Decision No. 12,649

(February 6, 1992)

SOBOL, Commissioner.--Petitioner, the Board of Education of the Eastchester Union Free School District, appeals from the determination of a hearing panel dismissing 24 of 33 charges preferred against respondent, a tenured principal, and recommending a penalty of a fine in the amount of $2,500. Respondent cross-appeals from the panel's determination of guilt on the remaining charges. The appeal must be dismissed. The cross-appeal must be sustained.

On October 11, 1984, petitioner board of education preferred charges against the respondent, John F. Sullivan, a tenured principal. In December 1984, a new set of 33 charges was preferred and the first set was withdrawn. A panel was constituted and hearings were held between February 25, 1985 and September 26, 1988. Three of the charges were dismissed by the panel in March 1986. On or about September 25, 1989, the panel found respondent guilty of nine of the remaining charges and recommended a penalty of a fine in the amount of $2,500. Both parties appealed.

Petitioner contends that the hearing panel made numerous errors of law and fact in its decision. Petitioner requests that I substitute my judgment for that of the panel, find the respondent guilty of all charges, except charges 21, 22, 32 and 33, and recommend a penalty of dismissal. Petitioner also alleges that although the charges for which the respondent was found guilty were so egregious as to warrant dismissal, the panel erroneously considered the impact that this case has already had on the school system when it determined that a suspension would not benefit the school system, and only imposed a penalty of a fine. Petitioner requests that with respect to the panel's findings of guilt, I increase the penalty to dismissal.

Respondent contends that the petition fails to comply with the pleading requirements set forth in 8 NYCRR '275.10 because it does not specifically identify the charges appealed from. Respondent further contends that prosecutorial misconduct so pervaded the proceeding as to deprive respondent of due process of law. Respondent argues that petitioner failed to sustain its burden of proof and requests that I substitute my judgment and dismiss the findings of guilt.

As a preliminary matter, I must address respondent's contention that the petition was defective because it fails to comply with 8 NYCRR '275.10, which states in pertinent part: "[t]he petition shall contain a clear and concise statement of the petitioner's claim showing that the petitioner is entitled to relief. . . Such statement must be sufficiently clear to advise the respondent of the nature of petitioner's claim and of the specific act or acts complained of." While the petition in this case may not be organized in the most logical or clear manner, the regulation only requires it to be sufficiently clear to advise the respondent of petitioner's claim. Moreover, the degree of specificity required in an appeal from a determination of a hearing panel pursuant to Education Law '3020-a, where an extensive factual record is developed, is not as great as that required in appeals pursuant to Education Law '310 where there is no hearing record (Appeal of the Bd. of Ed. of the South Central CSD, 30 Ed Dept Rep 143; Appeal of the Bd. of Ed. of the Sweet Home CSD, 25 id. 457, aff'dsubnom. Roy v. Ambach, et al., Albany Co.S.Ct. [2/10/87]). Accordingly, I find that the petition meets the pleading requirements of 8 NYCRR '275.10.

The remainder of this decision is divided into five sections. The sections group together similar charges and address petitioner's contention that the panel made errors in fact and law when it failed to find respondent guilty of certain charges, as well as respondent's contention that petitioner failed to meet its burden of proof.

The burden of proof in a teacher tenure hearing under Education Law '3020-a is with the complainant. Guilt may only be found on a charge or specification where there is a preponderance of credible evidence to support that charge (Martin v. Board of Education, 65 NY 2d 975 [1986]; Matter of the Bd. of Ed. of the City of New York, 29 Ed Dept Rep 302 [1990]). The Commissioner of Education, however, has the power to substitute his judgment for that of the hearing panel on findings of fact. In matters involving credibility of witnesses, however, I have repeatedly held that "where the panel determination rests in a major part on determination of witness credibility, I will not substitute my judgment for that of the panel unless there is clear and convincing evidence that the determination of credibility is inconsistent with the facts" (Matter of LePore, 28 Ed Dept Rep 425 [1989]; Matter of Community School Board No. 18, 21 id. 216 [1981]), or 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 (Matter of Shurgin v. Ambach, 56 NY2d 700 [1982]; Matter of McNamara v. Commissioner, 80 AD2d 660 [1981]; Matter of NYC Bd. of Ed., 24 Ed Dept Rep 284 [1985]; Matter of Bd. of Ed., Sewanhaka CHSD, 23 id. 463 [1984]; Matter of NYC Bd. of Ed., 26 id. 544 [1987]). I now turn to the merits of this case.

Charges 1-6

Petitioner, in charges 1-6, alleged that respondent improperly created and used private funds -- the "Principal's Fund" and the "Miscellaneous Fund" -- without petitioner's approval. The monies in these funds consisted of interest generated from student activities accounts. Petitioner further alleged that respondent expended money from an account known as the "School Improvement Fund" on entertainment without appropriate authorization. The panel found respondent guilty of the three charges dealing with the "Principal's Fund," not guilty of the two charges dealing with the "School Improvement Fund" and not guilty of the charge dealing with the "Miscellaneous Fund." The panel found that respondent knew that the "Principal's Fund" was created from interest earned on student extracurricular activities, and should have realized the impropriety of this procedure, notwithstanding the fact that the previous board and its superintendent knew of the practice and took no steps to discontinue it.

In accordance with General Municipal Law '36, school districts are authorized to maintain only those funds which are prescribed by the State Comptroller as a part of the Uniform System of Accounts, i.e., the general reserve fund; special revenue funds; the capital projects fund; the debt service fund; and the trusts and agency funds. In addition to the funds authorized by the State Comptroller, school districts may also maintain accounts on behalf of students for extracurricular activities. The regulations require boards of education to "make rules and regulations for the establishment, conduct, operation, and maintenance of extra-classroom activities and for the safeguarding, accounting and audit of all moneys received" (8 NYCRR '172.2).

In the instant matter, the record shows that petitioner never adopted rules and regulations as required by 8 NYCRR Part 172, until after charges were preferred against respondent. Petitioner appears to have had a policy in effect during the period at issue which delegated the responsibility to make such rules and regulations to its "administration." The policy further appears to delegate responsibility for the financial management of student extracurricular accounts to "the school principal." Because petitioner failed to adopt a comprehensive set of rules and regulations as required by 8 NYCRR Part 172, petitioner's extracurricular accounts were managed in a somewhat disorganized fashion. Petitioner, through its business manager, created an accounting system where all student activity funds were placed into one interest bearing account. Apparently, the lump sum interest from all of the activities was placed into one discretionary fund originally called the "Miscellaneous Fund" and later known as the "Principal's Fund." The former superintendent testified that he not only approved this procedure, he defended it when it was criticized by outside auditors. He also testified, as did former board members, that petitioner board, as it was constituted at the time of the alleged incidents, was aware of the "Principal's Fund" and the "Miscellaneous Fund" due to regular reports it received on them. Neither the board nor the superintendent directed respondent to discontinue these funds.

The record also reveals that reports on these funds were made to the State Comptroller as part of petitioner's annual report on extracurricular activity funds. At the end of each school year any remaining funds were transferred into the "School Improvement Fund." The "School Improvement Fund" was used to beautify the school and to provide refreshments for students and parents who donated their time to improve the school facilities.

Petitioner has failed to demonstrate that respondent attempted to conceal any of these accounts from petitioner, the State Comptroller or other reviewing authority. Further, there was no evidence showing that respondent used the money for entertainment of himself, teachers, or "friendly board members"; the record clearly shows that these funds were used for student activities. Moreover, petitioner's argument that respondent failed to use good and prudent business practices by failing to have student counter-signature on all requests for expenditures must fail because petitioner had no policy requiring such a signature, and made no attempt to put one into effect until after this proceeding was commenced.

I find that the omissions of petitioner board were directly at fault here, not the actions of the respondent. By delegating its responsibility under 8 NYCRR Part 172, petitioner board failed to comply with the regulation. Although, it may not have been the wisest business practice to create these accounts and use them in the manner described in this case, absent a specific directive from petitioner that the creation of these funds was impermissible, or that expenditures from such funds were unacceptable, respondent's conduct is not actionable in an Education Law '3020-a proceeding.

Accordingly, I will substitute my judgment for that of the panel and reverse the panel's findings of guilt on charges 1, 2 and 6 and uphold the panel's dismissal of charges 3, 4 and 5 (Panel Decision, pp. 53-56 and 69).

Charges 7-20 and 23

Fifteen charges relate to respondent's alleged abuse of his position by having personal services performed by district employees at his home. The panel found respondent guilty of four of eight charges relating to work allegedly performed by a school custodian and dismissed the remaining charges relating to work allegedly performed by a teacher.

The charges involving the custodian allege that respondent coerced the custodian to perform work for him at his home below the fair market value. The panel noted that the custodian's testimony was "unclear, confusing or not credible on some points." The record indicates that this witness repeatedly contradicted himself on the stand. His confusion on so many issues does not permit the fact-finder to distinguish when the witness was credible and when he was not. This is not to imply that this witness lied. There was clearly a language barrier. Further, the transcripts of the hearings indicate that he frequently did not understand the questions asked of him. It appears that he may have been swayed by whoever questioned him in an effort to supply the answer he believed the questioner wanted to hear. In addition, his testimony was contradicted by many other witness.

Further, petitioner's efforts to impeach this witness were in error. A party may not impeach his own witness (58 NY Jur 2d, Evidence and Witnesses '944 [1986]; Richardson, Evidence ''509 and 510 [10th ed. 1973]; People v. Wallace, 17 AD2d 981 [1962]; People v. Minsky, 227 NY 94 [1919]). Accordingly, the hearing panel erred by permitting petitioner's former counsel to testify solely to impeach the witness' recollection that he was coerced. The panel's findings of fact are devoid of any reference to whether it considered the former counsel's testimony and whether it effected the panel's determination of the custodian's credibility. The possibility that the custodian actually was, or believed he was, coerced or threatened is very real and it was error for the panel to ignore its impact.

I find that with respect to the credibility of the custodian, respondent has met his burden of demonstrating clearly and convincingly that the panel's ultimate determination that the custodian was credible, is inconsistent with the record in this matter (Matter of LePore, supra; Matter of Community School Board No. 18, supra). I further find that the panel erred in failing to consider the possibility that the custodian may have been coerced or threatened, or believed he was coerced or threatened, into testifying against the respondent. Accordingly, I will substitute my judgment for the panel's and find respondent not guilty of charges 11, 12, 13 and 14 (Panel Decision, pp. 57-58 and 69).

The remaining charges in this category involved work allegedly performed by a shop teacher at respondent's home. The panel found that the shop teacher had a private property maintenance business and performed work for respondent in connection with that business. The panel further found that there was a personal friendship between the shop teacher and respondent, and that there was no evidence that the teacher was coerced into performing the work. Accordingly, the panel held that petitioner failed to sustain its burden of proof.

Petitioner contends that the panel erroneously required that "coercion" be a necessary element of this charge. It cites Hadden v. Consolidated Edison Company (45 NY2d 466), as support for the proposition that the mere acceptance of a "favor" from a subordinate is implicitly coercive as a matter of law. Petitioner's reliance on Hadden is misplaced. In Hadden, the employer, Consolidated Edison, prohibited its employees from accepting bribes or gifts from those doing business with Consolidated Edison. When asked, the employee, Hadden, denied that he had accepted any bribes or gifts. Consolidated Edison disallowed Hadden's monthly pension benefits when it subsequently discovered that Hadden had indeed accepted $16,000 in bribes or gifts. Based in part upon the parties concession that acceptance of the gifts or bribes was a violation of Consolidated Edison's rules, the Court upheld Consolidated Edison's disallowance. In the instant matter, there was no rule prohibiting respondent from accepting work performed by a subordinate. Moreover, there is no evidence to suggest that there were any bribes, or that the work was done as a "favor." The panel found that a service was performed by the teacher, and was paid for by respondent. The Hadden case is therefore not controlling.

Petitioner has not demonstrated that the panel erred in its findings on these charges. Accordingly, I find no basis to substitute my judgment for the panel's determination on charges 15, 16, 17, 18, 19, 20 and 23 (Panel Decision pp. 56-57 and 69).

The circumstances surrounding this group of charges, though not rising to the level of actionable conduct, nevertheless underscore the need for parties to be extremely cautious when entering into relationships outside the school setting where one party is subordinate to the other in their official capacities. The possibilities of overreaching and, at the very least, the appearance of impropriety are heightened and parties should take care to avoid this result.

Charges 24-26

Three charges alleged that respondent received goods from a former student without proper payment, and that he took school district materials for his private use. The panel determined that petitioner's witnesses on these charges were not credible and that petitioner failed to sustain its burden of proof.

Petitioner attempted to present the testimony of the former student to prove the first allegation. The student took the stand and refused to testify, invoking his Fifth Amendment right against self-incrimination. The record shows that this student had received over 80 disciplinary referrals in three years and had been suspended for misconduct by respondent at least seven times. Petitioner then sought to prove the first allegation through the testimony of one of the student's former teachers, in whom the student allegedly confided. Over respondent's hearsay objection to her testimony, the teacher repeated the alleged incidents as they were described to her by the student. The panel, in determining that there was no probative evidence to support this allegation, noted that "the district's attempt to portray this incident was blatantly unfair. The entire panel was outraged by this testimony" (Panel Decision p. 59). Petitioner alleges that the panel erred in determining that there was no probative evidence on this charge and that the panel should have applied an exception to the hearsay rule. Without addressing the hearsay issue, I find that petitioner simply has not met its burden of proof (Martin v. Board of Education, supra; Matter of the Board of Education of the City of New York, 29 Ed Dept Rep 302 [1990]). I have reviewed the testimony on this matter and find no reason to disturb the panel's findings.

A former school custodian testified that he allegedly saw respondent remove district property from the school. The record shows that prior to the 3020-a hearing, this former custodian was himself charged with possessing district property which respondent identified at a police search of the former custodian's home. The panel did not believe this witness was credible, and believed this witness had a strong motive to lie. Petitioner has not demonstrated clearly and convincingly that the panel's determination of credibility is inconsistent with the facts (Matter of LePore, supra; Matter of Community School Board No. 18, supra), or that the panel's decision is contrary to the weight of the evidence and that it has not adequately explained its rejection of otherwise convincing testimony (Matter of Shurgin v. Ambach, supra; Matter of McNamara v. Commissioner, supra; Matter of NYC Bd. of Ed., 24 Ed Dept Rep 284 [1985]; Matter of Bd. of Ed., Sewanhaka CHSD, supra; Matter of NYC Bd. of Ed., 26 Ed Dept Rep 544 [1987]).

Accordingly, there is no basis for me to substitute my judgment for the panel's findings on charges 24, 25 and 26 (Panel Decision pp. 59 and 69).

Charges 27-30

Four charges alleged insubordination for respondent's failure to appropriately respond to a series of correspondence beginning on August 22, 1984 and ending on October 26, 1984. The panel found respondent guilty of two of these charges. The first charge involved an August 22, 1984 request from petitioner's superintendent to respondent directing him to furnish a list of names and dates that a school district employee performed a personal service for him. It did not state whether the information requested was for services provided on school time or personal time. Respondent, assuming the request was for services performed on school time, replied on August 24, 1984 and indicated that no such services were performed. The panel found respondent not guilty of this charge and noted that, while the tone of the response was troubling, respondent furnished an adequate response within the stated time frame. On charge 27 (Panel Decision pp. 61 and 69), I find no grounds upon which to substitute my judgment.

The second charge of insubordination relates to respondent's reply to a letter from the president of petitioner board to respondent dated August 27, 1984, which indicated that respondent's August 24, 1984 reply to the superintendent's letter was inadequate and evasive. The letter further directed respondent to provide the information requested for all personal services provided by school employees regardless of when or where they were performed. Respondent's August 31, 1984 reply questioned whether the board president was acting in her official capacity or as a private individual. Respondent suggested that if the board president furnished him with the board minutes authorizing her inquiry, he would be happy to comply with the request. The panel, in finding respondent guilty of insubordination on this charge, believed that respondent should have first complied with the board president's request, and then respondent could have availed himself of the grievance process. Respondent disputes the panel's finding of guilt on this matter, and argues that because boards of education are corporate bodies, individual board members lack authority to direct employees to perform specific tasks. Respondent further argues that petitioner's own Board Policy Nos. 8120 and 9280, which are based upon Education Law ''1701 and 1709, prohibit individual board members from undertaking action on behalf of the board without proper authorization of the board. Respondent concludes that because the board president lacked authority to make the request, he could not have been insubordinate.

Boards of education are corporate bodies that may only act upon a majority vote of the entire board (Education Law ''1601, 1701, and 2501; General Construction Law '41). Insubordination is defined as the "willful or intentional disregard of lawful and reasonable instructions of the employer" (Black's Law Dictionary 720, rev. 5th ed., 1979; see also, Corrigan v. E.M.P. Producing Corp., 179 AD 810 [1917]; Boyle v. Petrie Stores Corp., 136 Misc.2d 380 [1987]). The issue in charge no. 28 is whether the directive given by the board president was a "lawful and reasonable instruction of the employer." I find that it was not. As noted in an earlier Commissioner's decision, "[t]he Superintendent of schools, as well as all other employees of the school district, is not subject to the direction or order of any individual member of the board. Whatever direction is given must be given by the board" (Appeal of Bruno, 4 Ed Dept Rep 14 [1964]; citing, Coughlin v. Cowan, 21 Misc.2d 667). Clearly then, individual board members do not have the authority to direct the actions of district employees. Petitioner believes that respondent should be dismissed for his alleged insubordination, and cites Appeal of DeLee (52 St Dept Rep 47) in support of its contention that respondent was insubordinate when he failed to follow the directive of the board president. I find that Appeal of DeLee is not dispositive. Unlike the instant matter, the school district in Appeal of DeLee was governed by a sole trustee, who unquestionably, had the authority to direct the actions of a school district employee. Failure to do so is properly considered insubordination. Here, however, the record is completely devoid of any evidence suggesting that the board president had specific authority to direct the petitioner to act. Without such authority, respondent cannot be guilty of insubordination (See, e.g., Boyle v. Petrie Stores Corp., supra). Accordingly, I will substitute my judgment for that of the panel and find respondent not guilty of charge 28 (Panel Decision pp. 65 and 69).

The third charge of insubordination relates to a second letter sent by the board president to respondent on September 4, 1984. She directed respondent to provide the information requested in the prior letter by September 5, 1984, but this time indicated that she had approval of the board to take this action. In a timely manner, respondent supplied the information requested. The panel found that respondent directly answered the September 4, 1984 letter and determined that he was not guilty of insubordination. I have reviewed the record and find no basis to substitute my judgment for that of the panel on charge 29 (Panel Decision pp. 65 and 69).

The final charge of insubordination relates to respondent's alleged failure to properly respond to an October 26, 1984 inquiry from petitioner's superintendent. To understand the context of this charge, some background information is necessary. On October 12, 1984, petitioner's superintendent sent respondent a letter requesting the names of the organizations respondent contacted on behalf of his fruit company, as well as the dates and times of the contacts. On October 16, 1984, respondent's attorney wrote a letter to petitioner's superintendent on respondent's behalf. Respondent's attorney informed the superintendent that respondent did not solicit customers or business during school time. On October 26, 1984, petitioner's superintendent sent to respondent a second letter directing him to provide the following information:

Respondent was advised that if he failed to provide the requested information, he would be charged with insubordination. On November 1, 1984, respondent's attorney sent another letter to petitioner's superintendent which indicated that he believed his earlier letter addressed this concern. He further stated that insofar as the request related to disclosure of lawful activities on "nonschool district time," it was beyond the scope of the district's authority. The panel found respondent guilty of insubordination on this charge. The panel again noted that respondent should have first answered the inquiry and then availed himself of the grievance process if he believed that the inquiry was improper.

Respondent argues that the inquiry violated his fundamental right to privacy. He contends that because the inquiry was not narrowly directed to respondent's official duties, respondent was not compelled to respond. Further, respondent argues that his reliance on the advice of counsel, even if mistaken, negates the element of willfulness necessary to sustain a charge of insubordination. It is not necessary for me to reach respondent's arguments because I find that respondent did respond to the more limited inquiry of petitioner's letter dated October 26, 1984. In respondent's letter from his counsel dated November 1, 1984, he referred to his letter dated October 16, 1984, where he indicated that respondent had "neither solicited customers nor business on school district time." That response directly answered petitioner's inquiry. Accordingly, I will substitute my judgment and find respondent not guilty of insubordination on charge 30 (Panel Decision pp. 65 and 69).

Charge 31

This charge alleged that respondent abused his position of public trust by undermining the morale of his staff. The panel, in concluding that respondent was not guilty of this charge, determined that this charge related to nothing more than a difference in management style between staff and respondent. Petitioner has not demonstrated any reason for me to substitute my judgment for the panel's on charge 31 (Panel Decision pp. 67 and 69).

A comment on the perseverance of petitioner in this matter is in order. "[T]he primary purpose of a disciplinary proceeding is not punitive, but rather, to determine a teacher's fitness to teach and to carry on professional responsibilities" (Appeal of the Bd. of Ed. of the Goshen CSD, 30 Ed Dept Rep 181, 187; Matter of Bott v. Bd. of Ed., 41 NY2d 265 [1977]). There was no indication that respondent was unfit to carry out his responsibilities as a school administrator. The charges in this proceeding fell quite short of being "substantiated and substantial." The zeal with which this case was prosecuted is troubling. Except for an isolated disputed evaluation just prior to the commencement of the charges, respondent had an unblemished record in petitioner's employ. As I noted in Goshen, supra, "[t]his case raises serious questions about the use of the '3020-a process for multiple charges that largely lack substance and, in only one instance, even approach the level of teacher misconduct. This is particularly troubling where the district, in its eagerness to bring charges, neglects to provide the teacher with notice and adequate opportunity to comment on allegations before taking formal action. In such cases, one must question whether the extraordinary expenditure of time, energy and resources is warranted. Given the high stakes in such proceedings and the obvious diversion of resources, I urge the district to consider less drastic alternatives to resolve personnel matters that, on the whole, fail to rise to the level of serious misconduct."

I have considered the remaining contentions of the parties and consider them to be without merit.

THE APPEAL IS DISMISSED.

THE CROSS-APPEAL IS SUSTAINED.

IT IS ORDERED that the determination of the hearing panel with respect to charges 1, 2, 6, 11, 12, 13, 14, 28 and 30 and the imposition of a fine in the amount of $2,500 are hereby annulled.

END OF FILE

Increase Penalty

Petitioner alleges that, in determining the penalty, the hearing panel erroneously took into consideration the impact of this case upon the community when assessing the penalty and that petitioner's guilt on the nine charges is sufficient to warrant a more severe penalty, namely, dismissal. "[T]o warrant dismissal of a tenured teacher, the charges must be both substantial and substantiated" (Appeal of the Bd. of Ed. of the South Country CSD, supra at 146; Appeal of the Board of Trustees of CSD No. 6, 29 Ed Dept Rep 33; Matter of the Bd. of Ed., North Syracuse, 23 id. 1). Thus, only in cases where it has been determined that "a person is unfit to teach would a penalty of dismissal be appropriate" (Appeal of the Bd. of Ed. of the Goshen CSD, supra).

A finding of insubordination warrants dismissal where there are repeated instances of failing to follow directions and where there is no indication that the disciplined individual will be likely to comply with future directives. (Appeal of Board of Education of the Commack UFSD, 24 Ed Dept Rep 62 [1984]). In the instant matter, I find that respondent's single act of insubordination was an isolated occurrence arising in the context of this disciplinary proceeding and which, given his previously unblemished record, is unlikely to recur. Accordingly, I find that there is no reason for me to substitute my judgment and increase the penalty. I find that the penalty imposed by the panel of a fine in the amount of $2,500 is appropriate.

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