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Decision No. 13,235

Appeal of CHARLES B. TAYLOR from a determination rendered by a hearing panel convened pursuant to Education Law '3020-a by the Board of Education of the Brentwood Union Free School District.

Decision No. 13,235

(August 1, 1994)

Bernard T. Callan, Esq., attorney for respondent, Bernard T. Callan, 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 conduct unbecoming a teacher and imposed a penalty of suspension without pay for one year. The appeal must be dismissed.

Petitioner has been employed by respondent as a tenured technology teacher for more than 20 years. On January 16, 1992, respondent found probable cause to prefer charges of misconduct and conduct unbecoming a teacher against petitioner based upon allegations that on May 8, 1989 and December 5, 1991 he used excessive force in disciplining a student. A hearing was conducted over eight days between April 6 and October 15, 1992. In a decision issued on or about December 22, 1992, the panel dismissed the charges with respect to the May 8, 1989 allegations but found that on December 5, 1991 petitioner grabbed a student's shoulders and arms, flipped the student over his leg and grabbed him by the neck to get him back on his feet, causing bruises to the student's neck. The panel imposed a penalty of suspension without pay for one year.

Petitioner contends that the panel erred in its findings in several respects and that both charges should have been dismissed. Petitioner challenges the credibility of respondent's witnesses, asserts that the panel ignored discrepancies in their testimony and failed to afford the proper weight to his own testimony and exhibits. Petitioner additionally argues that the panel did not give due weight to the enforcement of safety standards required by State law, regulation and district policy in the technology (shop) class. Petitioner further alleges that district policy regarding student discipline has been applied unequally. Petitioner also asserts that the panel did not specifically consider his claim that respondent used the charge concerning the May 8, 1989 incident as an illegal "bridge" to the charge for the December 5, 1991 incident. Finally, petitioner argues in the alternative that, even in view of the panel's findings of guilt on the December 5, 1991 charge, the penalty imposed is excessive.

Before addressing the merits of this appeal, it is necessary to review several procedural issues. Respondent argues, as a procedural defense, that the petition fails to comply with the requirements of '275.10 of the Commissioner's regulations because it does not contain a clear and concise statement of petitioner's entitlement to relief. However, I do not find the petition insufficient to state a claim. I note that petitioner is not represented by counsel. In such cases a liberal interpretation of the rules is appropriate, particularly where there is no evidence of prejudice to the opposing party (Appeal of Cerilli, 33 Ed Dept Rep 385). I find that the petition sufficiently frames petitioner's claims for relief and that respondent adequately addressed petitioner's allegations in its answer. Because respondent has not established that it was prejudiced by petitioner's drafting, I will not dismiss the appeal on that basis (Appeal of Schechter, et al., 28 Ed Dept Rep 118).

In addition, petitioner asserts new allegations in his reply in an attempt to augment claims in the petition. Consistent with ''275.3 and 275.14 of the Commissioner's regulations, a reply may only be submitted in response to affirmative defenses and new material raised in an answer. The reply does not provide an opportunity to buttress allegations in a petition or add assertions which should have been included therein (Appeal of Roberts, 33 Ed Dept Rep 601; Appeal of Eastman Kodak Company, 32 id. 575; Appeal of Brousseau, 31 id. 155). Therefore, additional allegations in the reply which should have been included in the petition will not be considered here.

Furthermore, I note that petitioner has submitted several additional exhibits in this appeal that were not submitted at the '3020-a hearing. My review of the determination of a hearing panel convened pursuant to Education Law '3020-a is limited to the record that was before the panel, upon which it rendered its decision. Consequently, I will not consider the additional exhibits as part of the record in this appeal (Appeal of Rheinhold, 30 Ed Dept Rep 166).

Regarding the merits of this appeal, petitioner challenges the panel's crediting of the board's witnesses, including the student complainant, rather than his own testimony. 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 the December 5, 1991 charge and not guilty of the May 8, 1989 charge. 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 Gibbs, 33 Ed Dept Rep ___, Decision No. 13196, dated June 10, 1994; Appeal of Bd. of Ed., NYC, 32 id. 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 charge.

Petitioner also claims that the panel did not consider that the May 8, 1989 incident - which was ultimately dismissed by the panel - was illegally used as a "bridge" to the charge based on the December 5, 1991 incident. Petitioner clarifies his contention in his memorandum, stating in a conclusory manner that the unsubstantiated May 8 allegations prejudiced the panel with respect to its findings of guilt on the December 5 incident and its assessment of a penalty. Petitioner's claim is without merit. The panel decision sets forth a comprehensive analysis of the evidence presented on both charges. Petitioner has presented no evidence that the May 8 allegations unduly prejudiced the panel in its findings respecting the December 5 allegations. Indeed, the record supports the panel's findings on the December 5 charge. There is also no evidence of improper prejudice with respect to the penalty imposed. In fact, the panel stated in its decision:

Respondent has been teaching in the district for over 20 years without evidence of prior disciplinary infractions, which is some indication of respondent's inherent teaching ability (emphasis supplied).

Obviously, the panel did not consider any prior student disciplinary incidents in arriving at its penalty determination.

Petitioner also claims that the panel did not consider discrepancies in the board's treatment of another teacher who, on a previous occasion, used physical force to restrain a student. A review of the panel decision indicates that the panel did consider the incident involving the other teacher, but noted significant differences from the instant case with respect to the degree of force used as well as the attendant circumstances. Similarly, petitioner's conclusory statement that the panel failed to give proper weight to the safety factors involved in keeping order in a technical (shop) class are without merit. The panel did, indeed, consider those factors in reaching its decision and there is no basis in the record to conclude that, in doing so, the panel failed to afford such factors the proper weight. Thus, petitioner has failed to establish any basis on which to overturn the panel's findings of guilt regarding his use of excessive force on December 5, 1994.

Turning to the appropriateness of the penalty, petitioner contends that the one-year suspension without pay imposed by the panel is excessive. Respondent does not seek a change in the penalty. In assessing the penalty, the panel considered petitioner's 20 years of service without incident in the district. The panel determined that the one-year suspension without pay will sufficiently alert the teacher to the seriousness of his conduct and motivate him to take the steps necessary to improve his deficiencies. Further, there is nothing in the record to indicate that petitioner is completely lacking in teaching ability or so incompetent as to be incapable of improvement (Matter of Board of Education, Dundee Central School District, 21 Ed Dept Rep 731). I do not find the penalty imposed by the panel disproportionate to the offense or shocking to one's sense of fairness (Matter of Board of Education, Dundee Central School District, supra). Therefore, I will not substitute my judgement for that of the panel.