Decision No. 12,748

(July 17, 1992)

Neal Howard Rosenberg, Esq., attorney for petitioner

Hon. O. Peter Sherwood, Corporation Counsel, attorney for

respondent, Jordan Sklar, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals from the determination of a hearing panel convened pursuant to Education Law '3020-a finding him guilty of excessive absences and lateness, and of neglect of duty, insubordination, incompetence and inefficient service, and recommending that he be terminated from his position. The appeal must be dismissed.

Petitioner is a tenured teacher of special education. He has been employed by respondent City School District of the City of New York (the district) for approximately 22 years. On December 19, 1990, respondent found probable cause to prefer charges against petitioner pursuant to Education Law '3020-a. Five specifications charged petitioner with excessive absences and lateness, along with neglect of duty, insubordination, incompetence, conduct unbecoming a teacher and inefficient service. At petitioner's request, a panel convened, and a hearing was held on seven days between April 12, 1991 and June 4, 1991. On the first day of the hearing, petitioner's attorney was present, but petitioner himself did not appear. The attorney explained that, to his knowledge, petitioner was not present because he had injured himself that morning. In fact, as the panel and the attorney subsequently learned, petitioner was in court that day seeking an order enjoining the '3020-a proceeding.

Petitioner failed to obtain a restraining order, and the hearing continued on April 19, 1991. Again, petitioner failed to attend. Although his attorney appeared, the attorney informed the panel that because petitioner had not cooperated in his defense, he was withdrawing as petitioner's attorney. The attorney assured the panel that he had discussed the matter with his client, and that petitioner was aware of the attorney's decision. The panel chairperson excused the attorney and decided to proceed with the hearing in petitioner's absence. The chairperson, however, directed the stenographic reporter to expedite a transcript of the day's proceedings, and ordered copies of the transcript forwarded to petitioner at his home and place of employment, by overnight carrier. The chairperson advised petitioner on the record of his obligation to appear, with or without new counsel, at the next scheduled hearing date on April 29, 1991.

On April 24, 1991, the chairperson wrote to petitioner, reminding him of his obligation to appear at the hearing. In that letter he stated:

Petitioner appeared at the hearing on April 29, 1991. He informed the panel that he had not yet obtained new counsel, but that he wished to do so and did not want to represent himself. Consequently, he asked the panel to postpone the hearing so that he could retain a new attorney. The chairperson denied his request, stating that petitioner had had sufficient time and notice to obtain counsel. Petitioner proceeded to represent himself on April 29, April 30, May 15, May 16 and June 4, 1991. On each of those occasions, he repeated his request for an adjournment to obtain counsel. His requests were denied.

In July 1991, the panel found petitioner guilty of excessive absences and lateness, neglect of duty, insubordination, incompetence, conduct unbecoming a teacher and inefficient service. The panel recommended that petitioner be terminated from his position. This appeal ensued.

Petitioner alleges that numerous procedural irregularities deprived him of a fair hearing. First, he contends that he was denied the effective assistance of counsel. Tenured employees are entitled to be represented by counsel in '3020-a proceedings (Education Law '3020-a[3][c]). Lack of counsel in an administrative proceeding, however, is not a basis, in and of itself, for reversal of the administrative decision (Alvarez v Bowen, 704 F Supp 49, 52; see, Matter of Prokopiw v Commissioner of Education, 149 AD2d 874, 875, appealdismissed 75 NY2d 809; Matter of Sasson v Commissioner of Education, 127 AD2d 875, 876). Rather, where the right to counsel is created by statute, lack of counsel "'[does] not affect the validity of the hearing unless the claimant demonstrates prejudice or unfairness in the proceeding'" (Alvarez v Bowen, 704 F Supp 49, 52-53, quoting Heisner v Secretary of Health, Educ. and Welfare, 538 F2d 1329). The relevant inquiry, therefore, is whether petitioner was prejudiced by his lack of counsel (id.). I find that he was not.

The record suggests that petitioner knew, even before April 19, 1991, of his attorney's decision to withdraw. In any event, the panel chairperson twice advised petitioner of his right to counsel and his obligation to appear at the hearing. Petitioner had at least one week to obtain new counsel before the next scheduled hearing date, April 29, 1991. Although I am not deciding the time generally required to retain an attorney (indeed, the length of time varies greatly, depending on the circumstances), petitioner himself suggests that he should have been afforded three working days for this purpose. The record confirms that he had more than three days between the second and third hearing dates, and significantly more time than that, before the remaining dates. Moreover, petitioner provides no evidence that he even attempted to retain a new attorney.

It is apparent, after reviewing the record, that the panel chairperson conducted the hearing properly and fairly, ensuring that the record was fully developed (see, Alvarez v Bowen, 704 F Supp 49, 53, supra). Indeed, the chairperson assisted and instructed petitioner throughout the hearing, aggressively protecting his procedural rights. One must consider, as well, that petitioner's own actions caused his attorney to withdraw in the first instance. In light of the foregoing, I cannot conclude that petitioner was prejudiced by his lack of counsel.

Petitioner argues that he was deprived of the opportunity to cross-examine a key witness, Maria Negron. Ms. Negron appeared on the first day of the hearing, April 12, 1991, as a witness for respondent. At that time, petitioner's attorney subjected Ms. Negron to rigorous cross and re-cross examination, and, given petitioner's absence, reserved the right to recall her for further cross-examination, if necessary. Petitioner later subpoenaed Negron to testify on his behalf. She appeared again on May 15, 1991. Although he was given broad latitude in his questioning of Ms. Negron, the chairperson did not allow petitioner to attack the witness' credibility. Petitioner contends that this violated his procedural rights.

The chairperson's ruling was correct, under the circumstances. Although he would have been entitled to do so, petitioner never invoked the right to re-cross examination preserved by his former attorney. To the contrary, his questioning of Negron on May 15, 1991 was exclusively direct examination. This distinction notwithstanding, I would find no violation of petitioner's due process rights, in any event, in light of his attorney's previous cross-examination, and the extensive questioning to which petitioner subjected Negron on May 15 (see, Matter of Lucas [Hartnett], 161 AD2d 993; Matter of Radoff v Board of Educ. of City of New York, 99 AD2d 840, affd 64 NY2d 90).

Next, citing the "best evidence" rule, petitioner alleges that the chairperson erred by permitting respondent to establish petitioner's attendance record with evidence other than original time cards. (Time cards could not be located for use at the hearing, because they apparently had been lost during an office move.) This argument must fail. The "best evidence" rule provides that, if a party wishes to prove the contents of a document, the document itself should be introduced in evidence. In this case, however, respondent introduced an official document entitled, "School Record of Teacher's Absence" (SRTA) which properly established petitioner's absences for the 1987-88, 1988-89 and 1989-90 school years. The best evidence rule does not apply, therefore, because the SRTA independently established petitioner's attendance record - it was not used to prove the contents of the missing time cards (see, Flynn v Manhattan and Bronx Surface Transit Operating Auth., 61 NY2d 769).

Compliance with the technical rules of evidence, in any event, is not required in '3020-a hearings unless admission of technically inadmissible evidence will violate fundamental fairness (Education Law '3020-a[3][c]; Matter of Carangelo v Ambach, 130 AD2d 898, 900, appealdenied 70 NY2d 609; Appeal of City School Dist. of City of Elmira, 30 Ed Dept Rep 68, 71). Petitioner's attorney objected to the SRTA, because petitioner had not initialed sections relating to 1988-89 and 1989-90. He had initialed the 1987-88 section. As the panel observed, however, the school payroll secretary (who was thoroughly cross-examined by petitioner's attorney) authenticated the SRTA. Petitioner introduced no evidence to suggest, even tangentially, that the SRTA was inaccurate or that he was, in fact, present on any of the dates set forth in the charges. There is, therefore, no basis to find that introduction of the SRTA violated fundamental fairness.

Petitioner also contends that he was improperly precluded from introducing medical evidence justifying his absences. I find that the panel chairperson's rulings on this issue were proper. Even if the chairperson had allowed the introduction of such evidence, however, an employee whose physical condition results in absences so numerous as to impair his effectiveness as a teacher is still subject to a charge of incompetence (Appeal of Board of Educ. of West Babylon Union Free School Dist., 27 Ed Dept Rep 415, 417). Because I find petitioner's absences sufficiently numerous to impair his effectiveness as a teacher, the introduction of medical evidence would not have affected the outcome of this case.

Finally, petitioner argues that the panel chairperson failed to advise him of his right to testify on his own behalf. This argument is belied by the record, which confirms that the chairperson plainly advised petitioner of the right to present his own testimony. Petitioner also complains that the chairperson allowed discussion of a prior '3020-a proceeding which had resulted in a three-month suspension. There were at least two minor references to petitioner's earlier suspension. The first reference, made by a member of the panel, was simply to clarify a notation on an exhibit. Petitioner's attorney was present at the time, and did not object. The second reference was made by petitioner himself. Correctly, the chairperson explained to the parties and the panel that prior '3020-a proceedings could not be used to determine guilt - that they were relevant only to the issue of penalty. Petitioner's allegation of prejudice is, consequently, without basis.

Petitioner also contends that the panel chairperson made arbitrary and capricious rulings throughout the hearing, and that he demonstrated bias against petitioner. For petitioner to be entitled to a new hearing, he must demonstrate "actual" bias against him (Amos v Board of Educ. of Cheektowaga-Sloan Union Free School Dist., 54 AD2d 297, affd 43 NY2d 706). There is no evidence of bias in the record before me. Having reviewed the entire record, I find that the panel's determination of guilt is supported by a preponderance of the credible evidence.

In his appeal, petitioner has not addressed the issue of penalty. I find, nonetheless, that the panel's recommendation should be upheld. Considering the educational disruption that his conduct has occasioned for his students, along with his failure to learn from a prior '3020-a conviction, petitioner's absences and latenesses alone constitute neglect of duty, incompetent service and conduct unbecoming a teacher, justifying the termination of his services (Appeal of Cuoco, 31 Ed Dept Rep 95, 98). To impose the penalty of dismissal, charges pursuant to Education Law '3020-a must be both substantial and substantiated (id.). On the record before me, I find that this standard has been satisfied.

THE APPEAL IS DISMISSED.

END OF FILE

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