hearing panel convened pursuant to Education Law '3020-a which found him guilty of misconduct and recommended a fine of $7,500. Respondent, the Board of Education of the Bayport-Blue Point Union Free School District, cross-appeals the panel's determination of not guilty in connection with a second charge of misconduct. Both the appeal and the cross-appeal must be dismissed.

Petitioner is a tenured art teacher who has been employed by respondent for approximately 27 years. On or about December 17, 1992, respondent found probable cause to prefer six charges against respondent. Subsequently, three of the charges were withdrawn. After several adjournments, a hearing was conducted over nine days between October 26 and December 20, 1993. In a decision issued on or about January 21, 1994, the panel found that petitioner on or about November 20, 1992, in an attempt to prevent a student from leaving the playground area during recess, grabbed the student by the collar, causing the student to choke and cough and leaving a red mark on the student's neck. The panel found petitioner not guilty of the remaining charges and recommended a fine of $7,500.

Petitioner contends that respondent failed to establish by a preponderance of evidence that he improperly grabbed the student. Respondent contends that the record supports the panel's determination of guilt. Respondent further asserts that the evidence presented at the hearing supports an additional finding that petitioner pushed a student into a wall during April 1992. Neither party contests the panel's determination of not guilty as to the remaining charge filed against petitioner.

A review of the panel's determination indicates that after carefully analyzing the testimony of the witnesses, it found some witnesses more credible than others. Based on its assessment of credibility, the panel found petitioner guilty of one charge and not guilty of the remaining charges. Where the credibility of witnesses is the primary basis for the hearing panel's decision, I will not substitute my judgment for that of the panel unless there is clear and convincing evidence that the panel's determination of credibility is inconsistent with the facts (Appeal of Bd. of Ed., NYC, 32 Ed Dept Rep 666; Appeal of Community School Board No. 24, 32 id. 282; Appeal of LePore, 28 id. 425). I find no basis in the record before me to overturn the panel's determination that petitioner is guilty of one charge and not guilty of the remaining charges.

Turning to the question of penalty, the Commissioner of Education is authorized to impose a proper penalty and is not bound by the actions of the hearing panel (Shurgin v. Ambach, 83 AD 2d 665; Matter of McNamara v. Commissioner, 80 AD 2d 660). This requires an assessment of the measure of discipline and whether it is proportionate to the offense (Matter of Mockler v. Ambach, 79 AD 2d 745; lv to app den 53 NY 2d 603; Matter of Kloepfer v. Commissioner, et al., 82 AD 2d 974). Petitioner contends that the penalty imposed by the panel is excessive. Respondent counters that petitioner's actions require that his employment be terminated. In determining an appropriate penalty, the panel noted that petitioner had been questioned several times in the past over the number of physical contacts which apparently occurred between him and his students. As a result, respondent warned petitioner several times regarding any physical contact with students. Despite those directives, petitioner nevertheless had physical contact with another student. While the penalty imposed by the panel is severe, it is apparent that such a penalty is necessary to impress upon petitioner the severity of his conduct. Physical force as a means of student control is not acceptable and will not be tolerated (Appeal of City School District, Elmira, 30 Ed Dept Rep 68).

The panel also noted that petitioner's prior record indicated a high level of competence and that provocative behavior by students preceded the incident for which petitioner was found guilty. Based on the above, the panel determined that petitioner's dismissal was not warranted. I find nothing in the record to indicate that the panel acted improperly in its assessment.

I have reviewed petitioner's remaining contentions and find them without merit.