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Decision No. 13,607

Appeal of GARRY FORTE from a determination rendered by a hearing panel convened pursuant to Education Law '3020-a by the Board of Education of the Manhasset Union Free School District.

Decision No. 13,607

(May 17, 1996)

Kenneth J. Weinstein, Esq., attorney for petitioner

Rains and Pogrebin, P.C., attorneys for respondent, Richard K. Zuckerman and Sharon N. Berlin, Esqs., of counsel

MILLS, Commissioner.--Petitioner appeals the decision of a hearing panel convened pursuant to Education Law '3020-a which found him guilty of conduct unbecoming a teacher and insubordination and imposed a penalty of dismissal. The appeal must be dismissed.

Petitioner has been employed by the Board of Education of the Manhasset Union Free School District ("respondent") as a physical education teacher for more than 23 years. On June 17, 1993, respondent found probable cause to prefer charges of conduct unbecoming a teacher against petitioner based on allegations that he poked, touched the back or pulled the bra strap of certain of his female students, as set forth in Charge 1 and its specifications. He was also charged with insubordination for disobeying an order from his supervisor not to touch a student for any reason (Charge II). Petitioner was also charged with conduct unbecoming a teacher for allegedly remaining in an office adjacent to the girls' locker room where girls were changing (Charge III).

A hearing was conducted over seventeen days between September 8, 1993 and November 1, 1994. The district withdrew specifications 3, 4-7, 16, 25 and 26 of Charges I and II at the close of its case on March 14, 1994. On March 17, 1994, petitioner discharged his counsel and appeared at the March 18, 1994 hearing without counsel. Petitioner was granted an adjournment of the March 18 and 21, 1994 hearing dates to obtain new counsel. Respondent also withdrew specifications 13 and 19 of Charges I and II upon submission of its brief to the panel.

In a decision dated April 24, 1995, the panel found petitioner guilty of the first two charges, but not guilty with respect to Charge III, the locker room incident. The employer panel member, in a concurring opinion, noted that he would have found petitioner guilty of Charge III as well, involving petitioner's presence in the girls' locker room when girls were changing. The employee panel member concurred that petitioner was guilty of Charge I, but would have found him not guilty of Charge II and III and would have recommended a penalty of six months' suspension. The panel imposed a penalty of dismissal.

Petitioner contends that the decision of the majority of the panel was against the weight of the evidence. As to the first charge, petitioner challenges the credibility of respondent's witnesses, asserts that the panel ignored contradictory and refuted testimony of complainants and refused to credit the testimony of an original complainant who recanted the allegations and stated that the complainants were all lying. Petitioner further alleges that the panel erred in completely disregarding the testimony of petitioner's witnesses that petitioner's conduct could not be targeted to girls who allegedly wore bras since in baggy gym uniforms it was impossible to tell which girls were wearing bras. As to the second charge, petitioner alleges that there was no credible evidence that a directive not to touch a child ever existed in the first place, or was properly served upon petitioner. Petitioner argues that if the directive ever existed, it was merged and subsumed by close supervision directives issued to petitioner years later on matters unrelated to the present appeal. Petitioner argues that the alleged directive could have no force and effect since it was described by petitioner's supervisor as a directive to never touch a child under any circumstances, including involuntary touching, and was therefore so overly broad and generalized that it would disable petitioner from properly performing his teaching functions. Finally, petitioner argues that the penalty of dismissal under these circumstances is excessive.

Respondent contends that the panel's unanimous finding of guilt of Charge I was supported by the preponderance of the evidence, that its finding of guilt on Charge II (insubordination) was also supported by the evidence and that the panel properly credited the testimony of respondent's witnesses over petitioner's witnesses. As to the penalty, respondent contends that the penalty of discharge was commensurate with petitioner's inappropriate conduct.

Petitioner challenges the panel's reliance on the board's witnesses, including the student complainants, rather than his own witnesses and 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 Charge I and Charge II. 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 Taylor, 34 Ed Dept Rep 64; Appeal of Gibbs, 33 id. 684; 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).

In this case, the panel heard the testimony of several of the complainants, that petitioner repeatedly poked them in the back and/or pulled their bra strap during physical education classes during the 1991-92 and 1992-93 school years. The panel assessed the witnesses' credibility and determined that their testimony against petitioner was truthful. Furthermore, the panel heard petitioner's testimony and found him not credible on those matters for which they found him guilty. While petitioner attempts to characterize the girls' complaints as a conspiracy by a clique of close friends, I do not agree with that assessment and find no basis for it in the record. I also do not find persuasive petitioner's argument that his touching of the girls constituted a positive motivational technique and was therefore not improper. I find no basis in the record before me to overturn the panel's determination that petitioner is guilty of Charge I.

Turning to Charge II, petitioner claims that the testimony of the elementary school principal was contradictory and not credible. Petitioner further alleges that he did not recall receiving the June 1989 written directive which states:

Gary, as I have instructed you on at least two other occasions, most recently in May, 1988, you are to refrain from touching any child in the school for any reason. As you know, there have been complaints that you have touched children inappropriately. The most recent one involved an incident concerning a youngster who performed a number of physical tasks for you during our recent kindergarten screening. Attached is the mother's complaint and your explanation. I implore you to comply with this directive.

While petitioner did not recall receiving this written directive, the panel accepted as true the testimony of the principal that he had handed the directive to petitioner, discussed it with him and told petitioner it would be placed in his personnel file. Petitioner argues that had the directive ever existed, it was subsumed by petitioner's period of close supervision, which was imposed by the principal for conduct unrelated to these charges. I find unpersuasive petitioner's argument that due to the subsequent close supervision directives, the "do not touch" directive was no longer in effect. I also find unpersuasive petitioner's argument that the directive was overly broad or was not authentic because the copy in petitioner's file was not on the district's letterhead and not an original document. Furthermore, petitioner acknowledges that he received verbal warnings from the principal regarding the touching of children. Therefore, based on the record before me, petitioner was properly found guilty of Charge II.

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, 442 NYS2d 212; Matter of McNamara v. Commissioner, 80 AD 2d 660, 436 NYS2d 406). 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, 434 NYS2d 809; lv to app den 53 NY 2d 603, 439 NYS2d 1026; Matter of Kloepfer v. Commissioner, et al., 82 AD 2d 974, 440 NYS2d 785). Petitioner argues that the penalty of dismissal is so shocking to the conscience as to warrant the substitution of my judgment. He seeks reinstatement to his teaching position.

In determining the appropriate penalty in this case, the panel specifically found that the nature of petitioner's conduct, i.e., touching female students of a sensitive age in an area where he either knew or should have known they would be sensitive, warranted his dismissal. The panel further found that reinstatement in this case would be futile since petitioner did not appreciate the seriousness of his conduct and instead saw touching his students as a positive motivational technique. Furthermore, in assessing the penalty, the panel noted that petitioner had been warned repeatedly over the years regarding his inappropriate physical contact with children and failed to adhere to those directives prohibiting it. I agree with the panel's assessment that reinstatement would be ineffective in this case given petitioner's lack of insight into the seriousness of his conduct. Therefore, I find that dismissal is an appropriate penalty and I decline to substitute my judgment for that of the panel.

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