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Decision No. 14,025

Appeal of the BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK from the determination of a hearing panel convened pursuant to Education Law "3020-a concerning charges against Norman Kaminowitz, a tenured physical education teacher.

Decision No. 14,025

(October 20, 1998)

Hon. Michael D. Hess, Corporation Counsel, attorney for petitioner, Simon P. Gourdine and Everett N. Hughes, Esqs., of counsel

Harold, Salant, Strassfield & Spielberg, attorneys for respondent, Jerold Rotbard and Christopher Harold, Esqs., of counsel

MILLS, Commissioner.--The Board of Education of the City School District of the City of New York ("petitioner"), appeals the decision of a hearing panel convened pursuant to Education Law "3020-a which found Norman P. Kaminowitz ("respondent") guilty of the charges against him and recommended a two-year suspension without pay. The appeal must be dismissed.

Respondent is a tenured physical education teacher in petitioner's district and has been employed by petitioner since 1967. At the time of the events that are the basis for this appeal, respondent was assigned to James Monroe High School ("JMHS") in the Bronx.

On October 20, 1993, petitioner preferred disciplinary charges against respondent pursuant to Education Law "3020-a. The charges alleged that "during the 1990-1991 school year, respondent engaged in the sexual abuse of a student, engaged in a continuing pattern of making inappropriate remarks, and otherwise engaged in immoral conduct." The charges included eleven particular specifications. Seven of the specifications concerned behavior that allegedly occurred on a regular basis during the months of February 1991 through May 1991; one specification allegedly occurred in February 1991; and three allegedly occurred on or about May 28 and 29, 1991. The majority of the specifications alleged that respondent made sexually explicit comments to students, two in particular. In four instances, the specifications concerned alleged inappropriate physical conduct. It was charged that respondent sat next to C.M. and M.Q and rubbed his leg in a suggestive manner (specification I[E]) and sat on a table in front of those students and rubbed the table near the students’ genital areas (specification I[F]). The charges further alleged that on or about May 29, 1991, respondent:

  1. Touched student C.M. with his hand at or near her genital area, and
  2. When student C.M. reacted by striking Respondent on his arm with a pen, Respondent took the pen from student C.M. and struck C.M. on the arm and leg, leaving bruises (specification I[J][1] and [2]).

A hearing was held over ten days between October 1994 and September 1995 resulting in a 1204 page record. The three-member hearing panel issued its decision on December 3, 1996, finding respondent guilty of ten of the eleven specifications (guilty in part on five charges). The panel concluded that respondent's actions constituted neglect of duty, incapacity to teach and immoral conduct and unanimously recommended that he be suspended for two years without pay. This appeal ensued.

Petitioner does not dispute the panel’s findings of guilt, but seeks to dismiss respondent. Respondent, in the alternative, seeks to dismiss the appeal and reduce the penalty. He argues that the evidence does not demonstrate that he was unfit to teach, and therefore, the evidence does not warrant his dismissal. He also contends that the conduct that he was found to have committed was neither substantial nor substantiated. Respondent maintains that the evidence fails to support a finding of guilt and that a two-year suspension without pay is disproportionate to the offense.

The hearing transcript reveals that the charges evolved after C.M.'s father brought the May 1991 incident (specification I[J][1] and [2], supra) to the principal’s attention five days after it occurred. Respondent argues that C.M.’s story escalated once her father got involved, and emphasizes that neither C.M. nor any other student had reported inappropriate comments by respondent at the time C.M. first made the allegation. Respondent denies engaging in the charged conduct. He contends that C.M. and M.Q. disliked him and were motivated to fabricate and coordinate their stories. As to specification I[J][2], he claims that he merely sought to defend himself from C.M.’s attack, and inadvertently struck her as she came toward him. He also argues that there are numerous factual inconsistencies in the witnesses’ testimony, and that the panel erroneously found C.M. and M.Q. credible even though the panel repudiated their testimony on specification I[A].

The specifications against respondent involved verbal comments to and physical contact with students. Accordingly, the panel’s determination depended in large part on the credibility of respondent, the students and other witnesses. With respect to findings of fact in matters involving the credibility of witnesses, I will not substitute my judgment for that of the hearing panel unless there is clear and convincing evidence that the determination of credibility is inconsistent with the facts (Appeal of Bd. of Educ., Wellsville CSD, 35 Ed Dept Rep 523; Appeal of Forte, 35 id. 483; Appeal of McCreery, 34 id. 426).

The panel heard substantial testimony from a number of witnesses for both sides, including respondent. A review of the panel’s 48-page decision reveals that the panel assessed and evaluated the testimony of all the witnesses, including respondent, crediting some testimony and not others. The panel’s decision summarized each party’s position, discussed every specification individually, outlined both sides’ arguments and referred to specific pages of the 1204-page transcript to support those arguments and its determinations.

With regard to specification I[A] (use of a sexual expression while selling juice between February and May, 1991), the panel found that the unequivocal testimony of the assistant principal and respondent’s co-teacher that no juice was sold during the time period in question precluded a finding that respondent was guilty of that charge. As to specification I[J][1], supra, the panel found that although respondent did touch C.M. inappropriately, there was no persuasive evidence that he intended such contact. Rather, the panel found that respondent lost his balance and inadvertently touched C.M. As to specification I[J][2], supra, the panel found that respondent did strike and bruise C.M. with the pen. With regard to the other specifications, the panel weighed the testimony of all the witnesses, evaluated the purported motives of various witnesses, and determined that petitioner had proved those specifications by a preponderance of the evidence. However, specifications I[D], I[E], I[F], I[G] and I[H] were established only in part, the latter four because petitioner failed to prove that respondent engaged in the misconduct on a regular basis. Based on the record before me, I find no reason to substitute my judgment for the panel's factual findings and determinations regarding the witnesses’ credibility.

Turning to the issue 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). In determining whether to substitute my judgment for that of a hearing panel, the standard is whether the discipline imposed is proportionate to the offense (Matter of Mockler v. Ambach, 79 AD 2d 745, lv to app den 53 NY 2d 687; Appeal of the Bd. of Educ., Wellsville CSD, supra; Appeal of the Bd. of Educ., City School District of the City of New York, 35 Ed Dept Rep 35; Appeal of Bruno, 31 id. 503). Also pertinent is the person's fitness to carry out his or her professional responsibilities (Matter of Bott, 41 NY2d 265; Appeal of the Bd. of Educ., Wellsville CSD, supra; Appeal of the Bd. of Educ., City School District of the City of New York, supra; Appeal of the Bd. of Educ., Pleasantville UFSD, 31 Ed Dept Rep 262). A penalty must be imposed which is sufficient to deter repetition of the improper conduct and impress upon respondent that the behavior in question is unacceptable (Appeal of the Bd. of Educ., City School District of the City of New York, supra; Appeal of the Bd. of Educ, Poughkeepsie City School District, 32 Ed Dept Rep 547).

Petitioner seeks to increase the penalty to dismissal, arguing that the Commissioner should substitute his judgment for that of the panel because respondent’s use of sexually abusive language constitutes a course of misconduct, not an isolated incident of wrongdoing. Petitioner contends that dismissal is warranted since respondent received a warning from his building principal in 1981 "not to touch the girls . . . to watch his language and not to engage in sexual conversation with young adolescent women." Yet, petitioner alleges, respondent continued with similar inappropriate behavior and failed to express remorse.

The panel found, and the record supports, that respondent engaged in certain improper conduct involving sexual conversations with female students, certain physical gestures to female students of a sexual nature, and the unwelcome — albeit unintentional and inadvertent — touching of a female student. The panel concluded that "Respondent failed to provide a proper role model for the students . . . and failed to create a proper class setting for the students. In short, the Respondent failed to perform important aspects of the job of a teacher . . . The treatment of female students in a degrading and humiliating manner violates a fundamental obligation of a teacher, namely, to treat all students with respect and with dignity and to create a safe and secure environment for students . . . To compound the irresponsible conduct of the Respondent, the record indicates that an altercation developed between the Respondent and C.M., which led to physical injuries (specification I[J][2])."

The panel also found that respondent engaged in a pattern of improper conduct over an extended period of time. However, the panel concurrently found respondent guilty only in part on four specifications, because petitioner failed to prove that respondent engaged in the behavior on a regular basis. Based on my review of the record, petitioner established that respondent engaged in inappropriate conduct on several occasions between February and May 1991. However, the record also reveals that petitioner failed to establish a pattern of ongoing conduct on a regular basis. In addition, the only incident of inappropriate sexual contact (specification I[J][1]) was found to be inadvertent and unintentional. Based on these findings, the panel unanimously determined that respondent’s penalty should be a two-year suspension without pay.

Respondent’s conduct and use of inappropriate language towards adolescent girls is disgraceful and cannot be condoned. However, the only blemish in respondent’s approximately 25-year teaching career (at the time of the incidents) appears to be the warning given him by his building principal in 1981, ten years prior to the incidents in question in this case. There were no charges filed at that time, and thus there are no other adverse determinations in his record. There are no indications of any other warnings by his current supervisors, or any history of complaints. Thus, based on the record as a whole, I find the panel’s penalty to be proportionate to the offense, and sufficient to impress upon respondent that the behavior for which he was found guilty is completely unacceptable and must not be repeated. Accordingly, I will not substitute my judgment for that of the panel.