William H. Caulfield, Esq., attorney for petitioner

Hon. O. Peter Sherwood, Corporation Counsel, attorney for respondent, John L. Harrisingh, Esq., of Counsel

SOBOL, Commissioner.--Petitioner, a tenured teacher in respondent district, appeals from the determination of a hearing panel, rendered pursuant to Education Law '3020-a, which found her guilty of incompetency, insubordination, and neglect of duty based on l4 specifications of misconduct. The appeal must be dismissed.

Petitioner is a special education teacher who has worked for the New York City Board of Education for 2l years. She was transferred to P.S. 20l in September l987 and assigned to teach a fourth grade "MIS I" (Modified Instructional Services) class for students with learning disabilities.

On September 28, l988, respondent charged petitioner with 44 specifications of misconduct constituting neglect of duty; incompetent and inefficient service; and conduct unbecoming her position and prejudicial to the good order, efficiency and discipline of the service. These charges relate to observations made by supervisors between March and June l988.

Petitioner demanded a hearing which took place over eight days between February and May of l990. On September l0, l990, the panel issued its findings that petitioner was guilty of l4 of the 44 specifications of misconduct: five specifications of incompetency for failure to implement a behavior management system in her classroom on three separate dates, four specifications of insubordination and neglect of duty by failing and refusing to develop lesson plans in accordance with her supervisors' instructions, and five specifications of various other pedagogic shortcomings. The panel recommended the penalty of suspension without pay for one year. The panelist appointed by the employing board dissented as to the penalty and recommended dismissal from employment.

Respondent contends that the appeal is untimely since this appeal was not instituted within a two-week extended time period permitted by my Counsel's Office and contends that service of the petition was defective in that it was not personally served as required under Section 275.8 of the Regulations of the Commissioner of Education.

An appeal instituted to challenge the determination of a hearing panel constituted pursuant to '3020-a of the Education Law is considered timely if it is commenced within 30 days of receipt of the decision sought to be reviewed (Matter of Board of Education of the West Babylon Union Free School District, 27 Ed Dept Rep 4l5; 8 NYCRR '275.16). Petitioner received the hearing panel decision on September 25, l990.

Petitioner effected personal service of the petition on a timely basis on October l7, l990 - which is within 30 days of receipt of the hearing panel's decision, as required by the regulations. However, the original petition contained an error in the notice required by 8 NYCRR '275.ll. By letter dated November l2, l990, my Office of Counsel advised petitioner of the error and indicated that the appeal would be considered timely if a corrected petition was served and filed within two weeks of the date of that letter.

Within the two weeks, on November 26, l990, petitioner personally served a copy of the corrected petition on the Board of Education of the City School District of the City of New York at the direction of my Office of Counsel; and on December 3, l990, as a supplementary measure, petitioner mailed a copy of the corrected petition to Community School District No. 25. Respondent contends that the petition mailed on December 3, l990 was improperly served and untimely. However, in view of the fact that on October l7, l990, petitioner personally served respondent in accordance with 8 NYCRR '275.8 and '275.16, that on November 26, l990 petitioner personally served the corrected petition on the Board of Education of the City School District of the City of New York at the direction of my Office of Counsel, and because respondent has not been prejudiced by the improper notice contained in the original petition (Matter of NYC Bd. of Ed., 22 Ed Dept Rep 48), I will not dismiss the appeal based on respondent's procedural objections.

Petitioner bases this appeal on a misunderstanding of the Education Law. Petitioner argues that Community School Board No. 25 acted in an arbitrary and capricious manner by failing to review the recommendations of the hearing panel and failing to make a formal determination on whether to accept or reject the hearing panel's findings.

Petitioner's argument is based on the previous language of subdivision 4 of '3020-a, which was amended by Chapter 82 of the Laws of l977. The previous version gave the employing board the discretion to accept or reject the hearing panel's findings and the authority to fix the penalty or punishment, if any, by majority vote. Under the previous version, only the employee had the right to appeal under subdivision 5 of '3020-a and that appeal was from the decision of the employing board, not from the findings of the hearing panel as in current law.

However, subdivision 4 of Education Law '3020-a currently provides that the recommendations of the hearing panel are binding on the employing board:

The employing board has no discretion. If the employing board disagrees with the panel's findings, it can appeal to the Commissioner of Education or to the courts by special proceeding under Article 78 of the Civil Practice Law and Rules (Education Law '3020-a[5]).

Petitioner further contends that Community School Board No. 25 neglected its legal duty when it failed to interview petitioner prior to preferring charges against her or thereafter. Petitioner was afforded a full opportunity to present her case before the hearing panel; hearings were held over eight days between February l989 and May l990. The employing board had no legal duty to interview petitioner.

Finally, petitioner contends that the penalty imposed is inappropriate. Petitioner does not appeal from the hearing panel's findings of incompetency, insubordination, and neglect of duty stemming from l4 specifications of misconduct. These findings are substantiated by a preponderance of evidence on the record and involve substantial misconduct: teaching without lesson plans and teaching with incomplete lesson plans in contravention of supervisors' directives, failure to maintain physical control of students in the classroom, failure to maintain the attention of students in the classroom, failure to implement a behavior management system in contravention of supervisors' directives, poor usage of the blackboard, contradictory instructions on the blackboard, unclear oral instructions to students, unclear lesson aims, and poor questioning technique.

While 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, 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.

Petitioner was given substantial assistance by her supervisors during the l987-88 school year, as well as by assigned teacher trainers and other peer professionals in an effort to resolve her problems. However, petitioner ignored the directives and advice of supervisors and assigned peer professionals and continued to teach without lesson plans or with inadequately prepared plans. Petitioner failed to implement a behavior management system in her classroom, although she was advised by supervisors and peer professionals to do so. No effective teaching can take place in a classroom that is out of control. Petitioner's pedagogic shortcomings were serious.

I find the penalty imposed by the hearing panel to be appropriate in light of petitioner's substantial misconduct and her willful failure to remedy teaching deficiencies during the school year.

THE APPEAL IS DISMISSED.

END OF FILE.

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