Decision No. 12,593

(October 16, 1991)

Michael J. Stanley, Esq., attorney for petitioner

SOBOL, Commissioner.--Petitioner, the Board of Education of the City School District of the City of Oswego, appeals from the decision of a hearing panel convened pursuant to Education Law '3020-a concerning charges preferred by the district against respondent, a tenured teacher. Petitioner seeks an order modifying the hearing panel's decision and authorizing termination of respondent's services. The appeal must be dismissed.

Respondent has been employed by the district as a Latin teacher and chairperson of the foreign language department since September 1982. She is tenured in foreign languages. Respondent is certified in Latin and school district administration.

The full-time teaching schedule in the district is five classes. However, two assignments can be eliminated for department chairpersons. Accordingly, respondent taught three classes in Latin and acted as department chairperson for foreign languages until the 1988-89 school year. Due to declining enrollment in Latin, however, respondent only taught two Latin classes for the 1988-89 and 1989-90 school years while she was also assigned additional administrative duties.

In response to the continuation in the decline in enrollment, beginning with the 1989-90 school year, the district eliminated Latin from its middle school, apparently accelerating a decline in enrollment in Latin at the high school level. As a result, the district decided to offer only one Latin class for the 1990-91 school year.

During the spring of 1990, the parties discussed various teaching schedules for the upcoming school year. At one point consideration was given to having respondent, in addition to her position as department chairperson, teach the one Latin class as well as an elective course in mythology with a class in either French or Spanish. Instead of teaching a third class, consideration was also given to having respondent assigned additional administrative duties.

In late June and early July of 1990, the district reviewed its schedule and concluded that it was not economically feasible to continue to assign additional administrative duties to respondent to replace her teaching assignments, particularly when some of those duties had been assigned to a recently hired assistant principal. Petitioner also determined that it would be inappropriate to assign respondent to teach French or Spanish since she was not properly certified and had no background in either area. In addition, the district decided not to offer the mythology course.

On September 4, 1990, petitioner brought disciplinary charges against respondent pursuant to the provisions of Education Law '3020-a on the ground that she was incompetent to teach because she lacked certification in French or Spanish. Respondent was subsequently suspended with pay. A hearing was held before a hearing panel on November 20 and December 10, 1990. At the hearing it was established that respondent is enrolled in an accelerated course of study leading to certification in Spanish. Respondent expects to complete that program some time prior to the beginning of the 1992-93 school year.

In a decision dated March 14, 1991, the panel found respondent guilty of incompetence for failure to maintain proper certification. As a penalty, it recommended that respondent be suspended until the commencement of the 1992-93 school year with dismissal if she did not obtain appropriate certification by the end of her suspension. The panel further concluded that if respondent obtained the certification necessary to teach full time in her tenure area for the 1991-92 school year, she should be restored to her position at that time. This appeal ensued.

Petitioner contends that the penalty imposed by the panel is too lenient. In essence, the district argues that lack of certification is incompetence warranting termination. Petitioner further contends that respondent's employment should be terminated because although she was aware for several years of the dwindling enrollment in Latin, she neglected to seek the additional training she needed to obtain the certification until recently. Respondent contends that suspension without pay is an appropriate penalty.

Although I may substitute my judgment for that of a hearing panel convened pursuant to Education Law '3020-a with regard to the penalty imposed (Matter of Mockler v. Ambach, 79 AD2d 745, 343 NYS2d 809, lv to app den 53 NY2d 603; Matter of Kloepfer v. Commissioner, et al., 82 AD2d 974, aff'd 56 NY2d 687; Matter of Shurgin v. Ambach, 83 AD2d 665, aff'd 56 NY2d 700), I find that the penalty recommended is not disproportionate to the offense. It is not necessary in all instances to terminate a teacher who fails to maintain certification (Matter of Bd. of Ed., Owego-Apalachin CSD, 25 Ed Dept Rep 140; Matter of Bd. of Ed., Avon CSD, 22 id. 252; Matter of Bd. of Ed., Schroon Lake CSD, 20 id. 62). The purpose of a disciplinary proceeding is to determine a teacher's fitness to carry out his or her professional responsibilities (Bott v. Board of Education, 41 NY2d 265; Appeal of Community School Board 11, 28 Ed Dept Rep 39). The record indicates that faced with declining enrollment in Latin, respondent could have foreseen that her position would become vulnerable if she did not obtain certification to teach other foreign languages. While respondent did not seek additional certification until June 1990, I find that she took several steps over the past several years to increase enrollment in Latin at both the high school and middle school levels. Although ultimately unsuccessful, I find that respondent took affirmative steps to remedy the situation of declining enrollment necessary in Latin. Although it was not until June 1990 that she sought additional certification, it is significant that no district official ever informed her that she would not have a full-time position for the 1990-91 school year until July of the same year. Based on the foregoing and the fact that respondent's performance as a teacher is not at issue, I find no basis to conclude that the penalty imposed by the panel is so disproportionate to the offense that it should be set aside.

I have reviewed petitioner's other contentions and find them to be without merit.

THE APPEAL IS DISMISSED.

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