Decision No. 12,689

(April 28, 1992)

SOBOL, Commissioner.--Petitioner, the Board of Education of the Indian Lake Central School District, appeals from the decision of a hearing panel convened pursuant to Education Law "3020-a to review charges preferred by the district against respondent, a tenured math teacher. Petitioner seeks an order modifying the hearing panel's decision and authorizing termination of respondent's services. The appeal must be dismissed.

Respondent has been employed as a math teacher at the Indian Lake Central School District since 1977. In January 1991 petitioner's superintendent was dissatisfied with the performance of various students who had been assigned to respondent for remediation work in preparation for the math Regents Competency Test (RCT) and in connection with the Pupils with Special Education Needs program (PSEN). The superintendent investigated respondent's work with those students and directed him to submit documentation of the remediation work and his lesson plan book. On February 11, 1991 petitioner preferred eight charges against respondent, who was immediately suspended from his duties.

The eight charges can be grouped into two categories. First are charges alleging that during the 1990-1991 school year respondent failed to give exams as required by district policy, made false entries in his lesson plan book to make it appear that he had given the required exams and failed to correct homework assignments. Other charges allege that respondent failed to perform remediation work with students assigned to him during the 1990-91 school year, made false and misleading statements concerning his failure to provide remediation work during the three prior school years, involved a student in his efforts to conceal his failure to do the remediation work and failed to prepare necessary records of the remediation work. Such acts were alleged to constitute conduct unbecoming a teacher, neglect of duty, misconduct, incompetence and insubordination.

Hearings were held on July 17, 18 and 19, 1991. In a decision received by petitioner on December 2, 1991, the panel found respondent guilty of failing to give the required number of exams during the time in question, failing to correct homework assignments, making misleading but not false statements concerning the provision of remediation and failing to prepare necessary records of the remediation for the 1988-89 and 1989-90 school years. The panel found respondent not guilty of making false entries in his lesson plan book, failing to provide remediation to students assigned to him, failing to prepare necessary records of the remediation work and involving a student in his efforts to conceal his alleged failure to remediate. In regard to the charges of which respondent was found guilty, the panel determined that respondent's conduct constituted conduct unbecoming a teacher, neglect of duty and misconduct. The panel declined to find respondent's conduct as amounting to either incompetency or insubordination. In assessing a penalty, the panel took into account respondent's prior "unblemished teaching record" with the district and determined that respondent be suspended without pay for one year.

In this appeal, petitioner contends that the panel incorrectly found respondent not guilty of the remaining charges in question. 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, 502 NYS2d 991; 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" refers to "credible evidence" (Matter of Strongin v. Nyquist, 44 NY2d 943, 408 NYS2d 318, cert den 440 U.S. 901).

In connection with the charge that respondent asked a student to give false information about remediation work done by respondent, the panel found that respondent had contacted the student about the matter, but did not ask that student to give false information. I concur in that conclusion. A review of the record shows that respondent never requested the student to lie about the matter. Accordingly, petitioner has failed to meet its burden of proof on this issue. Petitioner has also failed to meet its burden of proof regarding the charges that petitioner made false entries in his plan book. While the record indicates that respondent's record keeping was below minimally acceptable professional standards, there is no evidence that he made false entries in his plan book about exams. In fact, respondent's plan book clearly shows that he did not give the required number of exams.

Petitioner also contends that the panel erred when it did not find respondent guilty of the charge that respondent intentionally falsified records involving PSEN remediation. Specifically, the charge stated that respondent submitted a record to the superintendent showing dates of remediation services when respondent, in fact, did not provide remediation. The panel concluded that while some of respondent's entries were inaccurate and misleading, petitioner had not met its burden of proof that respondent intentionally falsified the report. After reviewing the record, I again concur with the decision of the panel. Any inaccuracy in respondent's records could have resulted from his less than adequate record keeping methods.

Petitioner also maintains that the panel incorrectly found respondent not guilty of the charge that he failed to provide RCT and PSEN remediation to students assigned to him, "as required by New York State Education Regulations." The record shows that the remediation provided by respondent was lackadaisical. However, the remediation provided did not violate the Regulations of the Commissioner of Education. Since respondent was charged with failing to comply with the Commissioner's Regulations in the provision of remediation and the record indicates that respondent's remediation efforts did not violate the regulations, the panel properly found respondent not guilty of that charge.

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 nature of the penalty (Shurgin v. Ambach, 83 AD2d 665, 442 NYS2d 212; aff'd 56 NY2d 700; Matter of McNamara v. Commissioner, 80 AD2d 660, 436 NYS2d 406). This requires an assessment of the measure of discipline and whether it is proportionate to the offense (Matter of Mockler v. Ambach, 79 AD2d 745, 434 NYS2d 809, lv to app den 53 NY2d 603, 439 NYS2d 1026; Matter of Kloepfer v. Commissioner, et al., 82 AD2d 974, 440 NYS2d 785; Shurgin v. Ambach, supra). While the actions for which respondent has been found guilty are serious, I conclude that dismissal is not warranted in this case. In light of the fact that respondent's prior service indicates that he can be an effective teacher and discharge his duties in a professional manner, I find that respondent's suspension without pay for one year is a sufficient penalty to impress upon him the severity of his conduct and to serve as a warning against such conduct in the future.

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

THE APPEAL IS DISMISSED.

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