Decision No. 12,607

(December 11, 1991)

Hon. Victor A. Kovner, Corporation Counsel, attorney for respondents, Pedro Medina, Jr., of counsel

SOBOL, Commissioner.--Petitioner brings two appeals relating to the denial of his application for a license to teach mathematics in the City School District of the City of New York (the district). The first appeal challenges an unfavorable performance evaluation which respondent board of examiners considered in denying petitioner's application. The second appeal challenges the ultimate denial of petitioner's application. Given the similarity of issues presented, I have consolidated the two appeals for decision. Each must be sustained in part.

Petitioner holds a license as a substitute teacher in biology and general science in the district. He has a long history of substitute teaching assignments. Between October 1987 and February 1988, petitioner taught eighth grade mathematics at I.S. 162X in the Bronx. By letter dated February 10, 1988, the principal of I.S. 162X, respondent Sklar, informed petitioner that he had decided to terminate petitioner's employment at the school because of unsatisfactory classroom management. Petitioner's termination became effective February 15, 1988.

Notwithstanding petitioner's dismissal, respondent Sklar completed an "annual professional performance review" (APPR) of petitioner's service in June 1988. Inexplicably, respondent Sklar rated petitioner's overall performance on the APPR as "satisfactory," finding that he had performed satisfactorily in all 23 categories listed on the standardized APPR, including classroom control.

In 1989, petitioner applied for a permanent license to teach mathematics in the district's day high schools. Pursuant to its bylaws, the board of examiners (the board) reviewed petitioner's employment record. In connection with its review, the board requested respondent Sklar to complete a standardized form, different from the APPR, to rate petitioner's performance at I.S. 162X. Respondent Sklar completed this form on September 16, 1989, rating petitioner unsatisfactory in "competence in instruction" and "capacity for developing character and securing the respect and cooperation of pupils." On July 19, 1990, following a personal interview, the board found petitioner's employment record unsatisfactory, and denied his application for a mathematics license on that basis. Petitioner appealed the denial of his application on September 27, 1990. His appeal was dismissed by respondent Office of Recruitment, Personnel Assessment and Licensing (ORPAL) on November 25, 1990. These appeals ensued.

The board of examiners gave several reasons for assigning petitioner's record an unsatisfactory rating. First, the board cited respondent Sklar's September 16, 1989 report which, as indicated, rated petitioner's service unsatisfactory in two out of five areas. Petitioner contends that the board should not have relied on that report, given its inconsistencies with the June 1988 APPR. On the record before me, I agree. Respondents have submitted no evidence to reconcile the glaring inconsistencies in the two reports. Although the APPR was a part of the record before the board and ORPAL, respondents never attempted to solicit an explanation for respondent Sklar's inconsistency. I find respondents' disregard for the APPR to have been gross error, and highly prejudicial to petitioner. Consequently, I find the board's reliance upon the September 16, 1989 report unreasonable.

On his application for a teaching license, petitioner indicated that he had never been discharged from a job. The board cited this response as an intentional failure to disclose his termination from I.S. 162X. Petitioner disagrees. Having carefully reviewed the record, I reach the following conclusions. Petitioner asserts that his departure from I.S. 162X was based on a mutual agreement between himself and respondent Sklar. Had respondent Sklar never submitted the APPR, petitioner's characterization, that his termination was based on a decision reached by "mutual agreement", would be somewhat questionable, as respondent Sklar's letter dated February 10, 1988, strongly suggests that he unilaterally terminated petitioner. In completing the APPR, however, respondent Sklar officially informed petitioner, in June 1988, that his teaching performance had been satisfactory in every respect. Petitioner received the APPR well before he submitted his application in 1989. Consequently, given the unexplained inconsistencies in respondent Sklar's reports, I find there is credible evidence to support petitioner's assertion that he genuinely believed his termination was by mutual agreement. It is my determination, therefore, that petitioner's response on his application was not intended to mislead the board, and that respondents erred in relying on this response as a basis for denying petitioner's application.

The board and ORPAL further stated that petitioner's application was denied because of his history of short-term teaching assignments. This argument ignores the reality that, as a licensed substitute teacher, petitioner was hired expressly for short-term assignments. Respondents suggest that petitioner may, nonetheless, have had the opportunity for longer term assignments. However, petitioner has submitted evidence that, for the two years preceding his application, he chose only to accept per diem employment, so that he could prepare for the licensing examination in mathematics. Indeed, the record indicates that, after completing a mathematics certification program sponsored by respondent board of education, petitioner attempted the licensing examination in mathematics in 1988 and, by his own admission, "failed very badly." Thereafter, he voluntarily enrolled in mathematics courses at a local community college, and hired a private tutor to assist him in his studies. Consequently, when petitioner took the examination again in 1989, he passed. There is nothing in the record to explain why respondents board and ORPAL disregarded this evidence. I must conclude, therefore, that the board's finding relating to petitioner's short-term assignments is an insufficient basis for the denial of petitioner's application.

The final reason given for denying petitioner's application was an unfavorable recommendation from one of his former employers in the private sector. In his appeal to ORPAL, petitioner submitted evidence that that recommendation had been unauthorized and that, in fact, his services with that employer had been satisfactory. The record indicates that ORPAL accepted petitioner's arguments, and respondents do not address the matter on appeal. Consequently, I need not address the issue here.

It is well settled that the Commissioner of Education will not set aside a determination of the board of examiners except upon a showing of clear and convincing evidence that such determination was rendered through malice, prejudice, bad faith or gross error (Matter of Lubin, 24 Ed Dept Rep 271, 272-273). In light of the foregoing, I find that respondent board committed gross errors that seriously prejudiced its review of petitioner's application. This matter is therefore remanded for an appropriate determination consistent with this opinion.

THE APPEALS ARE SUSTAINED TO THE EXTENT INDICATED, and

IT IS ORDERED that, consistent with this opinion, respondent ORPAL shall reconsider petitioner's application for a license to teach mathematics in the day high schools of the district.

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