Decision No. 12,804

(September 15, 1992)

David M. Israel, Esq., attorney for petitioner

SOBOL, Commissioner.--Petitioner, Ephraim Matis, challenges the suspension by the Board of Education of the City School District of the City of New York's Office of Pupil Transportation ("OPT") of his certification to drive a school bus. The appeal is sustained.

The petition in this case was served on May 14, 1992. Because respondent failed to answer, on June 29, 1992, and again on July 28, 1992, my Office of Counsel apprised respondent of the Regulations of the Commissioner of Education ''275.9 and 275.13, requiring respondent to submit an answer. No answer was filed. Moreover, on July 28, 1992 and again on August 14, 1992, my Office of Counsel requested a copy of the transcript of the hearing which resulted in petitioner's suspension. Those requests were also ignored. Accordingly, respondent is in default and the allegations set forth in the petition will be deemed to be true statements that have been admitted by respondent (8 NYCRR '275.11; Appeal of Rowe, et al., 31 Ed Dept Rep 280; Appeal of Walker, 31 id. 32).

Petitioner is a school bus driver with Lonero Transit Company which is licensed and under contract with respondent to provide school bus service to the Yeshiva Beis Yakov, an orthodox Jewish girls' school. Two complaints were filed by parents of students on petitioner's bus route with the OPT. A hearing on those charges was held on January 14, 1992. The charges maintained that petitioner referred to one student as "chop suey" and "mushy tushy"; that he repeatedly gave out candy; and that he rubbed noses with and tickled a child.

Petitioner contends that he used the nickname "chop suey" to remind the student that if she did not stay seated while the bus was moving, an accident could turn her into "chop suey." He denies calling her "mushy tushy." Petitioner admits that he gave out candy, but did so only on two Jewish holidays, during which the giving of sweets is customary. He adds that he also gave candy to the adult office staff at the school during the holidays. Petitioner contends, and the decision reflects, that he did not rub noses with a child, but instead touched that child's nose with his finger while playing a game of "taking the nose." He also concedes that he tickled an emotionally upset student on one occasion, to cheer her up. Petitioner maintains that he has never acted to the detriment of the children on his bus, and that the parents' complaints are rooted in their unhappiness with having a male bus driver transport their daughters to school. Petitioner points out that respondent's orthodox beliefs mandate the strict separation of the sexes, and that their requests for a female bus driver had not been granted.

Apparently, neither the children, their parents nor an official of the Yeshiva were called to testify at the hearing, despite petitioner's request. Based on an investigation and determination of the OPT, the hearing officer held that petitioner's behavior was not of a sexual nature. She did find, however, that petitioner should not have played pinching the nose games nor should he have tickled a student or used nicknames. The hearing officer held that petitioner had acted in an unbecoming manner and had extended his association with the children to an unacceptable level. Petitioner's certification was therefore suspended from October 1991 until January 22, 1992.

Petitioner denies that he engaged in any wrongdoing, and contends that the suspension was based on the fact that he had been the subject of an unrelated prior disciplinary conference in 1990, at which he had been exonerated. He seeks to have me set aside the finding that he acted in an unbecoming manner, and to award him back pay for the period in which he was suspended.

Because I deem the assertions in the petition to be true, I find petitioner committed no wrongdoing. As to his fraternization with the students, the facts, as admitted by petitioner, do not rise to the level of unbecoming conduct. Moreover, it appears from the perfunctory decision of the hearing officer that she improperly relied, in part, on the fact that petitioner had been the subject of a prior disciplinary hearing. Even though petitioner was exonerated at that hearing, the hearing officer appears to have penalized him based upon prior unproven charges. The hearing officer's decision must therefore be reversed.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent's finding that petitioner acted in an unbecoming manner be set aside, and that respondent award petitioner back pay for the period in which he was suspended pending the outcome of the hearing.

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