Decision No. 12,673

(March 20, 1992)

SOBOL, Commissioner.--Petitioner appeals from the determination of a hearing panel convened pursuant to Education Law '3020-a, which dismissed charges preferred against respondent. The appeal must be dismissed.

Respondent is a tenured physical education teacher who has been employed by petitioner since 1974. On December 6, 1989 petitioner charged respondent with conduct unbecoming a teacher based on respondent's alleged inappropriate physical relationship with a female student and his failure to cooperate with the investigation of petitioner's Office of Inspector General. Hearings were held on seven separate dates, beginning March 16, 1990 and ending December 5, 1990. During the course of the hearings, all specifications of the charges that alleged misconduct occurring prior to December 6, 1986 were dismissed as time barred under Education Law ''3020-a(1) and 2573(8). In addition, petitioner withdrew some of the specifications alleging that respondent lied to district investigators. The panel met in executive session on January 17, 1991. In an undated decision received by petitioner on August 30, 1991, the panel held that petitioner had not met its burden of proof and dismissed all the remaining charges.

In this appeal, petitioner contests the dismissal of the charges which allege that respondent engaged in inappropriate physical activity with a female student between December 6, 1986 and the end of the 1986-87 school year. The burden of proof in a teacher tenure hearing pursuant to Education Law '3020-a is on the complainant. Guilt may only be found on a charge if there is a preponderance of evidence to support the charge (Martin v. Board of Education, 67 NY2d 975; Matter of the Bd. of Ed. of the City School District of the City of New York, 29 Ed Dept Rep 302). The term "evidence" used in those cases refers to "credible evidence" (Matter of Strongin v. Nyquist, 44 NY2d 943, cert den 440 U.S. 901).

In matters involving credibility of witnesses, it has repeatedly been held that if the panel determination rests in major part on a determination of witness credibility, the Commissioner of Education will not substitute his 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 Community School Board No. 18 of the City of New York, 21 Ed Dept Rep 216; Matter of Le Pore, 28 Ed Dept Rep 425). Stated another way, the Commissioner of Education will not ordinarily substitute his judgment for that of a hearing panel as to the credibility of witnesses testifying at a hearing, 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; Matter of McNamara v. Commissioner, 80 AD2d 660; Matter of Bd. of Ed. of the City School District of the City of New York, 24 Ed Dept Rep 284; Matter of Bd. of Ed., Sewanhaka CHSD, 23 id. 463; Matter of Bd. of Ed. of the City School District of the City of New York, 26 id. 544). Thus, for me to substitute my judgment in this matter there must be facts sufficient to demonstrate in a clear and convincing fashion that the panel was wrong on its determination of credibility of the witnesses. For the reasons set forth below, I find that the panel's decision is not contrary to the weight of the evidence.

Regarding the alleged improper physical relationship between the female student and respondent, the student testified at the hearing that she had told a school social worker all the details of the relationship. The student also testified that she wrote about the relationship in her diary. However, the social worker's testimony contradicted the student's, and a review of the student's diary failed to confirm that she had made contemporaneous entries about the relationship. The record further indicated that the student admitted lying to a school counselor about some aspects of the relationship. The student also testified as to how she would gain access to the school gym before school started, to meet with respondent before other students and teachers arrived. That testimony was contradicted by testimony of the school custodian, the chairperson of the physical education department and several other teachers who habitually arrived at school early. Based on the above, petitioner has failed to demonstrate by clear and convincing evidence that the panel erred in determining credibility. Accordingly, I find no basis to substitute my judgment for that of the panel.

My review of the record also failed to support petitioner's contention that the panel failed to consider all of respondent's testimony, including his statements to the Office of Inspector General. The record further fails to support petitioner's contention that the panel refused to find respondent guilty without an independent eyewitness to corroborate the allegation of misconduct.

Petitioner also alleges that the panel committed reversible error when it permitted a licensed school social worker to testify as to conversations held with the student. In support of that contention, petitioner cites CPLR '4508, which provides:

Petitioner's reliance upon that section is misplaced. The school social worker is a paid employee of the school district who does not receive compensation from students or their parents. No decision of the courts or the Commissioner of Education has yet granted privileged status to communications between a student and school personnel. Even if communications between the school social worker and the student were privileged, such privilege is not absolute. A privilege may be waived (McKinney v. Grand Street, Prospect Park and Flatbush Railroad, 104 NY 352; People v. Bloom, 193 NY 1). Waiver need not be expressed; it will be implied where the person holding the privilege testifies respecting privileged communications (People v. Shapiro, 308 NY 453; Hughson v. St. Francis Hospital of Port Jervis, 93 AD2d 491).

In this instance, the student testified in some detail as to the substance of her conversations with the school social worker. The student testified as to why she approached the social worker, when the conversations occurred, the frequency of those conversations, the nature of her statements to the social worker and the social worker's response. Accordingly, any privilege that may have existed for those conversations was waived when the student testified at the hearing. The panel did not err when it allowed the social worker to testify as to the conversations in question.

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

THE APPEAL IS DISMISSED.

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