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Decision No. 13,245

Appeal of the BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK from a determination of a '3020-a hearing panel concerning charges against Miguel Castro, a tenured teacher.

Decision No. 13,245

(August 22, 1994)

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

Kellman & London, Esqs., attorneys for respondent, Susan G. Kellman, Esq., of counsel

SOBOL, Commissioner.--Petitioner, the Board of Education of the City School District of the City of New York, appeals the determination of a hearing panel convened pursuant to Education Law '3020-a which found respondent not guilty of charges preferred against him. The appeal must be dismissed.

Respondent is a tenured physical education teacher, who was employed at respondent's Paul Robeson High School during the 1989-90 school year. On May 29, 1991, petitioner found probable cause to bring charges against respondent pursuant to Education Law '3020-a. The charges alleged that:

A. On four diverse dates, on or about, during and between, March 20, March 30, April 18, and April 20, 1990, in the afternoon of the school day, in the weight room at Paul Robeson High School, Respondent engaged in sexual intercourse with student S.J.

B. On one or more occasions during and between the months of March and April, 1990, on school property, and during school hours, Respondent knowingly spoke to student S.J. in a manner injurious to her physical, emotional, and moral welfare. For example:

1. Respondent asked student S.J. what sex with him felt like. Respondent told student S.J. that he wanted to take her to a motel during the summer vacation so he could hear her moan.

2. Respondent told S.J. not to tell anyone about their sexual relationship because he had to worry about his family and job. Respondent further stated that student S.J. would have a "friend for life" if she did not say anything.

3. Respondent asked student S.J. if she was on birth control. Upon hearing that student S.J. was not on birth control, Respondent told S.J. that if she became pregnant with his child, she would have to get an abortion.

A hearing was conducted over 19 days between October 17, 1991 and September 10, 1993. In a decision dated January 31, 1994, the panel unanimously found respondent not guilty of the charges.

Petitioner's main issue involves evidentiary rulings by the panel chairperson which prevent petitioner from introducing any evidence of allegations that respondent may have previously been involved sexually with two other students at different schools. Petitioner contends that evidence as to those two alleged incidents should have been admitted in this proceeding. I find no merit to that contention. The panel chairperson noted that while petitioner investigated the alleged prior incidents, respondent was never charged with those incidents and nothing was put in his personnel file. The chairperson further noted that respondent had no opportunity to investigate, defend against or object to the statements made against him with respect to those alleged incidents. Moreover, petitioner apparently did not seek to present such evidence to show that respondent was previously warned by respondent against such conduct, but rather sought to show that respondent had a predisposition toward sexual involvement with students. However, evidence of prior "bad acts" is only admissible if the teacher was found guilty of the conduct charged and such evidence is introduced solely for the purpose of assessing the appropriate measure of discipline (Matter of Bd. of Ed., Sachem CSD, 25 Ed Dept Rep 325; Matter of Community School Bd. No. 22, 22 id. 307; Matter of Community School Bd. No. 28, 22 id. 530).

Petitioner also maintains that the panel's finding of not guilty was against the weight of the evidence. Specifically, petitioner contends that the testimony of the student involved, S.J., and another student, D.S., supports a finding of guilt against respondent. 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).

Where the credibility of a witness is the primary basis of the hearing panel's decision, the Commissioner will not substitute his 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 LePore, 28 id. 425). I have carefully reviewed the record and find no basis to overturn the panel's determination of not guilty.

The panel found S.J. to be an "unbelievable witness". In its decision it noted that S.J.'s testimony was inconsistent, confusing and often non-responsive. In addition, her version of the facts were directly contradicted by several other witnesses, as well as documentary evidence. Her reputation for truthfulness was also challenged by other student witnesses. For instance, one student testified that S.J. admitted that she never had a sexual relationship with respondent, but merely made up the story. The panel also found that it was a "virtual impossibility" for S.J. and respondent to have engaged in sexual intercourse in the manner described by S.J., i.e., standing up in a recently vacated classroom with students milling about in an adjacent hallway.

Petitioner also relies on testimony supplied by another student D.S., who petitioner claims saw respondent and S.J. engaged in sexual activity. However, the record indicates that D.S.'s testimony was also contradicted by his earlier statements. In addition, D.S. testified that on a day when S.J. was no longer a student of respondent, he observed two individuals in the weight room with their backs to him. His testimony does not identify the individuals and indicates he is not sure if he observed one or two individuals. Nor does his testimony indicate that the individuals were engaged in sexual activity. The panel found such testimony inconclusive. I find nothing in the record to overturn the panel's findings regarding D.S.'s testimony.

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