Decision No. 12,637

(January 23, 1992)

Bacharach, Green & Bass, P.C., attorneys for petitioner, Arnold B. Green, Esq., of counsel

James R. Sandner, Esq., attorney for respondent, Khadijah Mohammed, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals from the determination of a hearing panel convened pursuant to Education Law '3020-a that found respondent guilty of incompetence, dismissed a charge of insubordination and imposed a penalty of suspension without pay for one year. Petitioner asks that I reverse the panel's decision on the charge of insubordination and authorize termination of respondent's services. The appeal must be sustained in part.

Respondent, Declan Troy, serves in the K-6 tenure area in the Pleasantville Union Free School District, primarily as a sixth grade science teacher. On January 17, 1989, the board of education found probable cause to prefer charges against respondent pursuant to Education Law '3020-a. The first charge alleged incompetence, inefficiency, incapacity to teach and neglect of duty, based on nine specifications. The second charge alleged insubordination, based on seventeen specifications. Respondent requested a hearing which was held on sixteen separate days over a period of fifteen months.

On December 7, 1990, the hearing panel rendered a decision finding respondent guilty of the charge of incompetence, inefficiency, incapacity to teach and neglect of duty and dismissing the charge of insubordination. The panel authorized the board of education to suspend respondent for one year.

The panel's determination of guilt was based on its findings that respondent failed to submit appropriate teaching plans during the 1988-89 school year; demonstrated unsatisfactory teaching effectiveness during the 1986-87, 1987-88 and 1988-89 school years due to poor instructional skills in the presentation of lessons; exhibited poor use of instructional time during the 1987-88 and 1988-89 school years; lacked effective student management techniques from the 1986-87 school year through the 1988-89 school year; and failed to provide differentiated instruction for his students during the same time period.

In reaching its decision, the panel relied, in part, on testimony of respondent's principal that respondent failed to submit lesson plans during the 1988-89 school year that contained appropriate student objectives and reflected appropriate organization of lessons. In addition, the testimony of respondent's principal and two other administrators indicates that respondent continuously failed to elicit feedback from students to ascertain their understanding of lessons, failed to assist students in correcting mistakes, failed to manage classroom participation properly, failed to provide structure in activities and failed to provide differentiated levels of instruction. The record also indicates that respondent made poor use of instructional time by showing an inordinate number of films during his science laboratory class, rather than involving his students in laboratory activities. The record not only indicates that respondent exhibited significant deficiencies as a teacher over a period of three years, but also reveals that respondent was placed on "job targets" - a program implemented in petitioner's district to assist teachers in improving performance in targeted areas. Despite that assistance, which included conferences, written observations, receipt of professional articles regarding methodology, and opportunities to observe other teachers and review sample lesson plans, respondent's teaching effectiveness, classroom management techniques and ability to provide differentiated instruction did not improve.

In its appeal, petitioner contends that the panel erred in dismissing four of the specifications under the charge of incompetence and in dismissing the charge of insubordination. Petitioner also contends that, even without modification of the panel's findings, the penalty imposed is too lenient and termination of respondent's services is warranted. Respondent does not contest the panel's findings, but seeks a reduction of the penalty.

Petitioner contends that the panel erred in dismissing four of the specifications underlying the incompetency charge which alleged that respondent failed to instruct students with due regard to the safe use of a striker and bunsen burner; failed to prepare teaching plans during the 1986-87 school year; failed to correct handouts during the 1986-87, 1987-88 and 1988-89 school years; and failed to have materials available for substitute teachers during the 1986-87 school year. Upon review of the record, I find no basis to substitute my judgment for that of the panel in regard to those specifications. Neither the testimony nor exhibits petitioner offered at the hearing substantiate its allegations. With respect to the specification relating to teaching safe use of a striker and bunsen burner, the panel weighed the testimony presented by the parties and credited that of respondent and another science teacher in finding the charge unsubstantiated. The panel also credited respondent's testimony refuting the specifications alleging that he failed to prepare lesson plans and also failed to have materials available for substitute teachers during the 1986-87 school year. I will not substitute my judgment for that of a hearing panel as to the credibility of witnesses unless the panel's decision is contrary to the weight of the evidence and the hearing panel has not adequately explained its rejection of otherwise convincing testimony (Appeal of the Board of Education of the City School District of the City of New York, 30 Ed Dept Rep 306; Appeal of Le Pore, 28 id. 425; Matter of Community School Board No. 18 of the City of New York, 21 id. 216). On the record before me, I find no basis for substituting my judgment for that of the panel on its findings regarding credibility and, consequently, will sustain the panel's findings on those three specifications. Finally, although the panel noted a few instances where respondent distributed incorrect handouts to his classes, I agree with the panel's determination that those few occasions were not representative of respondent's performance in that area and do not support a finding of guilt on the specification alleging a failure to distribute correct handouts. Therefore, I find no basis to upset the panel's determination with respect to the fourth specification.

The panel also dismissed the charge of insubordination. That charge essentially reiterated the specifications set forth under the charge of incompetence but alleged that, despite the directives of his superiors, respondent failed to improve his performance. To sustain a charge of insubordination, petitioner must prove that the teacher's actions were wilful, or in deliberate defiance of a direct order or an established rule (Appeal of the Board of Education of Community School District No. 24 of the City School District of the City of New York, 30 Ed Dept Rep 445; Matter of the Board of Education of the City School District of the City of Elmira, 23 id. 163). I have reviewed the record and find no basis to conclude that respondent's conduct constituted defiance of authority. As the panel found, respondent failed to perform his job in a satisfactory manner. Poor performance, however, does not automatically constitute defiance of authority. Indeed, the record indicates that respondent attempted to meet the goals set by his superiors and implemented suggestions for improvement, albeit unsuccessfully. Failure to improve, without evidence of defiance, does not itself constitute insubordination. Even with respect to the finding that respondent showed too many films in class, the record does not establish that petitioner issued a clear directive that respondent purposely disregarded (see, Matter of the Board of Education of the Spencerport Central School District, 24 Ed Dept Rep 329). Thus, I find that the panel properly dismissed the charge of insubordination.

Turning to the question of penalty, it is well settled that I may substitute my judgment for that of the hearing panel as to the penalty imposed (Shurgin v Ambach, 83 AD2d 665, aff'd, 56 NY2d 700; Matter of Levyn v Ambach, 56 NY2d 912; Matter of McNamara v Commissioner, 80 AD2d 660). The purpose of a disciplinary proceeding is not punitive, but to determine a teacher's fitness to carry out his or her professional responsibilities (Matter of Bott, 41 NY2d 265; Appeal of Le Pore, 28 Ed Dept Rep 425; Matter of Board of Education of the Brookhaven-Comsewogue UFSD, 21 id. 244). Having considered the basis upon which the panel made its finding of incompetence, I find that suspension for one year is insufficient in this instance and that dismissal is warranted. The conduct underlying the finding of incompetence does not involve an isolated incident, but rather indicates general deficiencies in respondent's teaching ability continuing over a period of several years. The panel found respondent's conduct to be significantly inconsistent with the requirements and responsibilities that a teacher must continually perform. Although the panel's decision implies that respondent may be able to demonstrate competence as a teacher in the future, I find no basis for its conclusion. As the record establishes, respondent was repeatedly advised of the need for improvement and was placed on a formal improvement program. However, as the panel noted, although the board of education provided respondent with opportunities to demonstrate his competence, he failed to do so.

Dismissal is appropriate upon a showing of incompetence (Matter of Linfield v Nyquist, 65 AD2d 846, aff'd 48 NY2d 1005; Appeal of the Board of Education of the Monroe-Woodbury CSD, 26 Ed Dept Rep 103; Matter of Board of Education of Clinton CSD, 21 id. 152). A school district may not be required to employ an incompetent teacher in the hope that he or she will eventually improve (Appeal of Board of Education of the Monroe-Woodbury CSD, 26 Ed Dept Rep 103). Moreover, in light of the past opportunities provided to respondent to improve his performance and his continuing failure to do so, I find no basis to return him to the classroom to further deprive his students opportunities for adequate instruction (see, Matter of Board of Education of the Clinton CSD, supra; Matter of Board of Education of Community School District No. 5, 20 Ed Dept Rep 462). Therefore, the appropriate penalty is dismissal.

THE APPEAL IS SUSTAINED IN PART.

IT IS ORDERED that the penalty imposed by the hearing panel in this matter is annulled, and petitioner is authorized to terminate the services of respondent.

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