Decision No. 12,780

(August 18, 1992)

Harder, Silber and Bergan, Esqs., attorneys for petitioner, Michael F. Bergan, Esq., of counsel

Bernard F. Ashe, Esq., attorney for respondent, Kevin H. Harren, Esq., of counsel

SHELDON, Acting Commissioner.--Petitioner appeals from the determination of a hearing panel convened pursuant to Education Law '3020-a. The panel found respondent guilty of five charges of insubordination, one charge of incompetence, one charge of conduct unbecoming a teacher, and one charge of neglect of duty and conduct unbecoming a teacher. The panel also found respondent not guilty on nineteen other charges. The panel imposed a penalty of suspension without pay for three semesters. Petitioner asks that I reverse the panel's not guilty findings, and authorize termination of respondent's services. The appeal must be dismissed.

Respondent has been a teacher in the building trades program at the Albany-Schoharie-Schenectady BOCES since September 1971. He taught continuously until June 1984, when he was discontinued because of a reduction in teaching staff. He was recalled to work in September 1986, and continued to teach in the building trades program until his suspension on May 17, 1988.

On May 16, 1988, petitioner board determined that probable cause existed with respect to twenty-four charges including incompetence, insubordination, neglect of duty, and conduct unbecoming a teacher. On May 23, 1988, the board voted three additional charges alleging insubordination, neglect of duty, and conduct unbecoming a teacher. Respondent requested a hearing on all charges, which were consolidated. Hearings were conducted on twenty separate days between November 4, 1988, and August 10, 1990; the record contains more than 2300 pages of testimony and 97 exhibits.

On January 23, 1991, the hearing panel rendered its decision, which is seventy pages in length. The panel report addresses each charge in substantial detail, and is thorough and well written. The panel found respondent guilty of the following: charge 3, insubordination in failing to comply with a written directive to remove a storage area constructed in his shop; charge 5, insubordination in failing to obtain a signed work order from a customer for work to be performed by his students; charge 9, insubordination in failing to follow written instructions requiring that his students wear safety glasses while performing certain work operations in class; charge 11, insubordination in failing to follow written instructions with respect to allowing space for a carpentry apprentice program which also used respondent's classroom outside regular school hours; charge 15, incompetence in failing to maintain discipline among students and to enforce BOCES rules of conduct consistently; charge 16, conduct unbecoming a teacher in using inappropriate language on one occasion with another employee; charge 18, neglect of duty and conduct unbecoming a teacher in failing to attend a required professional staff meeting; and charge 23, insubordination in failing to submit a requisition for supplies by an established deadline.

Petitioner appeals from all nineteen of the not guilty determinations made by the panel. Petitioner also appeals from the penalty as too lenient, and requests that I authorize termination of respondent. Although petitioner demands reversal of all of the nineteen not guilty findings, its brief focuses on only seven of those charges.

Respondent contends that all nineteen not guilty findings were proper, does not challenge the findings of guilt on the other eight charges, and does not challenge the penalty imposed. Respondent requests only that the petition be dismissed.

When Robert Waldorf returned to BOCES in September 1986, he claims that his classroom/shop was in extremely poor condition, that there were inadequate quantities of tools and building materials, and that there was no proper storage space for materials, although a storage crib or shed had existed in the same room in the spring of 1984 when he last taught. In addition, the illness of another teacher at the beginning of the school year required the shifting of classroom assignments. During the 1986-1987 school year, Mr. Waldorf was involved in a number of disagreements with administrators over the building of a new storage crib or shed, the building of a garden shed for an outside purchaser, and alleged failures on the part of his classes to clean up the shop area. During that academic year, Mr. Waldorf's classroom/shop area was also used by a carpentry apprentice class apparently sponsored by a local union outside of school hours. At the hearings held in this disciplinary proceeding, considerable testimony was devoted to arguments over whether the BOCES students or the apprentice students were responsible for the alleged condition of the shop.

During the 1987-1988 school year, further clashes between Mr. Waldorf and various administrators occurred. Considerable testimony was devoted to accounts of Mr. Waldorf's alleged failure to keep order in the classroom, with numerous students testifying both for petitioner and for respondent. Their accounts were widely divergent.

During this second school year several serious incidents allegedly occurred which brought matters to a head and resulted in a disciplinary proceeding. Early in the second semester, in February 1988, Mr. Waldorf filed a work order for the construction of a house, approximately 24 feet by 40 feet, which he planned to place on a lot he owned in the Adirondacks. While this large building was under construction (in sections, so that it could be moved to the actual site), Mr. Waldorf was involved on March 14, 1988, in an incident with the mother of one of his students. Although it appears that the woman was also a BOCES employee, who visited the classroom/shop in the course of her employment, she observed what she found to be deplorable conditions in the room, and was thoroughly dissatisfied with the responses she received from Mr. Waldorf with respect to her son's progress. On April 27, 1988, a shipment of large 12 by 12 timbers was delivered to Mr. Waldorf's shop for use in the house project, and on April 28, 1988, the district banned any further work on the house project if it involved the movement or use of the timbers. According to Mr. Waldorf, that directive effectively ended the project, caused his students to become extremely angry with the administration, and led to further conflict. On May 16, 1988, petitioner board voted charges and on May 17, 1988, respondent was suspended.

Petitioner asks me to override the decision of the panel with respect to all nineteen not guilty findings. However, because petitioner has set forth no rationale for reversal except with respect to charges 6, 7, 8, 10, 13, 17 and 25, I will only consider those charges.

Charges 6 and 7 allege incompetence, insubordination, and conduct unbecoming a teacher with respect to the failure of respondent's students to use safety glasses on October 22, 1987. The panel considered these charges and found respondent guilty of a related charge of failing to comply with later written instructions given on November 2, 1987, with respect to the wearing of safety glasses. I accept the panel's reasoning for finding respondent guilty of the one charge but not guilty of the other two charges, in that prior to the November 2, 1987 memo there was arguably some doubt as to petitioner's policy or rule with respect to the use of safety glasses in certain situations.

Charge 8 alleges incompetence and conduct unbecoming a teacher in allowing students on two occasions in October 1987, to use inappropriate language in answering a call from the principal's office over an intercom. The panel correctly pointed out that there was no evidence that respondent had "allowed" any of his students to answer the intercom in that manner, and properly dismissed the charge. Charge 10 alleges insubordination in failing to follow written directions in a November 5, 1987 memorandum dealing with the incidents alleged in charge 8. The panel found that respondent had done nothing inconsistent with the memorandum, and that he did indeed speak to his students about the use of profanity as the memorandum directed. I find that this charge was also properly dismissed.

Charge 13 alleges incompetence on March 17, 18, and 28, 1988, for respondent's failure to provide lesson plans for substitute teachers and appropriate work for students during his absence. The panel noted that during this time period virtually the entire class was engaged in working on the house project, which involved delegation of authority to student foremen and further delegation to work crews. Although the substitute teacher had difficulty finding a certain notebook left for him by respondent, the panel found that the students could proceed on the project by drawing up further plans for the house's wall system. It was the panel's opinion that respondent had left a lesson plan, "within a fair meaning of the term," and that students did perform appropriate work during his absence. I concur.

Charge 17 alleges incompetence and conduct unbecoming a teacher because of respondent's meeting with a parent on March 14, 1988. The panel appropriately noted that the parent came to respondent's classroom not in her capacity as a parent, but as a BOCES staff member on a tour of respondent's classroom/shop. When the parent began to discuss her own son's progress, respondent became somewhat abrupt with her. The panel found that the parent did not act appropriately in raising her concerns about her son while respondent was trying to teach a class, and refused to conclude that under all the attendant circumstances respondent's conduct was unbecoming a teacher. I accept the panel's reasoning.

Charge 25 is one of a series of charges dealing with the construction of the house for respondent's own use. The panel found respondent not guilty of charge 25 and not guilty of related charges 21, 22, 24, 26, and 27. Charge 25 alleges insubordination, conduct unbecoming a teacher, and neglect of duty in contracting for the construction of a building using BOCES shops, equipment, and student labor, where respondent had both an interest in the contract and a duty to authorize or approve the contract. Although respondent filed an executed work order, the principal never approved the project. The panel report first analyzed related charge 21, and concluded that the district's own rules for work projects not only permit work to be done for BOCES employees, but give priority to such work. Because it concluded that there was nothing improper about respondent having a project done for himself under charge 21, it also refused to sustain charge 25. In discussing charges 25, 26, and 27, the panel wrote: "These three charges have as their common core the assumption that it was improper for Respondent to have had the house project done for his benefit. Having reached an opposite conclusion in Charge 21, the Panel must likewise reject Charges 25, 26 and 27. Parenthetically, the Panel believes that the fact pattern surrounding this project does not implicate the provisions of the General Municipal Law cited by the District, nor is the Panel of the mind that Respondent's intentions in having the project done by his class was to save money or to achieve any other personal gain." Although I am concerned about this aspect of the case, as will be further discussed below, I will not set aside the panel's conclusion based upon the conflicting evidence in the record.

For the reasons set forth above, I decline to substitute my judgment for that of the hearing panel with respect to its findings on the specific charges discussed.

Petitioner further claims that the penalty imposed is too lenient, and requests that I substitute my judgment for that of the panel and authorize termination. Where the penalty recommended is disproportionate to the offense, I may substitute my judgment for that of the hearing panel (Matter of Mockler v. Ambach, 79 AD2d 745, lv to app den 53 NY2d 603; Matter of Kloepfer v. Commissioner, 82 AD2d 974, aff'd 56 NY2d 687; Matter of Shurgin v. Ambach, 83 AD2d 665, aff'd 56 NY2d 700).

On the question of a proper penalty, both parties have recognized the central importance of the panel's finding of guilt on charge 15. That charge generally alleged incompetence in failing to maintain discipline in the classroom throughout the 1986-1987 and 1987-1988 school years. The testimony at the disciplinary hearings devoted more time to this subject than to any other charge or group of charges, the panel report discusses it in detail, and the papers before me on this appeal deal with it in detail. Testimony was received by the panel from numerous students, administrators, and teachers on the topic of classroom discipline and order, and that testimony, as noted above, diverged widely. Petitioner contends, and to some extent the record supports, that respondent failed to motivate the less talented and less interested students, allowed smoking in the classroom, allowed playing of games during class time, allowed damage to student projects and school property, and allowed students to leave the classroom to visit a local store during class time. Some witnesses claimed that these were routine, frequent occurrences, while others claim either that they did not occur at all, or that they were infrequent occurrences and that respondent took action to punish violators when he became aware of violations.

The record also presents a picture of a teacher faced with substantial difficulties, some students who were neither interested nor willing to learn and participate in class activities. The record also indicates that, even with those students who were frequently described as "non-workers," respondent did make repeated efforts to interest and involve them in the classroom.

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; Matter of Board of Education of the Pleasantville Union Free School District, 31 id. 262). In this case, the panel competently summarized the testimony, and found petitioner guilty of incompetence yet recommended suspension rather than termination. Under all the circumstances of this case, I do not find the penalty recommended disproportionate to the offense, and I hereby dismiss the appeal.

I am concerned about the procedures by which "outside projects" are accepted and approved for construction in BOCES classes. Among the "rules and regulations" found on the back of the district's work order form is the following (rule 9): "All projects must be approved by the Principal of this school and the instructor of the shop involved." It is clear from the record that the BOCES administration has not enforced this rule for some time, if ever. The principal testified that "routine" projects are not discussed with him, nor are they approved by him. The panel observed that there was no clear definition of what was "routine," nor was there any kind of past practice whereby teachers could reasonably distinguish "routine" projects from "non-routine." Through its failure to enforce or modify its own rules, petitioner district has created a fertile ground for controversy, and has invited the type of conflict of interest problem evident here. I strongly urge petitioner to review its policies in this area, and to guard against situations where teachers or other BOCES personnel may be accused of improperly approving projects for their own benefit.

I have reviewed the other contentions of the parties, and I find them without merit.

THE APPEAL IS DISMISSED.

END OF FILE

---