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Decision No. 13,683

Appeal of the BOARD OF EDUCATION OF THE LONGWOOD CENTRAL SCHOOL DISTRICT from the determination of a hearing panel convened pursuant to Education Law '3020-a concerning charges against Anthony Toro, a tenured physical education teacher.

Decision No. 13,683

(September 30, 1996)

Ingerman, Smith, Greenberg, Gross, Richmond, Heidelberger, Reich & Scricca, LLP, attorneys for petitioner, Warren H. Richmond, Esq., of counsel

James R. Sandner, Esq., attorney for respondent, James D. Bilik, Esq., of counsel

MILLS, Commissioner.--Petitioner, the Board of Education of the Longwood Central School District, appeals the decision of a hearing panel convened pursuant to Education Law '3020-a, which found Anthony Toro ("respondent") guilty of conduct unbecoming a teacher, immoral conduct and insubordination and recommended his suspension without pay for six months. The appeal must be dismissed.

On or about January 27, 1994, petitioner found probable cause to bring disciplinary charges against respondent based on the following incidents: he grabbed a student's hand and licked the blood off her finger; he commented on the menstrual cycles of two students; he conditioned a class make-up on the requirement that a female student ride with him in his car to the high school; he rubbed the arms and shoulders of female students and upon their objection stated "they are only love taps"; and he told a student that he would have to see her buttocks in order to determine if she was stung by a bee.

Respondent was charged with conduct unbecoming a teacher (Charge I), immoral conduct (Charge II) and insubordination (Charge III) based on identical factual allegations underlying the six specifications involving the above stated incidents. A hearing was held pursuant to Education Law '3020-a over six days between June 3, 1994 and September 27, 1994. By decision dated July 31, 1995, the hearing panel found respondent guilty of all three charges and recommended his suspension without pay for six months. This appeal ensued.

Petitioner alleges that the panel erred in imposing only a six month suspension in view of its finding that respondent was guilty of all three charges and contends that respondent is not fit to teach ninth grade girls. Petitioner seeks respondent's dismissal. Respondent contends that the appeal is untimely and must be dismissed.

Respondent contends that the appeal is untimely because petitioner received its copy of the panel decision on August 15, 1995 but failed to commence the appeal until September 30, 1995. An appeal to the Commissioner of Education must be instituted within 30 days from the making of the decision or the performance of the act complained of, unless excused by the Commissioner for good cause (8 NYCRR 275.16). An appeal instituted to challenge the determination of a hearing panel constituted pursuant to Education Law '3020-a is considered timely if it is commenced within 30 days of receipt of the decision sought to be reviewed (Matter of Bd. of Ed. of Valhalla U.F.S.D., 19 Ed Dept Rep 259; aff'd subnomMatter of McNamara v. Commissioner of Educ. et al., 80 AD2d 660; Matter of Bd. of Ed. of City School Dist. of the City of New York, 22 Ed Dept Rep 132; Appeal of Lessem, 31 id. 191).

In this case, petitioner notes that the appeal has been instituted beyond the thirty day time period set forth in the regulations because the board did not meet to review and implement the decision until September 7, 1995. In support of its request that the delay be excused, petitioner cites three cases in which delays in commencing appeals were excused by the Commissioner (Appeal of Bussfeld, 34 Ed Dept Rep 383; Matter of Child Suspected of having a Handicapping Condition, 29 id. 463; Matter of Young, 21 id. 99). Exceptions were granted in those cases based on facts that indicated there was good cause for the delay, the delay was minimal, and important educational issues were at stake in the appeals. However, respondent notes that petitioner does not offer any excuse for the delay and that petitioner held a regular board meeting on August 24, 1995 and did not consider the panel decision at that time. Since I agree with respondent that petitioner has not presented any excuse for the delay, the appeal must be dismissed as untimely.

Although I am constrained to dismiss this appeal on procedural grounds, I must comment on respondent's inappropriate conduct towards female students. As the panel noted:

Respondent has committed serious misconduct. His interaction with female students has been clearly inappropriate and unbecoming his responsibilities as a teacher. Respondent's misconduct reveals a pattern of offensive comments and inappropriate physical conduct -containing sexual overtones. (Panel decision, page 54).

Respondent's pattern of inappropriate language and conduct towards thirteen and fourteen year old girls is disgraceful, particularly in view of the fact that the record in this matter shows that he was previously issued a specific directive from petitioner not to engage in this type of conduct. I also find troubling respondent's lack of remorse and unwillingness to admit to his conduct. Thus, the penalty authorized by the hearing panel seems disproportionately lenient, given the record in this case. However, the district's failure to bring a timely appeal or provide a legally sufficient reason for its delay leaves me no choice but to dismiss the petition without reaching the merits.